208 F. 497 | 1st Cir. | 1913
This is an action brought by the Cary Brick Company against Frank O. Tilton, a deputy sheriff, to recover damages for an alleged excessive and illegal attachment of the plaintiff’s personal property in a suit brought by one Peaslee against the plaintiff. The declaration contains three counts, as follows :
“In a plea of the case, for that, on, to wit, the fifth day of March, 1910, at Plaistow, in said county of Rockingham, said defendant, Frank O. Tilton, being then and there a deputy sheriff for said county of Rockingham, and being ordered to serve a certain writ in an action brought by Edson E. Peaslee, of said Plaistow, against said plaintiff, the Cary Brick Company, and being commanded by said writ to attach the goods or estate of said Cary Brick Company to the value of $300 did, on, to wit, March 7, 1910, levy an excessive attachment on the property of said Cary Brick Company, and attached all the brick belonging to said Cary Brick Company, in its yards at Plaistow, of the value of, to wit, $6,900, and, to wit, twenty-three times the amount of the ad damnum named by said writ. And thereby said plaintiff, the Cary Brick Company, suffered great loss and damage, and irreparable injury to its reputation, and was subjected to great inconvenience and expense because of said excessive attachment, being prevented thereby from making delivery of brick*499 to its customers at times agreed upon, and otherwise prevented from complying with its agreements, resulting in great loss to said Cary Brick Company; and the plaintiff, said Cary Brick Company, was also occasioned great loss, inconvenience, damage and expense in effecting the dissolution of said excessive attachment by being obliged to pay certain hotel bills, traveling expenses, counsel fees and other expenditures.
“And in a further plea of the ease, for that, on, to wit, the fifth day of March, 1010, said defendant, Frank O. Tilton, being then and there a deputy sheriff for said comity of Rockingham, and being ordered to serve a certain writ in an action brought by Edson 10. Peaslee, of said 1’laistow, against said Cary Brick Company to the value of $300, did, on, to wit, March 7, 1910, at said Plaistow, levy an excessive attachment upon the property of said Cary Brick Company, and did unlawfully, negligently, maliciously and oppressively attach all the brick belonging to said Cary Brick Company, in its yard at said Plaistow, of the value of, to wit, §6,000, and, to wit, twenty-three times the amount of the ad damnum named in said writ, said defendant, Frank O. Tilton, being then and there well aware of the fact that said property so attached was of the value of, to wit, twenty-three times the amount of the ad damnum named in said writ, and having ample opportunity to readily ascertain the value of said goods so attached; and the said Edson E. Peaslee and said defendant, Frank (). Tilton, was thereafter informed by said Cary Brick Company as to the value of said property so attached, and requested to dissolve said excessive attachment, but, notwithstanding such knowledge, information and request, said defendant, Frank O. Tilton, still unlawfully, negligently, maliciously, and oppressively refused and neglected to dissolve said attachment, and thereby (his plaintiff, said Cary Brick Company, did and will suffer great loss and damage, and irreparable injury to Ms reputation and business, and has and will be subjected to great inconvenience and expense and damage because of said malicious and excessive attachment, and refusal to dissolve the same, being hindered and prevented thereby from making delivery of brick in accordance with its contracts, and otherwise hindered and prevented from complying with its agreements, and also being occasioned great loss, inconvenience, damage and expense to effect the dissolution of said illegal, negligent, malicious and oppressive attachment by being obliged to pay certain hotel bills, traveling expenses, counsel fees and other expenses.
“And in a further plea of the case, for that, on, to wit, the fifth day of March, 1910, said defendant, Frank O. Tilton, being then and there a deputy sheriff for said county of Rockingham, and being ordered to serve a certain writ in an action brought by Edson E. Peaslee, of said Plaistow, against said Cary Brick Company, and being commanded by said writ to attach the goods or estate of said Cary Brick Company to the value of $300 did, on, to wit, March 7, 1910, at said Plaistow, make an unlawful and excessive attachment of the property of said Cary Brick Company, and did negligently, unlawfully, maliciously and oppressively attach all the brick belonging to said Cary Brick Company, in its yard at said Plaistow, of the value of, to wit, $6,900, and, to wit, twenty-three times the amount of the ad damnum named in said writ, said defendant, Frank O. Tilton, being then and there well aware of the fact that said property so attached was of the value of, to wit, $6,900, and that said attachment was excessive and unlawful and would be of great damage to said Cary Brick Company, and having ample opportunity and means to readily ascertain the value of said property so attached, and of the fact that such attachment was, and would be, of groat damage to said Cary Brick Company, and said Edson E. Peaslee and Frank O. Tilton were thereafter informed as to the value of the property so attached, and of the fact that the attachment was excessive, and was, and would be, of great damage to said Cary Brick Company, and were requested by said Cary Brick Company to dissolve said excessive attachment, but, notwithstanding such information and request, said defendant, Frank O. Tilton, still unlawfully, negligently, maliciously and oppressively refused and neglected to dissolve said excessive attachment. And thereby this plaintiff, said Cary Brick Company, suffered great loss and damage and inconvenience, and irreparable injury to its reputation and business, and was subjected to great inconvenience, expense and damage because of said excessive attachment and refusal to dissolve the same as aforesaid, being*500 prevented thereby from making delivery of brick to its customers in accordance with its contracts, and otherwise hindered and prevented from complying with its contracts and agreements, and this plaintiff, said Oary Brick Company, was also occasioned great loss, inconvenience, damage and expense to effect the dissolution of said excessive attachment, and being obliged to pay certain hotel bills, traveling expenses, counsel fees and other expenditures.”
