Pollard v. Baker

| Mass. | Mar 15, 1869

Ames, J.

The property attached in tne original suit of Crary v. Pollard was considered, and, as we are bound to presume, rightfully considered, as falling within the description of “ live animals, or goods and chattels which are liable to perish, waste, or be greatly reduced in value by keeping, or which cannot be kept without great and disproportionate expense.” Gen. Sts. c. 123, § 73. The officer proceeded, therefore, in due form, and in compliance with the next following four sections of that chap, ter to reduce the property to the more manageable and convenlent form of money, which he thereafter held, to be disposed of in the manner provided in the seventy-second section of the same chapter, for the case of a sale of attached property by consent of parties. Under that section, the proceeds of such sale, after deducting the necessary charges, are to be disposed of “ in like manner as the property would have been if it remained unsold.” That is to say, on the dissolution of the attachment, whether from the failure of the plaintiff to maintain his original suit, or from any other cause, it would be the officer’s duty to deliver the proceeds of the sale, deducting the necessary charges, to the defendant in that suit, or his legal representative. His right to retain in his own hands the amount of those necessary charges is very clear upon the face of the statute.

It may possibly be urged that a party who has successfully defended himself against an unfounded or vexatious suit ought to have, in the shape of taxable costs or some other form, a suitable indemnity for actual expenses to which he has been wrongfully subjected. Any man is liable, under our practice, to have his property attached on mesne process. There are various modes in which he may relieve himself from that inconvenience, the most common mode being to file a bond for the dissolution of the attachment. If he should not choose or find it convenient to take that course, but should prefer to let the attachment remain, and if the property attached should fall within the description contained in § 73, the process of selling it is for his benefit quite as much as for that of the attaching creditor. The sale is really for the interest of both parties. The law assumes that it would be better for both parties, defendant as well as and perhaps even more than plaintiff, to have the property changed into money, rather than to allow it to perish or waste, or be kept at great expense till the suit in which it is attached should come to an end. It may be for this reason that the statute omits to provide that the party sued, if he should prevail in his defence, should recover the charges of the sale on mesne process from the original plaintiff. It is very clear that they cannot be recovered from the officer who served the writ, which is all that the court is at present called upon to decide.

Exceptions overruled.