
    * John Barnard and Others versus Thomas W. Ward
    Where an officer had attached property on an original writ, and within thirty days after judgment in favor of the plaintiff, he delivered the execution to the officer, who neglected to seize and sell such property, and before the return day of the execution, the judgment debtor died insolvent, and the officer returned the execution unsatisfied, he was held liable to the creditor for his neglect
    This was an action against the defendant, as sheriff of the county, for the neglect of David Howe, one of bis deputies, and it was submitted to the opinion of the Court upon certain facts stated by the parties ; it being agreed that if the opinion of the Court should be, that the plaintiffs had a right to recover, the defendant should be defaulted, and judgment be rendered for the plaintiffs for their damages and costs: otherwise the plaintiffs should become nonsuit, and the defendant recover his costs.
    The facts substantially were, that Howe, by the direction of the plaintiffs, had attached a horse as the property of one Shattuck, upon an original writ against him sued by the plaintiffs, and made due return of the said attachment; that on the 4th of October, 1810, and within thirty days from the rendition of judgment in that suit, which was in favor of the plaintiffs, they delivered Howe their execution issued thereon, with directions to levy it upon the property he had attached on the original writ, and this without delay, because Shattuck was then dangerously sick, and was expected to live but a few days; that Howe neglected to serve the execution, and after-wards returned the same into the clerk’s office, with the following return endorsed thereon, viz.. “ Worcester, ss. March 30, 1811. The within-named judgment debtor, on the 24th day of Octobelast, deceased without satisfying in any part this execution, or my having reasonable opportunity therefor. I therefore return it in no part satisfied. David Howe, D. Sheriff.” And that the said Shat-tuck died on the said 24th day of October, and his estate was wholly .insolvent.
    
      James and Bigelow for the plaintiffs.
    
      Blake for the defendant.
   Curia.

When an execution is in the hands of an officer, and by his delay in the' service of it, any damage or loss accrues to the creditor, he is unquestionably answerable. If, however, he has the money due at the return of the execution, he does all that his duty requires of him ; unless * the same has been previously demanded of him ; in which case he is by statute (1783, c. 44, § 3,) held to pay fivefold interest, for the sum he shall have received on the execution, and which he neglects or refuses to pay over to the creditor on demand. The facts in the case at bar show a neglect of official duty in the deputy, for which the defendant is answerable, and he must therefore be called.

Defendant defaulted  