
    New Haven Steam Saw-Mill Company vs. David S. Fowler.
    Under the statute with regard to foreign attachment, which provides that any creditor may avail himself of the process against his debtor, a person having a claim against another for unliquidated damages growing out of the breach of a contract, is to be regarded as a creditor, and the other party as a debtor, within the intent of the statute.
    And where the damages claimed were for the negligent towing of a raft of logs which the defendant had agreed to tow safely to a certain place, by means of which negligence the raft was broken up and the logs scattered and a great part lost, it was held that the party claiming such damages was a creditor within the intent of the statute.
    A sheriff may be factorized, under the statute with regard to foreign attachment, for money collected by him in his official capacity, on an execution, and held for the purpose of being paid over to the execution creditor.
    Scire Facias. Boggs & Co., of the city of New York, recovered a judgment against the plaintiffs, in the superior court for New Haven county, and placed the execution issued thereon in the hands of the defendant, as sheriff of New Haven county, for collection. The plaintiffs paid the sheriff the amount of the execution, with his fees thereon, and he indorsed the execution as paid and satisfied. Immediately after, and while the sheriff held the money, the *plaintiffs [ *104 ] brought an action of assumpsit against Boggs & Co., to recover dapiages for the negligence of'the defendants in towing a raft of logs for the plaintiffs, from New York to New Haven, through Long Island Sound, which they alleged that the defendants had agreed to tow safely, by means of which negligence the raft was broken up and the logs scattered, and a large part lost, or recovered at great expense. This action was commenced by a writ of attachment, with a factorizing process, and the sheriff was factorized upon it as the agent, trustee and debtor of Boggs & Co., and as having their goods and effects in his hands. Boggs & Co. were afterwards defaulted in the suit and judgment rendered against them. Upon this judgment execution had been issued, and demand made thereon in the usual form upon the sheriff as garnishee. Upon his neglect to pay the amount in his hands the present action was brought. The defendant pleaded that, at the time when service was made upon him, he was not the agent, trustee or debtor of Boggs & Co., and did not have their goods and effects in his hands. On the trial the court found the above facts, and reserved the case for the advice of this court.
    
      
      Baldwin and Ives, for the plaintiffs.
    1. The plaintiffs are creditors of Boggs & Co., and Boggs & Co. are their debtors, within the intent of the statute with regard to foreign attachment. It is not necessary to this relation, under the statute, that the claim be technically a debt, or for liquidated damages. Rev. Stat. tit. 1, sec. 229. 1 Bouv. Law Diet., “ Creditor.” Webster’s Diet., id. 1 Pothier on Ob., 159. Gray v. Bennett, 3 Metc., 522. Mill Dam Foundry v. Hovey, 21 Pick., 455. Carver v. Braintree Manufacturing Co., 2 Story, 432. Peter v. Butler, 1 Leigh, 285; Hazard v. Jordan, 12 Ala. 180, Woolfolk v. Cage, Walker, (Miss.,) 300. Hunt v. Norris, 4 Martin, 517. Wilson v. Wilson, 8 Gill, 192. Bausman v. Smith, 2 Carter, 374. Knox v. Protection Ins. Co.,9 Conn., 430. Gray v. Wallingford, 20 id., 416. Treadway v. Andrews, id., 384. Lenox v. Howland, [ *105 ] 3 Caines, 323. Joslyn v. Merrow, 25 Verm., *185. Sergeant on For. Att., 45. The policy of the law is in favor of subjecting all the property of a debtor to the payment of all his debts and obligations of every kind. Formerly the body of the debtor could be arrested and imprisoned on the execution, and he thereby compelled to disgorge his secret property ; but now this remedy is confined by statute to cases of tort. And while this remedy has thus been restricted, that by foreign attachment has been extended, until it should now be held to embrace all that class of cases where the right qf imprisonment once existed and is now taken away. Gray v. Wallingford, supra.
    2. .The defendant is not exempted from liability to the process •as garnishee, by reason of the fact that he held the money in his official character, as sheriff of the county. The defendant, in holding the money, was the agent of Boggs & Co., not of the court. He was not bound to bring the money into court; his only duty was to pay it over to the execution creditor. His official duties were properly at an end. He had endorsed the execution as satisfied, and had no power to do any other official act. He was not even bound to make return of the execution, where he had received the money upon it. Toby v. Reed, 9 Conn., 222. Our executions are not like those which issue out of the King’s Bench in England, where the sheriff is ordered to return the money into court. 3 Bla. Com., Appendix 26. Here', by the execution, he is simply to cause the money to be paid and satisfied to the debtor. Form of execution, Rev. Stat., tit. 1, sec. 172. Dale v. Birch, 3 Camp., 347. Conductor Generalis, 347, 351. Turner v. Fendall, 1 Cranch., 117. The cases in Massachusetts where it is held that a sheriff is not liable to the' process, are founded upon the preamble of the statute of that state, which uses language restrictive of the remedy. The case of Stillman v. Isham, in our own court, (11 Conn., 124,) is put upon the ground that the person factorized held a public trust, and would be embarrassed in accounting—a reason wholly inapplicable here. In Vermont and New Hampshire it has been expressly held that a sheriff is liable to the process. *Woodbridge v. Morse, 5 N. Hamp., 519. [ *106 ] Hurlburt v. Hicks, 17 Verm., 193.
    
