6 N.H. 405 | Superior Court of New Hampshire | 1833
It is not necessary, or proper, to enquire, in this case, whether Carter, to whom the execution was sent for collection, has failed in the duty he owed to the plaintiffs in relation to that execution. He is no party to these proceedings, nor can the sheriff be made liable, in this suit, for any default of his, if any has been committed.
This action being founded upon the alleged default of Charles Bean, another deputy, it is only necessary to consider the circumstances under which the execution came to his hands, and the duties which thereby devolved upon him.
The plaintiffs, in their declaration, allege, that on the 10th day of May, 1S30, they delivered the execution to Bean, and that John Adams had sufficient property, on which the same could have been levied, but that Bean neglected to levy the same.
It is very doubtful, whether, upon this declaration, the plaintiffs could, under any state of the diets, give evidence that Bean neglected to demand property which had been attached upon the original writ, in support of this suit, as that is not the gist of the present action.
But we do not rest the decision upon that ground. The case finds, that Carter received the execution, in a letter, from the plaintiffs’ attornies, directing him to call on Little for the receipt, and close the business immedí-
It is not doubted, that where an execution is delivered to an officer with special directions as to the mode of collection, and he receives it without objection, he is bound to serve it in the manner directed if it can be done by the exercise of reasonable diligence. 4 Mass. 63, Marshall v. Hosmer.
If then Carter had delivered the execution to Bean, and read the directions to him ; and Bean had received it without objection, and asking no indemnity, the defendant would have been liable if Bean had neglected to comply with those directions, and the plaintiffs saw fit to seek their remedy, upon such default of his.
But Bean did not so receive it. He declined taking the execution, upon the condition that he must collect it immediately, and upon this Carter told him that he had seen Adams, that Adams had agreed to pay the money by the return day, and if he would take it, and have the amount ready by that time, he, Carter, would advance him the money, in case the creditors called upon him before the day of the return, and upon this Bean took the execution.
Where an execution is delivered to an officer with special directions, the officer is not bound to execute it in any other manner than according to those directions. 13 Mass. 133, Goddard v. Austin.
And we hold, that where an execution is offered to an officer for service, with either general or special directions, and he declines receiving it except under certain limitations as to the time or manner of collection ; if the creditor, instead of taking other measures, delivers it to him under such circumstances, the duty of the officer does not extend beyond the limitations he has prescribed. The creditor, in that case, must be considered as assenting to the mode and manner of collection which the officer has suggested.
If the plaintiffs adopt the act of Carter in delivering the execution to Bean, they must adopt it with the limitation made by Bean, that he could not undertake to collect immediately, and with the direction by Carter, in substance, that if lie proceeded to execute it at any time before it was returnable, it should be sufficient.
We consider this the effect of the direction given by Carter, and cannot adopt the argument, that Bean, receiving the execution with the direction as stated, must be considered as having guaranteed that the money should be forthcoming at that time ; for if this was to be the construction of his engagement, his only safe course would be to execute the precept without delay, which lie had expressly declined to do.
And we find nothing in the case to show, that either Bean, or Carter, considered Bean as making any such guarantee. On the contrary, he was encouraged to delay the collection, by being told that Adams had promised to have the money ready.
If Bean made a guarantee, he should have been sued on his guarantee, and not for a neglect of official duty.
Carter agreed to pay the money if Bean was called on by the creditors at an earlier day, but there is nothing leading to a supposition, that if Carter had thus paid the money before Bean collected it, and the debtor had af-terwards failed before the return day, Bean was to be liable to him for the amount.
Bean, then, having the execution with special instructions that he might serve it at anytime before the return day ; the case finds that long prior to that time the judgment debtor became insolvent, and unable to pay, so that
The verdict must be set aside, and the case transferred for a
New-trial.
