
    John E. Tyler versus George Ulmer.
    In an action against the sheriff for the default of his deputy, the letters and confessions of the deputy are competent evidence ; and the jury may prefer them to the testimony of witnesses.
    It is not competent for an officer, who has returned an attachment of cattle, and who had, in fact, delivered them to a third person for safe-keeping, when sued for his neglect in not procuring satisfaction of the execution issued in the same suit, to show, either in bar of the action or in mitigation of damages, that the expense of keeping the cattle between the attachment and the execution would have exceeded the value of the cattle.
    In such action against the officer, the value of the cattle at the time the execution should have been levied, and not at the time of the attachment, forms the true measure of damages.
    It is not competent for the officer, in such action against him, to show, in mitigation of damages, that the judgment debtor is solvent.
    But he may show that a part of the chattels attached by him were not the property of the debtor.
    
      This was an action of the case against the defendant, late sheriff of the county of Hancock, for the default of John Minott, one of his deputies, in not satisfying an execution *in the [* 164 ] plaintiff’s favor against one Jacob Foster, out of certain chattels attached by said Minott upon the plaintiff’s original writ.
    The cause was tried upon the general issue, at the last November term in this county, before the Chief Justice.
    
    On the 12th of February, 1812, the plaintiff sued out a writ of attachment against the said Foster, addressed to the sheriff of Hancock, or his deputy, with a special direction upon the same to attach sufficient personal property, and to take no receipter, or to hold to bail. The said writ was returnable to the Court of Common Pleas, at Boston, April 1st, 1812. On the 24th of March, 1812, the said Minott made his return upon the writ, that he had attached six oxen, six cows, six two-year-old heifers, one horse, and twenty sheep, the property of Foster. The plaintiff recovered judgment for $384.22, and sent his execution to Minott, who received the same within thirty days after entering the said judgment; and on the 7th of July made his return thereof, certifying that he had made diligent search for the personal property of said Foster, and could find none ; wherefore he returned the execution in no part satisfied.
    The evidence, to prove the receipt of the execution by Minott within thirty days after the judgment, consisted of letters from him to W. Thurston, attorney for the plaintiff. It was objected for the defendant, that this was not competent evidence against the defendant, Ulmer. But this objection was overruled.
    The defence relied upon was, that, at the time the attachment was made, there was a great scarcity of fodder for cattle, in that part of the District of Maine, so that many cattle perished for want of food ; that on this account Minott suffered the cattle to remain where he found them, taking therefor the receipt of Nahum Foster, a son of the debtor, who promised to deliver them when called for upon the execution ; and that, if Minott had taken them into custody, the expense of keeping them would have consumed or greatly * diminished the value of the cattle. There were several [*165] depositions establishing these facts.
    But the evidence was considered by the judge as irrelevant to the cause ; and the jury were instructed that the officer was liable, notwithstanding, for the value of the cattle at the time when they should have been sold on execution ; he having made himself liable by his return upon the writ, and by trusting to the receipt of Nahum Foster, contrary to his directions upon the writ..
    The defendant then contended that no damages ought to be rendered for so many of the cattle as were testified by the said Nahum to belong to him, and to the estate of-Foster, deceased But the jury were instructed, that, as all the cattle were attached on a farm occupied by the debtor and his son, and as they were received by Nahum Foster, under a promise to keep them for- the officer, the said Nahum Foster not claiming them as his own, nor stating that any of them did not belong to the debtor, the said Nahum Foster would be estopped to claim them as his property, in an action by the sheriff against him on the receipt ; no person having attempted, by replevin, or in any other way, to charge the officer with having attached property not belonging to the debtor.
    The defendant then went into evidence of the value of the goods attached ; and contended that the rule of damages should be the value of the goods at the time when they were attached and given up. But in this he was also overruled ; and the jury were instructed to give, in damages, the value of the goods at the time when they should have been taken in execution.
    The defendant further insisted that nominal damages only ought to be given ; because the debtor was still solvent, and able to satisfy the execution. Upon this subject the jury were told that the judgment in this action would be a bar to any subsequent suit against the debtor.
    The jury returned a verdict for the plaintiff for the amount of the debt, and costs, and interest ; having satisfied themselves, [*166] *as they declared, by certain letters of Minott, which were read in evidence, without regard to the estimate made by the witnesses, that the- cattle attached were of value sufficient to satisfy the execution.
    Thurston, for the plaintiff.
    Rockwood, for the defendant.
   Parker, C. J.,

delivered the opinion of the Court.

Numerous objections have been made to the verdict in this case ; one of which only it would be necessary to decide, as we are all of opinion that one has been sufficiently maintained, to require that there should be a new trial. But, as actions against sheriffs, for the misconduct of themselves or their deputies, are of frequent occurrence, and as several points, necessary to be understood by the community, have been made and argued in this cause, we think it expedient to consider each point distinctly, and to declare the law upon it.

The first objection results from the admission to the jury of the letters of Minott, for whose default the sheriff is now charged, as evidence against the sheriff that the execution was seasonably delivered to Minott, and also as evidence of the value of the property attached on mesne process. It has been argued that these letters can only be considered as the confession of Minott ; and, although proper to be used in an action against him, they could not be so used in an action against the sheriff, who did not make the confession ; and that, at the utmost, they amounted to the declarations of a witness not under oath, which are never admissible.

