Howe v. Handley , 28 Me. 241 ( 1848 )

Shepley J.

— This suit is upon a replevin bond. The plaintiff, as a deputy of the sheriff, by virtue of a writ in favor of Moses Call against William P. Harrington, attached a horse, sleigh, harness, and two buffalo robes, as the property of Harrington. The plaintiff in that suit, recovered judgment in the month of April, 1842. Before that attachment was made, Harrington, on March 5, 1841, had conveyed the same property in mortgage to William Legg and William Knowlton, who replevied it from the officer, and the bond now in suit was made by the defendants to the plaintiff, then defendant in replevin, who in the month of September, 1843, recovered a judgment for a return of the property attached and for damages and costs. An execution issued on that judgment was delivered to another deputy of the sheriff, who, having demanded the property of the defendants, failed to obtain it, and made return of the execution on Sept. 30, 1843, in no part satisfied.

It is admitted, that the plaintiff is entitled to judgment. But it is contended in defence, that he is not entitled to recover damages to a greater amount than the sum for which they have, according to the provisions of the statute, offered to be defaulted.

1. The facts relied upon to establish this, are, first, that Harrington, upon his own petition, was decreed to be a bankrupt on May 17, 1842. That Call, on October 8, 1842, proved his judgment in bankruptcy, as a debt due from Harrington. That Harrington obtained his discharge as a bankrupt on Nov. 15, 1843.

The question thus presented is, whether the officer, should lie recover in this suit for the value of the property attached, will hold it, or any part of it, for the use of Call, the creditor.

The lien preserved by the second section of the act of Congress, approved on August 19, 1841, cannot exist after the debt, judgment, or other instrument, by which it was upheld, has been discharged or annulled. The fifth section of that act declares, “ and no creditor or other person coming in and proving his debt or other claim, shall be allowed to maintain any suit at law or in equity therefor, but shall be deemed thereby to have waived all right of action and suit against such bankrupt; and all proceedings already commenced, and all unsatisfied judgments already obtained thereon, shall be deemed to be surrendered thereby.” The fourth section also provides that the bankrupt shall be entitled to a full discharge of all his debts. It is said, that the discharge is not absolute, but liable to be impeached for fraud or wilful concealment; and that the judgment should not therefore be considered as discharged. But the certificate is “to be deemed a full and complete discharge of all debts,” “ unless the same shall be impeached for some fraud or wilful concealment;” and there is no evidence presented in this case of any fraud or concealment, and it cannot be presumed. There can be no doubt, that the judgment must be regarded as surrendered and discharged. The plaintiff will not be entitled to recover any damages to be applied to satisfy that judgment. But the creditor by the provisions of the Revised Statute, c. 130, § 14, is in such cases entitled to receive from the officer interest at the rate of twelve per cent, per annum on the value of the goods for so long a time as the service of his execution was delayed, to be retained for his own use and not applied to discharge his judgment. His judgment was recovered in April, 1842. Ills attachment was not discharged until October 8, 1842. The lien by attachment has been uniformly considered in this State as subsisting, when the creditor has or could obtain a judgment in common form by the ordinary course ot judicial proceedings. And as discharged by a failure to recov er such a judgment, or by its discharge, or by the neglect of the creditor to enforce it. If the officer could have regained possession of the property attached, the execution of Call might have been levied upon it at any time before the attachment had been discharged. The lien upon the property was not dissolved until that time. This is not essentially at variance with the doctrine established by the decisions of other courts. Cook’s case, 5 Law Rep. 443 ; Ames v. Wentworth, 5 Metc. 294. The plaintiff may therefore recover in this suit, the amount of damage occasioned to Call by the delay of service of his execution until October 8, 1842, his right to that ¡amount not being affected by the discharge of his judgment, '/because it was not to be applied in part payment of it.

2. In the second place it is contended in defence, that the -plaintiff is not entitled to recover any damages for the use of the owner of the property attached or his assignee.

The facts relied upon are, that the assignee of Harrington :,in bankruptcy, conveyed on December 2, 1842, all his interest in the property mortgaged to Legg and Knowlton, to Hussey ■and Coffin, who, on October 3, 1844, released and discharged ■ the plaintiff from all accountability to them for it. This would seem to be sufficient to protect him against any claim made by the mortgagor or his assignee. It is objected, that it does not appear, that the assignee in bankruptcy made a conveyance ■ of the property according to the rules prescribed by the court .authorizing the sale. It does not appear, that he did not. ' The property passed by ^operation of law to him, and he could -make no claim upon the plaintiff for it after having made sale ■ of it to others. The mortgagees do not appear to have discharged the plaintiff from accountability to them. Nor does their title to the property appear to have been discharged or • surrendered. It may be valid as against Harrington and his , assigns, while it was decided to be invalid as against an attaching creditor. The answer is, the officer is seeking to recover < damages against them in effect, though not in form, for they : are not parties to this suit. The suit is against those, who emust be considered to have given this bond on their account and for their benefit. The plaintiff should not therefore be allowed to recover damages from the agents only to restore the amount recovered to their principals.

3. It is contended, that this is not a statute bond, and that the plaintiff can recover only the actual damages proved, and not the damages provided by the statute. It was made on Nov. 8, 1841, since the Revised Statutes were in force. By the tenth section of c. 130, the officer is authorized to “ take from the plaintiff or some one in his behalf a bond to the defendant with sufficient sureties.” It must be presumed, that the officer proceeded legally, in the absence of proof that he did not, and that this bond was taken in behalf of the plaintiffs in replevin. It must therefore be regarded as a statute bond; and the damages must be assessed accordingly.

4. The damages recovered in the action of replevin, by the present plaintiff, being recovered in trust, are not conclusive upon the parties in this suit. The service of the creditor’s execution may have been delayed long after the recovery of that judgment, and he may therefore be entitled to greater damages. Ch. 130, $ 12. Or a part or the whole of his debt may have been discharged since the recovery of the judgment, and the officer is only to recover to his use and pay to him so much of his judgment, as shall remain unpaid. Ch. 130, § 13.

5. The defendant in replevin is not concluded by the value of the property named in the replevin bond. Nor are the obligors in all cases. But in cases like the present, in which the value of the property might be expected to be diminished by the use of it, and by the lapse of time, it has been considered, that the obligors should be bound by the value named in their bond. Melvin v. Winslow, 1 Fairf. 397; Swift v. Barnes, 16 Pick. 194; Parker v. Simonds, 8 Metc. 205.

The plaintiff will be entitled to recover the amount of the judgment for costs recovered in the action of replevin, with, interest thereon from the time of judgment. His reasonable-expenses incurred in that action with- interest thereon from the same time. His reasonable expenses incurred in this suit upon: the bond. These sums he will be entitled to recover for his own use.

He will also be entitled to recover for the use of the creditor, interest at the rate of twelve per cent, per annum on the value of the goods, as alleged in the bond, from the time of the recovery of his judgment to the time when the attachment was discharged on Oct. 8, 1842.

W,hen the expenses to be allowed to the plaintiff have been ascertained, by casting the interest upon the items as before stated to the time of the offer to be defaulted, it will be perceived, whether the amount thus offered was sufficient, and the costs of this suit will be thereby determined.

Defendants to be defaulted, and to be heard in damages.