Weston v. Ames
51 Mass. 244
Mass.
1845
Check Treatment
Hubbard, J.

To avoid a recovery in this case, the defendant contends that the whole default of the deputy *247consisted in not keeping the attached property safely; that the attachment was lost through his neglect; and that the claim upon the sheriff for this default was barred by the statute of limitations, of which the defendant, as his representative, may avail himself in defence of this action. But we are of opinion, that whether the attachment was originally invalid, or might have been defeated through neglect of the deputy, is not now a question open for examination ; because the deputy, by receiving the execution, levying it upon the property, and returning it satisfied, has so far precluded the inquiry, that the defendant, who represents the sheriff, cannot avoid the return on the execution by merely relying on an alleged antecedent breach of duty, on the part of his deputy, in not holding the goods attached.

The evidence proves that the execution was duly committed to the deputy for service, was levied on property apparently a part of the same which was attached on mesne process, and was returned satisfied. It is said that the person claiming the property forbade the officer’s selling it on execution, and directed a suit to be brought against him for trespass. But the sale did take place, and no evidence is offered to show that such a suit was ever commenced. We cannot, therefore, assume the fact of a recovery against him, to excuse the not paying over of the amount of the execution. We do not intend to decide whether an officer, when sued for not paying over the amount received by him, shall be estopped by his return from showing that goods taken and sold by him on execution were not the property of the judgment debtor.* The present case does not require it. So far as the facts are reported, they tend to prove that the chattels sold on execution were a part of the property attached on mesne process, and that the same was known and acquiesced in by the person claiming them under a mortgage title; and it so appearing, the officer shall be bound by his return that he has levied and satisfied the execution.

In respect to the statute of limitations, (Rev. Sts. c. 120, *248§ 3,) an officer is not bound to return into court the money made on an execution, nor to look up the judgment creditor, who may be at a distance, to tender it to him ; but it is his duty to hold it safely till a demand is made upon him by a person authorized to receive it and give him a discharge : and consequently a cause of action will not accrue against him till after a demand. In this case, the suit was brought within four years after the demand, and the same is not barred by the statute.

Judgment on the verdict.

Notes

See Brydges -. Walford, 6 M. & S. 42, and 1 Stark. R. 389, note,