Chase v. Monroe

| Superior Court of New Hampshire | Jul 15, 1855

Eastman, J.

The gist of the plaintiff’s declaration is, that Rowell, the defendant’s deputy, has not applied all the proceeds of the sale of the Chase goods to the satisfaction of the executions in his hands; that he has made only a partial application of the proceeds, and is liable for his default in not applying the whole. This is the only grievance which the declaration sets up, and, of course, is the only one for which a recovery can be had in this suit.

The goods were sold by Rowell on the writs, by the agreement of all the parties interested, the attaching creditors and the debtor, the proceeds to be applied according to law upon the judgments recovered. By the nineteenth section of chapter 195 of the Compiled Statutes, it is provided that “ personal property attached shall be sold by the officer before judgment, if the parties consent thereto in writing; and such sale shall be made in the same manner as sales of property taken' on execution, unless a different mode shall be agreed on by the parties.” By the third section of chapter 207 of the Compiled Statutes, it is provided that sales of personal property on execution shall be upon notice, at auction, to the highest bidder. The statute further provides that the proceeds of property so sold upon writs shall be holden to pay the executions issuing in the actions in which the attachments were made, in the order in which they were made. Comp. Stat. ch. 195, § 36. And property attached and sold is deemed to remain in the custody of the officer, so far as to be liable to attachment, in the same manner it would have been if it had remained in his hands specifically. Comp. Stat. ch. 196, § 26.

From these several provisions it is quite apparent that an officer has no legal right to make sales upon credit, unless by the consent and agreement of the parties, or the order of the creditor. There is no provision of the statute that appears to contemplate any such practice. Property sold upon writs of attachment is to be disposed of in the same manner as upon execution ; to wit, at auction; to the highest bidder; and, of course, for cash. And the officer is bound to account for the sum for which the sales aré made. If the parties agree to a sale on credit, or if the creditor orders it, as is frequently done, and no doubt wisely, the sheriff will be protected; but without some such agreement or direction, the officer is liable for the amount of the sales, to be applied in the order of the attachments. If he sells on credit, it is at his own risk.

Upon these principles the return of Rowell, the officer, was correct, and the defendant is not liable in this action. All the proceeds of the sales have been legally applied to the discharge of the executions in the order of the attachments. The whole amount of sales was $1006,87. Of this sum he applied $798,55 to the satisfaction of executions where prior attachments had been made, leaving a balance of $208,32 to be applied, and which was applied on the plaintiff’s execution.

The officer sold on credit at the request of the debtor only; and the creditors, having given no directions, are not to suffer by any loss that may arise in consequence of such a sale. Whether the note of Brown be good or not will not affect their rights. Neither can they avail themselves of any advantages derived from such sale, other than those which arise from the sale itself. If the goods sold for more upon credit than they otherwise would, that is an advantage of which they cannot be deprived. But there is no other advantage that they can gain. The officer holds the goods or the money as the debtor’s, until executions are recovered, and then they are applied in the order of the attachments — the goods, after being converted into money in case of no sale upon the writs, or the money, in case of sale before executions. And when the officer has applied the whole amount of the sales, he has discharged his duty, so far as the creditors are concerned,, and is relieved from all further liability in the collection of the executions upon the property attached and sold.

In arriving at this conclusion the case of Farley v. Monroe, 1 Foster’s Rep. 146, has not escaped our attention. In that case the action was brought by the administrator of the debtor for a balance in the sheriff’s hands after satisfying the executions, and the court held that interest having been received by the officer, he was trustee for the debtor for the amount. He held the property for the debtor, and was accountable to him in an action for money had and received, for whatever sum had come into his hands belonging to the debtor over and above the amount of the executions. The sheriff held the property and all its avails and its income, if any was received, for the debtor, and whatever was left after satisfying the executions belonged to him. But in this case, the action is brought by the creditor, and the duties of the officer in regard to him are particularly pointed out by statute. And if the officer accounts to the creditor for the full amount of the attachment, or for the amount of the sales made on the writs, it is all that the law requires him to do.

According to the provisions of the case, there must be,

Judgment for the defendant.