Samuel Smith versus Warren Cudworth, 24 Pick. 196

Morton J. delivered the' opinion of the Court. This action is founded on a written contract, which is in itself lawful and is supported by a sufficient consideration. The plaintiff, who is a deputy sheriff, having attached a common workbench of a cabinet maker, delivered it to the defendant, at his request, and upon his giving a written acknowledgment of its receipt and a promise to redeliver it on demand. Upon what grounds can the defendant be absolved from the obligation of this contract ? He has no right to object to the attachment.

His undertaking did not depend on the legality o'f that, or the success of the action on which it was attached. JVon constat that the owner of the bench would resist the attachment. If the bench was attachable, the officer was bound to hold and sell it, in satisfaction of the judgment which was recovered. If it was not, or if no judgment was recovered, he was liable to the owner. And in either event he was clearly entitled to a return of the bench.

The defendant having failed to do this, on demand, according to his promise, must be defaulted, and judgment must be rendered for the damages agreed upon by the parties. The question of the exemption of the workbench from attachment and execution, does not arise in the case. It is true, the parties have attempted to present it, and have expressly agreed that judgment shall be rendered according to our opinion upon this question.

But neither parties nor their counsel have any right to make their cases turn upon any thing but their own intrinsic merits ; or call upon the Court by fictitious actions or assumed facts, to decide mere speculative questions. The former would partake of the nature of gambling, and the latter would convert the highest tribunal in the State into a moot court to decide questions which might never arise, or to lay down rules for the government of cases in which the real parties would have had no opportunity to be heard.

The members of this Court, too, have quite labor enough to perform the duties which necessarily and legally devolve upon them. Defendant defaulted.