Mickles v. Hart

By the Court, Bronson, Ch. J. Meeker, the deputy who held the execution, had both written and verbal directions from the plaintiff’s attorney to take no further steps after the levy which was made in April, until he received further instructions from the attorney. It was not a mere permission to delay a sale if the deputy thought proper to do so. It amounted to a positive direction to do nothing beyond a levy. There was not only an indefinite postponement of a sale, but Meeker must have understood that he was released from all obligation to protect the property against waste or removal by the debtor, or any one else. When the plaintiff instructs the deputy to depart from the line of duty which his process and the law impose upon him, the deputy ceases to be the servant of the sheriff, [550] and becomes the agent of the party; and the sheriff is no longer answerable for his acts or defaults. Now when, if ever, did the liability of the sheriff revive? The circuit judge thought the sheriff liable for any loss which happened after Meeker was directed to proceed in September ; and as the proof was that the property was removed by the debtor after that time, the jury found a verdict against the sheriff for the value of the goods. I think the charge upon this point was wrong. When the plaintiff instructed Meeker to proceed and sell the property, he was giving directions to his own agent, and not to the sheriff’s officer. After the plaintiff had broken up the relation between the deputy and his principal, nothing short of a notice to the sheriff himself could render him again liable for the acts or omissions of the deputy; and whether that would be enough, we are not now called upon to determine. The first thing which was said to the sheriff was on the 17th of December, when he was served with notice of a rule to return the writ. Before that time the property had been carried off by the debtor; and I see no principle on which the sheriff can be charged with its value. He may be in default for not returning the execution pursuant to the notice; hut that, under the circumstances of this case, would not entitle the plaintiff to more than nominal damages. New trial granted.