#### Philip Hargrave, Appellant, v. David Penrod, Appellee.

APPEAL FROM UNION.

It is the duty of an officer to whom an execution is directed and delivered, to make reasonable exertions to levy it on the property of the defendant, and if he is guilty of gross negligence in this, he will be liable.

The mere want of knowledge of the debtor’s having estate or effects, or an averment that the plaintiff did not point them out to him, on which to levy, is not sufficient to excuse the sheriff.

The right of action of a judgment creditor against a sheriff for not levying a Ji. fa. is not taken away by his discharging the debtor from a ca. sa. issued at his instance, although such discharge might be a satisfaction of the judgment; the creditor’s remedy against the sheriff was perfect before such discharge.

It is not error to permit clerical errors to be amended on trial.

Eee-bills are governed by the same rules as executions, and after ninety days they are fundi officio.

The omission to state a sum at the end of the narr. as the damages, can be taken advantage of only in the court below. An objection on that account is purely technical.

This is an appeal from a judgment rendered in the Union circuit court, in favor of the appellee, and against the appellant, who sued the appellant in an action on the case. The damages were laid in the summons at $300. There were two counts in the declaration, both of which are substantially the same; in each of which the appellee complained, that on the 20th day of April, 1830, he recovered a judgment in the Union circuit court in his favor, against one William Lamar, for $147.06J damages and costs, upon which judgment on the 12th day of May in the same year, he sued out his fieri facias for the obtaining of satisfaction of said judgment, which writ was directed and delivered to the appellant as sheriff of Union county, to be executed; and that being such sheriff, and while he had the writ in his hands, Lamar had goods and chattels of which the money might have been made; of which goods, &c., the first count alleges, the appellant had notice, but the second count does not; and that appellant neglected to levy the execution on those goods, &c., whereby the appellee was deprived of the means of collecting his judgment, to his great damage, but no sum is named as the amount of the damage. To this declaration, the appellant pleaded, besides the general issue, the following special pleas, to wit: And for further plea in this behalf, the said defendant says actio non, because he says that he did levy on and sell, by virtue of said execution and for the satisfaction of the same, all the goods and chattels, &c., belonging to the said Lamar, and which were known and notified to the said defendant, all which, &c.

And for further plea in this behalf, the said defendant says, *402plaintiff aforesaid actio non, because lie says, that after the return by this defendant into the office of the clerk of the circuit court, of the said writ of execution mentioned, and before the commencement of this suit, he the said plaintiff caused to be issued and put into the hands of this defendant as sheriff as aforesaid, a certain other writ of execution in his said plaintiff’s favor, against the said William on said judgment, which writ is commonly called a writ of capias ad satisfaciendum, on which said writ, he, said Lamar, was arrested by his body and taken into the custody of this defendant ; and after being and remaining in such custody for a long time, was by the said plaintiff discharged from custody and permitted to.go at large; and this he is ready to verify, &c., wherefore, &c. To these pleas the plaintiff demurred generally, which the court sustained. The issue on the plea of not guilty was tried, and a verdict rendered for the appellee for $155.55, for which the court rendered judgment.

On the trial, the plaintiff, after reading to the jury the record of a judgment in the Union circuit court for $147.064 damages, and $21.064 costs, offered in evidence an execution for $147.064 debt, and $21.064 costs, to the reading of which to the jury, the defendant objected; whereupon the plaintiff moved the court for leave to amend said execution, by erasing the word debt, and inserting the word ' damages; which amendment the court permitted, and then admitted the execution in evidence, to which the defendant excepted. The defendant then offered in evidence a certain fee-bill, put in his hands as sheriff for collection, against Lamar, and in his hands at the same time the execution in the declaration mentioned was in his hands, which fee-bill, and the return thereon showed, that the defendant had levied it upon a certain horse belonging to Lamar, and sold the horse and applied the proceeds in satisfaction of the fee-bill. The levy on the horse was made after ninety, days from the date of the fee-bill, as the defendant acknowledged before the court and jury. To the reading of this fee-bill in evidence, the plaintiff objected, because it was levied after the ninety days, which objection was sustained by the court; to which opinion of the court the defendant also excepted, and appealed to this court.

