Montgomery v. Wilson

The opinion of the court was delivered by Barrett, J. To the judgment for $40 damages, no exception was taken. This aspect of the case presented by the bill of exceptions, assumes that the taking of the cattle by the defendants at Rochester, was not, in legal effect, an attachment of them by the sheriff holding the .writs against Montgomery, but that such taking was wrongful as against Montgomery. This suit is brought in that view, and on the same-assumption. It follows then, that Montgomery’s relation of ownership of the property was not affected by what the defendants did; and the property when arrived at West Randolph, was his, and there, was as much subject to attachment on writs against him, as it would have been at his house in Braintree, or if it had been in his own possession at Randolph. The sheriff had lawful warrant-to take that property [619] at Randolph by virtue of the writs in his hands, and it was not within the province or the lawful right of the defendants to hold the property against him. He exercised his official authority, and took possession of the property by virtue of those writs, and held and sold it as attaching officer, upon execution, pursuant to the attachment he had made. So far as the rights of Montgomery are concerned, the case stands the same as if at Randolph he had resumed possession of the property, not waiving the liability of defendants for the wrongful act of taking the property at Rochester and driving it to Randolph. In such case, the measure of damages would not be the value of the property, as it would have been if he had not taken it back, but the damage he sustained by what was done down to the point of his taking back the property. The sheriff, on taking the property on the writs in his hands, as he officially might and did, then became solely responsible to the parties entitled under the attachment, for his course in respect to the property after it had been taken by him. These defendants are not chargeable for his course as officer of the law ; and so, as he is not defendant in this suit, we have no occasion to decide or consider whether ho conducted lawfully or not as against the present plaintiff. As intimated in the outset, the case is before us on the assumption that the taking of the cattle by defendants at Rochester, was not an attachment by the sheriff, and so it is not within the case for us to decide whether it was or was not an attachment by him. The question is one of sufficient practical consequence to warrant withholding an opinion upon it till it shall be involved in a case submitted for judgment. The judgment for the two larger sums is reversed, and judgment for the smallest sum is affirmed.