The declaration in this case shows that, by accident, the execution was lost while in the sheriff’s hands, and before the return day; that, before the return day, he called on the defendants in execution and demanded- payment, which they promised but refused to make ; that, in consequence of the loss of the execution, he was unable to return it, according to the exigency of the writ, and hence became liable to pay, and did pay, the amount of the judgment; that, after the return day of the execution, and before he paid the amount, he again demanded payment of the defendants, who again promised to pay it, but never did. On this state of facts, the law will imply a promise on the part of the defendants to refund to the sheriff the amount which he has thus paid to satisfy this debt. The sheriff was not bound to wait till he was sued for not returning the execution. It is sufficient that he was liable for the amount, and then he had a right to pay it, and save costs. It is like a surety who voluntarily pays the debt after his liability is fixed. There the law will imply a request on the part of the principal.
The cases where the sheriff has, and where he has not, a remedy against the party whose debt he pays in consequence of omission of some official duty, are very distinguishable, and there can be rarely any difficulty in applying the rule. Wherever he acts male fide ho is without remedy. If he acts in good faith—if he intends to do his duty, and supposes he is doing it—and through inadvertence or accident, he becomes liable, he has his remedy over. If a sheriff suffer a voluntary escape, he has no remedy against the debtor, for he knew he was neglecting his duty when he suffered the debtor to go at large ; but, in case of an involuntary escape, although he might have guarded the prisoner closer, and was even guilty of negligence or want of proper prudence in not doing so, he has his remedy against the execution debtor, if he thought he was safe.
Here the declaration shows that the sheriff was guilty of no willful misconduct, but that the execution was lost by accident, whereby he was unable to return it. The defense here insisted upon is an ungracious one, and ought not to be listened to, except where the policy of the law requires that the sheriff should be punished for his misconduct. Then it is admitted, not for any intrinsic merit in the defense itself, or the party making it, but as an example, and as a punishment, for the misconduct of the officer. The demurrer to the declaration should have been overruled.
The judgment must be reversed and the cause remanded.