Howard v. Whittemore

It is settled in the case Runlett vs. Bell, cited for the defendant, “ that if a sheriff deliver goods which ‘ he has attached by virtue of mesne process, to persons who ‘ are apparently in good circumstances, for safe keeping, he ‘ will not be liable if the goods are lost through the eventual ‘ insolvency of the persons to whom they may have been ‘ delivered.” This is not made to depend upon any adoption by the creditor of the acts of the sheriff, but is set down as a general principle ; and we see no cause to overrule or qualify the principle, which is well supported by the analogies there adduced. It was further held, in that case, that where the creditor adopts the act of the sheriff, by bringing a suit *135ill the name of the sheriff, against the bailees, he precludes himself from disputing their sufficiency.

The remaining question is, whether the facts in this case show a sufficient return of the execution; or, in other words, whether after a return of the execution, in due time, to the attorney of the creditor, and an acceptance by him, without any objection, the creditor can sustain an action against the sheriff for a neglect to make a return to the clerk’s office.

That there has been, in this state, a very uniform practice by sheriffs to re-deliver executions upon which no levy has been made, to the creditor’s attorney, from whom they received them, is well known, and not disputed in this case. And probably in a great majority of instances where goods are sold, or lands set off, upon execution, the executions have been handed to the creditor’s attorney, in order that he might see the proper disposition made of them. Where the executions remain wholly unsatisfied, this is, in many instances, a very convenient practice, as further proceedings are to be taken by the attorney to enforce the collection; and we see no good reason why, after such a return to his agent, and an acceptance by the agent, acting in behalf of the creditor, the latter should maintain an action against the officer, simply for not making a return of the precept to the court, or clerk’s office. The delivery to the attorney who committed the precept to the officer must be as effectual for the protection of the officer, as if it had been delivered to the creditor himself; and should an officer deliver the execution to the creditor on or before the return day, and he consent to receive it, without any objection or imposition, it cannot admit of doubt that he would thereby preclude himself from maintaining an action for the mere neglect to return. He must be considered in such case as undertaking to make the return himself, or as waiving his right to require it.

The same principle which is applied in this case must be applied to the return of writs of attachment; and it would *136cause great inconvenience if attornies were not at liberty to accept the delivery of writs which they had caused to be issued, and waive the necessity for their return by the officer to the court on the day of its sitting.

Judgment for the defendant.