Frost v. Dougal

Frost v. Dougal. In the Court Below, Dattip Boügal, Plaintiff; Elisha Frost, Defendant. An officer having an opportunity to levy an execution in his hands on the body or property of the debtor, is liable to the creditor, if he neglects to lew. A return of nulla bona and non est inventus is, in such case, a false return. nr* JL J:II3 was an action on the case against the defendant, as constable of New-Haven, for making a false return of nulla bona and non est inventus on an execution, in the plaintiff’s favour, against Jonathan Mix. There were special pleadings, which terminated in a demurrer. The case, as it appeared from the record, was, that the plaintiff had recovered a judgment against Jonathan Mix, and on the 14th of July, 1801, took out execution in common form ; on the 20th, he delivered it to the defendant, to be executed; on the 3d of August, Mix committed an act of bankruptcy ; on the 18th, a commission issued, under which he was, the next day, declared a bankrupt; and, on the 3d of September, the defendant returned tire execution as above. It appeared, that immediately after the defendant received the execution, he saw and conversed wdth Mix, and might have taken him ; and that Mix then had propert) sufficient to satisfy the execution, which the defendant might have taken. 1803. The Superior Court rendered judgment for the plaintiff. In this Court, the general error was assigned* Daggett and Mills, (of New-Haven) for the plaintiff in error, contended, that the officer must have a reasonable time to do his duty ; that by the act and commission of bankruptcy, Mix and his property were taken into the custody of the law, before a reasonable time had elapsed, and that he became civiíiter mortiiiis. Ingersoll and Staples, for the defendant in error, contended, that this act of bankruptcy was not the act of God, but of the debtor ; and that, if an opportunity presents to levy an execution, and the ofFicer neglects to levy, the debtor is thereafter at his risque. They cited Fish v. Aston Miles, Dalt. Off. Shff, 3, Beckforp v, Montague, and Benton v. Sutton, 1 Burr. 20, Coopery. Chitty. 2 Burr. 814, Coppendale v. Brid* gen. 1 Term Rep, 475, Smith v. Miller. T. yones 40. 2 JBsp. Rep. 1 Bos. and Pud. 24. [MAJORITY — By the whole Court,] By the whole Court, The judgment was affirmed*