a purchaser anything instead of money, he is bound to account for it to the plaintiff.'

No damages, however, can be recovered where the sale is not held or is delayed at the direction of the plaintiff or his attorney." $764. Liability for not making Return and for a false Return. -It is the duty of the officer to whom a writ has been delivered for service to return the same within the time prescribed by law with a true statement endorsed thereon of what he has done by virtue of it in the execution of its command. The return should show either that the officer has fully executed it according to its command, or, if this has not been done, then it should show a sufficient excuse for not doing so.

The time, nature and essentials of a valid return of process of various kinds are quite fully regulated by statutes in the different States, which also prescribe the method of enforcing a return and the penalties and remedies for a neglect.

But, in general, under these statutes, though perhaps not at common law, the officer is liable to the plaintiff in the writ for such damages as he may proximately sustain by reason of the officer's neglect to make any return at all. He is also liable for making a false return."

208.

Robinson v. Brennan, 90 N. Y.

2 State v. Yongue, 9 Rich. (S. C.) 443; State v. Boyd, 63 Ind. 428.

3 Moreland v. Leigh, 1 Stark, 388, note; Commonwealth o. McCoy, 8 Watts (Penn.) 153, 34 Am. Dec. 445; Pardee v. Robertson, 6 Hill (N. Y.) 550.

Sloan v. Case, 10 Wend (N. Y.) 870, 25 Am. Dec. 569, and note; Laflin v. Willard, 16 Pick. (Mass.) 64, 26 Am. Dec. 629; Isham v. Eggleston, 2 Vt. 270, 19 Am. Dec. 714; Johnston v. Governor, 2 Bibb (Ky.) 186, 4 Am. Dec. 694; Clark v. Foxcroft, 6 Greenl. (Me.) 296, 20 Am. Dec. 309; Fowler v. Lee, 10 Gill. & J. (Md.) 358,32 Am. Dec. 172; Evans D. Governor, 18 Ala. 659, 54 Am. Dec.

172; White ʊ. Wilcox, 1 Conn. 347; Burk. Campbell, 15 Johns. (N. Y.) 456; McGregor v. Brown, 5 Pick. (Mass.) 170; Keith v. Commonwealth, 5 J. J. Marsh. (Ky.) 359; Runlett v. Bell, 5 N. H. 433; Goodnow v. Willard, 5 Metc. (Mass.) 517; Milburn v. State, 11 Mo. 188, 47 Am. Dec. 148; Norris v. State, 22 Ark. 524; Noble v. Whetstone, 45 Ala. 361; James v. Thompson, 12 La. Ann. 174; Moore v. McClief, 16 Ohio St. 50; Fowler v. McDaniel, 6 Heisk. (Tenn.) 529; Smith v. Tooke, 20 Tex. 750; Dunphy Whipple, 25 Mich. 10.

5 Corson v. Hunt, 14 Penn. St. 510, 53 Am. Dec. 568; Houser v. Hampton, 7 Ired. (N. C.) 333; McArthur o. Pease, 40 Barb. (N. Y.) 423; Green v. Ferguson, 14 Johns. (N. Y.) 389;

In an action for not making a return, the plaintiff need only show the issue of the writ to the officer; the latter must then show an excuse for its non-return.'

2

It is no excuse for not returning a writ that the defendant is insolvent, or bankrupt, or that the writ was irregular,' but it is a defense that the judgment was paid before the writ issued."

Where a sheriff fails to return an execution, the debt is assumed to be lost, and the execution creditor is prima facie entitled to recover of him the full amount, but the sheriff may, nevertheless, show that the defendant had no property from which the debt could have been made."

The officer can not be held liable for neglecting to return or for a false return where the plaintiff has suffered no injury.

§ 765. Liability for Money received. It is, of course, the duty of the officer to pay over to the plaintiff, less his legal costs and fees, the proceeds realized upon the writ, and for a default he and his sureties 10 are liable.

And if the officer has accepted something else than money he must account for what he has received."

