Smokey v. Peters-Calhoun Co. , 66 Miss. 471 ( 1889 )

Arnold, C. J.,

delivered the opinion of the court.

It was the duty of the sheriff, after the property had been seized under the writ of attachment, to take care of it, and if he failed to do so, he and the sureties on his official bond, were liable therefor to the party injured. Com. v. Cole, 46 Am. Dec, 515; Waples on Attachment 279, 280. The bond of indemnity neither increased nor lessened his obligations in this respect. James v. Thompson, 12 La. An. 174.

The sureties on the indemnifying bond were not liable for the negligence or misconduct of the sheriff in keeping the property. Their only liability, was from the consequences that might result from the lawful discharge of the sheriff’s duty in seizing the property and appropriating it to the payment of the attaching creditors’ debt. Murfree on Official Bond, § 788 ; Boynton v. Morrill, 111 Mass. 4 ; O’Donohue v. Simmons, 31 Hun 267.

The goods claimed by appellant having been levied on under the writ of attachment, as part of a stock of goods intermixed with those of the defendant in the attachment, and appellant having claimed the whole of the stock, instead of pointing out and giving notice to the sheriff of what particular part of it belonged to him, he is not entitled to recover damages for his part of the goods having been seized and held by the sheriff, until they were, for the first time, designated as belonging to him, on the trial of the claimant’s issue.

It was the duty of the sheriff to levy on the goods of the defendant in attachment, notwithstanding they were intermixed with those of appellant, and he had a right, and it was his duty, to take and keep the whole, until appellant identified his part of the stock, and demanded that it should be delivered to him. The sheriff cannot be treated as a trespasser for doing what he had a right to do, and whatever would be a good defense to him if no indemnifying bond had been taken, is a good defense to those who, by such bond, assumed his liability. Drake on Attachment, § 199; Lewis v. Whittenmore, 5 N. H. 364; Wilson v. Lane, 33 Ib. 466; Shumway v. Rutter, 8 Pick. 443; Yates v. Wormell, 60 Me. 495; Moore v. Allen, 25 Miss. 363 ; Overby v. McGee, 63 Am. Dee. 49.

Affirmed.