Rockwood v. Allen

When an officer had attached goods on an original writ, and pending the action, the defendant died, and his administrator took upon him the defence of the action, judgment was rendered against, the administrator, and execution thereon delivered to the officer, who delivered up the goods to the administrator. This latter included them in his inventory of the intestate’s estate; and on settling his account of administration, the judge of probate assigned to the intestate’s widow all the effects that remained, after paying funeral charges, &c. No representation of insolvency was made. It was held that the officer was liable to the plaintiff; in the original action, for the value of the goods attached by him.

This action was originally brought against Jeremiah Allen, Esq., late sheriff of this county, (after whose decease the defendant came in and took the defence upon himself,) for the default of George Jackson, one of his deputies, in not levying the plaintiff’s execution, issued upon a judgment recovered by him against Richard Mero, administrator of Abraham Patch, upon certain chattels, which Jackson had attached upon the original writ against Patch. The action was tried upon the general issue, at the last November term in this county, before Parker, J., and a verdict taken for the plaintiff, for the value of the chattels, subject to the opinion of the Court upon a case agreed by the parties. The facts stated are, that the plaintiff having purchased a writ of attachment against Patch, for a cause of action which, by law, survived against his administrator, delivered the same to Jackson, who attached the chattels, and duly returned his writ. Pending the suit the defendant died, and Mero, his administrator, being admitted to defend, afterwards *made default; and [ * 255 j upon a judgment rendered against him, the plaintiff, within thirty days from the judgment, delivered to Jackson an execution upon said judgment, to be levied on the chattels which he had attached on the original writ. Instead of so levying the execution, Jackson delivered the chattels to Mero, upon his demanding them, while the execution was in his hands. Mero returned to the Probate Court an inventory of Patch’s estate, including the chattels aforesaid ; and on settling his account of administration, the judge of probate assigned to the intestate’s widow all the effects that remained, after paying funeral charges, &c. The administrator made no representation of the insolvency of the'estate, and no commission of insolvency was ever issued; the judge of probate, for this county, thinking it unnecessary to grant commissions of insolvency upon estates, when it appears that .no balance remains in the administrator’s hands. The questions reserved by the parties were, 1. Whether the said estate, not appearing by the records of the Probate Court to be insolvent, the insolvency thereof could legally be proved by parole testimony ? 2. If said estate be proved insolvent., whether the attachment in the original suit of Rockwood vs. Patch was discharged thereby, without a representation and commission of insolvency ? 3. If said attachment was not discharged, whether the plaintiff shall recover in this action the value of the goods attached, or nominal damages only ? it being agreed that if the plaintiff is entitled to recover the value of the goods attached, the verdict was to stand, and judgment be rendered upon it.