Foss v. Stewart

After a continuance, nisi, the opinion of the Court was drawn up by Weston C. J. The defendant, in the attachment made by him, under which he justifies, and in defending the action of replevin, brought against him by Joseph Boss, jr., acted in behalf of the attaching creditor. As he represented him, he succeeded in defeating the title of the plaintiff in replevin, to whom no formal delivery had been made, to give effect to the mortgage or pledge intended by the plaintiff for his security. The defendant, having received from Joseph Boss,jr. who failed in his suit, the whole value of the hay replevied, as the property of the plaintiff, should not, in our judgment, be now received to deny the plaintiff’s title, and to set up property in Joseph. He took it as the plaintiff’s, and defended successfully against the claims of Joseph, from whom he received the value of the whole. What took place between the plaintiff and Joseph, either before the attachment or afterwards, affords no protection to the defendant. If his proceedings were not warranted by law, they derived no justification from the subsequent use of a part of the hay by the plaintiff. That was by the permission of Joseph, who made the hay his own by his subsequent payment to the defendant. By receiving an equivalent in money, after judgment for a return, the defendant became answerable both to the creditor and to the debtor, as much as if the hay had been returned to him. To the creditor, on the lien, lawfully created by the attachment; and to the debtor, so far as he had transcended the law to his prejudice. If an officer attaches property, not liable to attachment, or seises it on execution, he is a trespasser. This position is established by the cases cited for the plaintiff; and is not controverted. The plaintiff had at the time a cow, but no sheep. If he had had ten sheep, he would have been entitled to have held two tons of hay exempted from attachment, to keep them ; but not otherwise. The [316] statute exempts two tons of hay, for “ the use of said sheep.” As he had no sheep, one ton and an half only was exempted, for the use of his cow. The defendant must be held answerable in this action, for taking that quantity. The attachment of the residue was justified by his precept. Judgment is to be rendered for the plaintiff, for the sum of fifteen dollars, being the value of the hay, With interest thereon from the date of the attachment.