Melvin v. Winslow, 10 Me. 397

Melvin v. Winslow

10 Me. 397 | Me. | 1833

The opinion of the Court was delivered by

Mellen C. J.

It appears that the horse in question died a natural death, without the fault or negligence of any one, after he was attached at the suit of Clancey, and before the action was decided; but not till after the action of replevin was commenced. The question is, whether, according to the true com struction of the condition of the replevin bond, the obligors are answerable for the value of the horse. By law, Melvin, the officer who served the writ in Clancey’s action, had an unquestioned right to attach the horse and hold him in his custody, until he was taken from his custody by virtue of the writ of replevin. Suppose he had died in the possession and custody of Melvin, before the action of replevin was commenced, would he have been answerable? We are not aware of any principle of law which would render him so. He was answerable for him, to be seised on execution; but if he had died before execution issued, the plaintiff would not have been liable, unless he had been in fault. Now, had not the defendant, Winslow, as good and legal right to take the horse by the writ of replevin, out of the custody of Melvin, in order to try his right to the property, as Melvin had to take him out of the possession of Gil-man towards satisfaction of Clancey’s debt ? We perceive no distinction. In loth cases, the act of taking was lawful. And though, when the action was .decided against Winslow, the law considers him so far a wrongdoer as to compel him to pay damages, yet till that time he was not a wrongdoer, but lawfully engaged in vindicating his asserted rights; and, as we have before stated, the horse died before the replevin suit was determined. In the case of Congdon v. Cooper, 15 Mass. 10, it was stated expressly by the Chief Justice, delivering the opinion of *399the Court, that “ the capture of Eastport, where the deputy- “ sheriff lived, and where, according to his duty, the property “ attached would be presumed to remain, would excuse him and “ the sheriff from producing the property, to levy the execution c: upon. But this is because the common consequences of “ capture, according to the laws of war, are supposed to fol- “ low : such as a restraint upon the persons of the inhabitants “ captured, which would prevent their removal; and upon their “ effects, so that they could not be withdrawn from the control “ of the captors.” He then goes on and states, that such was not, at the time, the situation of Eastport and the property there : and the sheriff was in that case held answerable. He had taken good security for them. Surely the natural death of the horse, which withdrew him from the control of Winslow, is as valid an excuse for him, as the absolute control of a captor would have been for Cooper and his deputy. Our opinion is, that the obligors are not held for the value of the horse.