Parrott v. Dearborn , 104 Mass. 104 ( 1870 )

Ames, J.

Upon the attachment of personal property on mesne process, it is the duty of the officer to keep it safely until it shall be required either to be taken on execution in favor of the creditor or to be restored to the debtor, according to the event of the suit. This duty he may perform personally, or by the agency of others, at his convenience and discretion; but in either event the property is in his keeping, and he is responsible for its safety. If he sees fit to employ agents of his own selection, he cannot thereby limit his responsibility for any loss or damage that may befall the property, to his own personal de» fault or neglect. He would be responsible, according to the general law of agency, for negligence, mismanagement or bad faith on the part of his servants or agents. The general owner of the attached property is not a party to the contract between the officer and such agents, and has no control over their selection. Even if the attaching officer in this case should be held responsible, according to the rule given to the jury, “ only for the same degree of care as he would have been if he had hired the horse of the plaintiffs,” he would still be responsible for the default and negligence of his servant. Story on Bailments, § 400. It has repeatedly been decided that the keeper is merely the servant of the officer. The instructions given to the jury assumed, throughout, that the only duty of the attaching officer was to select a proper stable in which to put the horse, “ such as a prudent man hiring a horse” would have selected; and that, if he had done this, it would be wholly immaterial what might be the treatment of the horse afterwards at the stable. This was an erroneous view of the law, and the jury should have been instructed that the officer would be responsible for any want of due and ordinary care, on the part of himself or his keeper, in the treatment of the horse after the attachment. As to the risk of injury from peculiar habits or tricks of the horse, his duty to take precautions against such injury would depend entirely upon his information, or means of knowledge, upon the subject of those tricks or peculiarities.

Exceptions sustained.