8 766. The Measure of Damages.-The measure of damages to be recovered in an action against the officer is the actual amount of the loss sustained by his default. If the whole debt is lost, then it constitutes the proper measure; but if part of the debt only is lost, then that part is the measure." The loss complained of must, as in other cases, be the proximate

Palmer v. Crane, 8 Mo. 619; Koch v.
Coots, 43 Mich. 30; Raynsford v.
Phelps, 43 Mich. 342, 38 Am. Rep. 189;
Prosser v. Coots, 50 Mich. 262; Den-
nis v. Whetham, L. R. 9 Q. B. 345, 8
Eng. Rep. 380; Brasyer v. Maclean,
L. R. 6 Pr. C. C. 398, 13 Eng. Rep.
222.

'State v. Schar, 50 Mo. 393.

2 Atkinson. Heer, 44 Ark. 174; Heer v. Atkinson, 40 Ark 377; McGee v. Robins, 2 La. Ann. 411; Bassett v. Bowmar, 3 B. Mon. 325.

3 Noble v. Whetstone, 45 Ala. 361; Cox v. Ross, 56 Miss. 481.

McRae v. Colclough, 2 Ala. 74.

5 Evans v. Boggs, 2 Watts & Serg. (Penn.) 229.

Dunphy v. Whipple, 25 Mich 10.

State v. Case, 77 Mo. 247; Stevenson v. Judy, 49 Mo. 227. But contra, see Bachman v. Fenstermacher, 112 Penn. St. 331; Atkinson v. Heer, 44 Ark. 174.

8 Stimson v. Farnham, L. R. 7 Q. B. 175, 1 Eng. Rep. 60.

Norton v. Nye, 56 Me. 211.

10 Nash v. Muldoon, 16 Nev. 404.
11 Robinson v. Brennan, 90 N. Y

208.

12 People v. Palmer, 46 Ill. 398, 95 Am. Dec. 418; French v. Snyder, 30

result of the officer's default, and it must also have been one to which the plaintiff's own negligence or default has not contributed.'

It is, therefore, always open for the officer to show that, notwithstanding his default, the plaintiff has suffered no injury,' or that it was brought about by the plaintiff's own conduct.'

A distinction is, however, made between acts done with the intent to injure and those where the loss occurred through the mere unintentional neglect of an officer acting in good faith.

Thus, as has been seen, an officer who has permitted a voluntary escape of a debtor held on execution, may be charged with 5 the whole debt whether the debtor be solvent or insolvent; and so the officer will be charged with the full amount where he wilfully neglects to serve an execution with the intention of injuring the plaintiff."

But, in other cases, the actual amount lost is the amount to be recovered. Thus in an action for not levying upon certain property, the value of the property, when less than the amount of the judgment, is the proper measure and not the full amount of the judgment. So, as has been seen, the officer may show that the debtor was insolvent, that goods pointed out were exempt from execution, or that they belonged to another, or that the debt is still collectible from the defendant."

Ill. 339, 83 Am. Dec. 193; Mortland v. Smith, 32 Mo. 225, 82 Am. Dec. 128; Corson v. Hunt, 14 Penn. St. 510, 53 Am. Dec. 568; Arnold v. Commonwealth, 8 B. Mon. (Ky.) 111; Bondurant v. Lane, 9 Port. (Ala.) 484; Marshall v. Simpson, 13 La. Ann. 437; State v. Miller, 48 Mo. 251; Dorrance v. Commonwealth, 13 Penn. St. 160; Sherrill v. Shuford, 10 Ired. (N. C.) L. 200; Blodgett v. Brattleboro, 30 Vt. 579; Wakefield v. Moore, 65 Ga. 268; Ivy v. Colquitt, 63 Ga. 509; State v. Lowrance, 64 N. C. 483; Abbott v. Gillespy, 75 Ala. 180. 'State v. Cave, 49 Mo. 129; Norris v. State, 22 Ark. 524; Shannon v. Clark, 3 Dana (Ky.) 154; Robinson v. Harrison, 7 Humph. (Tenn.) 189; State v. Yongue, 9 Rich. (S. C.) 443.

10

Abbott v. Gillespy, 75 Ala. 180; Stimson v. Farnham, L. R. 7 Q. B. 175, 1 Eng. Rep. 60.

See cases in note 1, supra. 4 See ante, § 759.

State v. Hamilton, 33 Ind. 502. Hodsdon v. Wilkins, 7 Greenl. (Me.) 113, 20 Am. Dec. 347.

