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Attorney(S)
  • I. N. Blodgett, for the defendant. I. The case finds that the deputy acted in good faith. His acts, therefore, are to receive the most liberal construction. Bissell v. Huntington, 2 N.H. 142, 147; Gerrish v. Edson, 1 N.H. 82, 86. II. It also appears that the debtor was insolvent when the plaintiff's original suit was commenced; that the deputy justly became satisfied that the debtor would be put into bankruptcy if an attachment was made, and in that event that the creditors would receive only a trifling dividend; that, in fact, those who attached received but "30 per cent. of their respective claims in satisfaction thereof," whereas the plaintiff not only received a much larger percentage, but still has a valid claim against the debtor for the balance. III. It is apparent that the plaintiff has suffered no loss by reason of the officer's acts, but, on the contrary, has been materially benefited thereby. IV. It was incumbent upon the plaintiff to show that she had sustained actual, special damage by reason of the neglect of the deputy to serve and return the writ. The facts reported prove the contrary, and, at most, the damages should be merely nominal. Runlett v. Bell, 5 N.H. 433, 439; Richards v. Gilmore, 11 N.H. 493, 499; Grafton Bank v. White, 17 N.H. 389. Rich v. Bell, 16 Mass. 294; Weld v. Bartlett, 10 Mass. 470; Woods v. Varnum, 21 Pick. 165; Sewall Law of Sheriffs *449; Pierce v. Strickland, 2 Story 292; Dyer v. Woodbury, 24 Me. 546; Palmer v. Gallup, 16 Conn. 555; French v. Snyder, 30 Ill. 339; Humphrey v. Hathorn, 24 Barb. 278. Burleigh Adams, for the plaintiff. I. Sheriffs and their deputies are bound to return executions and writs of mesne process committed to them for service. Runlett v. Bell, 5 N.H. 433, 438; Howard v. Whittemore, 9 N.H. 133. And for neglect to make such return the plaintiff is entitled, as a matter of law, to nominal damages at least. Waterhouse v. Waite, 11 Mass. 207; Webster v. Quimby, 8 N.H. 382; Grafton Bank v. White, 17 N.H. 389, 392; Richards v. Gilmore, 11 N.H. 497, 498. In this case the writ was not returned, and the authorities cited above apply. II. The deputy was bound to obey the specific instructions given him in the letter dated October 15, 1875, "to attach property enough to secure the claim, and return enclosures." Perkins v. Pitman, 34 N.H. 261; Ranlett v. Blodgett, 17 N.H. 298, 305, 306; Marshall v. Hosmer, 4 Mass. 60; Bond v. Ward, 7 Mass. 123; Barnard v. Ward, 9 Mass. 269; Green v. Lowell, 3 Greenl. 373; Kittredge v. Bellows, 7 N.H. 399. III. Nor is the defendant's departure from instructions and failure to perform his official duty to be extenuated because of the debtor's insolvency, and the former's good faith in making an arrangement with him, by which the plaintiff was greatly damaged. "His vigilance and fidelity in pursuing directions ought to increase, rather than lessen, should the debtor be found embarrassed or insolvent." Gerrish v. Edson, 1 N.H. 82, 83. "It is not a sufficient excuse for him that he subsequently obtained some information which led him to suppose that a service in the manner directed would be ineffectual for the interests of the plaintiff, and even might expose himself to an action. He is liable unless he can show that he could not lawfully have obeyed the directions." Ranlett v. Blodgett, 17 N.H. 298, 305; Sher. R. Neg. (2d ed.) ss. 521, 522. It was the plaintiff's right to have the lien on the debtor's property, which an attachment at the time ordered would have given. It was the duty of the deputy to proceed and make the attachment as directed, notwithstanding the debtor's liability to go into bankruptcy had service been made upon him, and though he was known to be insolvent in fact. Perkins v. Pitman, 34 N.H. 261, 264. IV. The measure of damages in this case should be the actual damages sustained by the plaintiff through the officer's neglect and that is the balance found due upon the note by the referee Grafton Bank v. White, 17 N.H. 389; Richards v. Gilmore, 11 N.H. 493; Sanborn v. Emerson, 12 N.H. 58.
Judges
  • CLARK, J.
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Attorney(S)
