Small v. Hutchins

19 Me. 255 | Me. | 1841

The opinion of the Court was delivered by

Weston C. J.

The case before us differs from Laihrop v. Cook, 14 Maine R. 414, in this important particular, the property there was receipted for by the owner, the receipt not admitting, as is usual in such cases, that it was received as the property of the debtor ; here the receipt was given by a stranger, and must be taken to have been in the usual form. The defendant having attached the property, and put it into the hands of a third person, it was thereby in the custody of the law, and a special property therein was acquired by him in his official capacity. Perley v. Foster, 9 Mass. R. 112. The receipter was the mere servant of the officer, who had the constructive possession, and the possession of the plaintiff, or of his bailee, Jonathan Small, actual or constructive, was vacated, or at least suspended. That the receipter suffered the property to remain in the hands of the debtor, did not dissolve the attachment, or change the constructive possession, thence resulting, in the officer. Nor did the fact, that the plaintiff, and not the debtor, was the general owner, vacate the attachment or the constructive possession of the officer, which depended upon it, and was necessary for its preservation. The general owner could not take the property from the custody of the law, without a process of replevin. Upon the attachment, as the facts are reported, the general property was in the plaintiff, and the special property in the defendant, the officer ; the receipter was the servant or keeper for the officer, and the debtor for the receipter.

While the attachment continued, in the eye of the law, the property was both taken and detained by the defendant. And if the plaintiff would take it from his legal custody, an action of replevin was the ápt and proper remedy. But if the attachment was dissolved, the property being actually in the hands of the bailee of the plaintiff, the constructive possession of the officer would -be gone, and that, as well as the actual possession,, would revert to the plaintiff, represented by his bailee. In such a case, upon the principle decided in Lathrop v. Cook, replevin would neither be suitable nor proper. And we are of opinion that the attachment was dissolved when this suit was instituted, the property not having been seized on. execution, within thirty days of the rendition of judgment. Forty days had then elapsed, and no impediment had before been interposed to the proceedings of the officer. . If he would have preserved the lien, he ought before that time to have sold the property. He had demanded it seasonably of the receipter, who had responded to the call by offering to show it to him, and was told that it might remain where it was, for he was going to sell it. Instead of doing so, he voluntarily suffered the thirty days to expire; by which his official connection with the property and his constructive possession became vacated and dissolved.

In the opinion of the court, the action is not maintained.

Judgment for defendant.