Cleverly v. Brackett

| Mass. | Oct 15, 1811

Curia.

The brief statement filed by the constable in this case is defective, inasmuch as it does not show the disposition which he made of the cáttle which he attached. His posterior conduct may have been such as to make him a trespasser ah initia. As we shall send the action to another trial, he will have opportunity to amend it.

* As to the defence set up by the other defendant, we are of opinion, that after he had received the gelding as a pledge for his demand against the plaintiff, he could not lawfully attach other property for the security, without first returning the pledge ; for he could not know how far the pledge was competent to his full security. ^(b) By thus unlawfully attaching the heifers, therefore, he committed a trespass. And if the constable knew of the gelding’s having been pledged as it was, he also was a trespasser in attaching the heifers.

It is not easy to suppose such a state of the case, as would entitle the plaintiff to damages for both the gelding and heifers. Yet the jury have here found the defendants guilty of the whole trespass charged.

As the case is much involved, and the whole testimony furnished at the trial was very slender, we order the verdict to be set aside, and a new trial to be had; but, as the subject of the dispute is of inconsiderable value, we hope the parties will adjust the business out of court, and that we shall hear nothing more of it.

New trial ordered.

(b) [There seems to be no reason why he might not lawfully have * attached in this case, as well as in the case of a mortgage of real estate. — Ed.]