Morse v. Betton

delivered the opinion of the court.

The only question in this case is, whether the defendant is liable for Davis’s neglect to deliver the cow,which he had attached on the plaintiffs’ writ against Eaton. It is not contended that there was any neglect in regard to the horse, for which the defendant can be liable. It is contended on the part of the defendant, that he is not liable for Dayis’s neglect to deliver the cow, because the relation of sheriff and deputy had ceased between him and Davis, at the time when (he neglect took place ; and the case of Blake vs. Shaw,(i) is cited to support this ground. There seems to be no reason to doubt the correctness of the decision in that case. It was very properly decided, that a sheriff is not bound to deliver goods, attached to the attaching creditor ; and that a sheriff is not answerable for any neglect of his former deputy, to discharge duties imposed upon him aS the deputy of another sheriff. But neither of those questions arises in this case. The authority is not then in point. The cow in question was attached by Davis as the defendant’s deputy, and it was his duly to keep her until the attachment was dissolved, or she was legally demanded to satisfy the execution, which the plaintiffs obtained in the suit on which she had been attached ; and when thus demanded, it was his duty' to deliver her. These duties were imposed upon Davis as the deputy of the defendant, and it seems to us impossible to doubt, that the defendant is liable for any breach of them. The duty must be imposed while the relation of sheriff and deputy exist, otherwise the sheriff is not answerable ; but if the duty be thus imposed, the sheriff will be answerable, although there be no neglect of duty,’ until the relation has ceased to exist. Thus if a deputy collects money upon an execution, and is then removed, if he afterwards upon demand made, neglects to pay over the *186money to the cr- ditor, the sheriff will be liable. So, if the deputy serve a writ, and before the return day, is removed atfrj neglect to return the writ, the sheriff will be answerable. The case of Lamed vs. Alien el al.(l) is directly in point ; and there must be

Judgment for the plaintiff.