Seaver v. Pierce

*331The opinion of the court was delivered by

A recovery in this case is resisted :

First, because the attachment, in respect to which it is claimed the defendant is liable, was fraudulent; that the parties to it mutually participated in an illegal object and purpose, that being to defraud the plaintiff’s Iona fide creditors. The fraud is said to consist in this intent and design, and the fact that the note,upon which Merrill brought his suit and made the attachment, was given and made for what they believed was non attachable property. Other facts are relied upon, which are detailed in the exceptions, that not only have a tendency, but would show if proved, that such was the character and nature of the transaction. But supposing all this to be as the defendant claims and as he offered to prove, the note was valid as between the parties to it. Merrill could enforce its payment as against the plaintiff, and he could not resist a recovery upon it, on this ground alone. As between them, it was not void because fraudulent as to creditors, but it afforded a proper ground and foundation for the proceeding resulting-in the attachment and sale of the plaintiff’s property. The officer, as connected with that proceeding, does not stand in the relation or in the attidude of a creditor, having a lien upon the property or fund, but upon Merrill’s right and claim, and the authority conferred by his process. Under such circumstances, to say that he can hold the attached property or its avails without accountability to the party entitled, would be going beyond all precedent fairly understood and applied. We think the court was right in excluding this evidence.

Second, It is claimed that the defendant is not liable, because the goods were sold on credit, the plaintiff having directed it. This fact the exceptions show as to sales amounting to $2070.54, but it does not appear that the attaching creditor or creditors con-sented to or directed it; the plaintiff directed it. This may be important as bearing on the question as to what was the officer’s real relation'to the sale, whether he was acting in his official character in respect to Merrill, upon whose process the goods were sold, and in the character of a mere agent under instructions in respect to the plaintiff, who was the defendant in {hat process. It *332is unnecessary however to consider this question, as Merrill’s rights, were he entitled to the fund, are not involved, and as the case may be disposed of upon other grounds. The case shows that Merrill’s attachment was made on the 12th of January, 1863, and the lien created by it was not discharged until August, 1867, Avhen the suit was terminated by a judgment of this court against him, the defendant’s deputy in the meantime holding the avails of the goods. The goods were sold on writs or mesne process, the plaintiff having made application for that purpose in conformity with the statute authorizing a sale of property, liable to perish, waste or to be reduced in value by keeping. Gen. Sts., 295, § 41. The sale, contemplated by this provision, is not for the purpose of securing a present or immediate application of the avails to the debt, or claim in suit, but the money realized and in the hands of the officer awaits the determination of the cause, and the object of the proceeding is merely to avoid loss and expense in respect to the property attached, and which might otherwise occur. Such being the object of a sale on mesne process, the funds arising therefrom awaiting application and depending upon the ultimate termination of the suit, and the proceeding being beneficial to the parties in interest, we think the mere fact that the sale was made on time or credit, although directed or assented to by the parties, does not entirely change the legal or official relation of the officer' as connected with the proceeding as to any funds realized from such sale, and that came into his hands during the pendency of the suit, or existence of the lien created by the attachment. Why should he be exonerated from liability, and as for an official neglect in respect to funds, thus coming into his hands, which he refuses to pay over, and which he holds by virtue of the process ? His liability, cast upon him by the law, is not increased, nor is the risk greater in respect to actual receipts, than in respect to the property itself while in his custody. He has the money and holds it as sheriff by virtue of the process and the statute authorizing the sale. It is true that when property has been sold by the officer on credit by direction of the party, and a loss ensues in consequence of it, the officer is not liable, nor would he be when such sale was made on execution, as held in the cases to which we have been referred. But *333in this case, confining and limiting the liability of the officer to whatever fund or money came into his hands by virtue of the process and sale, before the determination of the suit in which the attachment was made, we fail to discover that his liability is increased. Indeed the fact is otherwise. The question then is, when did this fund, arising and resulting from the sale on credit, come into his hands ? In the view taken and adopted by us, and which I have endeavored to express, in order to charge the sheriff, the deputy must have received the money during the pendency of the suit, or before the lien was discharged by a judgment in favor of the defendant in that proceeding. This fact must appear, and appear affirmatively. The case fails to show how this is. From what appears we are unable to say but what a part of the goods sold on credit were paid for subsequent to the rendition of the judgm^E referred to, as the exceptions state that the deputy received the money for the goods sold oh credit, prior to September 20, 1867, the date of the demand.

In regard to the question of interest, we think the instructions to the jury were correct. There was no duty resting upon the defendant’s deputy to pay over the money until the lien existing upon it was discharged, a fact within the plaintiff’s knowledge, but of which the deputy may have been ignorant until demand made.

In regard to the plaintiff’s exception in relation to the ninety dollar item, being Merrill’s account, we think it well taken. That item was embraced or included in the note of fifteen hundred dollars, given by Merrill and Webster to the defendant’s deputy-This note was passed by the deputy to the defendant, who subsequently, by his attorney, called on Merrill for payment. Merrill declined to pay, when he gave a bond to the defendant to indemnify him against any loss he might sustain by reason of Merrill’s failure to pay it. These facts, together with the further fact disclosed by the case, and that is, that the defendant made no effort to collect the note, show that he made it his own ; and under the circumstances, we think, he should be held liable for the amount of it in this action.

The result is, the judgment is reversed and case remanded.