Waterhouse v. Waite

11 Mass. 207

Opinion

Curia.

Two questions have been under our consideration in this case. Whether the action is maintained; and what damages the plaintiff is entitled to recover, supposing the action maintained.

Upon the first question we are not perfectly agreed, as to the effect of the evidence before us. If it were clear that [ * 210 ] *the undertaking of Thurlo, the deputy of the defendant, was merely personal; that, for an agreed compensation, he engaged to the plaintiff to procure the registry of the execution and return, we should be unanimous in the opinion that the defendant is not liable to an action for Thurlo’s neglect to fulfil such undertaking,

(a)

But, whatever the effect of the evidence may be as to the first • question, we are all agreed that the plaintiff is entitled to recover nothing more than nominal damages; and principally on this ground, that, to entitle himself to full damages, it should appear that the suffering and loss of which he complains are altogether chargeable to the neglect or misconduct of the deputy sheriff. But such does not appear to have been the case here.

The delivery of seisin to the judgment creditor was necessary to complete the extent; and although, if the land be seized in execution within the thirty days from the judgment, the benefit of the at* tachment is thereby saved, and a reasonable time may be allowed afterwards to complete the levy, (1) yet the neglect of the creditor, for a month after the seizure and appraisement, to receive seisin, was an unreasonable delay, and such loches on his part as amounted to a waiver of the previous lien obtained by the attachment; and that it was thus owing to his own negligence that his title under the attachment and levy was avoided by the intermediate conveyance by the judgment debtor to Dunn. On this ground the verdict is set aside, and (a)

A new trial granted.

CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, IN THE COUNTY OF KENNEBECK, MAY TERM, 1814, AT AUGUSTA. PRESENT:

Knowlton vs. Bartlett, 1 Pick 371.

9 Mass. Rep. 392, Haywood vs. Hildreth.

Tobey vs. Leonard, 15 Mass. Rep. 200. — Ladd vs. Blunt, 4 Mass. Rep. 402. — Shove vs. Dow, 13 Mass. Rep. 529. — Brown vs. Maine Bank, post, 153.— M’ Gregor & Al. vs. Brown, 5 Pick. 170. — Prescott vs. Pettee, 3 Pick. 331.