The point in controversy is, whether the sheriff (Thorington) ever received the property from his predecessor, or so acted in relation to it as to make him liable for its safe keeping. That the property was attached, and the benefit of such levy lost to the plaintiff, by the negligence of some one, is very well established. If Thorington was the guilty party, then that h¿ is liable there is no doubt. And whether he is thus guilty, depends' upon the delivery or non-delivery of the property to him by Leonard.
The statute provides that, “When a sheriff goes out of office, he shall deliver to his successor all books, papers and property attached or levied upon, and take his receipt specifying the same,” &c., Rev. of 1860, § 391. The court instructed, “That it was Leonard’s duty to deliver the property, as well as the writ by virtue of which it was attached. If Leonard simply left the writ with Thorington, and agreed at a future time to go with the latter and point out the property, but never did so, then Thorington would not be liable for not safely preserving and taking care of it. But if Leonard left the writ with him, and offered to go and deliver the property, and Thorington took it upon himself to dispense with an actual pointing out and delivery, then he would be liable for any subsequent loss, to the same extent that he would be if the delivery had been actual. But he would not be liable if the property was never delivered, or unless he dispensed with and waived an actual delivery.”
These and similar instructions, enunciating the same general propositions, were given, presenting clearly the view of the law taken by the court, as applicable to the
While, for his own protection, it would be better for the officer to take a receipt from his successor for the property, &c., delivered to him, such a receipt is not necessary to fix the liability of the new sheriff, if he in fact receives the property, or if he dispenses with such actual delivery. There was no receipt in this instance, but plaintiff claims that the property was nevertheless transferred, either actually or constructively, by the conduct of Thorington in waiving the manual delivery. That Thorington would be liable for the loss if he dispensed with the actual pointing out and delivery of the property, to the same extent as if it had been fully, completely and actually delivered, we entertain no doubt. And it is to these alternative views that the instructions are directed. Upon the part of the plaintiff, the effort was to show that he was liable, if not for having actually received it, at least because he had waived its delivery. And thus viewing the case, and of its correctness there can be no doubt, we do not see how instructions could reasonably have been more pertinent, or better calculated to present to the jury the very question submitted for their determination.
But the point most relied upon is, that the verdict was clearly and manifestly against the evidence. Of course there is no question as to our right and duty to set aside a verdict and award a new trial, when the verdict is against the weight of evidence, or against the truth of the case. When a court conscientiously believes that a verdict is against the truth, or the weight of the submitted evidence, a new trial should unhesitatingly be ordered. But to justify such interference, the mind should be brought irresistibly to the conclusión that the verdict was not the
Applying these well settled rules to this case, we do not feel warranted in disturbing the verdict. We entertain no doubt but that Leonard believed that he had transferred the property, and that Thorington had received it from him-as his successor. So far as the testimony tends_ to show an actual delivery, however, the jury was fully warranted in finding for defendant. The question of most doubt is, whether Thorington did not waive or dispense with such delivery. Sitting as a j ury, from the facts before us, we admit that we should have found otherwise. But this is not sufficient to warrant a reversal of the case. While the great body of the testimony tends to show that Thorington treated the property as delivered or under his control, the point is nevertheless not made so conclusively clear, as that a jury, in the exercise off a sound judgment, might not consistently have found otherwise. From our stand point, we incline to the opinion that the verdict upon this issue should have been for the plaintiff. It is not so
Thorington might have demanded from his predecessor the actual delivery of the property. If he did not do so, however, or did not waive it, it was Leonard’s duty to see that it was .made, and if in this he failed, he, and not Thorington, would be liable. The transfer of the writ did not so invest the new sheriff with the control or possession of the attached property as to make him liable for its loss. Mere inaction or silence on his part, unless it was such as to amount to a waiver of an actual delivery, would not release Leonard, nor devolve upon Thorington the duty of looking after and taking care of the property.
. We feel constrained to hold, therefore, in view of the well settled principles governing us in determining such questions, (though not without much doubt,) that the judgment must be affirmed.