It appears that the defendant in serving the process in question made the following return upon the writ:
■“State of New Hampshire, Bockingham — ss.: March 7, 1910.
“I then attached as the property of the within-named Cary Brick Company the goods and chattels following, to wit: One whole kiln of hrick unopened, situated on the southerly end of yard. Also one kiln of eight whole arches*501 estimated to- tie about 200,000 of brick. All of the brick on said yard — said to belong to the said Cary Brick Company, situated on the brickyard enclosure known as the ‘Cary Brickyard,’ in PJaistow, in said county, occupied by said Cary Brick Company, and in order to preserve my said attachment, and within l'orty-eight hours thereof, T left at the dwelling house of Joseph S. Hills, the town clerk of said town of Plaistow, a true and attested copy of this writ and of this return indorsed thereon, to wit, at twenty-five minutes past ten o’clock in the forenoon of said day. Prank O. Tilton, Deputy Sheriff.”
“The officer attaching grain unthreslied, hay or potatoes, any lumber or fuel, bricks, stone, lime, gypsum or ore, manufacturing or other machinery, bark or hides in the process of tanning, may leave an attested copy of the writ raid of his return of such attachment thereon, as in the attachment of real estate; and in such ease, the attachment shall not be dissolved or defeated by any neglect of the officer to retain actual possession of the property.” Revised Statutes of N. H. c. 18-1, § 14.
The only material changes made in this statute since its enactment relate to an increase in the number of articles classed as bulky and . . enlargement of the time within which an attested copy of the writ and of the return of the attachment may be left with the town clerk. Public Statutes of N. H., c. 220, § 16; Laws N. H. 1905, c. 43, § 1; Laws N. H. 1907, c. 44, § 1.
The District Court, in charging the jury as to the effect of this statute upon the attachment of bulky articles, said:
“Before these statutes it used to be necessary to physically take property like a drove of cattle or a barn full of horses, taking them into possession and carrying them away, or keep officers there to preserve the attachment, but that was a great expense to a man who had a little claim. It was a great trouble to sheriffs, and it was very oppressive and inconvenient to defendants, like the brick people here, to have the property either removed in order to preserve the attachment or to keep officers there, night and day, to protect it. So the Legislature said, for purposes of convenience and in the interest of economy, that a man who thinks he has a claim against another may secure his claim by attachment by leaving a copy.”
And again:
“So far as I can see, so far as it is a question of law or a question of fact, an attachment for $300 on a brickyard or on a lumberyard, or on a house or on a pile of logs on a landing, would merely operate to the amount named in life writ, the same as a mortgage would, if any of us should be unfortunate enough to put a mortgage on our house for .15100; although the house may be worth a good deal more, and although the mortgage may be on a whole house, it would simply be security for §100. That would be the incumbrance, and, so far as I can see, I do not consider that there is any incumbrance upon this property beyond the §300; but entirely aside from that an attachment could be made by a sheriff upon property less than the value named in the writ, and he might have managed it so indifferently and oppressively, like the case of attaching the belt and taking it out of the mill when there is unincumbered property which lie could have attached by leaving a copy of the 'writ. That would bo manifestly arbitrary and an oppressive thing to do, because on the face of it it would be unreasonable. So, I say, it is not a question altogether to be decided as an abstract question whether this writ was placed on too much property.”
It appears from the above that the court in effect charged the jury that the defendant did not divest the Cary Brick Company of its
In the case of Scott v. Manchester Print Works, 44 N. H. 507, 508, the state court, in considering the question whether bulky articles could be attached under section 14, c. 184, of the Revised Statutes of New Hampshire by leaving a copy of the writ and return with the town clerk, said:
•‘The provision is not that the attachment may be made, as in case of real estate, by leaving a copy. Rev. Stat. c. 184, § 3; Kittredge v. Bellows, 7 N. H. 427. Indeed, no attempt is made to change the mode of making the attachment, but a new and easier method of preserving it is provided. Before this statute there was not so much difficulty in making as in preserving attachments of the various articles enumerated in the fourteenth section of chapter 184. Hemmenway v. Wheeler, 14 Pick. (Mass.) 410 [25 Am. Dec. 411]; Sanderson v. Edwards, 16 Pick. (Mass.) 144; Reed v. Howard, 2 Metc. (Mass.) 38; Shepard v. Butterfield, 4 Cush. (Mass.) 425 [50 Am. Dec. 796]; Bicknell v. Trickey, 34 Me. 273; Miller v. Baker, 1 Metc. (Mass.) 32. As the statute has only provided a new mode of preserving attachments of the articles specified, it is still essential to a valid attachment of them that they should be taken into the possession or placed under the control of the officer. Odiorne v. Colley, 2 N. H. 66 [9 Am. Dec. 39]; Huntington v. Blaisdell, 2 N. H. 318, 319; Chadbourne v. Sumner, 16 N. H. 132 [41 Am. Dec. 720].”
This has been the uniform construction of this statute by the state court, as will be seen from the following cases: Bryant v. Osgood, 52 N. H. 182; Smart v. Batchelder, 57 N. H. 140; Wheeler v. Eaton, 67 N. H. 368, 39 Atl. 901. In these cases, and in many others, it is held that an attachment of the bulky articles enumerated in this statute and its amendments must be made in the same way as an attachment of other personal property — -that is, the property must be taken into the possession or placed under the control of the officer — ■ and, being thus taken into his possession and control, the attachment may be preserved by filing a copy of the writ and of the return of the attachment in the town clerk’s office.
Numerous objections were taken by the plaintiff to the admission and
The judgment of the District Court is reversed, the verdict is set aside, and the case is remanded to that court for further proceedings in conformity with this opinion; and the plaintiff in error recovers its costs of appeal.
