State Use of Fithian, Jones & Co. v. Willard

7 Del. 197

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

The Court,

Wootien J.,

charged the jury, that the statute of the State which had been referred to in the argument of the counsel, prescribed a specific course to be pursued in a case of domestic attachment, such as this was in its inception. By the 10th section of that act, on the return of such a writ, the goods taken under it, or the money arising from the sale of them under the order granted to the sheriff for that purpose, was in the custody of the law and in trust under the statute, not for the benefit alone of Fithian, Jones & Co., the plaintiffs and creditors in the attachment, but for the benefit of them together with such other creditors as might also have claims and demands against Stevens, the defendant in the writ, to be divided and distributed among the whole of them in the proportions and dividends therein prescribed, that is to say, in proportion to their respective demands, allowing to the creditors attaching and prosecuting the same to judgment, a double share, or dividend, if such shall not exceed their whole debt. And under this section of the act and for the purpose of making this distribution among all the creditors of the defendant, it is provided in terms quite as imperative and explicit, as those cited from the following, or 11th section by the counsel for the plaintiff, that “ on the return of a writ of attachment, (such as this was,) the court shall appoint three suitable persons to audit the claims of the defendant’s creditors, and shall adjust and ascertain all their demands, including that of the plaintiff in the attachment.” It is true that the statute then goes on to provide in the succeeding section, that “ on the receipt of the proceeds of sale of the property attached, or any part thereof, the auditors shall calculate and settle the proportions and dividends due the several creditors,” allowing the attaching creditor a double share or dividend as before stated. But notwithstanding the strict and literal import of the terms of this latter provision, and notwithstanding the money, or proceeds of the sale of the property attached, was never received by the court, nor paid into court by the sheriff in this case, it would be no less in contravention of the express terms and meaning of the preceding section, as well as directly contrary to the general scope, design and object of both sections to allow a domestic attachment creditor in such a case as this, or in any other case arising under the statute, to recover the whole of his demand, or any part of it, without regard to the demands of other creditors, and without the audit and distribution of the effects of their common debtor among them as provided for in the statute, and on the principle of mutual equity and justice prescribed in it. Although the fund, or proceeds of sale had not been paid into court, there is nothing in a fair and reasonable construction of all the provisions of the statute on the subject, when taken and considered together, to preclude, or forbid, if the plaintiffs intended to take their present remedy by action on the sheriff’s recognizance against him and his sureties, the auditors already appointed in the case by the court, from proceeding to audit and ascertain the shares, or dividends due the several creditors, and with them, the exact amount due to the plaintiffs. W ithout this, the plaintiffs could never have recovered any portion of their demand, by any proceeding on the attachment itself; nor does it alter the principle of the law in the case in our opinion, that the present action is on the recognizance of the sheriff against him and his sureties for his loches and default in the payment of the money, since the amount, or proportion which they were entitled to receive of it in the distribution of it under the statute, must be the measure of the damage they have a right to recover by reason of the breach of the condition of the recognizance complained of in the present action, which is altogether unknown, and which it is not the province of the jury in this suit to determine, if indeed, they were able to do it.

But owing to the issues joined on the record in this case, and to the fact that the plea of performance is the only plea entered by the defendants, which they have failed to sustain, the plaintiff is entitled to a verdict, but it must be for nominal damages merely.