Merrill v. Curtis

18 Me. 272 | Me. | 1841

The opinion of the Court was drawn up by

Siiepley J.

The officer was directed in the writ to attach' property to the amount of sixty dollars, and he returned an attachment of personal property estimated by him to be of the 'value of seventy-four dollars; and it is alleged that in so doing he acted-illegally, and that the attachment is void. At the time of making, the attachment the officer might be ignorant whether the property would not be chargeable with the expense of keeping; and if receipted for the value of it might be diminished by depreciation or destroyed by disease. If the officer acted oppressively he might be liable to an action by the party injured, but third persons could not interpose and claim to set aside the attachment. It does not necessarily follow, that the officer acted oppressively or illegally because he attached property estimated by him to be of greater value than the amount required to be attached.

The sale to the plaintiff was not completed between the parties to it until the ninth of November. There was no delivery, nor payment of earnest money, nor any portion of the price, nor was there any memorandum in writing. The attachment was therefore prior to the sale, and the plaintiff could acquire no right, which would not leave the property subject to the attachment and liable to be taken from his possession by the officer or his servant, whenever it might have been so taken from the possession of the debt- or. The defendant in taking the property may be regarded as acting in any capacity in which he was legally entitled to act. It does not appear, that his acts in becoming responsible for the safe keeping and delivery of the property were not approved by the debtor before the sale to the plaintiff.

It is contended that the attachment was dissolved by the neglect of the officer to seize the property within thirty days after judgment. The case finds that w’ithin the thirty days the execution was delivered to an officer, that he demanded the property of the officer making the attachment, and that they both demanded it of the receiptor. These proceedings preserved the rights of the creditor, and left the attaching officer responsible to him, and the defendant responsible to the officer. To determine that the attachment was under such circumstances dissolved, would be to hold the receiptor liable to the officer and yet deprive him of the power of reclaiming the property from the debtor, for whom he had become surety, unless he could do it within the thirty days. And his own and the attaching officer’s liability might not have become fixed until the last of the thirty days. The case of Wheeler v. Fish, 3 Fairf. 241, decides only that the attachment wras dissolved by the neglect of the officer until after the expiration of the thirty days to seize the property attached, in a case where it does not appear, that any receipt for the property was taken or that any act was done by the officer to preserve the attachment.

Exceptions overruled.