Knight v. Nelson

• Decision Date: 09 April 1875
• Citation: 117 Mass. 458
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Albert Knight v. Abner M. Nelson & another

117 Mass. 458

Albert Knight v. Abner M. Nelson & another

Supreme Court of Massachusetts

April 9, 1875

Suffolk. Tort for the conversion of certain goods. The case was submitted to the Superior Court, and to this court on appeal, on an agreed statement of facts, in substance as follows:

In May 1872, the defendants brought a suit in the Municipal Court of Boston, against J. F. L. Whitmarsh and Francis T. Irish auctioneers and commission dealers. The writ was served by R S. Carroll, a constable of the city of Boston, who received special instructions to attach only the goods of the defendants, specifying them, and such specification not covering the goods claimed by the plaintiff. Carroll made an attachment of all the goods in the auction-rooms of Whitmarsh and Irish, and very soon thereafter the plaintiff made a claim upon Carroll for certain goods included in said attachment as his property, consigned to Whitmarsh and Irish for sale on commission. Carroll then demanded of the defendants in this case a bond to save him harmless in making and maintaining the attachment. And the defendants gave Carroll a bond in the usual form, "to indemnify him and save him harmless from all suits, damages and costs whatsoever, whereunto he may be liable or obliged by law to pay to any person or persons by reason of the said attachment, or any further intermeddling of said Carroll by virtue of said process." The defendants knew of the claim of the plaintiff when they gave this bond, but the plaintiff had then taken no action to enforce it. Carroll afterwards sold all the goods so attached on mesne process, including those belonging to the plaintiff, and never accounted to the defendants or any one else for the proceeds.

The plaintiff brought suit against Carroll for the conversion of said goods, and recovered judgment therein for $ 185 and costs, and said judgment has been in no part satisfied, and the execution has been returned accordingly.

The same property was attached by other parties, the same officer serving the process, but the defendant's attachment was the first one.

It is agreed for the purposes of this case that some of the goods so attached were the goods of the plaintiff, and if upon the above facts the plaintiff is entitled to judgment, the same may be entered for him in the sum of $ 185, and interest on the same from January 1, 1874; otherwise judgment for the defendants.

Judgment for the...