Jordan v. Gallup

Storrs, J. In this case, the plaintiffs move for judgment in their favour, notwithstanding the verdict. The defendant is sheriff of the county of Windham; and this suit is brought for the default of one of his deputies, in not keeping certain personal property attached by him, in an ac — 543 — tion brought by the plaintiffs against Elisha A. Smith, so that it could be taken on the execution issued on the judgment obtained therein; and the question is, whether the facts alleged in either of the defendant’s pleas in bar constitute a legal defence; all of them being admitted by the replication, or found by the jury, on the plaintiffs’ traverse. The general principle applicable to this subject, is, that an officer, having taken property on legal process, must, in his subsequent proceedings with it, comply with all the requirements of the law, or show some legal excuse for not doing so; and that if he does not, he becomes liable, not only to those on whose behalf he acts, but also to the owner, and those claiming under him and standing in his situation. The law being his only authority for his acts, when he departs from its provisions, he is of course without protection; and if his acts are contrary to his duty, he cannot justify, even although they were for the advantage of those interested, unless they have consented to the course taken by him; in which case, as to them, such consent would be a valid excuse to the officer. The inquiry, therefore, is, whether the defendant, in either of his pleas, shows, that the course required by law was taken by his deputy, in regard to the property in question; or that he has been excused therefrom. The first plea distinguishes between the several portions of the property, and sets up a different justification or excuse as to each. After stating, that prior to the attachment thereof, at the suit of the plaintiffs, it had all been attached, by the same deputy, in suits against said Smith, in favour of J. F. Pond & Co., who obtained judgments therein, it alleges, that, as to a certain portion of said property, it had been sold and applied, by said deputy, on one of the executions which were issued on said judgments. All of the steps alleged to have been taken in regard to the property, before and at said sale, are admitted to be regular, excepting that it was advertised to be sold, and was sold, not at the sign-post in the society where the same was taken, but at another place where it was deposited when the execution was levied upon it; and the only reason stated therefor in the plea, is, that “it could not be conveniently removed” from that place. The general statute on the subject of sales of property on execution, requires, that the officer shall advertise such property to be sold at the — 544 — sign-post in the society where it was taken, and that it shall be there sold. Stat. p. 62. The statute of 1829, however, provides, that “whenever an officer shall advertise for sale property taken on warrant or execution, which cannot be removed to the public sign-post, without great injury or expense, or which cannot be there sold, without great inconvenience or injury from exposure to the weather, such officer may, in his advertisement, designate some other proper and convenient place within the society where the property is taken, at which said property may be sold.” Stat. p. 70. The result to which we have come, as to the other parts of the case, makes it unnecessary to decide whether there is a sufficient reason shown for not selling this part of the property at the sign-post. The court however are strongly inclined to the opinion, that there is not; and that the plea should have shown, that the degree of necessity existed, mentioned in the last statute. If the court could, from the nature of the property, fairly infer such necessity, it might be sufficient. And perhaps a return of an officer on an execution not more particular than this averment in the plea, might be good. More explicitness, however, is required in pleadings. Nor is this defect cured by the verdict, which has passed on this fact. We cannot intend, that a greater degree of necessity was proved, when proof of a smaller, or indeed of any degree, would equally warrant the finding of the jury. This plea, as to the remainder of the property, alleges, that the officer, after having attached it in said suits in favour of Pond & Co., delivered one portion of it to one 1. Saunders to keep, taking from him his receipt therefor, and promise to re-deliver it to said officer, on demand; that said Saunders, although requested, neglected to re-deliver it, so that it might be sold on the executions in said suits, whereby he became liable to pay, and did afterwards pay, to said officer, the value of said property; and that the sum so paid was applied by said officer in part payment of said executions of Pond & Co.; and, as to the other portion of it, that it was delivered, by said officer, to one W. B. Mann to keep, taking from him a similar receipt and promise; but that, although requested, he neglected and refused to re-deliver it to said officer so that it might be sold on said executions, or to pay to said officer the value thereof; and that the value of said