Groat v. Gillespie — 25 Wend. 381

Majority

p. 291

*Groat vs. Gillespie and Gibbons.

Headnote

In an action on an attachment bond, the plaintiff is not entitled to recover the value of the property levied upon, if he has not been dispossessed; and where it is not shown that he has been subjected to costs, he is entitled to only .'nominal damages.

This was an action of debt on an attachment bond, tried at the Rensselaer circuit before the Hon. John P. Cushman, one of the circuit judges.

p. 292

Gillespie sued out an attachment in a justices’ court against the property of Groat, and gave a bond, conditioned, among other things, to pay to Groat all damages and costs ivliieh Tie should sustain by reason of the issuing of the attachment, if Gillespie should fail to recover judgment thereon. Under the attachment, a shanty and some trifling articles of property were levied upon. On the return of the attachment, Gillespie did not appear, and the justice entered judgment of nonsuit, charging costs to neither party. The shanty was unoccupied at the time of the levy, and the property was not interfered with, otherwise than by merely making the levy. The circuit judge ruled, that by the levy the property was in the custody of the law, in charge of the constable, and must be deemed to continue in the possession of the constable until relinquished by him or by the plaintiff in the attachment, and notice of such relinquishment given to the defendant in the attachment; and that the measure of the damages in this cause was the value of the shanty. To this decision, the counsel for the defendants excepted. Proof of the value of the shanty was given, and the jury found a verdict for the plaintiff for sixty dollars. The defendants ask for a new trial.

J. McKown, for defendants.

J. Holmes, for plaintiff.

By the Court,

The ruling at the circuit was [ *384 ] clearly erroneous. The plaintiff was entitled only to *the damages actually sustained in consequence of the attachment, and nothing more. The condition of the bond carries the remedy no farther, according to its terms. '

The ground of the recovery, is not that the proceedings have been irregular and void on the part of plaintiff in the attachment, but that' he has failed to recover a judgment. So far as respects the remedy in this form, it is wholly immaterial whether they be regular or not. The breach has no necessary connection with the fact.

The measure of damages, therefore, in trover or trespass, as in the case of an illegal levy, was improperly applied. Upon the facts in this case, I do not see that the plaintiff was entitled to anything more than nominal damages.

New trial granted.