Uriel Crocker et al. versus Thomas J. Baker and Trustees, 18 Pick. 407

Morton J. afterward drew up the opinion of the Court The plaintiff attempts to charge the officer who sold, and the ■other trustees who purchased, the goods of the principal defendant. His ground is, that the sale was unauthorized ; that it dissolved the former attachments ; that the purchasers acquired no property under it, and therefore that the officer is trustee for the proceeds of the sale, received by him, and the several purchasers for the goods remaining in their hands. The first step in support of this claim is to show the invalidity of the sale.

For if the officer’s proceedings were according to law, the fruits of the sale have rightfully been applied, under prior attachments. Unless these were dissolved, the plaintiff has no right to interpose. Previous to the statute of 1822, c. 93, the officer holding goods under attachment had no authority to sell them, even with the consent of the parties to the suit, but whatever might oe their nature or character, was bound to retain them till after judgment, in order that they might be seized on execution. Rich et al. v. Bell, 16 Mass. R. 294.

Hence perishable chattels and such as could not be preserved and restored in an unchanged condition, were holden not to be attachable. Bond v. Ward, 7 Mass. R. 123. But it is very obvious that there are other kinds of chattels which may deteriorate, or become unsaleable, by keeping, or which it would be very expensive to keep. To remedy the evils arising in all these cases, the above statute was enacted. The first

section authorizes a sale before judgment, by the consent of the parties to the suits upon which the property is attached. It extends to all kinds of personal property and is imperative upon the officer. “Whenever the respective parties shall express their consent in writing, that the same may be sold, it shall be the duty of the attaching officer to cause the same to be sold,” and to retain the proceeds, “to respond the judgment to be rendered, in the same manner ” as if the goods had remained unsold. The second

section provides, that “ whenever any live stock, or any goods, chattels or merchandise, which may be liable to perish, waste or greatly depreciate in value, by keeping, or which cannot be kept without great and disproportionate expense, shall be attached on mesne process,” “it shall be lawful for either of the parties to apply to the attaching officer, to have such goods examined and appraised ; and thereupon it shall be the duty of such officer ” to cause appraisers to be appointed in the manner prescribed by the statute. “ And in case such appraisers, or the major part of them, shall be of op'n-ion that such property, or any part thereof, is liable to perish, waste, or depreciate, and that the keeping of the same will require great expense, disproportionate to their value, it shall be their duty so to certify ” ; and to make an appraisement of the property. “ And it shall be the duty of such officer, to cause the goods thus certified and appraised, to be sold,” “ unless security be given for the appraised value thereof. ” There is no doubt that the officer complied with all the formalities required by the statute.

The written notice left at the debtor’s usual place of abode was sufficient. This is the common and recognized mode of giving notice and making service in this Commonwealth. As the debtor had no attorney and was not to be found, it was the only notice which could be given. And if this be not good, it will be easy for the debtor, at all times, to defeat these salutary provisions of the statute. As the debtor neglected to nominate an appraiser, the duty of nominating one for him devolved upon the officer.

The sale therefore was valid, provided an occasion had oc urred which would authorize the officer to sell on mesne process. These new provisions of law, which were recommended in Bond v. Ward, and again suggested in Rich v.

Bell, were not intended to affect the liability of property to attachment ; or to change the modes of seizing property on mesne process or execution, but to regulate the treatment of it in certain cases, while under attachment, and to avoid the great expense and loss to which certain kinds of property might be liable, in the long detention which intervenes between the commencement of a suit and the final judgment. They authorize a sale in certain specified cases. The plaintiff coi tends that none o.' these cases had occurred, and, therefore, that the officer had no power to sell. This

section authorizes a sale, without the consent of the parties, in the following cases ; 1st, when the property attached is “ live stock ” ; 2d, when by keepirg it may be “ liable to perish” ; 3d, when it may be liable to “waste” ; 4th, when it may be liable “ greatly to depreciate in value ” ; and 5th, when it “ cannot be kept without great and disproportionate expense.” Who is to determine when a state of things has occurred which authorizes a sale ? Are the parties or either of them ? Is the officer ?

Or must he proceed at his peril, liable to be made a tort-feazor, by proceeding or refusing, according as the facts may be subsequently determined by another tribunal ? This would be perilous indeed to the officer. But we think the statute exposes him to no such hardship. It provides a form and points out the means of proceeding, to have the questions determined. If either of the parties suppose that the situation or state of the property attached is such as to require a sale by the rules prescribed in the statute, he may “ apply to the attaching officer, to have such goods examined and appraised.

And thereupon it shall be the duty of such officer ” to proceed in the manner mentioned in the statute, to have appraisers appointed and sworn. “ And it shall be the duty of such appraisers ” to judge whether any of the events have occurred which require a sale of the property attached ; and if so, to appraise the same, and to certify their opinion and appraisement to the attaching officer. “ And it shall be the duty of such officer, to cause the goods thus certified and appraised, to be sold,” unless security be given according to the statute.

