Williams v. Eastman, 208 Mass. 579 (Mass. 1911)

Braley, J.

If the defendant as a deputy sheriff made a wilfully excessive attachment of the plaintiff’s personal property as alleged in the first count of the declaration, he exceeded his authority, and the writ under which he acted, although valid and duly returned to the court from which it issued, does not protect him or justify his conduct. Watson v. Todd, 5 Mass. 271, 272. Malcom v. Spoor, 12 Met. 279. Esty v. Wilmot, 15 Gray, 168, 169.

It is contemplated by our statutes governing attachments of personal property, that the attaching officer shall take immediate possession and hold the property so that it can be seized and applied on the execution, unless it is so bulky that it cannot be removed, or the defendant requests or consents that the property attached may remain on the premises in charge of a keeper. R. L. c. 167, §§ 43, 44, 45. Boynton v. Warren, 99 Mass. 172, 174. Cutter v. Howe, 122 Mass. 541, 544. But the amount of property to be taken must be determined by the officer. It generally would be impossible for him to take just enough personalty to cover the damages demanded in the writ, unless the attachment was of money exposed by the defendant. The nature of the property, the amount for which it probably can be sold to satisfy the execution, hot merely in the market or in the ordinary

course of business but at a sheriff’s sale, are all to be considered. It rests with the officer acting under these fluctuating but important conditions to decide, as best he can, whether the property attached will prove sufficient to satisfy the plaintiff’s claim, while taking proper care that the rights of the debtor, who must yield to his authority, are not infringed by an unreasonable and excessive seizure. If in the exercise of this discretion, which the law confers upon him, he acts in good faith, but makes an honest mistake of judgment prejudicial to the debtor, he is not liable for abuse of process. Wilson v. Todd, 5 Mass. 271, 272. Abbott v. Kimball, 19 Vt. 551. Merrill v. Curtis, 18 Maine, 272. Davis v. Webster, 59 N. H. 471.

Where the valuation is manifestly so extreme that reasonable men would condemn his action as unnecessary and excessive, the officer may be found to have acted oppressively. Savage v. Brewer, 16 Pick. 453, 457. Holland v. Anthony, 19 R. I. 216. It is a question of fact depending upon the circumstances, and no absolute rule applicable alike to all cases can be laid down. Bergin v. Hayward, 102 Mass. 414, 426. The plaintiff’s evidence no doubt tended to prove that the defendant took and held possession of goods very largely in excess of the amount he had been commanded to attach. But, while this was a circumstance for the consideration of the jury in connection with the other evidence as to the true character of his conduct and course of procedure, yet, if they found that the estimated valuation was not wilfully made, it was not of itself proof of .his alleged official misconduct. Merrill v. Curtis, 18 Maine, 272. Davis v. Webster, 59 N. H. 471.

It follows from what we have said, that the instructions to which the defendant excepted, that, if the defendant honestly attached and held the plaintiff’s property for a larger amount than the writ specified, he acted at his peril and without authority, were erroneous.