Charles Bailey vs. John Butterfield, 14 Me. 112

After a continuance, the opinion of the Court was drawn up by Weston C. J. By the act, defining the powers and duties of sheriffs and constables, statute of 1821, ch. 92, <§> 9, it is provided, that all persons suffering through the defaults or misdoings of any constable, shall have the same remedies at law on his bond, as are provided in respect to sheriffs’ bonds; and the like proceedings are to be had.

And by the statute in relation to sheriffs’ bonds, the remedy thereon is to be preceded by a judgment against the sheriff or his deputy, at the suit of the party aggrieved by his neglect or misdoings, ascertaining the extent of his damage. The appropriate remedy is an action on the case, setting forth the nonfeasance or misfeasance, of which the party complains. Official delinquency is first to be established. It is the gravamen from which the action arises. It is for security against the defaults and misdoings ■ of a constable, that a bond is required; not to sustain bis promises.

Actions against officers for failure in duty are of frequent occurrence in our practice. No precedent, it is believed, can be found where assumpsit has been sustained, upon any promise arising by implication of law. Blackstone, who refines much upon the contract, which every man is presumed to have made, to do his duty in society, and to submit to the laws, states that an action on the case is the proper remedy against a sheriff, for misfeasance or nonfeasance in his office. 3 Bl. Com. 165. And in McMillan v. Eastman, 4 Mass. R. 378, Parsons C.

J. says, that assumpsit, as implied by law, is never the proper remedy against a public officer, for neglect or misbehaviour in his office. In Tuttle v. Love, 7 Johns. R. 470, the Court held, that upon an express promise, if clear and absolute, by a deputy sheriff to pay money collected on an execution, assumpsit would lie. And the counsel for the plaintiff insists, that the constable having been defaulted, the promise declared on against him must be presumed to have been express. If so, it may well be doubted, whether a breach of it would entitle the plaintiff to a remedy on his bond.

If he would suffer his money to remain in the hands of the officer, upon his promise to pay it, it assumes the character of a loan, for which his sureties are not responsible. If there was any tort, it was waived, both by receiving the promise, and the form of the action. But if there was an express promise, there may have been no tort. The plaintiff may be understood to have accepted the promise, instead of the money.

We cannot entertain a doubt, that the remedy on a sheriff’s or constable’s bond, should be preceded by a suit and judgment against die officer, founded directly upon his official delinquency; and such has been our practice, without a single exception, which has come to our knowledge. The course pursued by the plaintiff cannot, in our opinion, be sustained. Exceptions overruled.