Davis v. Maloney

79 Me. 110 | Me. | 1887

Haskell, J.

Trespass against an officer for an unlawful seizure of books on execution against the plaintiff.

A deputy sheriff, out of office when the seizure was made, had attached certain books and book cases on a writ against the plaintiff, and by direction of the creditor, had taken the plaintiff’s accountable receipt therefor, with sureties approved by the creditor, and thereupon had surrendered the property attached to the plaintiff, the debtor.

The receipt stipulated that the debtor should return the property attached to the officer, or to his successor in office, or to any person authorized to receive the same on demand. By directing the officer to take the receipt, the creditor elected to rely upon it, rather than upon any obligation of the officer to keep the property safely; and upon gaining possession of it, might assert it as equitable assignee thereof, and no demand upon the attaching officer would be required. Shepherd v. Hall, 77 Maine, 569. But this she did not do. The receipt was allowed to remain with the attaching officer, to whom the debtor engaged to be accountable; and the creditor, having procured a special judgment and execution against the property attached, the debtor meanwhile having been discharged as an insolvent debtor, caused another officer, not holding the receipt, to demand the property attached, that he might seize it on the execution. This officer could make no legal demand for the property, because he did not hold the receipt. Gilmore v. McNeil, 45 Maine, 599; Hinckley v. Bridgham, 46 Maine, 450. Nor did he pretend to demand the property by virtue of the receipt, but rather required the debtor to produce certain property that he was not compelled to produce, that it might be taken on the execution.

True, the debtor, supposing the officer authorized to demand the property by virtue of the receipt, produced it, and demanded ¡his receipt, which being refused him, he forbade the officer from taking away a part of the property that he had produced, viz., the books; but the officer, in disregard of the debtor’s protest, took all the property produced and sold it on the execution. By the terms of his execution, he could only take property upon which the attachment created a lien that he might perfect the same, and he could only do this by gaining possession of the property by demand upon the receipt, so that the seizure made by him on the execution was not a continuation of and perfection of any lien created by the attachment, but was an independent seizure of property that had either passed to the debtor’s assignee in insolvency, or was exempt from seizure upon execution; and as the debtor had lawful possession of the property that he forbade the officer to take, whether it belonged to him, or to his assignee in insolvency, is immaterial, and he should recover the value of the same.

Defendant defaulted for $165, with interest from December 3, 1885.

Peters, C. J., Walton, Danforth, Emery and Foster, JJ., concurred.