Baker, for appellant,

insisted that the first special plea contains a sufficient answer to the plaintiff’s declaration, and the facts stated in it are admitted to be true by the demurrer. If it be said that it lacks form, and that it amounts to the general issue, the answer is, that the objection can only be taken advantage of by special demurrer.- 1 Ch. Pl., 498. 10 Johns., *403 289. 5 Bac. Abr., 370, and note [a] in margin. 8 Cranch, 30.

The second plea is a full answer to the declaration, and is a complete bar to a recovery in this case. It shows that subsequently to the return of the writ of fieri facias, the appellee has been satisfied the amount of his judgment against Lamar. He contended that taking Lamar into custody on the ca. sa., and his discharge by the appellee, was a full, absolute and complete discharge and satisfaction of the judgment, and cited 4 Burow, 2482; 1 T. R., 557, 715. 6 ib., 525. Coxe’s Dig., 582. 5 Johns., 364. 1 Dane’s Ab., 591. 5 Com. Dig., 762. Toller’s Exrs., 151. 2 East, 243.

The court ought to have permitted the defendant to read the fee-bill to the jury to show what disposition was made of the horse belonging to Lamar, and which was a principal article of property in his hands, in respect to which the defendant was charged. No time is expressly limited for the return of fee-bills put into the sheriff’s hands for collection. Rev. Laws of 1827, pages 107, 207, 218; nor is any time specified in the fee bill within which it shall be returned. The law, it is true, declares that such fee-bill shall have the force and effect of an execution, and that the sheriff shall levy the same on the goods and chattels, <fcc., and proceed thereon in all things as on a writ of fieri facias. If it is admitted that the provisions of the statute give the party in whose favor the fee-bill issues, the right to. call upon the sheriff to return it after ninety days, it does not follow that the sheriff can not act, and even make a levy by virtue of it after that time. Admitting that the fee-bill was functus officio after ninety days, still the court should have permitted the defendant to read it in evidence, because it was not competent for any person but the person against whom it was issued to make objection. If the fee-bill was put into the hands of the sheriff before the plaintiff’s execution, it was entitled to a preference over the execution in being first satisfied out of Lamar’s goods, as it became a lien upon his property from the time of its delivery to the sheriff. Rev. Laws, 1829, p. 86. And further, the defendant might have shown a levy upon the horse under the plaintiff’s execution, or any other put into his hands after the fee-bill and before its return. And if this identical horse was levied upon by the plaintiff’s execution put into his hands after the fee-bill, it was the duty of the sheriff on selling it, to apply the money arising from the sale, in payment of the fee-bill ; by prior delivery it was entitled to the preference. He further contended that the declaration was bad, as it did not claim any sum in damages.

*404 Grant, contra,

contended that the demurrer to the two special pleas was correctly sustained, because the first plea was an insufficient answer to the declaration. A sheriff is bound, and presumed to know all the property subject to execution belonging to a defendant, or at least, to use reasonable diligence to ascertain it, and the plea excuses him on the ground that he levied upon and sold all of which he was notified, without showing any such diligence.

The second special plea is likewise insufficient, because the liability of Hargrave had been incurred before the issuance of the ca. sa. under which Lamar was taken into custody and discharged, and which is set up as the defense. The plaintiff’s effort to obtain his debt from Lamar is no waiver of his remedy against the sheriff for the delay occasioned by his negligence in the discharge of his duty.

The exclusion of the fee-bill was correct, because as the fee-bill is to be proceeded on in all respects as a fi. fa., and as a fi. fa. could not be levied after its return day, the levy under the fee-bill was illegal and void, and any person interested may make the objection, especially the appellee in this case.

The omission of the amount of damages in the declaration could he taken advantage of on special demurrer only.

Breese, in reply.

Smith, J.,

delivered the opinion of the court. The appellant relies on the following points for a reversal of the judgment of the court below.

