Plunkett v. Moore

4 Del. 379

• Court: Superior Court of Delaware
• Decided: July 5, 1846
• Status: Published

Opinion

The Court

said, that, under the provisions of the attachment laws, property seized by attachment becomes liable, not merely for the demand of the attaching creditor, but for the claims of all the other creditors of the defendant who shall come in and make proof of their debts before the auditors; and, for this purpose, the property seized is directed, after judgment, to be sold by the sheriff, and the proceeds paid to the auditors for distribution. This property, therefore, though attached for Plunkett’s claim, could not be released on securing the amount of that demand; but was in lawful custody for the benefit of all Lewis Hart’s creditors; and the coroner was bound, before he took it out of this custody, to secure them as well as Plunkett; and to take such security from Weiser, as on the failure of his action of replevin, would secure a return of the goods to the sheriff for the benefit of Hart’s creditors; or payment to him of an equivalent sum, in case return of the goods should not be awarded.

This was manifestly the coroner’s duty before executing the writ of replevin. He was not bound to execute the writ until Weiser made him safe, and secured him against the consequences ; and, as the effect of his executing the writ was to take all this property out of the sheriff’s hands, where it w'as held for the benefit of all Hart’s creditors, the obvious indemnity to the coroner, and his obligation to the defendants in replevin, was to take security in such form, and to such amount, as would restore their rights and save him harmless, in case Weiser should fail to sustain his claim on the property.

The form of security in replevin is settled by the case of Clark vs. Adair. (3 Harr. Rep. 113.) In case of distress for rent arrear the condition of the replevin bond is prescribed by act of assembly (Dig. 364,) to prosecute the suit with effect, and satisfy any judgment which shall be given against the plaintiff in replevin; and the penalty is double the value of the property: in other cases the amount and form of the security must be such as will effect the object of restoring the rights of the defendants in replevin, and save the officer; which, in this case, w'ould be to prosecute the replevin suit with cf- feet, and to make return of the goods, if return should be awarded, and pay any amount of damages that might be recovered against him. For though the proper judgment in such case is for a return of the goods, and damages for the taking; yet, “ if the defendant cannot have a return, he may recover all in damages, if it be found for him,” and after verdict the court will always intend that the defendant could have no return ; and give judgment for the damages.' (Clark vs. Adair, 3 Harr. Rep. 116.)

Whitely, for plaintiff Huffington and Rogers, for defendant.

The duty of the coroner, therefore, was, in this case, to take a replevin bond for this purpose; and in a sum sufficient to secure it.

Henry Weiser failed in his replevin suit against Boys, Plunkett and Dougherty. The suit was not prosecuted against Dougherty (who was not summoned;) the sheriff made conusance as a public officer, and Plunkett avowed as plaintiff in the writ of attachment. The suit resulted in a verdict and judgment for him, for. damages to the amount of $420. The replevin bond taken' by the coroner, on executing the replevin, is only in the sum of $200; and this suit is brought against him for neglecting to take sufficient security.

It is objected that the claim of Philip Plunkett, being only $70, and fully covered by the security taken, he is not entitled to prosecute an action on the case against the coroner for neglect of duty, as he is not injured by that neglect. But this objection overlooks the fact that this is not Plunkett’s claim. It is the demand of the creditors generally of Lewis Hart, to have the property seized restored to the condition it was in when Weiser’s replevin took it out of the sheriff’s hands, where it was for their benefit; and this suit, though in the name of Plunkett, is not his, but theirs. He could not in this case recover evén the amount of his own claim, but must prove it before the auditors, and receive payment by their award distributing the fund. In the case of Stone vs. Jones it was decided by this court, that even a payment of the attaching creditor’s debt would not arrest the proceedings, but that the same would go on for the benefit of the creditors generally, without even substituting another plaintiff