Earl v. Spooner, 3 Denio 246

Earl v. Spooner

3 Denio 246 | N.Y. Sup. Ct. | 1846

By the Court, Beardsley, J.

I think there was no error in allowing the defendants to give evidence of the second attachment and proceedings thereon, including a sale of the property to satisfy the judgment thus recovered against the plaintiff in this suit. The evidence was pertinent and material to the question of damages, and seems to have been received for that purpose alone.

The defendants were bound by their bond to pay the plaintiff all damages and costs which he might sustain by reason of the issuing of the attachment referred to in said bond, if the plaintiff in said attachment failed to recover judgment thereon. No such judgment was recovered, but on the contrary a judgment of nonsuit was rendered against the plaintiff in the attachment. The condition of the bond was thus broken, and prima facie the defendants were responsible for the full value of the *248property which had been seized on the attachment. They had bound themselves to pay all damages which the defendant in the attachment might sustain “by reason of the issuing such attachment,” and prima facie he had sustained damages to the extent of the value of the property taken from him on the attachment. A return or an offer to return the property to the owner, might have changed the rule of damages, and so might its seizure and sale on other and legal process against the owner. It was still his property notwithstanding the seizure on the first attachment, and as such was liable to be taken on the second attachment. As between these parties and in this action, we cannot assume that the first seizure was tortious, or that the defendants were responsible as wrongdoers. (Groat v. Gillespie, 25 Wend. 383.) They were not sued in trespass, nor does it appear that they could have been, for the property seized on the attachment. The action was covenant, and the defendants were responsible to the extent of the obligation assumed in executing the bond, but not as trespassers, which distinguishes the present case from that of Otis v. Jones, (21 Wend. 394,) referred to by the plaintiff in error.

The plaintiff recovered some damages, and we suppose all which he had actually sustained by the issuing of the first attachment, and the levy thereof on his property. The second seizure of this property, immediately after it had been liberated from the first levy, by the judgment of nonsuit, was strictly legal, and as the property has been applied according to law to satisfy a debt due from the owner, that was very properly admitted in evidence to reduce the amount of damages sought to be recovered. The judgment rendered by the justice was free from error and was properly affirmed by the common pleas.

Judgment affirmed.