19 F. Cas. 638 | U.S. Circuit Court for the District of Maine | 1842
In the present case, the property in controversy was attached upon the original writ, and consisted of all the goods in the store of the judgment debtor, Dwight Allen; and at the time when the attachment was made they were estimated in the gross to be of the value of 57,000, and were receipted for to the officer, with the approval of the plaintiff’s attorney, by Messrs Appleton and Hill accordingly; and the officer made due return thereof, as of the value of $7,000 upon the writ. After-wards, upon a discovery, that the value of the goods had been greatly mistaken, and that they did not, in fact, exceed in value the sum of $2,200, the officer made an application to the state court, where the suit was brought, to amend his return, which was granted by the court; and the officer accordingly amended his return, so as to state the value at $2,200, which it is not now denied was the fair value. When the amendment of the return was made, the officer had ceased to be in office; but he was in office when the liberty to amend the return was granted. It is under these circumstances, that the present suit was brought. All the counts in the original declaration proceed upon the ground, that the officer was bound by his return to have the goods forthcoming to the value of the $7,000, stated in the original return. A new count has since been offered to be introduced, under the leave granted by this court to amend the declaration, in which count the value of the goods is stated to be $2,200, and the gravamen is the refusal of the officer to deliver up the same to the new officer, to whom was entrasted the execution, in order to satisfy the same. And one point is, whether this count does not contain substantially a new cause of action; and, if so, then that it is not admissible under the leave to amend. I think, that the amendment is within the range of that class of cases in which this court has been accustomed to exercise in its discretion the power ,to amend; for it amounts in legal effect merely to cutting down the claim of the plaintiffs from $7,000 to $2,200. Still, however, it does so materially vary the line of defence, that it must operate as a surprise upon the defendant. I am satisfied that it ought not to be granted, except upon the payment of the costs of the defendant up to the time when the amended count was offered to be filed. So that, if the verdict and judgment of the court shall solely turn upon the new count, it seems to me clear, that the defendant ought to be placed in the same situation, as if he had been apprized of the restricted claim at the commencement of the suit, and had been at liberty, upon paying the $2,200, to escape from all subsequent costs. This is a matter, however, of discretion in the court, as to the terms of granting the amendment.
The real questions however, upon the merits of the case are: (1) Whether the original return of the officer was absolutely conclusive and binding upon him and upon the receiptors as to the value of the goods attached, notwithstanding that valuation was founded on a gross mistake of all the parties, innocently made and without fraud. (2.) If it would,- per se, have been so conclusive and binding upon him, whether the case is helped by the amendment made in conformity with the real facts by the authority and leave of the state court. (3.) Whether the plaintiff’s attorney, either in virtue of his general authority, as attorney in the suit, or under the special circumstances of this case, had a right to bind his clients by the approval of the receipt
The last point is mainly dependent upon local habits, usages, and practice in the state, rather than upon any well-defined principles of law, applicable to the general rights, duties, and powers of an attorney; for these necessarily vary in different states, and are governed by such local habits, usages, and practice. By the general principles of law (independent of any statute regulation), the sheriff, or other officer, making an attachment of goods, is bound, as nearly as it reasonably can be done, to give in his return, or in a schedule or inventory annexed thereto, a specific‘description of the goods attached, their quantity, size and number, and any other circumstances proper to ascertain their identity. But I do not know, that he is absolutely bound to affix any valuation thereto; or that, if he should, that valuation would be conclusive or binding upon the attaching creditor, or upon the debtor, or even upon himself, in all cases;
But passing from this to the other consideration of the right and authority of the attorney in the suit to give such consent, on behalf of the creditor, to the delivery of the goods attached to a bailee, or receiptor, I have already suggested, that it must mainly depend upon the local habits, usages and practice in the particular case. If it be, as I take it to be, a very common practice in states, where attachments of property are authorized upon mesne process, to deliver the property to some suitable bailee or receiptor, it is doubtless for the interest, both of the sheriff, or other officer, making the attachment, and of the creditor, that such person should be above exception as to property and solvency. The powers and authorities of attorneys in suits in Massachusetts, and Maine, and probably in many other states, are far more extensive, than they are deemed to be in England. The cases cited at the bar in behalf of the defendant, clearly establish this point. By the law of Maine the officer is not bound to make a special attachment of property, unless directed to do so by the plaintiff or his attorney. Betts v. Norris, 3 Shep. [15 Me.] 469. And the attorney, to whom is intrusted the authority to commence and e<5n-duct a suit, is generally understood, in the absence of all special instruction from his client, to possess the authority to make such attachments or not. in his discretion. If he be instructed to make an attachment, it would seem to be a natural incident thereto, that he should act in reference to it throughout, in the manner which he should deem most beneficial to his client; for cases may arise, in which the nature of the property, or its situation (as being perishable, or otherwise subjected to loss or injury) may require, that the attorney should possess authority to give directions, and to make arrangements accord
