15 N.H. 29 | Superior Court of New Hampshire | 1844
The instructions to the defendant to do the best he could in serving the writ, gave him no discretion beyond that of acting to the best advantage, in his opinion, in making the attachment.
There is nothing in the case to show that when an attachment was made, the defendant was to be at liberty to release the property, or neglect any of his ordinary duties as a dejouty sheriff.
Having made an attachment, it was his duty to keep the property safely, to answer on the judgment unless a receipter was procured. Perhaps a loss by fire, or such inevitable accident as could not have been guarded against, might excuse him ; but it is not necessary to consider that here.
A sheriff is authorized to take a receipt. And where the property is receipted the case has been assimilated to the case of bail; and it has been held that the sheriff, having taken the security of a person apparently solvent at the time, is not responsible that he shall continue so. This is a relaxation of the principle, as formerly understood.
But the principle upon which this proceeds cannot be extended to exonerate the defendant from his responsibility in this case. The sheriff in that case has yielded up the custody of the property upon receiving a security that it shall be forthcoming to answer the judgment which the law deems sufficient, in the same manner that he releases the body from an arrest, upon receiving the engagement of the bail that it shall be forthcoming upon the rendition of the judgment and the issuing of an execution.
We are not aware of any authority that the sheriff is excused from his duty to retain and apply the property, because it has been taken from him by a trespasser. It might be very mischievous to hold that this furnished any excuse, except it should be for delay until the sheriff' could pursue the trespasser to judg-ment.
The objection that the attachment was lost because the execution was not delivered to the officer within thirty days after the adjournment of the court, is without any foundation. The sittings at the adjournment formed part of the term, and, as suggested by the counsel for the plaintiffs, they could not have had their judgment entered up, and their execution, (except by a special order,) until the adjournment without day.
The exception that the execution was delivered to another officer and not to the defendant, has been rightly abandoned in the argument. It is clear that that forms no defence in the ease.
There is no foundation for the motion in arrest of judgment. If it be true that all the allegations in the first count were not proved, that is not matter in arrest. No exception is taken that there is not a sufficient cause of action alleged in that and also in the other counts.
The objection to the writ, that the signature of the clerk has been taken from a blank summons, cannot be taken advantage of at this stage of the proceedings. Had it been made in season, by a motion to quash the writ, we should have granted it. But it is too late for that motion, after plea, issue, trial and verdict. The defendant has admitted it to be a regular writ, by pleading to the merits.
Judgment for the plaintiffs.