
    Joseph Sewall and Others versus Ebenezer Mattoon.
    When an officer attaches cattle upon mesne process, the owner must provide for their support at his peril.
    The officer, in such case, is answerable to the creditor, and his apprehension of incurring expense in maintaining the cattle will not be an excuse for his noi retaining them when attached.
    Case against the defendant, sheriff of the county of Hampshire, for the misfeasance of one of his deputies. The parties agreed to submit the action to the determination of the Court upon the following facts, viz.: —
    
      The plaintiffs, on the 16th of December, 1805, sued out of the Common Pleas for this county a writ of attachment, in due form of law, against one Solomon Johnson, directed to the sheriff of the county of Hampshire or his deputy, commanding them to attach the goods or estate of said Johnson to the value of 100 dollars; which writ the plaintiffs, on the same day, delivered to one Judah Sexton, then one of the defendant’s deputies, with special directions en dorsed thereon in writing, to attach sufficient. ‘ The said Sexton, by force of said writ, on the 19th of December aforesaid, attached two oxen and' two cows, the property of Johnson, and having given him a summons, duly returned the same writ to the said Court of Common Pleas at Boston, January term, 1806, when and where it was returnable ; and such proceedings were had thereon, that at the S. J. Court holden at Boston, November, 1810, the plaintiffs recovered judgment against said Johnson for 78 dollars damages, and costs taxed at 169 dollars 93 cents; and upon that judgment, on the 18th day of February, 1811, they sued out their writ of execution, in due form, against said Johnson,* and delivered the same to Zehina Dickenson, then a deputy under the defendant; and the said Dickenson, by directions from the plaintiffs, there afterwards, and within thirty days from the rendition of the said judgment, requested said Sexton to deliver to him the said oxen and cows, that he might extend said execution upon them. But the said Sexton neglected to produce or deliver said oxen and cows, or to account for them in any way. There is no evidence that the defendant or his deputy ever incurred any expense in keeping said cattle, unless it results from the deposition of the said Johnson, which is made part of the case ; and in which he testifies that the property, which Sexton returned as attached on the said original writ, was never receipted for, to the deponent’s knowledge.
    If, upon these facts, the Court should be of opinion that the plaintiffs have a right to recover in this action, the defendant agreed to be defaulted, and that judgment be rendered against him for 100 dollars, with interest and costs ; but if the Court should be of a different opinion, the plaintiffs agreed to become nonsuit, and that the defendant recover his costs.
    
      Thurston, for the defendant,
    argued that the sheriff is not by law bound to keep property attached, unless the plaintiff in the suit will engage to indemnify him. His fees, which are all he can demand, are no compensation for any thing beyond the service and return of the writ. Had the deputy, in the case before the Court, retained the cattle until final judgment, the expense of "keeping them for the five years would have exceeded their value; and thus the plaintiffs have received no damage, since they could have received no benefit from their being kept. It will not be said that the sherifi could lessen the expense of keeping the cattle by working them.  He would also have been liable for the value of the cattle, if they had died in his custody. 
    
    
      Bigelow for the plaintiffs.
    
      
      
        2 Mass. Rep. 526. — 5 Mass. Rev. 402. — Bacchus's Sheriff. 62. — Dalton's Sheriff, 101, 102.
    
    
      
      
        Impey's Sherifff 156.
    
   By the Court.

The object of an attachment on mesne pro cess is to compel the appearance of the defendant, * and to secure to the plaintiff the benefit of his judgmerit. When an officer attaches the debtor’s cattle, the debtor is bound to support them, after notice to him by the officer that they are attached. If he neglects to do it, and they perish from that cause, the loss will be his. They are at his risk. In case he is unable to furnish the necessary sustenance for them, he may procure some person, who will become responsible to the officer, that they shall be produced, when demanded to satisfy the execution that may issue. At any rate, the officer who attaches them is answerable to the creditor for them ; and his apprehension of incurring expense in their maintenance furnishes no excuse for his neglect. According to the agreement of the parties in this case, the defendant must be called,

Defendant defaulted. 
      
      
         [Tyler vs. Ulmer, 12 Mass. Rep. 163. — Ed.]
     