Paine v. Farr

• Decision Date: 23 June 1875
• Citation: 118 Mass. 74
• Parties: Delia J. Paine v. Ephraim W. Farr
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 74

Delia J. Paine v. Ephraim W. Farr

Supreme Court of Massachusetts

June 23, 1875

Argued November 14, 1874

Suffolk. Tort. The first count of the declaration alleged that the plaintiff was a married woman carrying on the business of a boardinghouse keeper on her separate account that the defendant unlawfully and forcibly entered the said house and seized and took possession of certain articles of furniture which she there had, a portion of which he removed and kept and detained for the space of ten days, and then returned greatly injured through the defendant's negligence in removing the same; that by reason of such seizure and removal she was injured in her business; and that the defendant, at or about the time of such removal, made a violent assault upon her, greatly injuring her. The defendant's answer contained a general denial, and justified the taking and removal of the goods by virtue of an attachment issued from the Municipal Court of the city of Boston, in favor of William Sheafe against the plaintiff and her husband, John D. Paine, which the defendant served as a constable of the city of Boston. At the trial in the Superior Court, before Brigham, C. J., the jury found for the plaintiff, and the defendant alleged exceptions, the substance of which appears in the opinion.

Exceptions sustained.

E. D. Sohier & J. R. M. Squire, for the defendant.

E. Avery, (E. H. Pierce with him,) for the plaintiff.

Endicott, J. Wells & Devens, JJ., absent.

OPINION

Endicott, J.

Where an officer attempts to justify the seizure of property under mesne process, he must show that he made return of his writ, and did all that the law requires of him to do. If he fails in this duty he is a trespasser. Tubbs v. Tukey, 3 Cush. 438. Kent v. Willey, 11 Gray 368, 373. But there are exceptions to this rule, as when a settlement is made by the parties, and the property restored with an agreement that the writ need not be returned. Williams v. Babbitt, 14 Gray 141, 142. And when property attached is surrendered at the request of the defendant, and money substituted therefor as an equivalent, no action will lie against the officer for the original attachment, although the writ is not returned. Taylor v. Knowlton, 10 Allen 137.

The defendant, an officer qualified to serve civil process, attached certain property in a house on Dover Street, on a suit in favor of Sheafe against John D. Paine and his wife, the present plaintiff. The property was attached as their property, and a keeper placed in the house. The attachment was afterwards released, but the writ was not returned into court. It was competent for the defendant to prove, in justification of his seizure of the property, that a settlement was made by the parties by which the property was to be restored and the writ not returned.

There had been evidence introduced showing the peculiar relations existing between Paine and his wife in regard to the business carried on in this house. She carried on business as a boarding-house keeper, and contended that the property attached belonged to her. The house was hired and the rent paid by him, his name was on the door, and he and their child received their board from the plaintiff for the use of the house. There was also evidence that a large part of the provisions used in the business was charged to and paid for by him, either by his own labor or by cash. Both testified that he was paid by her the moneys expended by him. Whether he was acting in this...