Blake v. Johnson

1 N.H. 91

Opinion

The opinion of the court

Footnotes

•

* was delivered by

•■Richardson, G. J.

-We entertain no doubt that Johnson had a right to demand twelve dollars, and to collect the same by distress and sale of goods, under the 4th section of the statute of the United States,oí the 15th Dec. 1814, cap. 12. The only question then is, whether he so illegally conducted the distress and sale as to malee him a trespasser ah initio. The statutes of the United States do not prescribe the mode of distraining and selling.' We must, therefore, look to the common law and to the laws of the state for the rules by which a distress and sale is to be conducted.

A distress and sale is in some respects analogous to a distress at common law, and in other respects it is in its nature an execution. 1 Burr. 579, Hutchins vs. Chambers. And we are very clear, that every distress of this kind must be kept a reasonable time before it be sold, that the party whose goods are distrained may have an opportunity to replevy, or to discharge the demand for which they are taken. A distress at common law for a debt due to the king could be sold, if the debt was not paid in forty days. 3 Bl. Com. 14. Goods distrained for fines and amercements could be sold at common law, after they had been kept a reasonable time. Bac. Áb., “ Distress,” Letter G. — Brady on Distress 247. The common law in no case authorized the immediate sale of a distress; nor is any case recollected of such a sale warranted by statute, either in England or in this country. What is a reasonable time to keep a distress before sale, is a question of law. Our statutes have fixed four days as a reasonable time, in cases of distress for taxes and military fines. Goods taken upon execution may be sold in four days, if the debt be not paid. It would, therefore, seem that four days may be considered as a reasonable time, in this state, to keep a distress before sale. A distress ought also to be sold for the best price it will bring. It may be sold at private sale, if the full value can be obtained, unless a different mode is provided by statute: otherwise it should be sold;at auction, due notice of the time and place of sale being first given. Whether the present action could have been maintained for any irregularity in the manner of selling, it is unnecessary to decide in this case, because we are of opinion that the defendant, in making , an immediate sale of the goods, conducted so illegally as to make himself a trespasser ah initio. The plaintiff is, therefore, entitled to judgment. 10 Johns. 253. Sacrider vs. McDonald,— Brady 249. The value of the goods was thirty-five dollars. From that sum the amount Johnson had a right to demand ought to be deducted, which was twelve dollars. 6 Mass. Rep. 20, Prescott vs. Wright.

Judgment for'the plaintiff' for twenty-three dollars.

Woodbury, having been of counsel, did not sit.