Thompson v. Miller

Appeal from a judgment for the defendant, in the Superior Court of Ventura County. Hines, J.

The complaint, after alleging the official character of the defend ent Miller, and the execution of his bond, and the execution of a promissory note by J. II. Kelley to Gr. Guthrie, and the assignment thereof to the plaintiff, and the assignment thereof by the plaintiff to A. J. Salesbury & Co., proceeds as follows :

“ That the plaintiff, as a surety and indorser on said note, in writing requested Salesbury & Co. to bring suit and attach the property of Kelley & Guthrie; that in pursuance of said request suit was commenced and an attachment issued, and placed in the hands of the defendant Miller, as sheriff, on the 22nd day of J anuary, 1871), with instruction to levy upon the property of Kelley & Guthrie; that the writ was received by the sheriff prior to any other attachment or execution, and that Kelley & Guthrie at the time were the owners of certain property, sufficient to satisfy the debt; that the said sheriff did not levy upon the property of Kelley & Guthrie as instructed, but wrongfully and unlawfully neglected to do so, and levied upon them under another attachment subsequently placed in his hands ; that by reason of the neglect and refusal of the said sheriff to levy the attachment first mentioned, the plaintiff was compelled to pay the debt; that the said sheriff was informed by Salesbury & Co., when the writ was delivered to him, that the writ of attachment was issued at the request of the plaintiff, and for his benefit and protection, and that the property of Kelley & Guthrie alone was to be levied. upon, and that he was not to look to or rely upon the property of the plaintiff for the payment of the debt.”