      Harrison and Watrous, for the defendant.
    1. Boggs & Co. were not the debtors of the plaintiffs within the intent of the statute, with regard to foreign attachments. The claim was for damages incurred through the negligence of Boggs & Co., in towing a raft. Such a claim does not make them the debtors of the plaintiffs in any sense in which the term is ever used. Even if the damages be regarded as founded on a breach of contract, and not upon a tort, yet they are wholly unliquidated, and such damages can not constitute a debt. The term debt has received a construction in numerous cases, in its connection with statutes of set-off, where the term used is mutual debts, and it has been held that unliquidated damages, though founded on contract, can not be regarded as a debt for the. purpose of a set-off. The same reasoning is applicable here. Knox v. Protection Ins. Co., 9 Conn., 433. Brown v. Cuming, 2 Caines, 33, 37. Sedgwick on Damages, 428.' 2 Pars, on Cont., 245 and note. So a garnishee has been held not to be a debtor within the statute, where liable only for a tort or for unliquidated damages. Foster v. Dudley, 10 Foster, 463. Williams v. Androscoggin and Kennebec R. R. Co., 36 Maine, 201. Though no decision of the question now before the court has been made in this state, yet the court, in Treadway v. Andrews, 20 Conn., 391, intimates that foreign attachment will not lie in a case like the one on which this suit is based. In New York, although the statute regarding the attachment of the goods of an absent debtor, uses the terms “ claim, deM, or demand,” yet it has been held that it would not allow an attachment when the claim was ex delicto in character. Lenox v. Howland, 3 Caines, 258, 323. Sergeant on foreign Attachment, 51 et seq.
    
    2. The defendant, as sheriff, is exempt from the garnishee process. He is the agent of the law, and not of the execution creditor, and is required by the precept of *the [ *107 ] court to satisfy the demand of the execution creditor out of the estate of the debtor. How can he obey this precept if the money can be arrested in his hands ? Turner v. Fendall, 1 Cranch, 117, 134. The Massachusetts cases fully sustain the doctrine that the officer in this case is not liable to the process. Wilder v. Bailey, 3 Mass., 289, 296. Pollard v. Ross, 5 id. 319. Thompson v. Brown, 17 Pick., 462. The same is held as to executors and administrators. Barnes v. Treat, 7 Mass., 271. Brooks v. Cook, 8 id., 246. And as to county treasurer. Chealy v. Brewer, 7 Mass., 259. The same was held in this state as to executors and administrators, until the statute of 1846. In Willes v. Pitkin, 1 Root, 47, and Geary v. Shepard, 1 Root, 544, it was expressly decided by our own court, that money in the hands of an officer, collected on execution,, could not be attached as the property of the execution creditor. And the. doctrine we contend for has been fully recognized by our own courts, in Spalding v. Imlay, 1 Root, 551, and Stillman v. Isham, 11 Conn., 124. And it is as well founded in principle as sustained bv authority, Public policy requires men in official positions to be exempt from the annoyance, expense and delay consequent upon holding them as garnishees in such cases as this. Stillman v. Isham, supra. Ward v. County of Hartford, 12 Conn., 409. Wilder v. Bailey, supra. The sheriff is liable to pay two per cent, a month, after demand, if he does not pay over money collected on execution, and if money can be arrested in his hands by this process his situation is unendurable. He must run the risk' of paying twenty-four per cent.- a year, or of losing the whole amount collected, or both together. Rev. Stat., tit. 49, sec. 11. Thompson v. Brown, 17 Pick., 462. If the process will lie, the sheriff and execution debtor, or either of them, may keep the execution creditor out-of his pay ad in/inilum. .
    
