Lomerson v. Huffman

25 N.J.L. 625

• Court: Supreme Court of New Jersey
• Decided: March 15, 1856
• Status: Published

Opinion

The Chief Justice

delivered the opinion of the court. .

Under an attachment issued against George Wilkes, the defendant, the sheriff returned that he had attached the defendant by money in the hands of Oonrad Lomerson, the plaintiff in error, appraised at §50. A writ of scire facias thereon issued against Lomerson, as garnishee in attachment, requiring him to show cause why the plaintiff’s in attachment should not have execution of the money so due from Lomerson to Wilkes, according to the statute. The garnishee pleaded to the soi/refacias, as prescribed by the act, that he was not indebted to the defendant in attachment. The simple issue under the pleadings was, whether the garnishee was or was not indebted to the defendant in attachment. To entitle himself to a verdict, the plaintiff in scire facias must prove the fact of the indebtedness. In support of the issue, the plaintiff proved that the garnishee, by virtue of sundry executions in his hands as constable, levied upon and sold personal property as the property of Wilkes, the defendant in attachment, to an amount exceeding $460. The sales exceeded the amount due on the executions in the constable’s hands, and for this surplus the plaintiff in scire facias claimed and obtained a verdict. Of the amount of sales it was proved that $10 was paid to the constable. There was no proof on the part of the plaintiff that any other payment was made to the constable on account of the sales. The plaintiff rested upon the fact, that property ' levied on as the property of Wilkes had been struck off and sold by the constable, without proving that the price had been paid.

A motion to nonsuit having been refused, the defendant proved that the constable received nothing for a lot of railroad cars, that were struck off for $450. The purchasers never paid anything for them. The court nevertheless charged the jury, that the plaintiffs were entitled to recover the amount of sales, as a debt due from Lomerson to Wilkes, and not paid over or accounted for. The refusal to nonsuit and the charge proceed upon the assumption that the mere sale of chattels by the constable, as the property of Wilkes, made Lomerson liable for money had and received. In that there is error. It is clear that the attaching creditor can stand in no better position than Wilkes, the defendant in' execution; yet even he could not maintain an action for money had and received against Lomerson, without showing that the money had actually been received by him. An action for money had and received will not lie, unless it appear that the defendant has received the money or its equivalent. The sale of goods by an officer raises no legal presumption that the purchase money was actually paid. It may be sufficient to raise the presumption that the money was either collected, or lost by the negligence of the constable, and thus render him prima facie liable to the plaintiff in execution for neglect of duty under the statute. But even in such case, it would be competent for the officer to show that in point of fact the money was lost, not by his lachee, but from some cause which constituted a good justification. 1 Chit. Pl. 384.

If Lomerson, through negligence or neglect of duty, had lost the purchase money, he would have been liable .to an action for the wrong, or to an action of debt under the statute. Nix. Dig. 398, § 39. But he could not have been indebted to Lomerson until he had received the money.

The liability of the'constable to Wilkes for neglect of duty, either in the shape of damages at common law or under the statute, did not create an indebtedness, or a right or credit which was liable to be seized or taken under the attachment. Sergeant on Attachment 85.

In Crane v. Freese, 1 Harr. 309, it is held, that money actually received by the sheriff for the defendant in attachment may be attached as a right and credit of the defendant. But it has never been held that a claim against an officer for neglect to execute a writ or to collect.money due on execution, or to collect the proceeds of a sale under an execution, constitutes a right or credit which may be seized under an attachment, much less an indebtedness which will sustain an action for money had and recei red.

The judgment below should be reversed, and a venire de novo awarded.

For affirmance — None.

For reversal — -The Chancellor, the Chief Justice, Judges Ogden, Elmer, Ryerson, Vredenburgh, Arrowsmith, Cornelison, Huyler, Risley, Valentine, and Wills.

Cited in Davis v. Mahany, 9 Vr. 109.