How far the sheriff’s return is evidence per se to facts exculpating him from liability, is not very clearly settled. It is evidence for him as to those acts and doings, which have respect to his official duties, arising under the mandatory part of the "process. For instance, the indorsement of the time of receiving the writ, and the act of levying and the goods levied on, is a statement of official acts which the writ requires, and should be allowed as evidence in his favor, subject nevertheless to be impeached. The subsequent destruction of the property levied upon, whether occasioned by casualty, or the carelessness or wrongful act of the sheriff, is far from being an official act. It would, I apprehend, be an unsafe rule to establish, which would relieve him from liability, after having taken goods upon an execution upon his own return, that they were casually burned. I can see no reason why a return that they were casually lost by him or stolen from him would *595not, by the same rule, exonerate him from liability. Establish such a proposition, and the sheriff’s appreciation of his responsibility might tend greatly to lessen the safety of property after a levy upon it. If the sheriff takes property levied on into his own possession, or commits it to the care of his servant, or an agent, he should, in case of its loss or destruction, in order to excuse himself from liability be required to give clear and satisfactory evidence that it was not occasioned by his neglect or want of such care as a prudent man would take of his own property. If he leaves it with the debtor, I am inclined to the opinion that no excuse should exonerate him from liability, except its destruction by the act of God, or the enemies of the country. The debtor has the same reasons, inducing him to dispose of the property improperly, which led him to interpose a delay to the collection; and besides these, his increasing prejudices and excited passion arising from the litigation would frequently tend to enhance the risk of injury to the property. Under such circumstances, I would hold the sheriff to a most rigid rule. If the return on the execution in this case discharges the sheriff from liability, he would always have a remedy at hand, even against gross carelessness and fraud.
Again, if the property is left in the possession of the defendant on a receipt given, I hold with the late Justice Cowen, that the sheriff should be made liable at all hazards. This absolute liability, is founded upon the agreement of the receiptor, upon the principle that the liability of the sheriff should be as broad as that of the receiptor to him. The receiptor is not the agent of the sheriff in the proper sense of the term, nor is he his bailee, subject to such rules only as extend to and regulate such relations. He is the friend and surety of the debtor at whose request and on whose account the goods are left in his possession, subject to all risk of loss and destruction. Where such a receipt as was given in this case is taken, the sheriff surrenders all charge of the property and looks to his receipt for his indemnity. The idea that the receiptor is his bailee or agent, is far from his thoughts, and he reposes himself upon the contract to indemnify him which he holds. The receiptor agrees either *596to deliver him the property or to pay the execution. It is a plain agreement, and to allow an excuse for not delivering the property, that it is destroyed, except by the act of God or the enemies of the country, would greatly impair the force of the agreement. What was the intention of the parties, unless it was that either the property should be returned, or in default thereof, the amount stipulated as its value paid? I can see no good reason why such an instrument should be made an exception to the rule relating to the construction of contracts. It holds the party to his agreement and no more. He has no right to complain of its severity; it was his own voluntary undertaking and not one for the benefit of the sheriff. That such should be the construction, we have the clearest illustration from the evidence in the case before us. On the receipt being given, the property was left in the debtor’s possession, and he went on' as before, selling the goods and disregarding entirely the levy, and thus the whole might have been sold and put beyond the reach of the execution before the time for the delivery. This shows what ought to be the extent of the receiptor’s liability, and what manifestly was the understanding of the parties. The rule of law cannot be relaxed to accommodate a possible hardship arising in the case, any more than it can to relieve a tenant from the payment of rent after the buildings upon the demised premises are destroyed by fire, or from a covenant to keep them in repair, or to surrender them in good condition at the expiration of the term, although there be no express covenant to rebuild. And if this is so, who can doubt for ,a moment that the liability of the sheriff should be as full as that of the receiptor. If it is not, the collection of debts might become a mere farce, and the sheriff might set the creditor at defiance, and treat with contempt his efforts to collect his debt. He could levy on the property, carelessly leave it in the defendant’s possession upon a receipt for its safe delivery, and then in case of a loss, leave it to his own good pleasure whether the creditor shall be permitted to - avail himself of it. I cannot bring myself to, believe that there is any rule of law so absurd as that the sheriff can hold a perfect indemnity in his hands *597for the satisfaction of the debt, and yet that it shall afford the plaintiff no claim for its payment. If the sheriff has obtained an indemnity) that should be the foundation for his own liability over to the creditor. If in the course of his official duties, and as the legal agent of the plaintiff, whose process he has to execute, he obtained an insurance for the satisfaction of the claim, that insurance should enure to the benefit of the plaintiff by cause of action over against him. . This would take nothing from the sheriff, for his receipt is his indemnity. If the receiptor should prove insolvent and the property be lost, as between the plaintiff and the sheriff, the latter alone should bear the loss. He could have retained the property in his own possession, and then in case of its loss, the rule of liability would be determined by the existing circumstances of the case.
The return of the sheriff, that he was served with an order to stay proceedings, affords him no relief. If the fact was in any respect available, it should have been proved. His return, in that particular, had no respect to any official act. The charge that the return as to the loss of the goods was proper evidence for the sheriff, I think erroneous. For these reasons, I am in favor of reversing the judgment of the supreme court and granting a new trial.
Spencer, Senator.The counsel for the plaintiffs requested the judge to instruct the jury that the return of the sheriff formed no defence to the action, even if it were true. The judge refused this, but on the contrary, did charge and instruct them that the return, if true, formed a good defence to the action, and that the same was evidence for the sheriff, that the goods levied on had been destroyed. In this the judge was clearly wrong; and upon this point alone the verdict must have been rendered for the defendant. The jury seemed to have forgotten or to have regarded as of no importance the rest of the charge. The sheriff had made a special return long after the return day of the execution, and no doubt after the commencement of the suit, in which was admitted a right of action fora portion of the plaintiff’s claim, and without the *598return of nulla bona, &o. for the residue. If the case stopped here, there could be no manner of doubt that the judgment should be reversed. The residue of the judge’s charge is somewhat inconsistent with the portion I have repeated, but it was eminently calculated to weaken the force of the evidence given to contradict the return, and to lead the minds of the jury to the belief that it was worthy of little regard by them, and to keep prominently before them the statements in the return, and induce them to give too much weight to it. The whole charge taken together was well calculated to mislead the jury, and they must have been misled by it, and must have relied exclusively upon the portion of it which was clearly erroneous, or they could never have rendered such a verdict as they did. The exceptions were properly taken, both to the omission and the charge as delivered. I think, therefore, that the ends of justice will be subserved, and the law rightly administered by a reversal of the judgment.
Senators Barlow, Wright and Talcott delivered written opinions in favor of a reversal of the judgment, in each of which the position was maintained, that the return of a sheriff is evidence only of such official acts as are required by the writ to be performed, and not of facts to excuse their non-performance; and that in relation to such acts, it is simply prima facie evidence, and may be disproved. Senator Wright also concurred in the views contained in the dissenting opinion of the late Justice Cowen, (5 Hill, 593,) that when a sheriff leaves property levied upon in the hands of the debtor in the execution, he becomes as to the creditor the insurer of the property against its loss.
Upon the question being put, "Shall this judgment be reversed ?” the members of the court voted as follows :
For reversal: Senators Barlow, Burnham, Deyo, Johnson, Lott, Putnam, Sanford, J. B. Smith, S. Smith, Spencer, Talcott, Wheeler, Wright—13.
For affirmance: The Chancellor, and Senators Beers, Emmons, Hand—4.
Judgment reversed.