Wells v. Mansur

The opinion of the court was delivered by Veazey, J. The defendant was sheriff of Essex County. The declaration is for the alleged neglect and default of the defendant’s deputy, Russell. Numerous questions are raised by the demurrer to the declaration. One of them is as to the effect of the substitution of one justice for another under the circumstances and agreement stated in the declaration, upon the liability of the sheriff for the failure of his deputy to have the horses which he attached upon the original writ, to respond to the execution which was issued upon the judgment rendered in the consolidated suit. Whatever may have been the effect of said agreement and of the subsequent proceedings in the suit, as between the parties, we think.it clear that the defendant was released from all responsibility for his deputy as the attaching officer, in respect to said horses. There is no provision of law for such an exchange of justices as was made; and when the exchange took place, it being unauthorized by law, the writ was no longer the same writ that it was when the attachment was made. The defendant was the surety of the attaching officer only upon the writ as it was when served, or as it should be changed in the respects provided by the statutes. Neither he nor the deputy was a party to the agreement or to the alteration by substitution of justices, or to the subsequent proceedings. Simeon v. Cramm, 121 Mass. 492. This view of this point renders it unnecessary to consider the other points raised. [242] The decision of the County Court overruling the demurrer and adjudging the declaration sufficient is reversed, and judgment for the defendant to recover his costs.