Dearborn v. Richardson

108 Mass. 565

Opinion

Chapman, C. J.

The plaintiff is a deputy sheriff, and had in his hands a writ in favor of William L. Howarth against Simon C. Coffin, upon which he attached one sixty-fourth part of a certain steamer. The defendant Richardson, being part owner in her, desired to have her released from the attachment, and accordingly gave to the plaintiff a bond, with the other defendants as sureties, under the Gen. Sts. e. 123, § 87 ^ seq.;

* and took possession. The bond was given November 17,1866, and is the first of the bonds now in suit. On the 22d of the same month, the plaintiff attached two sixty-fourth parts of another steamer on the same writ in favor of Howarth against Coffin, and the defendant thereupon gave the second bond now in suit. The steamers were delivered to the defendant Richardson.

By § 90, if the attachment is dissolved, the party to whom the defendant’s share is delivered shall restore the same to the defendant ; or to the officer, to be by him delivered to the defendant in the suit. The plaintiff does not claim the property in order that he may deliver it to Coffin.

On the 14th of February 1867, Coffin procured a dissolution of the attachments in both actions by giving bond to Howarth in conformity with § 104 † seq. of the same chapter; and thus the plaintiff lost all claim of every kind to the property attached. It followed, of course, that the bonds of the defendants for the return of the property to the officer ceased to have any validity.

The plaintiff now contends that he can enforce them for the benefit of Howarth, who has obtained judgment and execution against Coffin, and desires to fall back upon the security obtained by means of the defendants’ bonds, instead of relying upon that which he obtained by means of the bond given directly to himself to dissolve the attachment. But the bond given to Howarth to dissolve the attachment was a substituted security, and not additional to the bonds given to the officers to secure the return of the property to him in case the attachment should remain in force. If the defendants had returned the property to the officer while the action was pending, the plaintiff could not have retained it after the attachment was dissolved, but must have returned it to Coffin. This action cannot therefore be maintained.

Judgment for the defendants.

The Gen. Sts. c. 123, provide, in § 87, that, when personal property belonging to two or more persons is attached in a suit against one or more of the part owners, it shall be examined and appraised upon the request of any other of the part owners; in § 88, that it shall then be delivered to the part owner at whose request it was appraised, “ upon his giving bond to the attaching officer in a sufficient penalty and with two sufficient sureties, conditioned to restore the same in like good order, or to pay the officer the appraised value of the defendant’s share or interest therein, or. satisfy all such judgments as may be recovered in the suit in which it is attached, if demanded within the time during which the property would have been held by the respective attachments; ” m § 89, that, if the appraised value of the property, or any part thereof, is so jaid, the defendant’s share of the property shall become pledged to the party to whom it was delivered; and in § 90, that, if the attachment is dissolved, such party shall restore the defendant’s share to him, or to the officer for him.

“ Any person or corporation, whose goods or estate are attached on mesne process in a civil action, may, at any time before final judgment, dissolve such attachment, by giving bond, with sufficient sureties, to be approved by the plaintiff or his attorney in writing, or by a master in chancery, with condition to pay to the plaintiff the amount, if any, that he may recover, within thirty Says after the final judgment,” &c.