Ela v. Shepard , 32 N.H. 277 ( 1855 )

Fowler, J.

The first objection raised by the defendants relates to the counts in the writ in favor of Johnson, Sewall & Co. It is a sufficient answer to this, that if they are defective it is not a matter in which these defendants are interested, or which could justify them in taking the property. An officer is not responsible for the accuracy of the attorney who draws the writ. If it be properly issued, and in due form of law, and not an absolute nullity, it is a sufficient justification for him in holding the property until it is quashed. The officer having taken the property and still retaining it in his possession, it was wholly immaterial to these defendants whether one of numerous writs on which it was holden by him contained defective counts or not. The first count might undoubtedly have needed amendments, but the second was in the usual form, and good. Both were good, within the authority of adjudged cases, as preliminary proceedings and capable of amendment. Tarbell v. Dickinson, 3 Cush. 349; Smith v. Brown, 14 N. H. 69, and authorities; McQueston v. Young, 1 Foster 462.

The second objection is to the officer’s return, which is alleged to be insufficient. The defendants took the property from the custody of the officer, or his bailee, before the return day of any of the writs, so that any supposed defect in the return could not have been an inducement to their action in the premises. If the return were defective, it might be amended to conform to the fact. The property had not been delivered to a receipter, so that no objection could be taken by him. The defendants are in no situation to object. The plaintiff actually took the property into his own custody and control, and so retained it at the time when it was taken from him by the defendants. It is not, therefore, for them to say it was not under attachment, or to object to the return. See Baxter v. Rice, 21 Pick. 197, and other authorities cited by the plaintiff.

But we are of opinion the return was sufficient. It was, perhaps, more general than desirable, but it nevertheless clearly covers all the property in controversy. If not, it might have been amended.

We are at a loss to perceive how the failure of Shaw, one of the attaching creditors, to sign the agreement authorizing the plaintiff to manufacture and sell the property attached, could possibly justify these defendants. If Shaw were injured by the disposition of the property without his assent, it is for him to complain and seek redress for his wrongs, and not for these defendants to take and carry the property away, so as to deprive not only Shaw but all the other creditors of all benefit from it. It is not claimed that the proceeds of the sale could by any possibility have reached Shaw. The greatest effect of omitting him from the list of creditors who signed the agreement, would be to give him an action against the plaintiff, and could not invalidate the attachment, or make the agreement, or the proceedings under the agreement, of the debtors and other creditors, illegal or void. They seem to have been entered into and carried on in good faith, for the purpose of disposing of the property to the best advantage, and we see no ground to question their propriety. It does not appear that the defendants were in any way injured or affected by Shaw’s not signing the agreement. Haven v. Snow, 14 Pick. 28 ; Johnson v. Day, 17 Pick. 106.

The plaintiff, by sending the goods to the depot, did not part with his right to them. They were in his custody and under his control, as much as they had been before, and the attachment was not dissolved or abandoned, so that the defendants could rightfully reattach them. They were still under the absolute dominion of the plaintiff or his agent. Odiorne v. Colley, 2 N. H. 66.

The fact that the goods were sent to the depot for the purpose of being forwarded to Boston for sale, does not alter the case. They were still in the county, under the plaintiff’s control, within his jurisdiction, and whatever his purpose may have been as to their subsequent disposition, it could not divest him of his right to hold them there. Even if the goods might have been relieved from attachment, if actually sent out of the county and State, so as to have been liable to reattachment by other creditors of Briggs & Brothers, that question does not now arise.

But we think the agreement of the debtors and of the attaching creditors, having debts to an amount exceeding the value of the goods, under which the goods passed into the plaintiff’s possession as agent, to be by him manufactured and sold, made without fraud, and before other creditors interfered, might well be holden to have placed the goods in the plaintiff’s hands beyond the reach of attachment, under the circumstances stated; that it was such an appropriation of the goods and the proceeds of their sale, that upon the goods passing into the plaintiff’s hands in conformity with it, the debtors ceased to have an attachable interest in them. But it is not necessary to decide this point in the present case.

As none of the objections taken by the defendants are available to defeat the plaintiff’s right to recover, he is entitled to the value of the goods at the time they were carried away; and after the verdict shall have been reduced to that sum by the finding of an auditor, if it now exceed it, and the parties are unable to agree to amend it, there must be

Judgment an the verdict.