Easton v. Ormsby

• Decision Date: 12 June 1893
• Citation: 27 A. 216,18 R.I. 309
• Parties: EASTON v. ORMSBY et al.
• Court: Rhode Island Supreme Court

27 A. 216

18 R.I. 309

EASTON

v. ORMSBY et al.

Supreme Court of Rhode Island.

June 12, 1893.

Debt by Benjamin Easton, Jr., against William Ormsby and others on a bond. Defendants demur to plaintiff's replication. Overruled.

Darius Baker, for plaintiff.

Samuel R. Honey, for defendants.

TILLINGHAST, J. The facts disclosed by the pleadings in this case are as follows: On the 21st day of November, 1889, the plaintiff, who was the sheriff of the county of Newport, attached certain goods and chattels of one John C. Atwater, of said Newport, upon a writ of the above-named date, wherein Alfred W. Hill, of Maiden, in the state of Massachusetts, was plaintiff, and said John C. Atwater was defendant, which writ was returnable to the supreme court to be held at Newport on the fourth Monday in March, 1890. Subsequent to the making of said attachment, and on the same day, the defendant Atwater tendered to said sheriff a bond, the condition of which is as follows: "Whereas, the said Benjamin Easton, Jr., is sheriff of the county of Newport in said state of Rhode Island; and whereas, the above-named Benjamin Easton, Jr., as such sheriff, has attached upon a certain writ dated November 21, 1889, wherein Alfred W. Hill, of Maiden, in the state of Massachusetts, is plaintiff, and John C. Atwater, of Newport, is defendant, which said writ is returnable to the supreme court to be held at Newport, in the state of Rhode Island, on the fourth Monday of March, A. D. 1890, the following goods and chattels, viz. all and singular the stock of goods found by him at the time of this attachment in the store numbered 286 on Thames street, in said city of Newport, consisting of hats, caps, watches, jewelry of different kinds, shirts, underwear, and other articles comprising a first-class furnishing goods store, which were set out to the said sheriff by the said plaintiff as the goods and chattels of the said defendant at the time of making such attachment to wit, on the twenty-first day of November, A. D. 1889, at 7 o'clock and thirty minutes in the afternoon; and whereas, after such attachment, the said Benjamin Easton, Jr., sheriff, has, upon tender and delivery to him of this bond, surrendered said goods and chattels so attached as aforesaid to said defendant: Now, therefore, if final judgment in the action commenced by said writ shall be forthwith paid and satisfied after the rendition thereof, in case said judgment shall be rendered against the said defendant, then this obligation shall be null and void; otherwise, shall be and remain in full force and effect: Now, therefore, if, at any time after final judgment shall have been rendered in the action in which such attachment was made, said goods and chattels shall upon request be, in as good order and condition as when so surrendered, returned to the officer taking this bond, or to any officer who shall becharged with the service of an execution levied or issued upon the judgment rendered in the action commenced by said writ, or if said judgment shall have been paid or shall immediately be paid together with the cost upon such execution, upon the making of such request for the return of said goods and chattels, then this obligation shall be void; otherwise, shall be and remain in full force and effect." Upon tender and delivery of said bond to said sheriff, he surrendered said goods and chattels so attached as aforesaid to said Atwater, after which the latter proceeded in the regular course of his business to sell therefrom, and continued so to do until January 17, 1890, and in so doing disposed of a large portion of said goods and chattels, and received, used, spent, and disposed of the proceeds of such sales in large part for his personal expenses and convenience. On said January 17, 1890, his then stock in trade was attached by a creditor of his, other than said Hill, whereupon said Atwater made and caused to be recorded in the records of said city of Newport, where he resided, an assignment of all his property and estate, except so much thereof, other than debts secured by bills of exchange or negotiable promissory notes, as was exempt from attachment by statutes of this state or of the United States, to one Henry A. Young, who was then and there a citizen of this state, for the equal benefit of all the creditors of the said John G. Atwater in proportion to their respective claims. None of the proceeds of the sale of said goods by said Atwater as aforesaid came to the possession of his assignee. On March 31, 1890, said Alfred W. Hill recovered final judgment in his action against said Atwater in the sum of $379.95 damages, and costs, taxed at $12.20, and neither said Atwater nor the defendants have ever paid and satisfied said judgment or any part thereof, but have refused so to do. October 27, 1890, said Hill received from said Henry A. Young, assignee, the sum of $41.04 on account of said damages. The defendants are sureties on said bond, and claim to have been released from their liability thereon in consequence of the said assignment of their principal, said John C. Atwater. Their claim, more fully stated, is that by virtue of said Atwater's assignment, made in accordance with Pub. St. R. I. c. 237, § 12, attachment in the said action of Alfred W. Hill against him was dissolved, and that said bond thereupon became null and void; that the liability of the sheriff towards the plaintiff in an attachment grows out of the attachment, and ends when it is dissolved.

Pub. St R. I. c. 237, § 12, is as follows: "Whenever the property of any debtor shall be attached or levied upon by any creditor, the debtor may, at any time before such property shall be sold and the proceeds thereof applied to the payment of the claim or judgment upon which such attachment or levy shall have been made, and within sixty days after such attachment or levy, dissolve such attachment or levy by making and having recorded in the records of the town or city where the assignor resides or where any of the real estate of such debtor is located, an assignment of all the property and estate of such debtor, except so much thereof other than debts secured by bills of exchange or negotiable promissory notes as is or shall be exempted from attachment by statute of the state and of the United States, to some citizen of this state, for the equal benefit of all his creditors in proportion to their respective claims, except as is provided in section fourteen of this chapter, and such assignment shall be effectual to convey all the property and estate of such debtor, except as aforesaid, and also all the property and estate theretofore conveyed by such debtor in fraud of the rights of creditors or in violation of the provisions of this chapter."

The first question which logically presents itself for our consideration is this, viz.: What was the effect upon said first attachment of the giving of said bond? Or, to be more specific, did the giving of said bond dissolve said attachment? If it did, then there was nothing for said assignment to act upon; but, if it did not, then there was, and the making and recording thereof dissolved said...