46 Me. 348 | Me. | 1859
The opinion of the Court was drawn up by
The defendant made his disclosure in the original action, at the September term, 1856, and was charged as the
Our first inquiry, then, is whether, upon the disclosures in this and the original suit, and such other facts as were proved or admitted in the case, the defendant had, at the time of said service, any goods, effects or credits in his hands or possession belonging to the principal defendant. That he was properly charged upon the first disclosure is not denied. The new examination upon scire facias, has very much modified the facts as at first presented.
The defendant, if liable at all, was liable to be charged only for the balance due upon the contract between him and the principal debtor, for keeping a large number of cattle and horses, which the defendant, as sheriff, had attached upon a writ in favor of one Sawyer, against said debtor. The attachment was made November 28th, 1855. The price to be paid under said contract was $13,50 per day, from the day of the date of the attachment, so long as the cattle and horses should be kept up and fed on hay, or until said attachment should be dissolved. The payments were to be made monthly, and certain hay, attached upon the same writ, if used by the debtor, was to be allowed in part payment, at $8,00 per ton. The property was kept by the debtor until June 25th, 1856.
The time of the service of the trustee writ upon this defendant does not appear from the papers in the case, but his counsel states, in his argument, that it was made May 7, 1856. This was 160 days after the attachment, and the cattle and horses must have been kept up and fed upon hay during this time, because it appears, from the last disclosure, that the defendant charged upon the writ, Sawyer v. Foster, for keeping them 161 days, at $13,50 per day. The keeping, according
Various grounds are taken in defence. The first is, that the debtor worked the horses and some of the cattle, during the time he was keeping them under said contract, and greatly diminished their value thereby; and, further, that some of the horses were lost. If they were his property, he might, perhaps, reasonably use them during the attachment. There was nothing in the contract to restrain such use. If, however, either the cattle or horses were lost or diminished in value, through the negligence or fault of the debtor, he would have been liable therefor upon his contract. He was bound to use ordinary care. "Whether he did so or not does not distinctly appear. His contract is evidently in the nature of a receipt. The statute which authorized the defendant to permit such. property to go back into the hands of the debtor, upon taking a receipt, without dissolving the attachment, we think, contemplates, or at least does not prohibit, a reasonable use of the property by the debtor. Under our laws, where the action in which the attachment is made may be pending several years, a construction of the statute which should prevent such use by the debtor would be hard and oppressive upon him. R. S. of 1841, c. 114, § 37. It has been held in this State that a receipter for a horse attached is not liable for its value, where it dies in his hands, without his fault, before a demand. Shaw v. Laughton, 20 Maine, 266.
But it further appears in this case that the defendant, having ascertained that the property was being used, called upon the debtor in February after the attachment, and made a new agreement, by which the terms of the original contract were
It is further urged that the defendant ought to be discharged because the property attached was not the property of the principal debtor, but belonged to one Howe, as mortgagee of said debtor, by whom the defendant has been sued for it, which suit was compromised upon the payment of $1350 by the attaching creditor. It is not perceived how these facts can possibly affect the contract between the defendant and the debtor. The obligation to pay for the keeping of the cattle
Again, it is objected in defence, that the defendant, even if indebted to the principal defendant, cannot legally be charged as his trustee, because, as is alleged, he was a public officer, and therefore exonerated from this process by the third clause of section 63, chapter 119, of the Revised Statutes of 1841, and section 55, chapter 86, of the revision of 1857. These statutes were evidently intended to apply only to money or other things coming into the hands of a public officer in such manner that the same should be regarded as being, in some sense, within the custody of the law. They in terms apply only to cases of official accountability. They were not intended to apply to cases of personal indebtedness on the part of such officers, arising .from their contracts with third persons, even though such contracts were made in connection with the performance of their official duties. Such a construction would exonerate a public officer from this process where his indebtment arose from the hiring of a horse to be used in the service or execution of a civil process. It is wholly inadmissible.
It is next contended that this action cannot be maintained, because the original attachment was dissolved by the death of the principal debtor prior to the commencement of this suit; and a commission of insolvency of his estate was issued within one year next after his death. It is provided by the R. S. of 1841, c. 114, § 83, and the same in substance by those of 1857, c. 81, § 77, that “when any estate or goods and chattels are attached, and the debtor dies before they are taken in execution, the attachment shall remain in full force, in like manner as if the defendant were alive, unless the estate of the deceased shall be represented, by his executors or admin
In the case before us, the debt for which the defendant was charged was not literally taken in execution before the death of the debtor, but we think it may fairly be considered as having been constructively so taken. After the recovery of his judgment, and while the debtor was living, the creditor appears to have done all that could be done to avail himself of it. The only reason why it was not actually appropriated to the payment of his execution was the fault of the defendant in the non-performance of his legal duty. The plaintiff had sued out his execution, and, within thirty days after judgment, had caused a legal demand to be made upon this defendant to pay over an amount sufficient to satisfy the same. This he refused or neglected to do, and thereby rendered his own goods and estate liable for such an amount as he might be properly charged for in this suit. R. S. of 1857, c. 86, § 67.
That the right of the creditor to the fund in the hands of the trustee had become absolute, and the liability of this defendant unconditionally fixed by the judgment, execution, and demand thereon, in the lifetime of the debtor, cannot well be doubted. The subsequent proceedings on the scire facias were proper to ascertain the extent of that fund; but neither these, nor the death and insolvency of the debtor, after the demand, ought to have any effect in discharging the defend
In the case of the Franklin Bank v. Bachelder, before cited, which was a case in which the same steps had been taken to charge the defendant and to fix his liability, as in this, and where the principal defendants were judicially declared to be bankrupts, after the demand upon the execution had been made upon the defendant as trustee, and where they subsequently obtained their respective certificates of discharge as bankrupts, which were pleaded in bar of the plaintiffs’ suit, it was held that these facts constituted no defence to the plaintiffs’ right to recover in that action, which was scire facias, the value of the goods, effects, and credits of the principal defendants in the hands of the trustee, when service was made upon him. The refusal of the defendant to pay or deliver, upon demand, the property in his hands, vested an immediate right of action in the plaintiff to recover therefor, of which he could not be deprived by subsequent events. So far as the plaintiff and trustee were concerned, the recovery of a judgment, the issuing of an execution, and a seasonable demand of the property upon it, were equivalent to a seizure of the property, so far as to make the defendant, after his refusal to deliver it, responsible for its value. The right of the plaintiff to recover its value became absolute after süch demand and refusal.
It has also been held, in an action against a receiptor, for property attached, that the death of the debtor, after judgment, execution, and a seasonable demand, affords no ground of defence. Such demand is constructively a seizure of the property attached for the preservation of the plaintiff’s rights, and subjects the receiptor to an action for the value of the property, which may be maintained notwithstanding the subsequent bankruptcy and death of the debtor. Farnham v.
The result is, that the exceptions must be overruled. There is, however, a clerical error in the amount for which the defendant is to be charged. The amount of the plaintiff’s judgment against the original debtor, was only $239,23 debt, and $11,42 costs of suit. It was recovered at the March term, 1857. The defendant’s liability in this suit cannot exceed the amount of that judgment, with legal interest and costs. The amount, therefore, for which he was charged, in this action at Nisi Prius, being $542,44, as is stated in the bill of exceptions, must be reduced so as to cover only the plaintiff’s judgment for debt, interest and costs, as before stated.