Ball v. Divoll ( 1835 )

Putnam J.

delivered the opinion of the Court. No objection is made to the sale by the plaintiff, as the attaching officer, upon mesne process ; and if the attachments had not been dissolved, the purchasers would have been liable by law to pay the auction price of the goods to the officer, to be distributed among the judgment creditors according to the priority of attachments. But by the consent of all the attaching creditors their writs of attachment were not entered at the court to which they were returnable ; and so the at tachments were dissolved. But that arrangement was made in consideration of an agreement between Nichols, the debtor, and all the attaching creditors, with the knowledge of the plaintiff (the attaching officer), that the proceeds of the property sold should be applied to the payment of the claims of the attaching creditors according to the order of their attachments. And the case finds, that the agreement was cairied into effect by the payment by the plaintiff, to some of the attaching creditors, but not to the defendant; and the plaintiff in that way accounted with the debtor, Nichols, for so much of the proceeds of the property sold.

But the case finds, that the defendant, Divoll, was a purchaser at the auction, of a pair of steers belonging to Nichols, for $17-25, which is less than the amount of his just demand against Nichols. If the agreement between Nichols and the creditors should be performed, Divoll would be entitles not only to the $17-25, but to a larger sum. Why then should Divoll be compelled to pay that sum to the plaintiff, who would be obliged by law to repay it, according to the agreement of the creditors with Nichols ; and which agreement (as nefore observed) has been executed by the plaintiff in all respects excepting only so far as it regards the defendant ? It does not appear, that the plaintiff has any claim upon the fund, or any other claim against the defendant, excepting only this alleged claim for the price of the steers ; and it is found, that Nichols has agreed, not only that the price of the steers, but a greater sum, should be paid to Divoll. If the plaintiff should charge the price of the cattle to Nichols, as having been paid to Divoll, it would be clearly a lawful accounting for so much of the proceeds of the property sold

It has been held, that a debtor may sell his goods which are under attachment, and in the possession of the officer, and the purchaser takes them subject to the lien. If the lien should cease, the title of the vendee becomes absolute. Now the proceeds of goods sold upon mesne process, stand chargeable to and available by all parties m interest, in the same manner as the goods themselves were. If the debtor should pay the debt, or if by any other way or means the attachment should be dissolved, it is perfectly clear that the attaching officer would not have any right to interfere with the property, excepting only so far as he may have a lien for expenses for keeping or other lawful charge for his services in attaching the same. We have said, that the case does not find, that the plaintiff has any claim or lien upon the steers, or on the price of them. It was therefore lawful for the debtor to sell the steers, or direct the proceeds to be paid to any person, as be pleased, upon tne dissolution of the attachment by the agreement of the attaching creditors- And he might, if he pleased, order the proceeds to be paid to the attaching creditor, on account of his demand. And any interference of the officer after such dissolution, without any new authority or writ, and without any claim for services and keeping and attaching, would be without right. After the dissolution of the attachment and the agreement of the debtor and creditors, and the undertaking of the plaintiff to carry the agreement into effect, he became a mere agent. His official character then ceased. He was acting as a private individual, and was bound to pay according to the direction of the general owner. Now it appears, that the parties who are interested, are content that the money should remain where it "s ; and we think it is not for the agent to interpose, without having any interest whatever in the concern. If the plaintiff was to be considered as an agent for one or both of the parties in interest, it would seem that they might discontinue their authority to him, in order that they might manage the matter in their own way. If the plaintiff was agent for Nichols, the general owner, to collect money of Divoll, the purchaser, it would be lawful for Nichols to collect it himself, in the absence of any agreement to the contrary, or to let Divoll retain the money towards payment of a debt due to him from Nichols, according to the agreement. If he was agent for Divoll to receive the proceeds, and pay the same over to him, the money is already just where it should be according to the agreement of the parties in interest. It is there by the consent of the general owner.

It has been held in Phillips v. Bridge, 11 Mass. R. 242, that a receipter of goods is not liable upon his contract to deliver them to the attaching officer, unless a demand should be made upon him before the dissolution of the attachment. The reason is very obvious; for after the dissolution of the attachment the officer had no right to control the goods. He became accountable to the debtor. But inasmuch as the debtor had the possession of the goods already, it would have been somewhat more than a useless formality to compel the receipter to deliver the goods to the officer, to the end that he should deliver them to the debtor.

So, in the case at bar, after the dissolution of the lien of the attaching officer he had no interest in the goods. But he was to apply the proceeds according to the direction or order of the general owner. And the plaintiff has bo more reason or legal right to recover the money in this case, than Phillips had in the case cited ; for if he recovered, he could not hold the property, but eventually the law would cause it to be placed in the hands of the defendant, where it now is.

It would seem to be very futile and inexpedient to compe the defendant to pay over the same to the plaintiff, and subject the plaintiff to an action in the name of Nichols or otherwise, but for the use of Divoll, to refund the money. The plaintiff has no interest in the subject matter of this suit, and is not accountable even to the debtor, inasmuch as the property has been already appropriated according to his appointment.

It appears to us, that the instruction of the presiding judge of the Court of Common Pleas was right; and that the evidence which was offered, did in law furnish a sufficient defence against this suit.

Judgment of the Court of Common Pleas affirmed.