Joel Stevens vs. Ezra Wilkins, 8 Vt. 231

The opinion' of the court was delivered by Williams, C-h. J he declaration sets forth no wrongful act of the defendant, which lias occasioned any injury to the plaintiff. If the attorney of Mr. Wilkins was negligent in not returning the writ to the justice, his neglect cannot be considered as the act of Mr. Wilkins, nor can he be accountable for the fault of his attorney in this particular. The deputy sheriff, who served the writ, was bound to return the same, and if he failed to perform his duty, he is liable to any one who has been injured thereby.

There is no reason for making the defendant chargeable for a neglect which he neither caused nor procured, and which was probably as injurious to him as to the plaintiff in this action. As this declaration! sets forth no facts which can render the defendant liable, judgment must be, that the declaration is insufficient. It is of no importance for us to consider what other remedy this plaintiff may have. He must pursue such other and further remedy as he may be advised will be appropriate to his case.

Possibly he might have obtained a judgment for his cost, at the time the writ was returnable to the justice, whether it was returned or not, by entering a complaint for that purpose to the justice ; but whether he could or notf is not a question now before us, and has not been considered or reflected on. The judgment of the county court must be reversed, and judgment entered for the defendant to recover his cost. '