25 Me. 176 | Me. | 1845
The opinion of the Court was drawn up by
This is an action of trespass, alleged to have been committed by E. W. Kelly, a deputy of the defendant. Kelly having attached certain goods described in a schedule annexed to his return upon a writ in favor of one Sturtivant against John O. Wing, the owner thereof, on the 11th June, 1841, and having kept the same by his servant without removal, till the 14th of the same month, took a receipt of certain goods of the value of $300 signed by the plaintiff and one Benson, and thereupon delivered up all the goods, and left the plaintiff in possession of the store. Wing and the plaintiff the same day commenced taking an account of the goods, which they completed on the 16th of June, and the plaintiff became the bona fide purchaser thereof, agreeing to pay, as a part of the consideration, the debt to Sturtivant. On the same day, after the purchase, the plaintiff, Wing and others being in the store, Kelly informed the plaintiff, that he had a writ in favor
The Judge instructed the jury, that if the sale from Wing to the plaintiff was bona fide, the foregoing facts constituted a taking of all the goods in the store, and the plaintiff was entitled to recover the value thereof at the time of the taking, deducting the amount of Sturtivant’s execution, and all fees thereon.
To preserve an attachment of property, like that in contro
In the present case Kelly having had possession of the goods in the store, under attachment, by his servant, from the 11th to the Í4th June, and then having delivered them up, on the promise of two persons to redeliver them on demand, or pay their value, must be considered to have abandoned the possession, and permitted them to go to whomsoever they belonged ; the receipters could not be the servants of the officer in the same sense as was the one who held the possession previously, after the attachment, and they held no different relation to the officer, than that of receipters, where the pro
The exceptions disclose no evidence of a demand by Kelly of the goods on the evening of the 16th June, that they might be held for his indemnify for his return thereof upon Stur-tivant’s writ; but on the other hand announced that it was his duty and intention to attach them upon another writ; he did not take possession upon what he treated as a voluntary surrender of the goods by the plaintiff, but on being notified by the latter of his purchase, he expressed his knowledge of that fact, but said he “acted under instructions, was indemnified and must go ahead.” When the receipt was handed to the plaintiff and taken by him, it was in consequence of no agreement or understanding, so far as the case finds, that the goods were to be delivered, or the receipt cancelled; at the same time the plaintiff offered to return the receipt as a subsisting contract. The return of the goods upon the second writ, under the date of the 16th of June, shows they were taken by the officer for that purpose, and not for his indemnity for his liability on the first writ. The submission of the plaintiff to the acts of Kelly, done in obedience to his instructions, his indemnity and supposed duty, cannot prejudice his claim; remonstrance would have been unavailing, and resistance criminal.
The taking complained of by the plaintiff was one entire act, and was declared by Kelly, and shown by the defence, to have been upon the writ in favor of Parsons & al. v. Wing ; the plaintiff was dispossessed of all the goods, and because a part only were returned upon the writ, the defendant cannot escape liability.
The wool was taken by Kelly as much as any of the goods in the store, and he was not excused, because the plaintiff held it by a different title, from that of the other goods.
The release given by the plaintiff to the defendant was for a distinct and subsequent act of the deputy sheriff; it was specially agreed, that it should have no effect upon the claim prosecuted in the present suit, and the instruction of the Judge was fully authorized, that the jury would disregard entirely the release.
The rule of damages was correct. The taking proved, was not one, which the officer was authorized to make, but was' tortious, and the defendant was liable- for all the injury occasioned thereby.
The question of fraud was one peculiarly within the province of the jury to settle. There was evidence sufficient to authorize the finding upon this point, standing uncontradicted ; and that of a controlling character was not so conclusive as to warrant the Court to disturb the verdict.
Exceptions and motion overruled.