McKinney v. Blakely

McCulloch, J. This is an action on the bond of a constable to recover damages for failure to execute an order of general attachment issued at the instance of the plaintiff against certain property of the defendants in the action in which it was issue<¿. The defense is that the property in question belonged to other persons than the defendants in attachment — that the property had been sold and delivered by those defendants to the other persons before the writ came to' the hands of the constable. The court instructed the jury to return a verdict in favor of the plaintiff, and that ruling is assigned as error. We find on examination of the testimony in the record that it establishes beyond dispute the fact that the sale and delivery of the property by the defendants in attachment took place after the writ came to the hands of the officer. The writ was therefore a lien on the property, and it was the duty of the officer to levy on it. Kirby’s Dig. § 360; Cross v. Fomby, 54 Ark. 179; Derrick v. Cole, 60 Ark. 394; Merriman v. Sarlo, 63 Ark. 151. The lien could have been perfected by the seizure of the property by the officer, and it was his duty to do so and to hold it subject to the further orders of the court. For a breach of this duty the constable and the sureties on his bond are liable for the damages incurred by the plaintiff in the attachment.