16 Mass. 294 | Mass. | 1820
delivered the opinion of the Court. The conduct of the officer, although for the advantage of the debtor, and of all
Cases often occur, which show the necessity of some legislative provision upon this subject. Perishable goods are often attached ; live stock also, which may consume its value during the pending of a suit. The creditors may thus have their security waste before their eyes, and the debtor may suffer the loss of his property without paying his debts. An authority in all such cases, and also when the market price of merchandise is likely to fall, to sell the property attached, and appropriate the proceeds among all the parties in interest, according to their legal claims, is a desideratum in our law.
But as to the damages to be recovered for this venial departure from official duty, with good intentions, and for the benefit of every one finally interested, and by their consent,—shall the officer be made to pay the whole debt, and the plaintiffs in this case profit to that extent, from their refusal to concur with the other attaching creditors? We think not. They are to recover damages. What are those ? Certainly an indemnity for the injury they have sustained. What is that injury ? It is the neglecting to keep the goods attached, until sold upon execution; and if they had been so kept, the plaintiffs would have gotten literally nothing. To give them their debt now, would be to authorize a speculation upon the [ * 299 ] necessities * of the debtor, and discourage those arrangements which are often so beneficial to him.
It has heretofore been frequently decided that, in actions on the case against officers for negligence, the jury have the subject of damages at their discretion. It is so, when an escape has been suffered ; where insufficient bail has been taken ; and even where there has been a false return, as in the case of Weld vs. Bartlet
10 Mass. Rep. 470.
[This case cannot be sustained in law. The other creditors gained no title to tlie goods against the plaintiff, because the grant, or agreement,' or assent of the debtor and all the attaching creditors, besides the plaintiff, could not make or give such a title, or supply the defect occasioned by omitting to perfect an inchoate title acquired oy the attachment, or give validity thereto. The damages, therefore, were to be esti