   Hinman, J.

The two questions which arise in this case are, first, whether a claim for unliquidated damages for the breach of a contract may be secured by our process of' foreign attachment; and secondly, whether money collected by the sheriff on an execution, is liable to be attached by this process, at [ *108 ] *'the suit of a creditor pf the party for whom- the money is collected. If these questions can both be answered affirmativSly, then, upon the facts of the case, the plaintiffs are entitled to judgment in their favor ; otherwise, the defendant should have judgment. The process is given tocreditors against their debtors, to enable them, to attach the effects of such debtors, in the hands of their agents, attorneys, trustees, &e. Rev. Stat., tit. T, § 229. What then is the meaning of the words “ creditor” and “ debtor,” as used in this statute ? They are undoubtedly words having different meanings, depending upon .the connection in which they are used; so that nothing very satisfactory can result from resorting to mere definitions of the words themselves, or to cases in which they have been restricted in meaning to a narrow and strictly technical sense, or in which they have been held to be used in a more popular sense. Lawyers often speak of a debt as that for which an action of debt will lie, meaning by it a sum of money due by certain and express agreement; but in a less technical sense, says Bouvier, it means any claim for money. And in a still more enlarged sense, it denotes any kind of a just demand. • It is, therefore, equally proper to say of one who is under obligation to discharge some duty, or to pay damages for its non-performance, that he is a debtor, as it is to say the same of one who is under obliga- • tion by bond to pay a sum of money. Hence, the obligation of the original defendants to tow safely the plaintiffs’ logs from New York to New Haven, may, properly enough, be called a debt; and on their neglect to perform it, they may be said to have owed the plaintiffs such reasonable damages as would be a just compensation therefor. In what sense, then, did the legislature use the words “ debtor” and “ creditor,” in the statute respecting foreign attachments ? Now this point seems to us to have been substantially decided in Knox v. The Protection Ins. Co., 9 Conn., 430. It was there held that an unadjusted claim for damages, for a loss on a policy of insurance, might be attached by this process, in a suit against the holder of the policy, under the clause of the statute authorizing debts due *from any person to an absent or absconding debtor [ *109 ] to be attached. In that decision the word “ debts” was held to include the unliquidated claim for a loss on a policy of insurance; and if that decision is correct, it seems hardly credible that the legislature could have used the words creditor” and “ debtor” in the same statute in a more restricted sense. If unliquidated debts may be attached by this process, we see no reason for holding that creditors whose debts are unliquidated shall not have the benefit of the statute in order to secure their claims. A debt" arising from the breach of a contract to transport property safely, is as definite, surely, as the damages recoverable for a loss of property insured. The rule for the assessment of the damages is certain in both cases ; and the only uncertainty is as to the amount of damages recoverable ; and this arises from the uncertainty of the proof, which is an uncertainty attaching equally to all unliquidated claims. It appears to us, therefore, that this objection to the pláintiffs’ claim ought not to prevail.

