Lovejoy v. Hutchins

The opinion of the Court was drawn up by Whitman C. J. It does not appear to be controverted, that the property attached by Lake, the defendant’s deputy, was the debtor’s as whose he attached it. And there does not seem to be any question as to the rendition of judgment in the case, in which the attachment was made; nor of the due issuing of the execution thereon; nor of the seasonableness of the demand upon Lake and the defendant, by virtue thereof, of the property attached to be levied upon. The counsel for the defendant, at the trial, would seem to have placed his defence upon two grounds; first, that Lake returned the attachment as made at the risk of the plaintiff. This objection cannot be regarded as well taken. Such a re [275] turn could not affect the rights of the creditor, or relieve the officer making the attachment from any portion of his responsibility. He was bound to attach the property, and to keep it safely. The second objection is, that Lake was unable to keep and retain the property attached within Iris precinct. It was offered to be proved by the defendant, that, by reason of the current in the water, in which the property attached, viz., mill-logs, lay, and the resistance of the owners of it, he was unable to keep it within his precinct. The Judge at the trial did right in rejecting such evidence. No such occurrence could excuse him from liability. He had his remedy against any one who might wrest it from his possession. The conveyance of it out of his precinct did not absolve him from liability. He could have pursued it, and have reclaimed it, anywhere. By the attachment he acquired a special property in it, the right to which he might have vindicated. A third exception was taken to the ruling of the Judge in reference to the amount of damages to be recovered. The defendant contended, that all the expenses, which might have attended the keeping of the logs, ought to be deducted from their value, although none in fact had been incurred. This the Judge very properly overruled. Lake having remedy against those, who took the logs from him, might have recovered their full value; or, if taken by the debtors, and if the logs were more than sufficient to have discharged the execution, at least, to the extent of his liability thereon. The exceptions therefore must be overruled, and judgment be entered on the verdict.