#### Dexter Walker, Plaintiff in Error, *versus*William Haskell.

A judgment creditor told the officer, who had charge of his execution, to do the best he could with it, and that he, the creditor, would take no advantage;— this was held a good defence for the officer in an action of the case against him by the judgment creditor, for not arresting his debtor in execution.

The writ of error in this case was brought to reverse a judgment rendered in the Circuit Court of Common Pleas, holden for this county in November, 1812.

The original action was brought by *Haskell*against *Walker,*as a deputy sheriff for the county of *Oxford,*and was in case for not arresting the body of one *Jeremiah Glidden,*upon an execution against him, and in favor of the said *Haskell.*

The action was tried in the court below upon the general issue of not guilty, and a verdict returned for the plaintiff for the amount of his judgment against *Glidden.*A bill of exceptions, filed by the defendant and signed and sealed by the chief justice of the Circuit Court, contains a detailed statement of the testimony of the several witnesses, and of the instructions of the court to the jury-

The evidence was in substance as follows: The execution was delivered to the defendant, and the messenger who delivered it called on him some time afterwards, by desire of the plaintiff, to inquire whether he had collected the * amount. [ * 178 ] The defendant made no direct reply, and seemed disinclined to say much about it; and on being asked whether he had seen *Glidden,*he told the witness that he must not be too inquisitive ; and at last said he would settle the business, or send the money by th.e witness' the next time he came round, the witness being a mail carrier. *C. Holland*testified that, when *Glidden*was arrested on *Haskell’s*original writ, he became his bail, receiving for indemnity from *Glidden*a promissory note of one *Hosley*for 60 dollars, payable to *Glidden,*and not negotiable. After learning that the execution was in *Walker’s*hands, he carried *Glidden*to him, and surrendered him in discharge of his bail bond, and at the same time delivered *Hosley’s*note to *Walker,*who did not then arrest *Glidden;*being told by him that he could not then satisfy the ex ecution, and that he would see the creditor, and settle the business with him, or deliver himself to *Walker*and go to prison before the return day of the execution. The witness supposed *Hosley’s*note to be good when he delivered it to *Walker,*but had since learned *168that it had at that time been principally paid. Some time before the judgment was rendered against *Glidden,*he was possessed of a chaise and horse, worth 100 dollars; but the witness did not know that he possessed any property after the judgment, except *Hosley’s*note. The witness told *Haskell*what had taken place respecting the execution, who replied that he was glad *Walker*had the execution, and desired the witness to tell him *to do the lest he could with the execution, and that he would take no advantage;*and the witness told him accordingly. *Hosley*testified that *Glidden*had boarded with him, had made a partial settlement, and agreed to let him have a horse in part payment, and that he owed *Glidden*nothing.

The defendant produced several witnesses, and amongst them *Glidden,*the debtor, from all whose testimony it appeared that he was very poor, and, if committed on the execution, would have sworn out of jail.

* The Court instructed the jury that *Glidden,*at the time when *Holland*brought him to *Walker,*being in possession of a note, not discredited, for 60 dollars, that fact was evidence that he had property to that amount, and was a strong presumption that, if he had been committed to prison, he would have paid the debt; and that it appeared *Walker*so believed, by accepting the note in the manner testified; that *Haskell,*when he told *Holland*that he wished *Walker*to do the best that he could with the execution, and would take no advantage of him, evidently alluded to the taking of said note, and to what *Holland*had stated to him ; that it was *Walker’s*duty to have returned the note to *Glidden*or to *Haskell*by the return day of the execution; and that, having taken the note, and kept it, and called on *Hosley*for payment, if it was of no value, it was his own fault, and not *Haskell’s;*and it was not competent for *Walker*to say that it was good for nothing; that it was evident that *Walker*did not rely on any orders from *Haskell*to him respecting the execution; and that his declarations to the mail carrier proved this, and amounted to an admission and acknowledgment of his liability; that *Glidden*having credit for his board, it was a fair presumption that, if arrested, he might have obtained credit enough to secure the debt of *Haskell;*and that *Haskell*had a right to insist on his arrest for that purpose ; and that, upon this view of the facts, if the jury should be of opinion that it was the duty of *Walker*to have taken *Glidden*in execution accordingly, it would be their duty to give *Haskell*in damages the amount of his demand and interest; but that the jury must decide as they thought just.

The assignment of errors applied to the several points of the said directions from the Court to the jury.

*169Sewall, C. J.,

delivered the opinion of the Court.

The record brought before us upon this writ of error is of a plea of the case, in which *Haskell*is plaintiff against *Walker.*In the action *Walker*is charged with a neglect of duty as a deputy sheriff in the county of *Oxford. Haskell** avers [ * 180 ] a judgment recovered against *Jeremiah Glidden,*and an execution sued out thereon, which was intrusted with *Walker*to be served; but which he neglected to serve, although he might have arrested *Glidden*when in his presence, &c. The general issue of not guilty, pleaded and joined in this action, was tried in the Circuit Court of Common Pleas, where the jury returned a verdict for the plaintiff, with full damages, to the amount of the debt and costs. A bill of exceptions, in which certain opinions and directions of the Court, upon the evidence produced at the trial, are stated, makes a part of this record; and by the assignment, the errors in the proceedings complained of by the defendant in the original suit, now plaintiff in error, are supposed to be in the opinions and directions to the jury, which governed them in the finding of their verdict for the plaintiff.

The questions made at the trial, according to the tenor of the evidence and of the directions to the jury, as stated in the bill of exceptions, were, first, of the liability of the defendant; and, secondly, of the amount of damages, supposing him liable.

It is unnecessary, and would be improper, to examine the merits of this controversy, as to the possible result for either party, upon the evidence exhibited in the bill of exceptions; because we are satisfied that the judgment of the Circuit Court of Common Pleas must be reversed, and the consequence may be a trial of the action at the bar of this Court.

The testimony of *C. Holland*gives rise to an inquiry, which was not suggested to the jury, and from which, indeed, they were concluded by the express direction of the Court. *Holland*testified that he heard *Haskell*declare his wish to be that *Walker*should do the best he could with the execution, and rely upon it; that no advantage should be taken of him ; and that *Holland*stated to *Walkei*this declaration of *Haskell*at his particular request. ■ There was, then, some evidence for the consideration of the jury to show that the neglect of *Walker*to arrest *Glidden*was not injurious to #the plaintiff, but consistent with the discretion [ * 181 ] permitted to the officer of doing the best he could.

The arrest of *Glidden*upon the execution, when he had been arrested upon the original process when the action was commenced, and had been discharged upon bail, was certainly not necessary for the security or advantage of the creditor; as the consequence of *170not arresting him was a more efficient remedy for the plaintiff upon his bail bond. The arrest, if it had been made, must have been rather for the benefit of Holland, the surety in the bail bond, than of the plaintiff; and accordingly *Holland,*represents himself as very desirous to have *Glidden*arrested.

Upon the question of damages, there are many circumstances in the evidence which deserved the attention of the jury, from the consideration of which also they were prevented by the particular directions and the very conclusive opinions expressed by the Court.

The judgment is reversed, and the plaintiff and defendant are, either of them, entitled-to a rule upon the other party, to have a jury impanelled for the trial of the action at the bar of this Court, which will be made absolute, unless cause to the contrary be shown, &c. *(a)*

(a)

*Waterhouse*vs. Wait, post, 207.