Jameson v. Mason

The opinion of the court was delivered by Collamer; J. — As to third persons, the official acts of all deputy sheriffs are the acts of the sheriff, and the delivery of process to any deputy is a delivery to the sheriff. The creditor, in order to charge property in .execution, must deliver the execution within thirty days after judgment, to’the sheriff who attached the property; that is, he must deliver it to that.sheriff or any of his deputies, who by himself, or airy of his deputies, attached the property. If the execution be delivered to a constable or a different sheriff, then the property must be demanded of the sheriff, who attached, within the thirty days. But,as between themselves,the sheriff and his deputies are different persons, having different and independent duties and responsibilities. If a deputy attach property and the execution is seasonably delivered' to him, he must sell the property on the execution, or he is guilty of neglect. But if the execution is delivered to any other officer, the attaching officer is guilty of no neglect, unless he neglect to deliver the property, on reasonable demand. This is not altered when the execution is delivered to the sheriff; for though a delivery to a deputy is a delivery to the sheriff, yet a delivery to the sheriff is not a delivery to the deputy. The deputy may deliver the property, for safe keeping, to whom he pleases,with or without a receipt, and reclaim it, at his pleasure. If he delivers it to the debtor he risks all subsequent sales and attachments, and the fact that the keeper goes with the property without the county, or the state, does not change the rights, interests, or liabilities of the parties. The qualified interest and lien continues and, notwithstanding all that is alleged in this case, the deputy sheriff might, on a reasonable demand, have procured from the debtor and surrendered to the sheriff the attached property, in a few hours or even in a few minutes. The debtor may have been just without the line of the county or state, (for this is a frontier county,) with the property ready to deliver up and which the deputy had an undoubted right to reclaim.' The execution not having been delivered to the deputy, and no demand having been made on him, nor any sufficient excuse made [604] therefor, this action cannot be maintained. Piad it appeared that the property had been destroyed or sold, by the debtor, so n0 demand could have been of any possible use to the attaching officer, as in the case of Johnson v. Edson, it , , , , would have made a difierent case. Judgment, that the declaration is insufficient.