Gile v. Devens

¶1We are of opinion that the plaintiff is entitled to judgment for $75 only, the amount of the injury which the jury have found that he suffered by the first attachment.

¶2It has been argued that the second attachment was unlawful, and that the plaintiff is entitled to damages for that. The ground taken for him is, that inasmuch as the first attachment was confessedly wrongful, the second, which was made immediately after the first was abandoned, was also wrongful And cases have been cited, in which parties were discharged *62from arrest on civil process, when such arrest was made whilst they were unlawfully confined; and cases in which arrests, or seizures of property, have been held unlawful, when made after the breaking of the doors of the parties’ dwelling-houses. Many of the cases of arrest are decided on considerations not applicable to seizures of property. Barratt v. Price, 2 Moore & Scott, 634, and 9 Bing. 566; Barkley v. Faber, 1 Chit. R. 579, and 2 Barn. & Aid. 743.* In the cases of seizure, which were cited .for the plaintiff, and in which the seizures were held to have been unlawful and trespasses, unlawful means were used for the pwrpose of seizing the property, and the seizures were effected by those means. But, in the present case, the first attachment was not made for the purpose of enabling the plaintiffs in the action of Byam and others to make the second; nor was the second effected by means of the first. There is no evidence, nor is there any legal presumption, that the last attachment could not, or would not, have been made, if the first had not been. It is possible, indeed, that the plaintiff, between the times of the first and last attachments, might have removed the property beyond the defendant’s reach ; but it is not to be presumed that he would have done so. Nor is his loss of an opportunity to do so a legal ground of damages. Kaley v. Shedd, 10 Met. 317.

¶3The alteration of the writ furnished no objection to the defendant’s proceedings under it. Gardner v. Webber, 16 Pick. 251. And if the writ had been bad, the plaintiff should have objected to it by plea in abatement or motion to dismiss, and cannot treat the defendant as a trespasser for serving it.

¶4Judgment for $75 cmd costs.