  • I. N. Blodgett, for the defendant. I. The case finds that the deputy acted in good faith. His acts, therefore, are to receive the most liberal construction. Bissell v. Huntington, 2 N.H. 142, 147; Gerrish v. Edson, 1 N.H. 82, 86. II. It also appears that the debtor was insolvent when the plaintiff's original suit was commenced; that the deputy justly became satisfied that the debtor would be put into bankruptcy if an attachment was made, and in that event that the creditors would receive only a trifling dividend; that, in fact, those who attached received but "30 per cent. of their respective claims in satisfaction thereof," whereas the plaintiff not only received a much larger percentage, but still has a valid claim against the debtor for the balance. III. It is apparent that the plaintiff has suffered no loss by reason of the officer's acts, but, on the contrary, has been materially benefited thereby. IV. It was incumbent upon the plaintiff to show that she had sustained actual, special damage by reason of the neglect of the deputy to serve and return the writ. The facts reported prove the contrary, and, at most, the damages should be merely nominal. Runlett v. Bell, 5 N.H. 433, 439; Richards v. Gilmore, 11 N.H. 493, 499; Grafton Bank v. White, 17 N.H. 389. Rich v. Bell, 16 Mass. 294; Weld v. Bartlett, 10 Mass. 470; Woods v. Varnum, 21 Pick. 165; Sewall Law of Sheriffs *449; Pierce v. Strickland, 2 Story 292; Dyer v. Woodbury, 24 Me. 546; Palmer v. Gallup, 16 Conn. 555; French v. Snyder, 30 Ill. 339; Humphrey v. Hathorn, 24 Barb. 278. Burleigh Adams, for the plaintiff. I. Sheriffs and their deputies are bound to return executions and writs of mesne process committed to them for service. Runlett v. Bell, 5 N.H. 433, 438; Howard v. Whittemore, 9 N.H. 133. And for neglect to make such return the plaintiff is entitled, as a matter of law, to nominal damages at least. Waterhouse v. Waite, 11 Mass. 207; Webster v. Quimby, 8 N.H. 382; Grafton Bank v. White, 17 N.H. 389, 392; Richards v. Gilmore, 11 N.H. 497, 498. In this case the writ was not returned, and the authorities cited above apply. II. The deputy was bound to obey the specific instructions given him in the letter dated October 15, 1875, "to attach property enough to secure the claim, and return enclosures." Perkins v. Pitman, 34 N.H. 261; Ranlett v. Blodgett, 17 N.H. 298, 305, 306; Marshall v. Hosmer, 4 Mass. 60; Bond v. Ward, 7 Mass. 123; Barnard v. Ward, 9 Mass. 269; Green v. Lowell, 3 Greenl. 373; Kittredge v. Bellows, 7 N.H. 399. III. Nor is the defendant's departure from instructions and failure to perform his official duty to be extenuated because of the debtor's insolvency, and the former's good faith in making an arrangement with him, by which the plaintiff was greatly damaged. "His vigilance and fidelity in pursuing directions ought to increase, rather than lessen, should the debtor be found embarrassed or insolvent." Gerrish v. Edson, 1 N.H. 82, 83. "It is not a sufficient excuse for him that he subsequently obtained some information which led him to suppose that a service in the manner directed would be ineffectual for the interests of the plaintiff, and even might expose himself to an action. He is liable unless he can show that he could not lawfully have obeyed the directions." Ranlett v. Blodgett, 17 N.H. 298, 305; Sher. R. Neg. (2d ed.) ss. 521, 522. It was the plaintiff's right to have the lien on the debtor's property, which an attachment at the time ordered would have given. It was the duty of the deputy to proceed and make the attachment as directed, notwithstanding the debtor's liability to go into bankruptcy had service been made upon him, and though he was known to be insolvent in fact. Perkins v. Pitman, 34 N.H. 261, 264. IV. The measure of damages in this case should be the actual damages sustained by the plaintiff through the officer's neglect and that is the balance found due upon the note by the referee Grafton Bank v. White, 17 N.H. 389; Richards v. Gilmore, 11 N.H. 493; Sanborn v. Emerson, 12 N.H. 58.
Judges
  • CLARK, J.
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Smart Summary

SMITH, Ex'r, v. JUDKINS.

A sheriff receiving specific directions as to the attachment of property is bound to follow them, if he can lawfully do so, and it is no excuse from liability to show merely that he acted in good faith.

CLARK, J.

It is settled, upon the authority of the cases cited by the plaintiff, that the defendant's deputy was bound to follow the specific instructions given him by the plaintiff's attorneys. Failing to do so, he is liable unless he can show that he could not lawfully obey the directions; and he cannot avoid liability by showing merely that he acted in good faith. Having neglected to attach property to the amount directed when he might lawfully have made the attachment, the measure of the plaintiff's damages is the actual damage sustained by reason of the neglect of the deputy, which has been determined by the referee. Gerrish v. Edson, 1 N.H. 82, Sanborn v. Emerson, 12 N.H. 57; Grafton Bank v. White, 17 N.H. 389; Perkins v. Pitman, 34 N.H. 261.

Judgment for the plaintiff on the report.

SMITH, J., did not sit: the others concurred.

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SMITH v. JUDKINS
(Jun 1, 1880)