
    Martin Blake versus Mason Shaw.
    A sheriff is answerable only for the acts of his deputy done while the relation between them continues ; therefore, where a deputy of a former sheriff had attached goods on mesne process, and afterwards, being the deputy of the present sheriff, refused to serve the execution upon them, the former sheriff was not liable.
    If a deputy sheriff has attached goods on mesne process, and afterwards the creditor, having obtained execution, require the deputy sheriff to deliver the goods attached'to him, so that he may procure his execution to be levied upon them, the deputy is not bound to deliver them, he being accountable for them.
    This was an action of the case against the defendant, late sheriff of this county, for the default of one John Balch, who was his deputy. It was submitted to the opinion of the Court upon the case stated, containing, in substance, the following facts: —
    The plaintiff, in April, 1806, purchased out of the clerk’s office of the Court of Common Pleas for this county a writ of attachment against one Samuel Greenleaf, and delivered the same to Balch, to be served and returned. He returned an attachment of certain goods, which he described, and stated to be of the value of 330 dollars. In March, 1808, the defendant was superseded in the office of sheriff by George Ulmer, Esq., by whom Balch was also appointed a deputy. In June, 1808, the plaintiff obtained judgment against Greenleaf, and, having sued out his execution thereon, delivered the same to Balch, to be by him executed and returned, and directed by him to levy the same upon the goods which he had attached on the original writ. Balch neglected to levy the execution on those goods, or to expose them to the creditor, so that he could cause them to be levied upon. The present action was commenced before the return day of the execution. In the declaration, the plaintiff alleges that he presented the execution to Balch, and requested him to expose and * deliver to the plaintiff [ * 59(8 ] the goods attached, as aforesaid, so that the plaintiff could procure a levy of the execution upon them, in part satisfaction of the same.
    If, upon these facts, the Court should be of opinion that the plaintiff’s action was maintainable, the defendant agreed to suffer judgment by default for a sum liquidated ; otherwise the plaintiff was to become nonsuit.
    
      Dutton for the plaintiff.
    
      Wilde for the defendant.
   By the Court.

The cause of action, or the complaint of the plaintiff, as stated in the declaration in this case, is not a default or neglect, for which the defendant is liable.

It is not the duty of a sheriff, and indeed it would be contrary to his duty, to deliver up goods h olden by attachment, to the creditor therein, even after his demand is ascertained and sanctioned by a judgment. Goods attached are in the legal custody of the officer, and he is accountable for them, no less to the supposed debtor than to the creditor in the writ of attachment; and the general property in the goods is not changed, until a levy and sale by execution.

There is therefore no gravamen alleged in the case at bar; the averment being a refusal to deliver to the plaintiff, upon his demand of them, the goods attached in his suit, even supposing Balch to have been chargeable with it while he was a deputy of the defendant Nor was that demand enforced at all by his showing an execution upon his judgment recovered against Greenleaf, whose goods had been attached. His property in the goods continued, subject to the lien created by the attachment, until a sale by further proceedings in due course of law.

And as to the liability of the defendant, we may go further in this case, and suppose the allegation intended, or which might be made, to amount to a charge of a refusal to do execution upon the goods which Balch, while the deputy of Shaw, had returned as attached at the suit of the plaintiff. This refusal to | * 507 ] serve an execution delivered * or offered, after the removal of the defendant from his office, when he himself had no longer any authority to levy and sell the goods, and the relation of sheriff and deputy between the defendant and Balch had entirely ceased, was not a breach of duty for which the defendant could in any manner be charged.

If, respecting the goods returned on the writ of attachment at the suit of the plaintiff, Balch was guilty of a false return, or if, after the attachment made, and while the defendant was in office, having Balch for his deputy, there was any negligence or misfeasance tc the injury of the plaintiff, or producing the loss of his attachment, for an injury of that description the defendant is liable; but the circumstances essential to his liability are to be averred and proved

Plaintiff nonsuit. 
      
      
        Cro. Eliz. 504, Thomson vs. Clerk__1 L. Raym. 351, Smallcomb vs. Cross & Al.
      
     