7 Corson v. Hunt, 14 Penn. St. 510, 53 Am. Dec. 568; Dennis v. Whet ham, L. R. 9, Q. B. 345, 8 Eng Rep. 380; Parker v. Peabody, 56 Vt. 221; Harris v. Murfree, 54 Ala. 161.

McNally v. Kerswell, 37 Me. 550; Wilson v. Strobach, 59 Ala. 488.

Terrell v. State, 66 Ind. 570; Bonnell v. Bowman, 53 Ill. 460. 10 Canada . Southwick, 16 Pick. (Mass.) 556.

"Townsend v. Libbey, 70 Me. 162.

b. To the Defendant in the Writ.

§ 767. In general.-The officer may also incur liability to the defendant in the writ. This liability may arise in a variety of ways, as from an arrest or seizure without process or upon void process, the arrest of a person privileged from arrest, the seizure of exempt property, and the like, all of which will be specifically considered.

But, first, it must be noticed that

8768. No Liability arises from proper Service of valid Process. Where process, fair upon its face, is put into the officer's hands for service, it is his duty, as has been seen,1 to proceed to execute it according to its command. Out of this duty arises the necessity of protection, and the rule is well settled that for the proper service of such process the office incurs no liability, however disastrous may be the effects upon the defendant, or however unlawful may have been the proceedings which preceded it.2

2 Nowell . Tripp, 61 Me. 426, 14 Am. Rep. 572; Judkins v. Reed, 48 Me. 386; Caldwell v. Hawkins, 40 Me. 526; Ford v. Clough, 8 Me. 342, 23 Am. Dec. 513; Kellar v. Savage, 20 Me. 199; State v. McNally, 34 Me. 210, 56 Am. Dec. 650; Tremont v. Clark, 33 Me. 482; Bethel v. Mason, 55 Me. 501; Bird v. Perkins, 33 Mich. 28; Wall v. Trumbull, 16 Mich. 228; Savacool v. Boughton, 5 Wend. (N. Y.) 170, 21 Am. Dec. 181; Chegaray

. Jenkins, 5 N. Y. 376; McGuinty v. Herrick, 5 Wend. 240; Wilcox . Smith, 5 Wend. 231, 21 Am. Dec. 213; Alexander o. Hoyt, 7 Wend. 89;

Beach. Furman, 9 Johns. (N. Y.) 228; Coon v. Congden, 12 Wend. 496; Bennett v. Burch, 1 Denio (N. Y.) 141; Webber v. Gay, 24 Wend. 485; Abbott v. Yost, 2 Denio 86; Dunlap v. Hunting, 2 Denio 643, 43 Am. Dec. 763; Cornell v. Barnes, 7 Hill (N. Y.) 35; People v. Warren, 5 Hill 440; Sheldon ». Van Buskirk, 2 N. Y.473; Turner v. Franklin, 29 Mo. 285; Glasgow v. Rowse, 43 Mo. 479; St. Louis &c., Assn. v. Lightner, 47 Mo. 393; State v. Dulle, 48 Mo. 282; Walden . Dudley, 49 Mo. 419; Ranney v. Bader, 67 Mo. 476; Holden. Eaton, 8 Pick. (Mass.) 436; Colman v. Anderson, 10 Mass. 105; Sprague v. Bailey, 19 Pick. (Mass.) 436; Upton . Holden, 5 Metc. (Mass.) 360; Lincoln v. Worcester, 8 Cush. (Mass.) 55; Aldrich v. Aldrich, 8 Metc. 102; Hays v. Drake, 6 Gray (Mass.) 387; Howard v. Proctor, 7 Gray 128; Williamstown

The process which will afford the officer this protection, as being fair upon its face, has been defined by Judge CooLEY as that "which proceeds from a court, magistrate or body having authority of law to issue process of that nature, and which is legal in form, and on its face contains nothing to notify or fairly apprise the officer that it is issued without authority."

8 769. Same Subject-What is meant by Process." The word process," continues Judge CooLEY, "is made use of in this rule in a very comprehensive sense, and will include any writ, warrant, order or other authority which purports to empower a ministerial officer to arrest the person, or to seize or enter upon the property of an individual, or to do any act in respect to such person or property, which, if not justified, would constitute a trespass. Thus, a capias ad respondendum, or any warrant of arrest, is process; so is a writ of possession," (or a writ of right);" so is any execution which authorizes a levy upon property; and