
    Dudley Porter, Plaintiff in Review, v. William Tarlton.
    A sheriff who delivers attached goods to a receiptor does so at his own risk, unless the taking of the receipt is directed or ratified by the creditor.
    Case against the sheriff, for the default of his deputy, Mitchell, in not keeping property attached in a suit brought by the plaintiff against one Niles.
    Trial before Livermore, J.
    It appeared that Mitchell delivered the attached property to one Aspinwall, and took his receipt therefor. The defenceset up was, in substance, that the plaintiff, after obtaining execution against Niles, agreed to accept the receipt in lieu of the goods, and to discharge Mitchell from his responsibility to keep the goods in his custody; and that this agreement was executed on Mitchell’s part by delivering up the receipt to the plaintiff’s ag§nt.
    A verdict was rendered for the defendant, which the plaintiff moved to set aside, on account of various rulings, which are not deemed material to be stated here.
    
    
      
       Statement of facts by the compiler.
    
    
      
       In Runlett v. Bell, 1881, 5 N. H. 433, it was decided tliat, if the sheriff deliver attached goods to a receiptor, who is apparently in good circumstances, he will not be liable if the debt is lost through the eventual insolvency of the receiptor. “This,” said Chief Justice Parker, in 1844 (15 N. H. 36), “ is a relaxation of the principle, as formerly understood.” It is directly opposed by a very able decision in Vermont, —- Gilbert v. Crandall, 1861, 31 Vt. 188. See also Drake, Attach. 4th ed. §§ 344, 361-364; and Storrs, J., in Jordan v. Gallup, 1844, 16 Conn. 536, 545, 546.
      In Runlett v. Bell, it was assumed that a sheriff is not obliged to accept a responsible receiptor; and upon that assumption the decision has been criticised. See 34 Vt. 192. But it has since been said, “If the debtor tenders a responsible receiptor, the sheriff is bound to accept him. . . .” Parker, O. J., in Went v. Meserve, 1845, 17 N. H. 432, 436; and see Hibbard, J., in Batchelder v. Putnam, 1873, 54 N. H. 84, 85; Spear v. Hill, 1873, 54 N. H. 87, 91.
      The decision in llunlett v. Bell, lias repeatedly been recognized as the established law of Now Hampshire. See Bellows, J., in Kendall v. Morse, 1862, 43 N. H. 533, 555.
    
   [Smith, C. J.,

drew up an opinion, from which the following is an extract:] —

Independent of any agreement of creditor, or his agent, it is no defence that Mitchell had delivered them [the goods attached] to Aspinwall, and had taken his receipt. If directed by the creditor to do so, or if creditor content to take such receipt, instead of looking to him, Mitchell, this would discharge Mitchell; otherwise not. Mitchell takes security at his own rislsfor his indemnity; and such indemnity reasonable, and therefore not unlawful.

Upon the evidence in this case, the only ground of defence is, that creditor agreed to discharge Mitchell from his responsibility by law, safely to keep in his custody till expiration of thirty days from attachment, and to accept the receipt Mitchell had taken from Aspinwall in lien of the goods. If he did so agree, it is reasonable that Mitchell should be discharged; because Mitchell has executed the agreement on his part, which was made on good consideration (damage to Mitchell); and has thereby lost his remedy against Aspinwall, because the receipt is discharged by Edson, agent of the creditor.

Smith, C. J., and Ellis, J., concurred in setting aside the verdict, on account of erroneous rulings at the trial. Livkbmojlik, J., dissented. The grounds of his dissent are not stated. His rulings at the trial show that he agreed with Smith, C. J., in the doctrine that the sheriff took a receiptor at his own risk. ,  