The opinion of the Court was delivered at the ensuing June term in Kennebec, by'
Weston J.The amendment, first allowed by the Justice and approved by the Common Pleas, was without doubt within their discretion to grant. It did not introduce a new cause of action, but was the mere correction of a mistake in setting forth the only one, which was intended to be prosecuted ; and if authority was necessary for its allowance, ‘ Phillips v. Bridge, cited by the counsel for the defendant in error, is a case in point.
As tothe special plea, upon which issue was joined before the Justice, if that had been expressly found for the original defendant at the Common Pleas, it would not have entitled him to judgment; inasmuch as after the amendment, it answered only one count in the declaration. Every advantage, which he could have derived from the special plea, he was equally entitled to under the general issue ; and that being found for the plaintiff, the point in controversy between the parties, was sufficiently settled by the verdict to authorize the judgment.
When Mams, the deputy, received the original writ, sued out by the defendant in error, it was his official duty to obey its precept ; subject however to the control and direction of the original plaintiff. The direction he received was, to attach property, if practicable ; otherwise to make no service. If he neglected to make diligent search for the property, orto attach it when found, or otherwise abused his official trust, the original plaintiff had his remedy not only against him, but against his principal, the sheriff. If in fact he did make diligent search for property, and was unable to find any, it was his duty, on or before the return day of the writ, to set forth this fact affirmatively in his official capacity ; and tb assign it as a reason for his failure to make service ; *377and, so doing, he would have been justified. But instead of this, he tore from the writ the account annexed, thus defacing and injuring the process, which it was unquestionably the duty of his office to preserve from mutilation. We are satisfied, that the facts proved disclose a failure of official duty, for which the sheriff is responsible ; and we perceive nothing in the case, which ean be considered as a waiver, on the part of the original plaintiff, of his right to proceed against him.
With regard to the damages, it was a question for the jury, upon which it does not appear that the presiding Judge in the Court below gave them any special instruction ; or that he was desired so to do by the counsel for the original defendant. But if however it was a point now open before us, we do not perceive that, under all the circumstances, the damages can be considered as excessive.
The exceptions are overruled ; and the judgment is affirmed with costs.