Fay v. Munson

The opinion Of the court was delivered by Wilson, J. The only question in this case is, whether the defendant exercised due care in the custody and preservation of the hay to [473] have it forthcoming to answer upon the execution. It appears from the report of the referee that the hay was attached by the defendant, as sheriff of this county, on a writ of attachment in favor of the plaintiff against Preston and Wilcox; that the property was at the depot in Williston, and that the attachment was made by leaving a copy in the town clerk’s office in that town. The report states that the defendant did not remove the hay ; nor did it appear that he took any personal possession of it at the time of the attachment, nor that he.ever put the property in charge of any person, and that it did not appear that he requested any one to take or keep possession or charge of it. The defendant by the attachment acquired a special interest in the property ; he was entitled to its custody and possession, and the degree of care in this mode of attachment, is the same as if he had taken the property into his own personal possession. The defendant was required to exercise ordinary care in keeping the property, so that it could be levied upon, and what is ordinary care must be determined in view of the nature and situation of the property. The property was not a mow of hay situated remote from the railroad, and apparently secure, but it was in bales lying near the railroad depot, in such situation or condition that Keach or any other person could in a few hours send the whole of it out of the State. The' defendant found that Keach had wrongfully loaded up four car loads of hay, intending to send it out of the State, without the consent of the plaintiff or defendant. The defendant unloaded the hay, but left it at the depot, where Keach, or any one under his direction, could take it away at any time. The defendant had knowledge of the wrongful acts of Keach in respect to the hay, and those acts were sufficient to apprize the defendant that Keach would, very likely, make a further attempt to dispose of the property. Under such circumstances, and in view of the situation of the property, we think the defendant should have agreed with some one to take charge of the hay, or have removed it, but it does not appear that he took or used any means to prevent its subsequent removal by Keach. The facts reported by the referee afford strong evidence of negligence, and his conclusion, whether regarded as one of fact, or law and fact, we think is right. The attachment having been made by the defendant, [474] it was incumbent on him to have the property forthcoming, so that it might be levied upon, or show that the loss was not through his fault. The judgment of the county court is affirmed.