property, so deliver — 545 — ed to said Saunders and Mann was less than the amount due on the judgments recovered by Pond & Co. in their said suits. By the attachment of this property on the plaintiffs’ writs, a lien was acquired, subject to those acquired by the said prior attachments; and it was the duty of the attaching officer to preserve that lien, so that it should not be lost, unless by an appropriation of the property in the manner prescribed by law, in satisfaction of the prior liens, or otherwise, without his default; and for that purpose to keep the property, so that such part of it as should not be so appropriated, could be taken on the executions issued on the judgment obtained by the plaintiffs on their said writ, or to show some legal excuse for not doing so. If in the absence of such excuse, the property is not applied on the debt of the first attaching creditors, in the mode which the law prescribes, it was exonerated from their attachments, and became chargeable on the plaintiffs’ execution. These principles were fully established in Cole v. Wooster, 2 Conn. R. 203. In the present case, the lien on this property, created by the attachments of Pond & Co., was confessedly discharged, in consequence of its not having been sold on their executions, in the manner directed by law; and the only question is, whether the facts set up excuse the attaching officer for not having the property so that it could be taken on the plaintiffs’ execution. It is quite clear, that the delivery of it to the receipter, however responsible he might be, and his neglect to re-deliver it to the officer according to the terms of his agreement, so that it might be applied on the plaintiffs’ execution, does not constitute any such excuse. An officer, having attached property, may undoubtedly, if he sees fit, place it for safe-keeping in the hands of a bailee, taking from him a promise for its re-delivery, like that described in this plea, which may be enforced by the officer against such bailee. But the creditor, on whose behalf the attachment is made, is no party to such contract; he has no interest in it, nor is he affected by it. He looks solely to the officer, who is presumed to have the property in his custody, so long as the lien on it exists; and if any loss happens, in consequence of any arrangement between him and other persons respecting it, he assumes the — 546 — risk of answering to the creditor, if it is not forthcoming on his execution, unless it be lost by casualties which ought to excuse him; which is not the case here. Phillips & al. v. Bridge, 11 Mass. R. 247. Browning v. Hanford, 5 Hill’s R. 588. The defendant, however, insists, that as it appears that the value of the property was insufficient to pay the claims on the attachments made prior to that of the plaintiffs, so that, if it had been disposed of according to law, nothing would have remained to be applied on their debt, they have lost nothing by the default of the officer, and therefore, cannot maintain this action ; and the case of The Commercial Bank v. Wilkins, 9 Greenl. R. 28. is cited in support of this claim. We do not think, that it was intended, in that case, to decide this point; but if it were, it would not be sufficient to induce us to depart from principles, which have been long and well established in this state, and which are opposed to this claim of the defendant. If it were a new question, we think, that the law would be best vindicated, by holding officers liable for such official delinquency as is here complained of, leaving the amount of the recovery to be settled on such principles as are just and equitable. We think it a more wholesome course to make their liability depend on the question whether they have performed their duty, rather than on the inquiry whether a neglect of it has proved actually injurious to the party whose rights have been violated. It is also to be observed, that the law requires, that the property shall be applied on executions according to its value, as ascertained in a prescribed mode; that the plaintiff, in a case like this, has a right to have its value so ascertained ; and that whether, if it had been, it would have produced more or less than the opinions of witnesses might prove it worth, is an inquiry necessarily attended with much uncertainty. In Cole v. Wooster, it was held, that a receipter of property attached, which was not afterwards taken on the execution in the suit, and disposed of in the manner prescribed by law, was liable as garnishee in a process of foreign attachment, at the suit of another creditor, although the property had been subsequently applied, by the procurement of such receipter, in payment of the first attaching creditor’s debt. This decision went expressly on the ground, that the property was discharged from the lien crea — 547 — ted by the first attachment, in consequence of the proper steps of the law not having been taken in applying it to the judgment rendered thereon; and that, therefore, the receipter was liable, although the jury found that no surplus remained of the property after discharging the debt for which it was attached. The principles settled in that case clearly render the defendant liable in the present action. The