17 N.H. 380 | Superior Court of New Hampshire | 1845
By the attachment of the goods in controversy, which was made on the 14th of August, 1837, at the suit of Moore, Gile, the officer who served the process, obtained possession of them, with the right of disposing of them in the manner incident to such possession, and to the proper and effectual discharge of his duties. If he abused the process by Avhich he obtained that possession, by converting the goods to his own use, by destroying them, or unnecessarily suffering them to be destroyed, or by appropriating them to objects not warranted by the purpose for which he held them, then he and his abettors became trespassers ah initio, and liable as if the taking had not been under color of the process. But this was
The consequence was that the attachment was made without disturbing any liens or other claims requiring for their preservation the possession of the parties in whose custody they were found, and without discharging which it would have been tortious as against such persons to have taken the property away. It appears that Jeremiah Stevens had, as the agent of a firm known as Stevens & Co., or Stevens, Walker &Co., at the request of Trafton, made long before the claim of either of the contending parties attached to the property, agreed with him, that he might leave the logs at their mill, to be sawed into lumber at the usual price, and the logs were delivered at the mill for that purpose, and under that contract. Stevens & Co. had proceeded so far in the execution of it as to have sawed a portion of the logs, and to have caused the remainder to be placed upon the ways preparatory to being rolled into the mill. Under these circumstances they set up through their agent a claim to the light under their contract to proceed and complete the manufacture of the lumber, which we are clearly of the opinion that a prudent regard to the rights and duties of all the parties did not justify the defendants in resisting. It is proper to remark, that this conclusion does not necessarily close all question that might, in the absence of the attachment, have been instituted by the plaintiff as to the exact extent of the rights over the property acquired by Stevens & Co. by the arrangement with Trafton. We place it upon the ground that here was a possession of the goods in Stevens & Co., acquired under the contract with Trafton ; that the goods were of such a nature that their removal was not required to secure the objects of the attachment; that this
This reasoning applies in part to the objection which has been taken to the defendants’ permission to Stevens & Co. to retain a portion of the lumber for their compensation. It was an arrangement made by Trafton himself; and although it might have been done after the mortgage had been given by him to the plaintiff, the case shows no notice of that transaction as having come to the defendants at the time they acquiesced in it; nor, if they had received such notice, is it apparent that it was their duty under the circumstances to have resisted the claim, if it were a doubtful one.
Another objection is, that when it appeared, upon the trial, that some small portion of the goods that were appraised and sold under color of the attachment, were not specified in the officer’s return, nor probably included in any general description which the return contained, of goods attached upon the process, the officer was permitted so to amend his return as to make it evidence of the attachment of these items of property, for his own protection.
The salutary rule of law which enables an officer to exhibit, for his own protection, the process under which he has acted, with his own return of his own doings annexed to or indorsed upon it, may, without any abuse of the principle on which it is based, be extended to amendments of such returns, when they can be made consistently. But
"Without assuming to derive from the numerous eases on the subject any thing like a system of inflexible rules, it will serve the present purpose to say, that in general, amendments are allowed with great caution and reserve, in cases where there is nothing to amend by ; that is to say, where the proceedings proposed to be amended contain nothing which shows that there has probably been a compliance with all the legal requirements of the case. This is certainly such a case. The return contains no evidence whatever that the goods in question were attached upon the process, except that it shows that in the sequel they were sold under the process which is the act complained of. The evidence upon which the amendment was allowed was of a nature to extend strong inducements to abuse, if established as a ruling precedent, it having been the affidavit of the party himself, wrung from the very pinch of the exigency, and relating, as was suggested in the argument, to an event too far removed in respect to time, to be presumed to have been very fresh in the deponent’s memory.
Under such circumstances we think that such an amendment would, in the sound discretion of the court, be denied, unless required by the purposes of justice between the parties.
In Parker v. Pattee, 4 N. H. Rep. 530, it was held that an officer who has attached goods upon - mesne process does not become a trespasser ab initio by the mere omission to specify some of them in his return. This case shows that it was a proper question to submit to the jury upon evidence dehors the return, whether the goods in contro
Thus it appears that the defendants’ case did not require the amendment which was granted upon grounds in other respects so highly questionable.
The verdict, had it proceeded upon other evidence, which it appears existed — that the goods were actually-attached — would have concluded this question; but because the amended return was admitted, the verdict must be set aside and A new trial granted.