A sheriff is liable for the default of his deputy in not safely keeping property attached. Morse v. Betton, 2 N.H. 184. Unless the property is receipted for, it is the duty of the attaching officer to retain possession of it, or to secure it where it is found. And if this cannot be done, and the removal of the property is necessary for its safe keeping, it is the duty of the officer to remove it though the removal is attended with inconvenience. Dunklee v. Fales, 5 N.H. 527; Chadbourne v. Sumner,16 N.H. 129, 132. But a sheriff is not liable, absolutely and at all events, for the loss of property attached and for not having it to apply on the execution, but only for a loss through want of ordinary care and prudence. He does not insure the property nor guarantee its safe keeping, but is under a duty to exercise ordinary care and diligence in looking after it and if he does this, he is not responsible for the loss. Runlett v. Bell, 5 N.H. 435; Richards v. Gilmore, 11 N.H. 493; Lovell v. Sabin,15 N.H. 29; Kendall v. Morse, 43 N.H. 553. If he delivers the property to a third person, not a receiptor, for safe keeping, he is liable for a loss through such person's negligence, the same as he would be for a loss through his own want of care; for the keeper is his servant, and the servant's negligence is his own.
The officer is liable for the loss of the attached property, unless he has a legal excuse. Due diligence, or the exercise of reasonable care under all the circumstances, relieves him, and he cannot be charged with a loss which arises from obeying the lawful directions of the attaching creditor. In Hamilton v. Dalziel, 2 Wm. Blackstone 952, the sheriff appointed a special bailiff at the instance of the plaintiff, and was exonerated from default in not returning the writ. To the same effect is DeMoranda v. Dunkin, 4 T. R. 119. In Donham v. Wild, 19 Pick. 520, which was case against a constable for not levying an execution against the debtor on goods attached on a writ in favor of the plaintiff, the goods had been delivered by the defendant, when attached, to a third person named by the plaintiff, and afterwards, before judgment, disposed of by the debtor. In the opinion by Morton, J., the English cases of Hamilton v. Dalziel and DeMoranda v. Dunkin are cited with approval, and it is said that the plaintiff need not give advice or *Page 578 directions, but if he interfere, he could not recover for any loss arising by reason of following his directions.
An assent to the officer's acts by the plaintiff, given with a knowledge of all the circumstances, was a ratification of the acts, and equivalent to original authority and direction; and, if assent was so given, the plaintiff cannot now be heard to complain of a loss arising from acts assented to and ratified by him. There was no error in denying the instruction prayed for, nor in the instructions given.
Judgment on the verdict.
FOSTER, J., did not sit: the others concurred.