16 Me. 408 | Me. | 1839
The opinion of the Court was drawn up by
Where goods are attached on mesne process, the duty of the officer to the defendant is, to redeliver them to him, if the plaintiff does not prevail in his action, or if the attachment is dissolved, by payment made to the creditor, or otherwise. While the lien, created by the attachment continues, the officer is not, in our opinion, liable to the suit of the debtor, although he does not keep the property safely. He is liable to the creditor, whose claim is paramount to that of the debtor, until the attachment is dissolved.
It does not appear to us, that a right of action accrues in favor of the debtor, until he is entitled to a return of the goods. He has then a claim to a full indemnity, free from any lien in favor of the creditor. If-the execution is, within thirty days of the judgment, put into the hands of the officer, with directions to seize the goods attached, if he fails to do so, he is liable to the creditor for his neglect, but the attachment no longer continues. Wheeler & al. v. Fish, 3 Fairf. 241. While the officer lawfully holds the goods for the creditor, to whom he is responsible for their safe keeping, the remedy of the debtor in relation to them is postponed, until the attachment is dissolved. If the attachment is however preserved, and made effectual by a seasonable sale on the execution, we do not mean to say, if the goods have, by the misconduct of the officer, deteriorated in value, and have for that reason sold for a less sum, to the prejudice of the debtor, that he may not have an action for the injury.
Exceptions overruled.