134 Mass. 525 | Mass. | 1883
The execution, in favor of Charles A. Raymond, upon which the defendant sold the goods, upon a seizure made previous to the attachment thereof upon the process sued out by the plaintiffs, issued upon a recognizance taken before a justice of the peace, by virtue of the Gen. Sts. c. 152, § 7. As the authority of the justice of the peace to take such a recognizance is to do so “ in any case where it might be taken before the clerk of the court,” we are necessarily referred to § 2. This section, so far as it is important to the present inquiry, is as follows: “ The recognizance may be taken before the Superior Court in any county in term time, or before the clerk of the court in vacation.” Upon the facts found, the Superior Court
The execution which issued upon the recognizance was therefore void. It issued from a magistrate having no jurisdiction, and it did not recite any facts which purported to show that he had such jurisdiction. The act of the officer in selling the goods was a trespass, and such sale conveyed no title, even to an innocent purchaser. Kennedy v. Duncklee, 1 Gray, 65. At the sale, the defendant was notified by the plaintiffs that they claimed that the execution was void, and that, if the defendant sold the chattels under it, so that he could not take them upon their execution, they should hold him responsible therefor. The defendant nevertheless proceeded with the sale, and the plaintiffs themselves purchased and paid for the chattels, and received possession thereof. It is therefore to be determined whether this act has deprived them of their remedy against the defendant.
There appears to be no doubt that Fish, the defendant in the original action, and the original owner of the goods, might have maintained an action against the defendant, or against the
Under these circumstances, the facts that the plaintiffs bid at the sale, that the property was struck off to them, that they became the purchasers, and took and paid for the property, will not operate as an estoppel, or defeat their action.
Exceptions overruled.