2. The defendant collected the money in his hands, as sheriff of the county, on an execution in favor of the debtors of the plaintiffs. Does this excuse him from liability to this process ? He comes within the letter of the statute, provided he can with propriety be considered as the agent of the execution creditors. He received the execution from them, and took his instructions from them ; and when he had collected the executions, he held the money subject to their order ; and, had he paid it before the attachment was served, he would have paid it over to them directly. Unless then there is some rule of law or of policy to pevent it, it would seem that he must be their agent 'and trustee. Indeed, there is no way in which this result can be avoided, except by resorting to what, in Connecticut certainly, is a fiction, and treating him as the agent of the law, or of the court, rather than of the execution creditor. That he is so considered in Massachusetts and in some other states, is true. And in Connecticut it was formerly decided that money collected by an officer was not liable to attachment. Willes v. Pitkin, 1 Root, 47. Geary v. Shepard, id., 544. It is not a little remarkable, [ *110 ] *however, that in the first of these cases the court give a reason for their decision, which must strike every one, we think, as a better reason for deciding the other way. The court say that the money was not liable to be taken, “ because the money received and endorsed on the execution by the officer is his special property, for which he is liable to the person to whom it is due.” Now every agent has a special property in the money of his principal which he has in his hands, or he would be unable to protect it against the acts of strangers. And the fact that he is liable for it to the person to whom it is due, shows that he is, in fact, that person’s agent, and therefore not the mere agent of the law. The case of Geary v. Shepard was decided upon the authority of Willes v. Pitkin, and adds little or nothing to its weight. We think, therefore, we are at liberty to decide the case upon principle, without further reference to these authorities. The decisions undoubtedly were influenced to some extent, as probably was the case with the Massachusetts decisions also, by what was deemed to be the impolicy of subjecting public officers to the annoyance and expense consequent upon holding them responsible to third persons on this process. In this respect they conflict with our favorite policy of subjecting every man’s property to liability to be taken for the payment of his debts, to which end all our attachment laws are aimed. It was also on grounds of public policy that our courts decided that a public loan officer, an executor, and a state attorney, were exempt from liability to this process, for moneys in their hands by virtue of their respective offices. But these decisions have never been perfectly satisfactory, and the tendency of more modern cases is the other way ; and such seems to be the tendency of our legislation, as evinced by the great extension which has been given to the process of foreign attachment within the past few years, particularly in subjecting legacies and distributive shares of deceased persons’ estates, in the hands of executors and administrators, to its provisions, after the courts had decided against any such liability. Bray v. Wallingford, 20 Conn., 419. We can not therefore feel that the defendant’s *ease is at all aided by any considerations [ *111 j drawn from public policy.

Perhaps it is not unworthy of notice, that decisions against the liability of sheriffs may have been influenced by considerations drawn from what is, or was supposed to be, the theory of the English law in respect to the sheriff’s duty in the service of executions. The form of an English execution, as contrasted with ours, would give countenance to such a suggestion.

In the English writ of Fieri Facias, (see Appendix to 3d BI. Com., p. 26,) the officer is commanded to make the sum demanded in it, and to have the money before the court, to render to the execution creditor, together with the writ. And when he lias collected the money, or made it, as it is called, he makes return of the fact, and that he has it ready in court, or, as the form is, before the Lord the King at Westminster, at the day, Ac., as it is within commanded.” According to this form, the money appears to be in the sheriff’s hands as the agent of the court. And in theory, probably there is an order to pay it over to the creditor, before it can be demanded. One reason for this is, that satisfaction may be entered on the record, and further vexation of the defendant prevented. 1 Sellon’s Prac., 545.

By our form, the officer is directed to pay the money collected to the creditor directly. And although it may be true that such a payment in England would be good, because the creditor is the party eventually entitled to it, still, the fact that, in theory, it is considered as brought into court, is sufficient to account for the fact that the sheriff is considered and treated as the agent of the court rather than of the party. But where the sheriff takes the execution from the creditor, and acts under his instructions, and is directly accountable to him, we see no good reason why he should not be treated in law, as he undoubtedly is in fact, as his agent and trustee. Such seems to be the law in Vermont and New Hampshire, and appears to us to conform more to the general policy of our law. Hurlburt v. Hicks, 17 Verm., 193. Woodbridge v. Morse, 5 N. Hamp., 519.

*We therefore advise the superior court that the plaintiffs are entitled to judgment.on the facts found.

*In this opinion the other judges concurred.

Judgment for plaintiffs advised.  