majority">Chipman, Ch. J.

delivered the opion of the Court. The plea of the defendant in this case is so manifestly insufficient, that it is unnecessary to make any observations respecting it. The case must be decided on the sufficiency of the declaration. And the question is, whether this declaration can be supported, either on the statute, or at common law. It does not purport to be a declaration on the statute, neither will the statute support a declaration in assumpsit. The remedy given by the statute is where the officer shall wilfully refuse or neglect to serve, or shall wilfully neglect to return a writ, or shall make a false or undue return. And he is made liable to pay to the party aggrieved all damages which he shall have sustained by reason of such neglect or refusal; to be recovered in an action on the statute. And he is also, on conviction, made liable to a fine not exceeding one hundred dollars.

In an action on the statute the neglect or refusal must be expressly charged to have been wilful. The omission of the word wilful cannot be supplied by any circumlocution.

But there maybe a degree of negligence less than wilful, or which could not be deemed Vilful, and for which an action on the case at common law is the proper remedy. Between such case, and the cases embraced by the statute, there will be found a distinction very analogous to the distinction between a voluntary and negligent escape. The action on the case is for a nonfeasance, and an action of assumpsit will not lie. The case from 2 Wilson, 235 — Russel v. Palmer, which has been cited at the bar, has no analogy to the case before the Court. That is a declaration against an Attorney? whose undertaking is voluntary, for a neglect of the duty of his em*164ployment, in which he had engaged. Assumpsit is the proper and established form of action in such case. But it is believed that this is the first attempt to declare in assumpsit against an officer in a c?selike the present. The action does not arise exconfractu, or 1ua^ excontractu, but exdelicto. Jt arises from the neglect of an official duty in the pfficer — a duty which the law has enjoined upon him, for the due administration of justice. The breach of this duty, when an injury to an individual, is a species of wrong for which an action on the case is the only proper remedy.

It has been said that an action of assumpsit in this case is as properas an action of debt for an escape, which supposes a contract. But the action of debt for an escape does not lie at common law — it was given by statute — 1 Ed. 2 — or rather, as it has been generally Jiolden, by the equity of the statute of Westminster, 2. The debt lost through the neglect of the officer, is given against him to the patty aggrieved, by way of penalty; and it belongs to that class of actions. It lies not however for escape on mesne process, hut of one in execution. The action of debt is not given by our statute, and it does not seem consistent with its provisions to permit it.

Upon a full consideration of this case, the Court are clearly of opinion that this declaration in assumpsit cannot be supported.— There must therefore be

Judgment for the defendant.

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