Canada v. Southwick

Putnam J. delivered the opinion of the Court. The general rule, that an officer who is sued for not levying upon property attached as belonging to the debtor, may prove a paramount title in another, in his defence, seems not to be controverted. The cases cited by the plaintiff’s counsel fully maintain that law. The question is, whether by any thing stated in the bill of exceptions, the defendant is by law prevented from making such a defence against this action. And the plaintiff contends that the defendant is precluded from that defence on two grounds : first, that it would falsify the defendant’s return of the attachment upon the original writ; and secondly, that, from the evidence given in the case, .the judgment should have been for the plaintiff, because the property claimed by Putnam was divested by fraud, and so was liable to be taken in satisfaction of the plaintiff’s demand. In regard to the first suggestion, there is no doubt that an officer cannot by law be permitted to falsify his return. This rule was recognised in the case of Gardner v. Hosmer, 6 Mass. R. 325. For example, if he returns that he has attached certain personal property, describing it, he cannot be permitted to say that he never did attach such property. If the writ commanded him to attach to a certain amount, and he should return that he had done so, without particularizing what he had attached, he could not be [559] permitted to deny that he had attached to the amount commanded. If he would avoid that responsibility, he should return what he had done in the serving of the process, truly and particularly. But we think in the case at bar the defence does not falsify the return. The direction of the plaintiff on the back of the writ, to “ attach property or make no service,” controlled the general command in the writ only so far as this general command required the arresting of the person of the debtor. But the direction to the officer not to serve the writ unless he attached property, impliedly commanded a service to be made if he could find property to attach. And the meaning of such instruction must be construed to be, that if the officer can find any goods &c., which he thinks belong to the debtor, he shall attach them. It could not be construed to mean, that the officer was to omit the service until he should find property that he should be willing to warrant or guaranty to be the debtor’s. Such a construction would be very harsh and .unreasonable. When the officer returns that he has attached particular property in obedience to the writ, it means, that he has taken and attached it as the property of the debtor. And if it turns out to be so, the creditor will by proper proceedings have the benefit of it. If it turns out not to be so, then it should not have been taken and attached. But if the officer has done his duty according to his best discretion, without fraud, he is not to be punished for the mistake. No fraud is suggested against the defendant. But it is contended that the evidence given by Mr. Putnam, per se disproves that the legal property was in him, because he did not disclose his claim under the mortgage, to the defendant when he made the attachment. We do not think that any such fraud is proved as in a court of law should postpone the mortgage. There would remain a reversionary interest in the property liable to the attachment of the creditors of the mortgager. The creditor parted with no money or property in making his attachment, as a vendee does in the case of a sale. It might happen that the debtor would pay the debt to Putnam, and so leave the property liable in [560] the whole to the attachment of other creditors. It might happen that the attaching creditor would never prosecute the suit, or if he did, he might not recover, or if he recovered, the execution might be levied on the body or on other property. Putnam had used his diligence to get security upon this property, and the plaintiff was using his, and each acted independently of the other. The mortgagee, under these circumstances, by his silence in regard to his own claim upon the property, did not vacate or postpone the claim under the mortgage. It does not appear that there was any other property to attach. The case might present very different considerations if it appeared that Putnam had induced the defendant to attach this property, and not some other property which otherwise he would have attached, with the intent to aid the debtor to dispose of the other property, or to enable other creditors to attach the same, conceal ing all the time his lien. It will be time enough to settle such a case when it arises. We are all of opinion, that the exceptions of the plaintiff to the opinion of the presiding judge of the Common Pleas be overruled.