12 N.H. 341 | Superior Court of New Hampshire | 1841
There is an extensive practice prevailing with officers, to make nominal attachments of property on writs committed to them for service, without any actual exhibition of the property, or knowledge of its existence, and to take receipts for such property at a valuation sufficient to respond the amount which may be recovered in judgment.
Where suits have been brought on receipts taken in this manner, it has been uniformly holden that the receipter is estopped from denying either the attachment of the articles,
Ordinarily the creditor is not prejudiced by this course ; but an actual attachment of specific articles, in some cases might be more beneficial to the creditor, as such articles might be taken into the custody of the receipter, and thus preserved ; or, if permitted to go back into the hands of the debtor, might be afterwards reclaimed by the receipter, or by the officer, should the circumstances of the debtor change so as to render this expedient.
For these reasons it is better, where the debtor is in open, visible possession of attachable property, that an attachment of specific articles should be made; and, where such an attachment is made, that the return of attachment by the officer, and the receipt rendered to him, should specify the articles taken. Such a return and receipt should be required, because the creditor should have all the advantages and facilities of holding and securing his lien on the identical property attached, which the law gives.
A mere general receipt, however, in such cases, is not void, and is no evidence of a relinquishment of the attachment by the officer. The most the creditor can claim, under such circumstances, is nominal damages for any such defect in service, until special damage is shown.
But it is contended in this case, that the property attached by the officer was released by him, without any receipt being taken.
It is clear that the instrument taken by the officer is not a receipt for specific articles; and the question is, whether it is a general receipt in a given sum for property attached on the writ, so as to avail as such to the creditor.
The terms of the instrument are these: “For value received we promise to pay John Pettengill, deputy sheriff, four hundred dollars, on demand and interest; said note being
This is a promise to pay to the officer the sum of four hundred dollars, as security for the writ in his hands against Ten-ney & Gould. The amount of the liability is distinct, and the instrument was clearly given as security to abide the judgment which might be rendered in that suit. It was taken officially, on service of process, for money or property received to that amount, and would have availed to the officer, or creditor, on demand, within thirty days from the rendition of judgment, as in all other cases of property taken on mesne process ; and without such demand would have been of no effect.
This was the legal nature of the instrument, and it could only have been enforced in this manner. It does not follow the usual form of a receipt, yet such is its effect. The articles received are not specified, and in this respect the officer is in fault; but, notwithstanding this, the instrument taken is valid to the creditor, as a general receipt of property to the amount specified.
No evidence has been offered to show that special damage has arisen in the case ; nothing to show that this obligation might not have been enforced precisely as any other receipt, except the insolvency of the receipter, who was in good repute as to property at the time, and whose failure could not have been foreseen, and for which the officer is not liable. 5 N. H. Rep. 433, Rundlet vs. Bell; 9 Ditto 134, Howard vs. Whittemore.
The acts of the officer are not such as to render his proceedings void. He has not made that full return, or taken such specific receipt of the property attached, as would be desirable in the service of process ; but no evidence is submitted to us of any thing more than nominal damage arising to the plaintiff from these causes, and for this sum judgment will be rendered.
Judgment for the plaintiff.