Pike v. Huckins

1 Mass. 421

Opinion

But the Court (Sedgwick, Sewall, and Thacher, justices) said that the rule, under the statute, was * uniform [ * 422 ] for estimating the damages; that they were in all cases to be six per cent, on the penal sum on the bond;

Footnotes

•

(1) that if the plaintiff attaching, fails to support his action, the officer is then accountable to the defendant in that action whose goods he had attached ; and is to pay over to him the six per cent, damages recovered, and redeliver the goods. In the other case, supposed by the counsel for the defendant, the officer (as the case may be) is accountable to both the creditor and debtor; to the creditor, to the amount of his judgment, and to the debtor, for what may remain in his (the officer’s) hands, after satisfying the creditor; that the officer is merely a trustee, and, after indemnifying himself, is accountable over. (2)

P. Mellen for the plaintiff. Pmery for the defendant.

The plaintiff in replevin who fails to support his action, and is, therefore, proved to be a wrong-doer, by having intermeddled with property to which he had no right, has nothing to do with the merits of the claim of the attaching creditor. And the damage to the real owner of the goods is precisely the same in cases of attachment as in those of taking on execution. Therefore, per cur. unanimously, let judgment be entered for the defendant to recover damages to the amount of six per cent, on the penal sum of the bond.

It has since been settled that by the true construction of the statute of replevin, six per cent, is there prescribed as the rule of damages in two cases only—when the plaintiff fails to prosecute his writ of replevin, and when a plaintiff unlawfully replevies goods seized on execution, and the officer has judgment in return; and that in all other cases, the defendant’s damages must be assessed according to the extent of the injury he has suffered.—vol. iv. 614, Bruce vs. Learned.—[Wood vs. Braynard, 9 Pick. 322.—Ladd vs. North, 2 Mass. 516.—Buffington vs. Curtis & Al., 15 Mass. 528 —Huggeford vs. Ford, 11 Pick. 223.—Mattoon vs. Pearce, 12 Mass. 406.—Ed.]

•

Vide acc. post, vol. viii. 147, Arnold, vs. Allen.