First. The error as alleged in sustaining the demurrer to the second and third pleas of the defendant in the court below.

Second. The variance between the execution given in evidence on the trial, and the one described in the declaration, and suffering the same to be amended, and given in evidence to the jury.

Third. That the fee-bill offered in evidence ought not to have been rejected.

Fourth. The omission of damages in the conclusion of the declaration of the plaintiff.

There is little difficulty in deciding on the questions arising under the demurrer. An essential ingredient is wanting in the first plea, to constitute it a good one. In no part of it does the defendant aver that he used any exertion or diligence to ascertain what chattels or estate the defendant in the execution had, nor whether he made the least inquiry in relation *405thereto. We can not doubt that it is the duty of an officer to whom an execution is directed and delivered, to make at least reasonable exertions to levy the same on the property and estate of the debtor, and that if he is guilty of gross negligence in this, he is liable. The mere want of knowledge of the debtor’s having estate or effects, or an averment that the plaintiff did not point out the estate or effects of the debtor to him, on which to levy, is not sufficient to excuse him. (1) The demurrer was therefore properly sustained. Equally correct was the sustaining of the demurrer to the second plea.

The liability of the sheriff for his negligence had attached before the issuing of the capias ad satisfaciendum, and whether the voluntary discharge of the defendant therefrom operated as a satisfaction of the creditor’s judgment or not, it could not take away the creditor’s remedy against the sheriff for his negligence, which was perfect before such discharge. The right of action of the creditor against the sheriff for his misconduct was in no way affected by such discharge. The plea was then a defective defense, and wholly immaterial.

The second point of variance is not, in our judgment, tenable. The court had the right to suffer the amendment to be made, it being a mere clerical error, and the variance was, even without such amendment, unimportant; because the description of the judgment record set out in the declaration was only as inducement to, and not the gist of the action. Numerous authorities may be found of adjudged cases, supporting this doctrine.

On the third point, relative to fee-bills, the same rules are to govern as in cases of execution. They are declared by the statute creating them, to have the force and effect of an execution, and are to be returned in the same manner. (2) The *406ninety days having expired before the levy under the fee-bill, it was, necessarily, functus officio, and, consequently, the levy void. It was then properly rejected.

The objection under the last point ought to have been taken advantage of, in the court below. It is merely .and purely k technical, and even then, it might be questioned whether the damages in the recital to the declaration, as appears in the record, has not cured the error, if it were one available in the court below. The judgment of the circuit court is affirmed with costs. (3)

Judgment affirmed.

(1)

It is the duty of an officer having an execution in his hands against the property of a defendant, to make reasonable exertions to levy upon the property of the defendant in his county; and if he fails to use due diligence in the discharge of his duty in this respect, he is responsible for whatever loss or detriment the person who commits the execution to his hands may sustain, in consequence of such failure. Dunlap v. Berry, 4 Scam., 327.

In this case the circuit court instructed the jury, that if they believed the defendant in the execution had property in the county sufficient to pay the execution, or part thereof, and if the sheriff, by reasonable diligence and exertion, could have made the amount of the execution, or part thereof, they should find for the plaintiff. Held, that the instruction was correct. Id., 331.

A sheriff is not bound to notice bare assertions of individuals, as to their claim to property in the possession of a defendant in an execution; he is only required to notice legal claims, fairly exhibited. Ibid.

(2)

A fee-bill is “ process,” and governed by the same rules as executions. Redick v. Cloud’s Adm’r, 2 Gilm., 678. Ferris v. Crow, 5 Gilm., 96. Newkirk v. Chapron, 17 Ill., 344.

If an officer neglects to return a fee-bill within ninety days from its date, he becomes liable to pay it. The People v. Roper, 4 Scam., 560.

(3)

Where the plaintiff showed, in the body of his declaration, a claim for damages greater than the verdict, but had omitted the ad damnum, at the end of the declaration, it was held to be cured by the verdict. Burst v. Wayne, 13 Ill. 599. Mattingly v. Darwin, 23 Ill., 618.