But we are of opinion that the letters were properly admitted, and properly used by the jury. The action, although in form against the sheriff, is substantially against the deputy, who is immediately answerable over to the sheriff upon his bond, and against whom the verdict may be used as evidence to establish the claim of the sheriff against him. The form of the plea in these cases is, that the deputy, not the sheriff, is not guilty, or does not owe ; and the verdict pursues this plea. It is also well known in practice, that the deputy always considers himself called upon to answer * [ * 167 J through the sheriff, that he employs counsel and makes the defence ; the sheriff being made, by law, the agent to answer for the defaults of his deputies ; but the deputy himself, who commits the default, being substantially the defendant in the suit. We are also well satisfied that the practice has uniformly been, to prove the necessary facts by the confession, oral or written, of the deputy, in actions against the sheriff.

The next objection is, that evidence was rejected, or, which amounts to the same thing, that the jury were instructed to disregard it, of the impoverished state of the country, as to fodder for cattle, at the time when the attachment was made in this suit ; it being alleged, that, had the officer taken the cattle into his possession at the time, and kept them for execution, the expense would have exceeded the value ; and, indeed, that they could not have been kept alive, for want of food.

Whatever effect this evidence might have had, if offered to excuse the officer for not attaching cattle to secure the debt, there being no other property to attach ; or to justify him for leaving them in the hands of the debtor, or his friends, after he had attached them ; it clearly was not relevant to the case, as it stood in evidence when the depositions containing these facts were rejected. For the officer had attached the cattle, as appeared by his return upon the writ; and he had suffered them to remain where he found them, taking a receipt of the son of the debtor, promising to have them forthcoming when demanded upon execution. The expense or difficulty of keeping them was nothing to the defendant. These fell where they ought by law to fall, namely, upon the debtor ; and the officer’s resort to the receipter will not be liable to objection, on account of the grea expense that might have been incurred in sustaining the cattle. Nor could this evidence have tended to mitigate the damages, as was contended by the counsel for the defendant; for he had made himself accountable for the value of the cattle, at the time the execution ought to have been satisfied, by his treaty with the debtor and his friends.

¡"*168] * Another objection was made to the directions given to the jury upon the subject of estimating the damages ; they having been instructed to give the value of the cattle at the time the execution ought to have been levied ; whereas it should have been, as contended by the defendant’s counsel, at the time of the attachment.

But this objection has no soundness. The thing which is taken by attachment is the same thing which is afterwards to be seized on execution. If it is in better plight, it is so much the better for creditor and debtor ; as it will pay more of the debt, and, if there be an overplus, it goes to the debtor. The expense of keeping, as was settled in the case of Sewall vs. Mattoon, is always eventually a charge upon the "debtor ; for the officer, if he pays that expense, will deduct it from the proceeds, before he pays them over to the creditor ; and so much less of the debt will, therefore, be paid. The debtor may, at any time, relieve himself from the burden of paying for the keeping his stock under attachment, by paying his debt and relieving the attachment. Or he may do what is usually done, and what was, doubtless, done in the present case, give security to the officer, and maintain and use the stock himself; this being at the risk of the officer, as between the creditor and himself; but against which risk he may always obtain indemnity, or take the stock into his own custody.

It was further objected, that the jury disregarded the testimony of several witnesses, as contained in their depositions, relative to the value of the stock ; and that they chose to rely altogether upon the letter of Minott, the deputy, in which he assured the plaintiff that he had full security for his execution.

Minott's letters being legal evidence, the objection fails ; as the jury, undoubtedly, had a right to prefer his confession as to the value, to the uncertain opinions of witnesses, who might have had little knowledge of the subject, or might have formed their opinions with a particular view to the nature of the transaction.

[*169] *It was also objected, that the opinion of the judge, as given to the jury, that the continued solvency of the judgment debtor ought not to be considered in mitigation of damages, was incorrect.

But we are well satisfied with this opinion. Indeed, it would be extremely mischievous, to permit an officer to excuse himself, or even to alleviate the damages consequent upon a wilful neglect of duty, by showing that the creditor may still, by a new process, or by a new execution, obtain satisfaction of his debt. The very fact, attempted to be used in mitigation of damages, aggravates the mis conduct of the officer. For, if the debtor is able to pay, he ought not, under any pretext, to return the execution unsatisfied. But, if he chooses not to levy upon the property attached, he should, in such case, obtain the money of the debtor, and pay it over to the creditor. Were he allowed to neglect his duty, and then justify himself, in whole or in part, by proving the debtor able to pay ; a wide door would be opened to collusive practices between officers and debtors, and an execution, instead of being finis et fructus legis, would be but a troublesome and expensive formality.

The last objection, however, we think ought to prevail ; namely that there was evidence contained in some of the depositions, that a part of the property attached did not belong to the debtor. According to the case of Fuller vs. Holden, this would be a good defence for the officer, as far as it would go ; and, although the evidence was slight, and of a suspicious nature, and probably would not have obtained credit with the jury, yet, as it was not fully left to their cpnsideration, the verdict must be set aside, and a

New trial granted. 
      
      
        Yabsley vs. Doble, 1 Ld. R. 190.— Drake vs. Sykes, 7 D. & E. 117. — Evans vs. Sweet, 1 Car. & P. 227. — 2 Phil. Ev, 7th ed, 379, 380. — North vs. Miles, 1 Campb. 389.—Bowsker vs. Calley, 1 Campb. 391. — Saunderson vs. Baker, 2 Bl. 832. — Mott vs. Kip, 10 Johns. 478. — Kempland vs. M’Cauley, Peake, Cas. 65. — Aza & al. vs. Eitlinger, Antk H. P. 74, n. a. — Wheeler vs. Hambright, 9 Serg. & R. 390
     
      
       8 Mass. Rep 535.
     
      
      
        Phillips vs. Bridge, 11 Mass. Rep. 242. — Congdon vs Cooper, 15 Mass. Rep. 10
     
      
       4 Mass. Rep 498.
     