Pillsbury v. Small

The opinion of the Court was delivered by Shepley J. - The debtors were liable to pay the judgment which the plaintiff had recovered against them, and also liable for the same amount to the officer on the receipt. The payment of one would operate as a discharge of the other. The verdict in this case cannot be evidence in a suit against them, [439] and their liability will remain the same, whatever may be the result of this suit. If the plaintiff should recover, it will not be increased for they are not responsible to the defendant for the costs; and if he should fail, it will not be diminished; they are still liable to pay the judgment. They were therefore competent witnesses. The goods attached by the officer were left in the possession of the debtors, who with another person receipted for them and promised to deliver them on demand. If the officer could be regarded as constructively in possession of them so long as they remained in possession of the debtors, he would cease to have any such possession, when the goods were sold by them; and according to the testimony they were all sold as early as January, 1837 ; and the defendant was not appointed sheriff until March following. And he could not, nor could the deputy while acting under a commission from him, have any actual or constructive possession. But it has been decided, that there is no constructive possession in the officer, after he has left them in the possession of the debtor. Knap v. Sprague, 9 Mass. R. 258. And so far as it respects the rights of the creditor, the officer must be regarded as releasing them at the time of the attachment, and assuming the responsibility himself by taking the receipt instead of the goods. If it should be regarded as a nominal, and not an actual attachment of property, the plaintiff would be in no better condition to maintain his action against the defendant. There could be no pretence in such case, that the deputy had any actual or constructive possession of goods attached since he held a commission under him. Any injury, which the plaintiff may suffer, arose out of his conduct before that time; and he does not appear to have been guilty of any default since the defendant was sheriff'. In the case of Blake v. Shaw, 7 Mass. R. 505, it does not appear, that the goods were not in the possession of the deputy until after the sheriff, under whom he made the attachment, ceased to be in office, and a successor was appointed. And if the goods attached had been faithfully kept during all the time [440] of the former sheriff there could be no misconduct of the deputy, while he was responsible for his official acts. It is not necessary to consider the other points in the case. Exceptions overruled.