JOSIAH MARSHALL v. JOSEPH HOSMER

THIS is the same action in which the plea in abatement was overruled, and a respondeas ouster awarded, (Vid. ante, vol. iii. page 23,) and was brought against the defendant, sheriff of the county of Middlesex, for the default of Zaccheus Shed, his deputy, in not attaching personal property of one Ephraim Kidder, upon a suit brought by the plaintiff against said Kidder to the Court of Common Pleas in the county of Suffolk.

At the trial of this action before Parker, J., at the last November term, it was proved that the plaintiff in person, on the 28th of June, 1804, delivered the writ against Kidder to Shed in Billerica, where Kidder lived, and directed him to go to the store kept by Kidder, and attach the goods therein,

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and also his furniture in his dwelling-house. Shed wished the creditor to go with him, and show him the goods; but he replied that he was in a hurry to return to Boston, and that it was not necessary for him to go with the officer. Shed then took the writ, without making any other observation. He made service of it by arresting Kidder and taking bail. Upon the execution issuing on the judgment in that suit, which was also delivered to Shed, he committed Kidder to prison, from which he was afterwards liberated under the provisions of the “act for the relief of poor prisoners who are committed by execution for debt,” having taken the oath therein prescribed.

It also appeared that upon a writ issued against Kidder in favor of another creditor, on the 7th of July, 1804, and served on the 9th day of that month, personal property, more than sufficient to satisfy Marshall's demand, was attached, and afterwards levied upon and sold to satisfy the execution of said other creditor.

It further appeared in evidence that at the time the plaintiff delivered his writ to Shed, and for several days after, Kidder was doing business openly in his store, and that his house was free of access.

The defendant's counsel contended, 1st, that an officer is not bound by law to attach property, unless the creditor will show it to him. On this point the judge directed the jury that, whether the counsel was correct or not, if they believe, from the evidence, that the officer in this case waived his claim on Marshall to go with him, and undertook to serve the writ according to his directions, he was bound.

2. There being a direction on the back of the writ to attach sufficient estate or hold to bail, the officer had his election, whether to attach property or to arrest the body. The judge directed the jury that the construction of the order endorsed on the writ was, to attach property if it could be found; otherwise to hold to bail; and that if this were not the true construction, the verbal direction to the officer made it his duty to search for property.

3. It was contended that the sheriff was not by law accountable for the default of his deputy, as stated in the declaration; the duty of the deputy in this case resulting from a personal engagement, and not from official obligation. On this

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point, the judge directed in favor of the plaintiff, for whom the jury returned their verdict, and the several points of law were reserved to be argued on a motion for a new trial.

And now, at this term, Bigelow, of counsel for the defendant, in support of the motion for a new trial, insisted that the officer was not liable to an action for not attaching property in the service of a writ, unless the creditor would point out to him the specific goods he would have so attached. If this position was not true, the case of an officer was peculiarly hard. He had no means of ascertaining the debtor's property in goods. They might belong to a third person, and by attaching them the officer would expose himself to an action, in which he could not demand aid or indemnity from the creditor who had employed him. It is true that in this case it was argued that the officer had waived his claim to the personal attendance of the creditor by receiving the writ, and undertaking to serve it without such attendance; but as this conduct of the officer was denied by the defendant's counsel, at the trial, to amount to a waiver, and as the jury might be of opinion that it did not, it was the duty of the judge to have declared to them the law, in case they should find the officer had not so waived his claim.

The judge's construction of the order endorsed on the writ is apprehended to be an unsound one. The direction to attach sufficient property, or hold to bail, can have no other fair interpretation than a direction to hold to bail or attach sufficient property. In either case the officer has an option left him, and if he obeys either alternative, he completely fulfils the command.

The plaintiff's claim on the sheriff, in this action, seems to be grounded altogether on a pretended personal stipulation of his deputy to do what, it is believed, he was not bound by law to do, viz., to attach specific articles not pointed out to him by the creditor. But for such stipulations the present defendant is not answerable. The promise, in this case, if the deputy made it, was aside from his official duty, for the correct performance of which only is his principal responsible. The plaintiff would make him chargeable for the breach of a special promise of his deputy, which he made without any authority from the defendant, if he made it at all.

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Thurston, for the plaintiff, was stopped by the Court.

The opinion of the Court was afterwards delivered by

PARSONS, C.J. From the facts reported, it is manifest that the plaintiff has lost his debt through the conduct of the deputy sheriff; and the first point for the decision of the Court is whether, from the circumstances of the case, the deputy was in fault. [Here his honor recapitulated the facts, as before reported.]

It is urged for the deputy, that, in consequence of the special endorsement on the writ, he might attach either the body or estate. And we are inclined to allow this objection, if no verbal directions had been given him. When an original writ is delivered to the sheriff, with this special direction, perhaps he is not holden to look up estate, and to attach it as belonging to the debtor, without any indemnity; and if he takes the body, he conforms to the direction. But in this case, he was verbally directed to attach certain chattels, describing their nature and situation; and I am satisfied that he was bound to obey this verbal direction, if he lawfully could.

It is further said that the plaintiff did not go with him to make the attachment. I know of no law directing the presence of the creditor with the officer, to oblige him to make an attachment. The creditor ought, if required, to designate the chattels to be attached; and also, if they are not in the possession of the debtor, or if there be a dispute concerning the property, to give the officer an indemnity for making the attachment. [Note a] In this case, the chattels to be attached were sufficiently designated, and there was no request of an indemnity. And if the officer could have insisted on the plaintiff's going with him, he waived his right, by taking the writ with the verbal direction to make the attachment, after the plaintiff had declined going with him, without making any objection to conforming to the direction.

Another question made is, whether, if the deputy was in fault, the sheriff is answerable for the default. The sheriff is answerable civiliter for the defaults of his deputies, by nonfeasance or malfeasance, in the duties of their office enjoined on them by law; and not for a breach of contract made with a plaintiff, obliging themselves to do what by law

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they were not obliged to do. Here the default charged is in not making an attachment of chattels, which he was bound by law to make; the default, therefore, is a neglect of an official duty, for which the sheriff is responsible.

The verdict must stand, and judgment be entered up according to it.