| Cal. | Jan 15, 1859
delivered the opinion of the Court—Field, J., concurring;
We see no error in this record. The action was brought against the defendant, Sheriff, to recover of him so much money, being the value of property in his hands, which he had levied on and suffered to remain in the possession of the defendant in attachment. Upon obtaining judgment, the plaintiff sued out execution, but the money was not made on it. We think the complaint is suEcient. It sets out the facts: That an attachment was levied upon suEcient property to
satisfy the debt by the Sheriff; and that an execution was issued on the judgment subsequently had and placed in the Sheriff’s hands, and the Sheriff failed to make the money. The levy of the attachment placed the property in the hands of the Sheriff to abide the judgment and execution, and this property was the plaintiff’s security for his debt. If the Sheriff wasted or lost it, or suffered it to be diverted to some other purpose, he is liable. He had no right to suffer the property to go out of his possession, except in due course of law, and is responsible if he did. His return charges him with this property, and he has not discharged himself.
Nor did the Court err in refusing to permit evidence of paroi instructions from the plaintiff in execution to the Sheriff, to permit the defendant to take or keep possession.
The statute is express, that no direction or authority by a party or his attorney to a Sheriff in respect to the execution of process, or the return thereof, or to any act in relation thereto, shall be available to discharge or excuse the Sheriff for a liability for neglect or misconduct unless it be contained in writing, etc.
The judgment is affirmed.