Pomeroy v. Smith ( 1835 )

Shaw C. J.

delivered the opinion of the Court. The question is whether the instruction of the judge was right, in directing that the value of the goods, under the circumstances, would be the rule of damages ; and the Court are of opinion that this was correct. The judge ruled that the plaintiff was entitled to recover to the value of the goods. The general rule is founded on the consideration, that for all beyond the debt, for which the goods are pledged, the pledgee is responsible to the pledgor. But the defendant relies upon the attachment, as forming a distinction. But neither by the common law, nor by force of St. 1829, c. 124, was this property lawfully attached. By the statute two modes of attaching property pledged or mortgaged are prescribed ; one, by the summoning the pledgee as the trustee of the debtor; and the other, by first tendering the amount for which the goods stand subject. Neither of these modes was pursued in the present case, and the attachment was of no avail. The case of Boyden v. Moore stands upon its own peculiar grounds, as therein stated ; and the rule there adopted cannot be considered applicable to the present case.

Exceptions overruled.