Goodnow v. Willard

Dewet, J. The principal ground, upon which the plaintiff relies to recover substantial damages, has been fully considered and settled against him in the case of Inhabitants of Cheshire v. Briggs, 2 Met. 486, which was not decided until after the present action was commenced. The Rev. Sts. c. 90, did not make it the duty of the officer, serving a writ of attachment, to deposit the writ, or a copy thereof, in the clerk’s office for a registration of the attachment; as was decided in the case referred to. That duty was first imposed by St. 1838, c. 186. The plaintiff further contends, that upon the facts stated by the parties, it may be inferred that the officer serving the precept did undertake to deposit the writ, or a copy thereof, in the clerk’s office in proper season to secure and render effectual the original attachment indorsed on the writ, and that having voluntarily assumed upon himself to perform this duty, the sheriff may be charged by reason of any neglect in that behalf. But the only evidence, relied on to show such undertaking, arises from the fact, that the attaching officer did return a copy of the writ and attachment to the clerk’s office on the sixth day after the service and attachment made by him on said writ. This fact seems to us, at most, only to authorize the inference, that the attaching officer undertook to return it on the sixth day. By reason of the transfer of the property of the debtor on the 5th of May, the expediency of giving as much effect as possible to the attachment made on the 1st of May became quite manifest; and with or without any request from the creditor, the officer might deem it expedient to deposit a copy of the writ in the office of the clerk, to avail what it- might for the benefit of the creditor. z Whether such an undertaking, as is attempted to be established, that is, an agreement of the attaching officer, a deputy sheriff, that he will file such copy of the writ in due season to render the original attachment effectual from its date, and a neglect to perform it (it being an act not required of him by law) would create any liability on the part of the sheriff, it is immaterial particularly to consider upon the facts here stated.* It was further urged, that the attaching officer was guilty of [520] neglect in not attaching personal property on the precept committed to him for service. But no directions were given to him to attach personal property. He was only directed to “ attach specially.” It is true, if he had adopted that mode of attachment, it would have relieved the creditor from the consequences of any laches in the matter of perfecting and perpetuating his attachment. But the direction of the creditor to attach specially was as much complied with, by making a sufficient attachment of real estate, as it would have been by an attachment of personal estate. Such attachment was made, and of sufficient property, and the creditor should have followed up his directions to the officer to attach property, by ascertaining what property was attached, and taking the necessary measures to render his attachment effectual. The only default of the deputy, for which the defendant is responsible, is the neglect to make due return of the execution subsequently committed to him. Here was a neglect of duty, for which, although no actual damage is shown, the plaintiff is entitled to recover nominal damages. Laflin v. Willard, 16 Pick. 64. Footnotes [*] But see Waterhouse y, Waite, 1] Mass. 210. Tobey v. Leonard, 15 Mass. 200.