20 A. 98 | R.I. | 1890
The principal question in this case is, what rule is to be observed in chancerizing the bond in suit. The plaintiff contends that the defendants are liable for the full amount of the judgment recovered in the attachment suit; the defendants contend that they are at the most liable only for the value of the goods attached, which were surrendered when the bond was given. The decision of the question depends on the construction to be given to the condition of the bond. The condition, to state it briefly, is, that the bond shall be void if the goods shall *62 be returned after judgment to satisfy the execution thereon, or if the judgment shall be paid. The condition has not been performed in either way.
The plaintiff cites, in support of his contention, Anthony
v. Comstock,
In Schuyler v. Sylvester the condition of the bond was, that the goods surrendered should be returned to satisfy the execution when duly demanded. They were again attached, so that they could not be returned. They exceeded in value the amount of the judgment. The court held that the amount of the judgment was the measure of the damages.
In Collins v. Mitchell the condition was, that the bond should be void if the obligor should cause the slaves, which had been attached and surrendered, "to be forthcoming to abide the final order of the court." The slaves were not forthcoming when required, and it was held that the value of the slaves was the measure of the damages.
In Goebel v. Stevenson the condition was, that the bond should be void if the obligors should return the goods, or indefault thereof pay the judgment recovered, and the court held that they thereby bound themselves to pay the judgment unless the goods were returned. The court states in its decision that, under the New Jersey statute, the obligor had a right to give either a bond to return the goods or a bond to pay the judgment, and that the bond given showed an election of the latter form. "The peculiarity is," *63 said the court, "that, under a bond showing an election to be responsible for the payment of the judgment and that only, a provision is inserted in the condition authorizing the obligors to discharge themselves by producing the property." The bond here has no such peculiarity, unless it is put into it by construction.
We think it is our duty to construe the bond according to its apparent purpose, considering it in the light of Pub. Stat. R.I. cap. 207, § 20,1 under which the parties agree that it was given. Welsh v. Barrow, 9 Rob. La. 535; Baker v.Morrison, 4 La. An. 372. Undoubtedly the amount of the judgment with costs is the measure of the damages, if the value of the goods exceeds that amount; for, if returned, the goods can only be taken to satisfy the execution. La Crosse Minnesota SteamPacket Co. v. Robertson,
The goods attached were a grocer's stock in trade, and, after the surrender, some of them were sold and replaced by other goods of the same kind and value, and some of them, being perishable in their nature, perished and were replaced in like manner; and when the return was demanded by the sheriff, the rest of the goods attached, together with the goods procured to replace those that had perished or had been sold, were tendered, but the sheriff refused *65
to accept them. The defendants contend, first, that the tender was sufficient; and, if not, second, that they are not liable in damages for the goods that perished, their perishing being the act of God. Metrovich v. Jovovich,
We give the plaintiff judgment, with damages amounting to the value of the goods attached.
Judgment for plaintiff for $194.21, with interest from dateof demand, July 19, 1889.
SECT. 20. Every officer having goods and chattels attached by him in his custody shall surrender the same, at any time after such attachment and before final judgment, to the person whose interest therein has been attached, or from whose possession they have been taken, upon being tendered a bond by the defendant or some one in his behalf, with sufficient sureties to the satisfaction of such officer in double the value of the goods and chattels so attached, or in the penal sum of the amount of damages laid in said writ, with condition that such bond shall be null and void if, at any time after final judgment in the action in which such attachment shall have been rendered, such goods and chattels shall upon request therefor be, in as good order and condition as when surrendered, returned to the officer taking such bond, or to any officer who shall be charged with the service of an execution levied upon the judgment rendered in such action, unless such judgment shall have been paid, or shall be immediately paid, together with the costs upon such execution, upon the making of such request, or the return of such goods and chattels.
SECT. 2. Whenever any officer shall attach on an original writ any live animals or any goods or chattels which are liable to perish or waste, or to be greatly reduced in value by keeping, or which cannot be kept without great and disproportionate expense, the court in which the same shall be pending in term time, or any justice thereof in vacation, or the trial justice of any justice court in which such writ shall be pending, may, on the written application of any person interested in such property, cause the defendant and the attaching creditor, their attorneys or agents, to be notified to appear at a time and place appointed for that purpose, to show cause why the same should not be sold.
SECT. 3. If, after reasonable notice, no person appear, or no sufficient cause to the contrary be shown, the court or justice may direct the officer to sell the same, in the manner prescribed by law for selling goods and chattels on execution; and such officer shall hold the proceeds of such sales, after deducting therefrom the necessary charges thereof, as security to satisfy such judgment as the attaching creditor may recover, in the same manner as if he held the property itself.