170 Mass. 469 | Mass. | 1898
The defendant Blatt, who alone defends, was a constable of the city of Boston. In his official capacity he attached personal property on a writ against one Mader, which was mortgaged to the plaintiff." In the same writ the plaintiff
Two questions are presented by the defendant’s exceptions: first, Is the defendant liable for conversion of the goods ? secondly, If be is, are the damages recoverable to be limited by the amount of the proceeds of the sale made by the defendant, that amount being less than the value of the property, and less than the amount due the plaintiff under his mortgage ?
Section 80 of this chapter provides, when the amount due on a mortgage has been ascertained, as in the present case, that, “ if the attaching creditor does not pay or tender the sum within the time prescribed, the attachment shall be void and the property shall be restored.” Section 75, referring to the amount properly demanded by a mortgagee when an attachment of mortgaged personal property is made without summoning the mortgagee as trustee, says that “ if the same is not paid or tendered to him within ten days thereafter, the attachment shall be dissolved and the property shall be restored to him; and the attaching creditor shall, moreover, be liable to him for any damages he has sustained by the attachment.”
These sections make it plain that, when such property is attached, the rights of the mortgagee are fully protected. The property cannot be held, nor his security in any way be impaired, unless his debt is paid by the officer or the attaching creditor. The rule applicable to the present case was stated in Hanly v. Davis, 166 Mass. 1, in these words: “ The' attachment having been dissolved in this case by the failure of the officer to comply with the terms of the statute, he became a trespasser ab initio, his holding was wrongful, and the plaintiff became entitled to the full value of the property as a substitute for the goods which were unlawfully taken from him.” Such a sale as the officer made in this case was held, in McDonald v. Faulkner, 154 Mass. 34, to be of no effect as against a mortga
Exceptions overruled.