Clark v. Martin

120 Mass. 543, 1876 Mass. LEXIS 243

Opinion

Lord, J.

Two exceptions were taken in this case, neither of which can be sustained. The ruling of the presiding judge was correct upon the question of damages. The evidence is not reported for the purpose of showing whether the plaintiff was entitled to other than nominal damages for the detention of the property, and the rule laid down by the court was the correct one.

The property replevied had been conveyed to the plaintiff. Her title to it was good as against every person except a creditor of Goodwin. It was only as a creditor of Goodwin that Elder coidd direct the officer to attach it, and the ruling that the defendant must show that Elder had a probable cause of action against Goodwin was as favorable to the defendant as he had a right to ask. If Elder was not a creditor of Goodwin, he had no right to question the validity of the conveyance by Goodwin to Clark. It is not the case of an officer attaching the property of the person named in his precept. Had this property been Goodwin’s, the officer would have been justified in obeying his precept and attaching it, though the event might show that Elder had no cause of action; but as he took property which Goodwin had conveyed, he must justify the taking by at least as much evidence as was required of him.

Exceptions overruled.