Smith v. Church ( 1855 )

The opinion of the court was delivered by

Bennett, J.

We think the defendant has no reason to complain of the charge of the court. Chipman, the debtor, had used up the properly attached, and the rule of law as held by the county court only required ordinary care and diligence in the preservation of the property attached, and made the sheriff only liable, if for the want of such care, the property had been used up by the debtor. The property had been legally attached, though the sheriff had not taken the actual possession of it; that was not necessary in a case like this. TMs mode of service being authorized by the statute, the sheriff acquired a special property in it, and had the power to protect his rights; and it has been frequently held, that he could maintain an action against a tort-feasor. Chipman must be regarded in the light of a tort-feasor, as against the sheriff; but it may be questioned whether the creditor had any such interest in the property, as to enable him to maintain an action against Chipman for using up the property. The mode of service was optional with the sheriff, and he had no instructions from the creditor, as to what particular property should be attached, or the mode of service. We will only decide such a case as we have before us; and the least -which should be required of the sheriff should be the use of ordinary care and diligence in the preservation of the property, that when judgment is obtained it may be taken to satisfy the execution.

Judgment affirmed.