Ormsbee v. Davis

18 Conn. 555 | Conn. | 1847

Ellsworth, J.

The merits of this case, though somewhat overlaid by a mass of pleadings, are not difficult of discovery. To those pleadings we have no occasion to allude, with particularity ; for the defendant admits, that judgment must be rendered against him ; so that the only question is one of damages.

It is agreed that the condition of the replevin bond, has not been kept or performed ; and that the property taken in the replevin suit, which has not been returned, according to the order of the county court, is of the value of 489 dollars, 40 cents; and that this is less than the plaintiff’s debt. It rests upon the defendant to make out, why he should not pay said sum : and this is the line of his defence ; that when the plaintiff, in January, 1841, attached these goods, they were in the hands of said Bailey, subject to sundry prior attachments, in favour of Pond <J- Co., to more than their value ; that afterwards, in March 1841, Pond fy Co. recovered judgments to the amount of more than 3000 dollars; that they took out executions and put them into the hands of one Skinner, a deputy sheriff, who made demand of the goods of said Bailey and one Mann, who had receipted the same ; that all this was done in due season; and the goods not being forth-coming nor the executions paid, the officer indorsed the same satisfied to a small amount only, and returned them to the clerk’s office. It is a part of the case, that neither the goods, nor the value of them, have been applied in payment of the debts of Pond %■ Co., or any debt due by Elisha A. Smith; nor have said goods been returned to said Smith. Why then should not said Bailey, or the defendant, who stands in his place, pay the value of said goods ? Is Bailey to keep them? If not, when, and to whom, if not at this time and to the plaintiff, is he to be accountable ?

It is said, Bailey is liable to Pond <£• Co., and ought not, therefore, to be compelled to pay the plaintiff. But is a possibility that he may be called upon, by Pond ⅜ Co., for an official default, any reason why he should keep the goods ? Suppose Pond fy Co. should not call upon him, is Bailey to have the property, notwithstanding the attachment of the plaintiff? It is quite possible that Pond ⅜ Co. have been paid, or possess other security ; for it is more than five years since Bailey became liable to them, if at all. Nor is it certain, if Pond Sp Co. should now sue Bailey, he could not set up the statute of limitation, which would take away the shadow of liability. Had Bailey, as in the case of Jordan & al. v. Gallup, 16 Conn. R. 536. satisfied the debt of a prior attaching creditor, lost by his mistake, he might be treated as an equitable owner of it; and at all events, he could not be made to pay twice the same money, for a mere mistake, (as it might be) without disregard of precedents and a violation of first principles.

Besides, if it be, as the defendant says, that Pond Co. have not been paid, they may enforce their executions against Smith himself; and then whose are the goods in question? Smith too has a right to insist that those goods shall go to pay the plaintiff’s debt, or else he may lose them forever.

We advise that judgment be rendered for the 489 dollars, 40 cents, and interest since the demand.

In this opinion the other Judges concurred, StorRs, J. hesitating.

Judgment for plaintiff, with full damages.