Bean v. Hubbard

Massachusetts Supreme Judicial Court

Bean v. Hubbard

58 Mass. 85

CourtMassachusetts Supreme Judicial Court

DecidedSeptember 15, 1849

StatusPublished

This text of 58 Mass. 85 (Bean v. Hubbard) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bean v. Hubbard, 58 Mass. 85 (Mass. 1849).

Pincite

Opinion

Shaw, C. J.

Supposing the goods in question were exempted from attachment, the defendant contends, that trespass de bonis asportatis against the officer is not the proper form of action. No case directly in point is cited; those referred to are cases of arrest, which are not strictly analogous. But in regard to property, if an officer cannot justify his taking under his writ, in general, he is liable to an action of trespass de bonis asportatis; as if he takes goods not the property of the defendant; nr when his original taking is right. [87]*87but he afterwards abuses his authority, he is a trespasser ab initio, and this action lies.

In the specific case of taking goods exempted by law from attachment, the practice has been, ever since the passing of the statute on the subject, to bring trespass. We are not aware that the point has ever been adjudicated, because, we think, it was never contested. Buckingham v. Billings, 13 Mass 82; Gibson v. Jenney, 15 Mass. 205; Howard v. Williams, 2 Pick. 80; Brown v. Wait, 19 Pick. 240. In these cases, and probably in many others, trespass de bonis asportatis, by the defendant against the officer, for taking goods exempted from attachment, was the form of action, and judgments were rendered in them. This exception, we think, cannot be sustained.

In regard to the other point, the objection to the testimony of Seamans, it seems to be hardly necessary to inquire, very particularly, whether the admissions of the plaintiff, offered to be proved by him, were privileged communications, as between attorney and client, or not; because the evidence, if given, would have been wholly immaterial. If the goods were liable to attachment on that writ, this plaintiff could . maintain no action; if they were exempt from attachment for his debts, he did no wrong to creditors by mortgaging them without consideration or otherwise; such a mortgage would not be fraudulent, and could not render goods liable to attachment which were not so otherwise.

The evidence being rightly rejected, though on ' another ground than that stated, the exceptions cannot be sustained.

Exceptions overruled.

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Shaw, C. J.

Supposing the goods in question were exempted from attachment, the defendant contends, that trespass de bonis asportatis against the officer is not the proper form of action. No case directly in point is cited; those referred to are cases of arrest, which are not strictly analogous. But in regard to property, if an officer cannot justify his taking under his writ, in general, he is liable to an action of trespass de bonis asportatis; as if he takes goods not the property of the defendant; nr when his original taking is right. [87]*87but he afterwards abuses his authority, he is a trespasser ab initio, and this action lies.

In the specific case of taking goods exempted by law from attachment, the practice has been, ever since the passing of the statute on the subject, to bring trespass. We are not aware that the point has ever been adjudicated, because, we think, it was never contested. Buckingham v. Billings, 13 Mass 82; Gibson v. Jenney, 15 Mass. 205; Howard v. Williams, 2 Pick. 80; Brown v. Wait, 19 Pick. 240. In these cases, and probably in many others, trespass de bonis asportatis, by the defendant against the officer, for taking goods exempted from attachment, was the form of action, and judgments were rendered in them. This exception, we think, cannot be sustained.

In regard to the other point, the objection to the testimony of Seamans, it seems to be hardly necessary to inquire, very particularly, whether the admissions of the plaintiff, offered to be proved by him, were privileged communications, as between attorney and client, or not; because the evidence, if given, would have been wholly immaterial. If the goods were liable to attachment on that writ, this plaintiff could . maintain no action; if they were exempt from attachment for his debts, he did no wrong to creditors by mortgaging them without consideration or otherwise; such a mortgage would not be fraudulent, and could not render goods liable to attachment which were not so otherwise.

The evidence being rightly rejected, though on ' another ground than that stated, the exceptions cannot be sustained.

Exceptions overruled.

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Bluebook (online)

58 Mass. 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bean-v-hubbard-mass-1849.