Bicknell v. Hill

33 Me. 297 | Me. | 1851

Tenney, J.

— The restoration to the owner, of the property attached by the plaintiff, on the original writ, in favor of Elisha Parker against George F. Granger, which went to Ponce Porto Rico, was a dissolution of the attachment. The receipt was for the indemnity of the plaintiff for surrendering the property to the owner, and was a matter, in which the creditor is not shown to have had any interest whatever. The execution having been placed for service in the hands of the plaintiff as a deputy sheriff, within thirty days after the judgment was rendered, fixed his liability, for not retaining the property, which he had returned as attached upon the writ.

A demand made by the plaintiff upon the defendant had no connection whatever with his official duty in the execution •of the precept. The failure of the defendant to deliver the property upon a demand, was no excuse to the officer for his omission to retain it, and had no effect whatever to modify his liability or to qualify the relations between the plaintiff and the creditor, before existing. And the certificate made upon the execution cannot be regarded a part of the regular discharge of his official duty. If instead of the receipt for the property attached, the defendant in consideration of the surrender thereof, had negotiated a promissory note against a third person', payable on demand after a certain specified time, for his indemnity, it could not be contended with propriety, that the certificate of the plaintiff, as deputy sheriff, upon the execution, would be evidence, that the demand had been made according to the tenor of the note, more than if it had been made upon any other paper. The case before us, and the one supposed, are not essentially unlike in principle.

The cases cited for the plaintiff are not applicable to the case at bar. In them, the facts certified in the return were official acts, were prima facie evidence of their truth, and constituted a part of the return. The case of Rex v. Elkins, 4 Burrow, 2129, was where a rescue was returned by the officer. In the case of Gifford v. Woodgate & al. 11 East, 297, the facts stated in the return of the officer had relation to his duty as an officer, and if true, were an excuse for the unusual course pursued by him. In Kendall v. White & al. Exr’s, 13 Maine, 245, an attachment had been made by an officer on the original writ, and the execution recovered was put into the hands of another officer, within thirty days after the judgment was rendered, and it became necessary in order to make the attachment available, or to make the officer liable absolutely, that a demand should be made upon him for the property returned. It was clearly, as decided, an official act to make the demand by the second officer, and the return thereof was prima facie evidence.

Was a demand of the vessel necessary before the commencement of this suit? So far as it would be the means of obtaining the vessel, it must be regarded as unavailing. She had been gone for more than six months, and there is no evidence that she could be surrendered in season to meet the wants of the creditor, or the officer upon the execution. But by the terms of the receipt, in the case of a failure to deliver the property, v)hen demanded, the defendant was to indemnify and save harmless the plaintiff, from all damage, loss, trouble and expense, that might in any way accrue to him on account of such failure to deliver. The demand was made a condition precedent. It was to be made to entitle the plaintiff to the indemnity. And it was not a void ceremony. The defendant would not be liable, unless the execution was put into the hands of an officer within thirty days ; and the plaintiff would of course know that fact, if it was delivered to him, as it was; and if put into the hands of another officer, the plaintiff and the defendant would be no longer liable,- unless the demand was made upon the officer, within the thirty days. The defendant was not expected to know, at what time the judgment would-be rendered or the execution committed to an officer for service, nor the amount of the judgment, or the sum necessary for the officer’s indemnity. He was entitled to the demand that he might make payment of the sum necessary to indemnify the plaintiff. There being no legal proof of this, before the commencement of the action, it could not be sustained under the evidence presented at the trial.

Exceptions overruled.

Nonsuit confirmed.