Pierce v. Jackson

• Decision Date: 26 July 1889
• Citation: 65 N.H. 121,18 A. 319
• Parties: PIERCE et al. v. JACKSON, Sheriff.
• Court: New Hampshire Supreme Court

18 A. 319

65 N.H. 121

PIERCE et al.

v. JACKSON, Sheriff.

Supreme Court of New Hampshire. Strafford.

July 26, 1889.²

Exceptions from Strafford county.

Case against the sheriff of Sullivan county for not attaching property of the Sunapee Saw-Mill Company on several writs returnable at the September term, 1885. Facts found by a referee. The writs were all delivered by the plaintiff's attorney to one Bates, a deputy of the defendant, who was also a deputy for the county of Merrimack, in the evening of June 25th, to be served by him by attachment of property in Merrimack county, and to be carried by him to Newport, where the defendant resided, and delivered to him with instructions to attach property of the Saw-Mill Company in Sullivan county, subject to a previous attachment made by him, and all other property of the corporation in the county. The attorney did not specify what the other property was. Bates seasonably delivered the writs to Jackson, June 26th, with the instructions. Jackson had reasonable cause to believe, and did believe, that the property of the corporation had been transferred or assigned, and that an attachment of it without indemnity would expose the officer to liability, and he so informed Bates; and that he was not willing to make an attachment, nor to have one of his deputies do so, without a bond, only what might be preserved by a copy. He also immediately wrote to the attorney that he had attached real estate, but declined "to make a clean sweep" without a bond of indemnity, and had sent the writs to Bates, to whom the bond might be delivered, being nearer. Jackson, on June 25th, had attached certain machinery and certain horses and harnesses of the corporation on a writ in favor of the Forsaith Machine Company, which was returnable in Sullivan county at the September term, and had preserved his attachment of the property by leaving a copy with the town clerk. No bond or indemnity was furnished to either Jackson or Bates. The defendant sent the writs to Bates, June 27th, and directed him not to attach anything only what he could do by copy unless he had a bond. In consequence of an interview between the attorney and Bates, June 27th, in which the attorney claimed that no indemnity was necessary, and of a letter the attorney caused to be written and delivered to him in the evening of the same day, Bates, in the morning of June 29th, attached a large lot of lumber, leaving copies with the town clerk, but he did not attach the mill building, (which was personal property,) nor any machinery. June 30th, Charles N. Emerson, another deputy of the defendant, attached, upon a large number of writs against the corporation, the mill building, and certain other bulky and certain movable property of the corporation, not subject to any previous attachment; and also attached (if he could lawfully do so) the machinery previously attached by the defendant, and the lumber previously attached by Bates, and took possession of the whole, and held possession by a keeper until it was sold on the executions for $1,100, which was its true value. Four hundred and thirty-one dollars and fifty-three cents of the proceeds remained after satisfying the balance of the Forsaith execution, and was applied on executions which issued in the cases in which Emerson attached the property. Neither Jackson nor Bates was requested to attach any specified property, except as stated above. The court ordered judgment for the defendant, and the plaintiffs excepted.

S. K. Page and John Kivel, for plaintiffs. A. S. Wait and James F. Briggs, for defendant.

BLODGETT, J. So far as the plaintiffs' claim for damages relates to the property selling for $1,100 it is entirely without merit, because it is found as a fact that they did not cause their executions to be levied on the property or its proceeds. Their loss is consequently due to themselves only, and of course affords them no ground of action against the defendants....