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 thereto. 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. 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. The ninety 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.
Judgment affirmed.
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.
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.
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.