same doctrine prevails in Massachusetts. In Rich & al. v. Bell, 16 Mass. R. 294., which was a suit against an officer, for neglecting to keep goods attached by him, so that they might have been taken on the plaintiffs’ execution, the action was sustained, notwithstanding the precise objection which we are now considering. There, the property had been previously attached, by other creditors; and by an agreement between such creditors and the officer, it had been, with the debtor’s consent, sold and applied on the judgments subsequently obtained by such creditors; and the said goods were not worth, and would not produce on a sale thereof, a sum sufficient for the payment of the first attaching creditors, and of those of the second attaching creditors who were prior in order to the plaintiffs. It appeared also, that the sale was fairly conducted, and that a greater sum was produced than would have been, if the goods had been kept and sold on execution. Ch. J. Parker, in giving the opinion of the court, says: “The conduct of the officer, although for the advantage of the debtor, and of all the creditors who were eventually interested in the goods attached, was, nevertheless, contrary to his official duty; so that he is liable to the plaintiffs’ action.” “ All the creditors who had attached, had a legal right to have the goods disposed of according to law; and to make any other disposition of them, was a wrong done to them, for which the law will give an adequate remedy.” The same principle is also recognized in the state of New-York. Vanwinkle v. Udall, 1 Hill’s R. 558. The first plea in this case, therefore, is insufficient. The second plea alleges, that the property receipted by Mann, as before-mentioned, was, when the same was attached on the writs of Pond & Co. and the plaintiffs, the property of 1. Saunders, and not of Smith, the defendants in said writs; and that the residue of said property attached has — 548 — been applied in payment of said executions of Pond & Co.; and that it was insufficient to pay said executions. This would be a good defence, as to the properly receipted by Mann. Fuller v. Holden, 4 Mass. R. 499. Tyler v. Ulmer, 12 Mass. R. 163. 2 N. Hamp. R. 87. But as to the residue, it is not alleged in what manner it was applied; and on that account, we think that the plea is defective. This part of the plea would have been supported, by proof that the money received of the receipters was applied to those executions, which, on the grounds already stated in regard to the first plea, would be no defence against this action. Such facts should be stated as to show that the property was legally applied; which could only be done, by pursuing the course prescribed by the statute as to sales of property on executions. The plaintiffs, therefore, notwithstanding the verdict, are entitled to judgment. The defendant is not, however, necessarily liable to the plaintiffs for the whole value of the property attached ; and we think that, on the facts admitted in the pleadings and found in this case, the recovery should be for nominal damages only. The general rule of damages, in a case like this, is the injury sustained by the creditor, by the default of the officer. As the value of the property attached in this case, was less than the amount for which it was holden on the writs which were served on it prior to the plaintiffs, it is obvious, that the plaintiffs would have received no benefit from the attachment of the property, if it had been retained by the officer in his possession, and proceeded with strictly according to law. They have, therefore, sustained no actual damage, by the negligence of which they complain. For their interest in the property nominal damages are a full compensation; and no circumstances are disclosed, which should enhance them beyond those actually sustained. Had that been the case, it would have stood on different grounds. According to the rule, that the defendant, in such a case as this, shall pay to the plaintiffs the full value of the property, an officer, who has attached property in favour of successive creditors, would be in a deplorable condition, since he would be held to answer to each, however numerous they might be, for its whole value; and that, even where there might be a mere venial departure from his official duty. We are aware of no — 549 — principle, which subjects an officer, in such a case, to consequences so harsh and unreasonable. In Rich & al. v. Bill, before referred to, which was substantially like the present, in respect to the circumstances affecting the question of damages, this point was made, and the court decided, that the plaintiff was entitled to nominal damages only. In Clark v. Smith, 10 Conn. R. 1. this court decided, that in an action against an officer for neglecting to return a writ of attachment, by him served on the goods of the debtor, the rule of damages is the injury actually sustained, by the default of the officer, and not the value of the property attached. We think that the same principle applies to this case. The superior court, therefore, should be advised to render judgment in favour of the plaintiffs for nominal damages. In this opinion the other Judges concurred. Judgment for plaintiffs.