Timothy Coggeshall versus Benjamin F. Varnum, 19 Pick. 422

Shaw C. J. In this suit against the sheriff for the default of his deputy, Bancroft, the question is, whether, under the circumstances, the officer had a right to set off Blake’s execution against the plaintiff’s execution, on which he had an attachment of personal property. The plaintiff had two executions against Blake, one of which was secured by an attachment of personal property, and the other not, and placed them both in the hands of the officer for service.

Each of these executions was larger in amount than Blake’s execution, and the plaintiff directed, that if Blake should offer his execution by way of set-off, under the statute, it should be set off on the execution not secured. This the officer declined to do, but set "i off against the execution which was secured, and thereby defeated the plaintiff’s attachment pro tanto.

The Court are of opinion, that Blake’s right of set-off was sufficiently protected by the power of setting off his execution against another execution of the plaintiff then in force ; that the plaintiff, upon a balance of the three executions, being a creditor, had a right to the benefit of his attachment to secure the balance of his debt; that the officer was bound to obey his order in this respect ; and that his neglect and refusal to do so was a breach of his duty, to the injury of the plaintiff. Judgment on the verdict.