It is manifest from these provisions, that the power of judging whether the state of the goods attached requires a sale'on mesne process, is not vested in the officer. This power is given to a tribunal to be constituted expressly for the purpose. The officer cannot even institute an inquiry. He can only act on motion of one of the parties. If neither of them applies to him, the law requires him to retain the goods in kind, to meet the execution. But if either of the parties make the proper representation, he is bound to proceed.

It is the right of either party to have the inquiry made and the question settled in the way provided in the statute. And the proceedings of appraisers duly appointed are conclusive upon the officer. If they certify that a case requiring a sale exists, he is bound to sell, unless security be given. But if they certify that no such case exists, he has no authority to make sale. He has no option. If a bond with sufficient sureties be offered, he is bound to receive it and restore the goods to the debtor. The duty of the officer which is specifically pointed out, is, throughout, ministerial and imperative.

If he follows the directions of the statute, he will be justified by it. If he violates them, he will be officially responsible. It will not be necessary, if useful, to inquire whether the act of the appraisers is to be denominated a judicial or a ministerial act. The statute gives them important discretionary powers. Their determination, like that of appraisers of real estate in the levy of an execution, is, for many purposes, conclusive, and will always furnish a rule for the government of the officer, which he will be fully justified in following.

It is true that fraud and corruption vitiate every thing which they contaminate. But there is nothing in the case which has the slightest tendency to show error or mistake, much less corruption, in the appraisers. Indeed were we, instead of regarding their opinion, to revise their proceedings, we should, at once, come to the same conclusion. The most cursory in spection of the

schedule of the property attached, will show, that the interest of the parties and the directions of the statute, alike demanded an immediate sale. We do not perceive that the credit given by the officer forms any objection to the validity of the sale. The goods would not sell for less on a credit than they would for cash. The officer might, and probably would, make himself responsible for the price. But neither debtors nor creditors would be liable to suffer. Nor does the statute expressly or by implication, prohibit this mode of sale. This case is distinguishable from Prouty v. French, 2 Pick. 586.

There other objections were raised, besides the credit given. The goods never were delivered but retained as security, and might again revest in the officer, to be sold a second time, perhaps under unfavorable circumstances. It was in effect a conditional sale which never had been, and possibly never would be, completed. That sale, too, was regulated by a statute entirely different from this. There a speedy sale was indispensable. The proceeds were needed for the immediate satisfaction of the execution on which the sale had been made.

Here the object is to hold them, in some form or other, till judgment shall be rendeied. In short, we can see no analogy between the two statutes or the two cases. The objections which were fatal in that case do not apply to this. Oct. 22d, 1836. The proceedings of the officer being legal,' the property vested in the purchasers ; the officer was justified in applying the proceeds to the satisfaction of the executions, and all the trustees must be discharged. Costs having been allowed to the trustees, a question arose as to the rule of taxation ; upon which the opinion of the Court was delivered by Morton J.

By Sí. 1794, c. 65, § 3, trustees, appearing at the first term and by their answers denying that they have any effects of the principal, are, upon their discharge by toe court, to he allowed their “legal costs.” Chapman v. Phillips, 8 Pick. 27. But what shall be deemed “ legal costs,” is the question between the parties. The plaintiffs contend that the trustees resemble witnesses more than parties, and should be allowed pay for attendance, only while they actually attend.

But the trustees insist that after the default of the principal, they assume the character of parties and are obliged to be in court, at all times, by themselves or their representative, and are, therefore, entitled to the same costs as other parties. Trustees certainly have, in many respects, the rights of parties. They may, by their appearance and on their motion, have the action continued. They may also appeal from the judgment of the Common Pleas in relation to them ; and such appeal will bring not the trustee question only, but the whole action before this Court.

When trustees are chars- © ed or discharged, they cease to have any further interest in the suit, and afterwards they can, in no light, be regarded as parties or have any claim for costs. Hoyt v. Sprague & Trs. 12 Pick. 414. But when the principal defendant has been defaulted, and the cause is continued in court for the purpose of determining whether the trustees are chargeable or not, they become the litigant parties ; and if they prevail, “ the court shall award them their legal costs,” to be taxed in the same manner as the costs of other prevailing parties are taxed.

The expression “ legal costs,” which by its use in the statutes and in courts, has acquired a precise definition, means costs to be taxed according to the fee bill. The trustees cannot be allowed any thing for counsel fees or for preparing their answers. As in case of ordinary parties, the taxable costs are- to be taken, however incorrect the assumption, to be a remuneration for these and all other expenses. The rule is different where the trustees are charged.

There may be no good reason for the distinction ; but the statute of 1829, c. 128, expressly allows them to retain out of the funds attached, “ an amount sufficient to pay their reasonable counsel fees and other necessary expenses,” to be determined by the court. Before this statute, trustees who were charged and could not recover taxable costs, bad no means of remunerating themselves. Adams v. Cordis, 8 Pick. 270. And unless the legislature think proper to interpose, trustees who are discharged can recover only such costs as are allowed to other prevail ing parties.