Salem Laflin versus Calvin Willard, 16 Pick. 64

Wilde J. delivered the opinion of the Court. The principal question raised at the trial and reserved for the consideration of the Court is, whether the officer receiving the four executions, named in the report of the case, was bound, in the absence of special directions, so to sell the equities attached on mesne process, and so to apply the proceeds, if he could, as to satisfy all the executions, without regard to the claims of the mortgagee, who had obtained a lien on the property prior to the two last attachments. And we are all of opinion, that the law imposes no such obligation on an officer.

Whether, if the officer had received directions so to do from the plaintiff, he would have been bound by them, is not the question. It is clear however that no such directions would be obligatory on the officer, if directions to the con trary had been given by the previously attaching creditors.

Whether the officer acted under the directions of the firs; attaching creditors or not, does not appear ; and it is iinma teríal; for however this may have been, the officer was not bound so to levy the first executions as to give a preference to the plaintiff, rather than to the mortgagee, without special directions so to do. It does not appear that the officer had before the sale of the equities, and satisfaction of Clement’s and Smith’s executions, any knowledge that the mortgage to Wells only covered the homestead, and he was not bound to inquire.

So that if the plaintiff had the right to direct the order of levying the executions, which, however, is not admitted, he should have given special directions to the officer, communicating to him all the material facts, so that he might act understandingly, and not be left to grope his way in the dark, and to act at his peril In Bacon v.

Leonard, 4 Pick. 277, it was decided, that where a mortgager had assigned his equity after it was attached, and the officer afterwards sold it upon the attaching creditor’s execution, which was satisfied by part of the proceeds, the officer was not liable, without notice of the assignment, for applying the surplus in satisfaction of another execution against the mortgager. “For it was not the duty of the officer,” as is said in that case, “ to search the records, to see if any conveyance had been made of the equity, which would supplant any execution in his hands.” And so in the present case, it was not the officer’s duty, before levying the two first attaching creditors’ executions, to inquire as to the mortgage.

The officer therefore is not responsible for levying these two executions in the manner he did, and consequently is not answerable for paying over the surplus to the mortgagee. Clark v. Austin, 2 Pick. 528. The plaintiff, however, is entitled to nominal damages, for the officer’s neglect in not returning the execution until long after the return day. No actual damages are proved ; but where there is a neglect of duty the law presumes damages. The defendant, therefore, according to the agreement of the parties, is to be defaulted, and the plaintiff is to have judgment for nominal damages.