45 Me. 566 | Me. | 1858
The opinion of the Court was drawn up by
Trespass for taking four masts. By the report of the case, it appears that the general property in the masts in controversy was originally in one Williamson, but they were held by the present plaintiff as collateral security for indebtedness from Williamson to him, and were subsequently received by him in payment for that indebtedness.
One Largay, who had performed labor upon the masts for Williamson, sued out a writ of attachment against said Williamson, and the masts were attached thereon, on the 3d day of July, 1856, by a deputy of the defendant, who is the sheriff of Penobscot county. The writ contained a count setting forth a lien-claim in an account annexed. The direction in the writ
Judgment was obtained against said Williamson, in the ordinary form, at April term, 1857, and execution, also, in the ordinary form, issued thereon, and, within thirty days after judgment, the masts were seized and sold on that execution.
The plaintiff was not notified to come in and defend against the suit of Largay, as provided in c. 144 of statute of 1855. Nor do we find that the evidence shows that he waived his right to such notice.
That judgment and the execution issued thereon gave the officer no authority to take the property of the plaintiff. Redington v. Frye, 43 Maine, 578.
The plaintiff, on the 5th of July, 1856, receipted to the officer for the property attached on the writ of Largay v. Williamson, as having been attached as the property of Williamson.
The defendant now contends that the plaintiff is estopped from claiming that property, by reason of the admission in that receipt.
If he had been sued for the non-delivery of the property, when demanded upon the receipt, such might have been the result. This, however, was not done. On the contrary, the property, evidently, was returned to the party holding the receipt. The parties were thereby restored to their original condition. After this, the property was seized upon the execution and sold, notwithstanding the plaintiff, at the time of the sale, claimed the said masts as his own.
Under such circumstances, the defendant proceeded at his peril, and, not being protected by his precept, he became liable. According to the agreement, a default must be entered for $110, and interest from the time of taking, as damages.
Defendant defaulted.
