Cowdery v. Smith

Decided October 15, 1877

Supreme Court of Vermont · decided 1877-10-15

Case against a sheriff for the neglect of his deputy to levy an execution. Held: though taken and sold on the execution; and it was mutually understood that Weeks should hold the goods without sale till the sixty days expired, and Weeks acted on that understanding. Jerauld was adjudged a bankrupt within a few days after the expiration of the sixty days. Weeks then turned over the goods attached to the assignee.

Cited by 2 later decisions — most recently May 2004

2 state decisions

Relies on Ordway v. Bacon · Tobey v. Leonard · Abbott v. Edgerton

Good law ✅— No negative treatment on recordhow we know

Decided 1877-10-15

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¶1The opinion of the court was delivered by

Dunton, J.

¶2In cases like this it has always been held that it was competent for an officer to show what instructions he received from the complaining party or his attorney, as to serving a precept placed in his hands, and what he did in obedience to such instructions. Downer v. Bowen, 12 Vt. 452; Ordway v. Bacon, 14 Vt. 378; Abbott v. Edgerton, 30 Vt. 208. We, therefore, can see no valid objection to the testimony of Weeks. Although Weeks attempted to obtain an alias execution from the justice, but failed to do it in time to be of any avail to the plaintiff through negligence, yet as this was no part of his duty as deputy sheriff, and whatever obligation he assumed by undertaking this service was personal, not official, the defendant is not liable for such negligence. Wood v. Firness, 10 Eng. Law & Eq. 541; Toby v. Leonard, 15 Mass. 200.

¶3Judgment affirmed.