
    Samuel Rockwood versus James Allen, Executor.
    When an officer had attached goods on an original writ, and pending the action, the defendant died, and his administrator took upon him the defence of the action, judgment was rendered against, the administrator, and execution thereon delivered to the officer, who delivered up the goods to the administrator. This latter included them in his inventory of the intestate’s estate; and on settling his account of administration, the judge of probate assigned to the intestate’s widow all the effects that remained, after paying funeral charges, &c. No representation of insolvency was made. It was held that the officer was liable to the plaintiff; in the original action, for the value of the goods attached by him.
    This action was originally brought against Jeremiah Allen, Esq., late sheriff of this county, (after whose decease the defendant came in and took the defence upon himself,) for the default of George Jackson, one of his deputies, in not levying the plaintiff’s execution, issued upon a judgment recovered by him against Richard Mero, administrator of Abraham Patch, upon certain chattels, which Jackson had attached upon the original writ against Patch.
    
    The action was tried upon the general issue, at the last November term in this county, before Parker, J., and a verdict taken for the plaintiff, for the value of the chattels, subject to the opinion of the Court upon a case agreed by the parties.
    The facts stated are, that the plaintiff having purchased a writ of attachment against Patch, for a cause of action which, by law, survived against his administrator, delivered the same to Jackson, who attached the chattels, and duly returned his writ. Pending the suit the defendant died, and Mero, his administrator, being admitted to defend, afterwards *made default; and [ * 255 j upon a judgment rendered against him, the plaintiff, within thirty days from the judgment, delivered to Jackson an execution upon said judgment, to be levied on the chattels which he had attached on the original writ. Instead of so levying the execution, Jackson delivered the chattels to Mero, upon his demanding them, while the execution was in his hands.
    
      Mero returned to the Probate Court an inventory of Patch’s estate, including the chattels aforesaid ; and on settling his account of administration, the judge of probate assigned to the intestate’s widow all the effects that remained, after paying funeral charges, &c. The administrator made no representation of the insolvency of the'estate, and no commission of insolvency was ever issued; the judge of probate, for this county, thinking it unnecessary to grant commissions of insolvency upon estates, when it appears that .no balance remains in the administrator’s hands.
    The questions reserved by the parties were,
    1. Whether the said estate, not appearing by the records of the Probate Court to be insolvent, the insolvency thereof could legally be proved by parole testimony ?
    2. If said estate be proved insolvent., whether the attachment in the original suit of Rockwood vs. Patch was discharged thereby, without a representation and commission of insolvency ?
    3. If said attachment was not discharged, whether the plaintiff shall recover in this action the value of the goods attached, or nominal damages only ? it being agreed that if the plaintiff is entitled to recover the value of the goods attached, the verdict was to stand, and judgment be rendered upon it.
   The cause was submitted without argument, and the opinion of the Court (absents Parsons, C. J.) was delivered by

Sedgwick, J.

By the statute of 1783, c. 59, § 2, it is enacted that when any goods or estate are attached upon *any writ or process, in case the cause of action [ * 256 ] docs by law survive, the same shall not be released or discharged by reason of the death of either party, but be held good to respond the judgment, to be given in the suit, in the same manner as by law they would have been, if such deceased person had been living; provided that where any estate, so attached, shall, by the executor or administrator of the same, be represented as insolvent, and a commission of insolvency shall thereupon issue: in all such cases, attachments, made as aforesaid, shall have no force or efficacy after the death of the original defendant or defendants in the action.

Rockwood for the plaintiff.

The Solicitor-General for the defendant.

In the present case, there was no commission of insolvency issued, nor any representation made by the administrator. The words of the statute are very clear and explicit. The attachment was not discharged, and the officer made himself liable to the plaintiff by neglecting to levy the execution on the goods which he had attached. The plaintiff is therefore entitled to judgment.

As to the question, respecting the measure of damages, it is a general and very sound rule of law, that where an injury has been sustained, for which the law gives a remedy, that remedy shall be commensurate to the injury sustained. The damages in this case are the value of the goods attached, it being understood that such value did not exceed the amount of the plaintiff’s judgment in the suit upon which they were attached.

Judgment on the verdict.  