Tukey v. Smith , 18 Me. 125 ( 1841 )

The opinion of the Court was drawn up by

Emery J.

If the Judge in the District Court rejected testimony, which, if admitted, would have constituted a defence against the action, the exceptions must be sustained. It is probable the idea of taking the ground, on which the defendant relies/ arose from some remarks of the Court in the case Blake v. Shaw, 7 Mass. R. 505. But in the present case, we must apprehend, that after the attachment was made, and while the defendant was in office, there was negligence, to the injury of the plaintiff.

The law invests the sheriff with power to attach, and imposes on him the duty to keep the property attached, to respond the judgment which may be obtained in the suit. His removal from office abates nothing of his power to retain the possession of the property, which he rightfully took upon the original writ, for thirty days after judgment, for the ultimate purpose, for which he began the service.

To be sure, he cannot, when removed, serve an execution issuing after his removal; but the special property remained in the deputy to secure the plaintiffs in the fruits of their judgment, if seasonably required. 13 Mass. R. 394.

The offer, by the defendant, to prove that he was removed from the office of sheriff previous to the recovery of judgment in the original suit, if permitted, we think would be altogether inadequate to exonerate the defendant from responsibility for the acts and omissions of his deputy.

The exceptions are therefore overruled,.