Then, as to the amendment allowed to be made on the officer’s return by the state court: it appears to me, that this court lias no authority to revise the decision of the state court upon such a subject. It was incident to the exercise of the general jurisdiction of that court, of the nature and extent and pro-pri>* y of which, the state court was the exclusive judge. But if it were otherwise, I am far from thinking upon general principles, applicable to amendments, as authorized and allowed in most, if not all the New England states, that it was an undue and unjustifiable exercise of the authority of the power to allow amendments. What was its object? Not to state facts, which were untrue and unfounded in the ease; but to make the return conform exactly to the real facts, where, by mistake, an egregious error had occurred, injurious to the rights of the officer, and to the benefit of which error the plaintiffs were in no just sense entitled. It is said, that courts of law have no just authority to allow amendments to be made, which are or may be injurious to the rights or interests of third persons. If by this position be meant their real rights and true interests, positively and absolutely vested in them by law, I agree to that proposition. But if it be meant, that the power of amendment cannot and ought not to be exercised by the court to correct a positive mistake, and to conform the return to the true state of the facts, I am by no means prepared to admit either the correctness, or the validity, of the proposition, in point of law. On the contrary, as I understand it, it is the duty of the court, in fit cases, as an exercise of sound discretion, to allow such amendments, where they are in furtherance of public justice, and to remedy mischiefs, resulting from accident or mistake. In the present case, the attachment was made of a shop of goods, in general terms, valued, in gross, at $7,000. Suppose its real value were only $2,200, and the creditor’s debt should be $2,200 only, as finally fixed by the judgment. Could a second creditor, attaching the same property, be entitled to hold, under the second attachment, the supposed surplus beyond the first judgment, when, in fact, there was none? And might not the court allow an amendment to be made in the first return, so as to conform to the admitted facts? But the present case is not that of a third person; but of the plaintiff in the suit. As to him, the court has, in my judgment, a perfect authority to allow such amendments to be made in the return, as shall conform to the truth and justice of the ease, and correct an innocent mistake and mischievous error. The court are not bound to allow the amendment as of- course; but it is an exercise of sound discretion under all the circumstances of the case. If there be fraud, or gross laches, or reasonable ground to suspect that the creditor may be unjustly damaged in his rights thereby, the court ought certainly to refuse the amendment. And if the officer acts fraudulently in procuring the amendment, the creditor will certainly be entitled to his full remedy for the fraud, notwithstanding •the amendment.
The argument upon the other point is, that the return is an estoppel both to the officer and to the receiptor as to the value of the goods attached; and that it is conclusive upon all the parties. It was certainly a very loose and incorrect mode of making this attachment, to make a return of a shop of goods, without any schedule or inventory of the quantity, quality, or nature of the goods; and the officer (as has been already suggested), had, strictly speaking,'no right to affix any value thereto. It was no part of his duty. That duty was to return a schedule or inventory of the goods, with- an appropriate description, so as to have them forthcoming, and identified, to satisfy the execution. The very nature of such a valuation, so set upon a store of goods, must necessarily be deemed to be merely conjectural, and liable to mis
There is no doubt, that, notwithstanding the officer’s return, that the property attached is the debtor’s,' he and the receiptor may each show, that, in point of fact, it belonged to a third person; and yet this may be said to contradict his return. Indeed, in all cases, where an officer is sued for a false return, or for not having goods attached forthcoming to satisfy the execution, or for any other official misfeasance or negligence, the rule is clear, that the plaintiff is entitled to recover no more than what he has actually lost by such misfeasance or negligence. The case of Weld v. Green, 1 Fairf. [10 Me.] 20, fully recognized this doctrine. So that, after all, in my judgment, the present case comes to this, what damage-has the creditor actually sustained by the amendment of the return? To that he is entitled; and that is the true value of the goods attached, and nothing more. It is admitted, indeed, in the present case, that the true value is $2,200 only, and not $7,000.
In the view, therefore, which I take of the case, the merits of the controversy, upon the points already suggested, are with the defendant. He is liable to the plaintiffs for the true value of the goods, $2,200, and no more.
I have not adverted to other points or facts relied upon by the defendant as in the cause, because upon those already stated, the whole merits are, in my judgment, exhausted; unless, indeed, so far as the point is concerned, that no demand was made upon the officer within thirty days after the execution issued for the goods by the new officer, to whom the execution was committed. Whether this be so or not, I do not know; nor is it agreed by the parties. It is a matter of fact, which must be ascertained, if controverted by the jury. If no demand was, in fact, made within the thirty days, then the right of the plaintiffs seems to me entirely gone. Norris v. Bridgham. 2 Shep. [14 Me.] 481. I do not think, that it is indispensable, that that fact should appear upon the return of the officer under this execution; or if necessary, I know of no reason why the return may not now be amended by leave of the court, to conform to the facts.