101 Mass. 259 | Mass. | 1869
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 conven
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.