Tucker v. Bradley

Waite, J.

When a plaintiff in a writ of attachment, is desirous of having it served immediately, he has a right so to direct the officer, when he delivers to him the process. And the officer receiving it, under such instructions, is bound to follow them, and, on failure, is answerable for the consequences.

But when no such instructions are given, the officer is not bound to act with that degree of vigilance, and generally has a right to serve the process, at any time within the period prescribed by law. He is indeed bound to act reasonably ; and if, as the court instructed the jury, he has knowledge, or reasonable ground to believe, that there will be danger resulting to the plaintiff, by delaying the service, he is bound to act with greater diligence.

In the absence of all instruction from the plaintiff or creditor, and of all fear that any danger would result from a delay, he is not bound to proceed forthwith, upon the receipt of the writ, to serve it. He does not become an insurer that no loss shall happen to the plaintiff or creditor, in consequence of any delay on his part to serve the process. Such, it is believed, is the practical construction given to the law upon this subject.

Thus, when the creditor upon an execution is apprehensive that his debt will be lost, unless his writ is immediately levied, he may direct the officer to proceed forthwith. But if no such directions are given, and no ground exists for apprehending any danger by delay, the officer may fairly infer that he has a right to levy at his convenience, provided he makes his return according to the requirements of the wrrit.

No injustice is done to the creditor, by an adherence to this rule; because it is iu his power, at any time, to require of the officer greater diligence, or make him responsible for any loss occasioned by further delay.

Although the instructions given to the jury, in this case, were generally correct; yet, we are apprehensive, that in one particular, the jury may have been misled, by the charge.

The court informed them, that where a writ of attachment is delivered to an officer, it is his duty to serve it, without any unnecessary delay ; and if delivered without any special instructions as to its service, he is not to be deemed guilty of delay, if he exercises ordinary diligence in serving the writ; and he is not bound to employ the time for that purpose, which is usually devoted to rest or refreshment.

If from this the jury might infer, that the officer, after receiving a writ, without any instructions, could not spend more time, before the service, than what was usually devoted to rest and refreshment, we think the rule was laid down with too great rigour, by the court. And as such an effect may have been produced upon their minds, by the charge, and as this may have operated upon them to the prejudice of the defendant, we think a new trial should be granted.

In this opinion the other Judges concurred, except Storks, J., who, though he concurred in the principles of law therein contained, thought the charge complained of, was, on a just construction of it, in accordance with those principles, and on that ground, he should not advise a new trial.

New trial to be granted.