Barnes v. Greenleaf

1 Super. Ct. Jud. 41

Opinion

THE Question in this Case was, whether Mr. Wheelwright should be admitted as a Witness. The Action was brought against Greenleaf (Sheriff) for an insufficient Service of a Writ upon which the Return flood thus: “I have attached the Defendant, and taken Mr. Wheelwright’s Word for his Appearance.” (¹) Mr. Wheelwright was offered to prove that at the Plaintiff’s Consent the Prisoner was dismissed. He was objected to, because ’twas said the Sheriff would recur to him, if he lost in this Action. But ’twas answered, there could be no such Recourse, for the Sheriff deviating from the Path of his Duty must expect the Consequence. (²) He was admitted and sworn.

Footnotes

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*

1763.

1

(1) The return as set forth on record is as follows:

“Suffolk vs. Boston, June 17, 1762. I attached the body of the within named Thomas Carnes, and Nathaniel Wheelwright Esq. gave his word for his appearance at Court.

Benja: Cudworth,

Deputy Sheriff.”

2

(2) S. P. Denny v. Lincoln, 5 Mass. 385. In that case the officer forbore to arrest, upon a promise by a third party to deliver the debtor to him at a day named. Parsons, C. J. “It is to be regretted that officers having a plain path before them will not pursue it. If they deviate from it, it must be at their own peril, and they cannot protest themselves against the damages arising from a breach of official duty by any collateral stipulation for indemnity.” See also 4 Mass. 370. But taking receipts for property attached, or notes in consideration of forbearing to attach, is consistent with the officer’s duty. Foster v. Clark, 19 Pick. 329. And such receiptor has been held incompetent through interest. 23 Pick. 86.

Vid. 4 Bac. Ab. 462, 463, top. (⁴)

4

(4) Bac. Ab. Sheriff, O.