Munger v. Fletcher

HutchinsoN, J. delivered the opinion of the court. — If the plaintiff has sustained any injury, by the defendant’s neglect to preserve for him the property attached on his writ, he must recover for that injury. If it is certain that he sustained no injury,he is not entitled to recover.- The position assumed by the plaintiff is, that he obtained a lien upon the property, subject to the1 five prior attachments, and that no disposition of the property, in whole or in part by agreement of the other creditors and the debt- or, can affect his lien. This is so far correct, that we - must examine how the contract in question has varied the disposition of the property. [529] The agreed case shows, that the plaintiff was the 'sixth attaching creditor upon the same goods ; that Bfeck's debt, first put on, was of a greater amount, than was in fact realized from the sale of the goods ; that all these creditors entered their actions in 'court, and obtained judgements for the amount; The papers referred to in said agreed case shows, that the executions were issued and delivered out in season to preserve the lien on the property, created by the several attachments. And that the officer has endorsed on Breck’s execution the amount of the avails of the sale of all the goods attached, and interest received by him on the same. But his endorsement, instead of stating an advertisement and sale, after the execution was 'delivered to him, states the sale at given days in July and first of August proceeding, and that this was by agreement of those, who appear to be all the persons interested except the plaintiff. This marks the only deviation from a regular and legal pursuit of Breck’s lien; Had the avails been applied in payment of Breck’s debt without its being perfected by a judgement, this would have been substituting an agreement for the attachment, and would have destroyed the lien; The debt of Breck, and its amount, have been established just as they would have been, if no agreement had been made, and the lien kept good by his execution, and delivery of the same to the Officer» The only ground of complaint of injury to the plaintiff* is, that the property might have been sold for more on the execution at the time the officer had it, than when it was in fact sold. This, if supported by fact; would be a just ground of complaint» But, this is answered by the facts, to which the parties have agreed, to wit: “ that the sale was fairly conducted, and the amount realized probably greater than would have been obtained by sale on execution.” It seems that the five creditors agreed to the sale, from a consciousness, that there was not sufficient property to pay all their debts, and from a wish to save the expense of keeping, and the loss by the perishing of the goods. And, after all this caution, the judgements of these five creditors, who thus agreed to the sale, amounted to nearly thirteen hundred dollars more than was realized from the goods. .The facts, agreed to in the case, seem to have disposed of all the uncertainties, which might attend a case, where the action-brought was settled, by a sale of the property in payment of the debt, before judgement. These creditors kept their lien good upon the property. If their officer had neglected to apply the avails of the goods on their executions, according to their priority, each might have sued him for his neg [530] lect, just as though no such agreement for the sale had ever beeo made : the action would have been in the same shape, and contained the same recitals. And all the use, the officer could ever have made of that agreement in his defence, would have been upon the measure of the damages to be recovered against him.— He might contend, that they should be content with the sale as to the amount they would recover. Hunter, for the plaintiff. Coolidge, for the defendant. Thus far we have treated the subject as if the agreement, for the sale of the property before judgement, formed an important branch of this defence. But, there is another view that should not be forgotten. Suppose the Sheriff, having made the attachments for the six creditors upon the same property, had sold the property at private sale, or public auction, or converted it to his own use, without any agreement or consent of the attaching creditors, and they had pursued their actions to judgement and execution, as they have now done, what would have been their remedy ? It would have been, that each might have sued him as the plaintiff now has, and, amongst them all, recovered the value of the property as the jury should assess it; and this value must have been applied for the benefit of those creditors, according to their priority of lien ; that is, if the jury should fix the value as this case fixes it, Brecfc would have recovered the whole value, in part satisfaction of his debt, and each other action must have failed, and the defendant recovered his cost. As the other creditors have all kept their lien good, the same as the plaintiff has his, by judgement and execution, and delivery to the officer, if the plaintiff would urge a different value from the avails of said sale, he myst expect the a-roount of the other five executions to be first deducted, and be content with the balance only. But no such question is urged ; and, in no view presented by the case, has the plaintiff sustained any injury, from any neglect of which he complains. We consider that there is error in the judgement of the county court, and the same is reversed, and judgement must be entered for the defendant to recover his cost. Judgement reversed.