Clark v. Clough, 3 Me. 357

Clark v. Clough

3 Me. 357 | Me. | 1825

Weston J.

at the following June term in Kennebec, delivered the opinion of the Court as follows.

The plaintiff in this action, having, in his cap acity of deputy sheriff, attached.property to respond the judgment'which might be recovered by Pitt Dillingham, prosecuting in the name of Josiah .Norris against John 'Howe, became answerable to Dillingham to the amount for which he might obtain judgment; not exceeding however the value of the property attached. The instrument given to the plaintiff by Plummer, to whom he delivered the property, was taken for his own security, that he might be enabled to discharge the responsibility he had assumed in his official capac*361ity. It was a contract therefore belonging to the plaintiff', which the attaching creditor had no right to direct or control. Ilis remedy was against the plaintiff, or against the sheriff, who was by law answerable for his official acts; and this remedy was effectual and adequate. But it was competent for the plaintiff to place the receipt given by Plummer under the direction oí Dil-lingham, and it appears that he did in fact put it into the hands of his attorney, that it might be prosecuted for his benefit, in order that he might thus realize the fruits of his judgment against Howe. The liability the plaintiff was under to Dillingham, and the obligation imposed upon the latter, from the nature of the transaction, to account for the proceeds in discharge of that liability, formed a sufficient consideration for this arrangement. Dillingham thereupon became the assignee of the contract, as collateral security for his claim against the plaintiff; or he was clothed with a power in relation to it, so coupled with an interest, arising from this consideration, as well as from his expenditures and disbursements in the prosecution of the suit against Plummer, as to be no longer revocable at the will of the plaintiff. No formal instrument executed between the parties, either under seal or otherwise, was necessary to give to the transaction a legal and binding efficacy. These equitable interests, when supported by a sufficient consideration, are recognized and protected by the law and enforced, according to the dictates of good faith and moral obligation.

The cases of Dunn v. Snell 15 Mass. 481, and of Vose v. Handy 2 Greenl. 322, exhibit the full developement of this principle, relieved from all technical formalities, and must be considered as settling the law upon this subject.

It was not competent therefore for the plaintiff to interfere with the execution, which Dillingham had finally, and at great expense obtained against Plummer; and the defendant was well justified in obeying the directions of Dillingham, and in disregarding those of the plaintiff. There was no undertaking, on the part of Dillingham or his attorney, to abstain from the prosecution of a suit against the plaintiff; although it appears that he did forbear such prosecution for a period of nearly four years, while the suit against Plummer was still pending, and until possibly, from the length of time in which it had been controverted, it might be con*362sidered doubtful whether it would be brought to a successful termination. Dillingham, did not otherwise obtain satisfaction of his judgment against the plaintiff, but the avails of the suit against Plummer, having been received after judgment, and having been expressly appropriated to discharge the liability upon which it was founded, may and ought to be considered as received in payment and discharge of that judgment.

The exceptions in this case are overruled; and there must be judgment on the verdict.