Wilson v. Ladd , 49 Me. 73 ( 1861 )

The opinion of the Court was drawn up by

Tenney, C. J.

It is agreed in this case, that the general ownership of the logs, described in the defendant’s receipt, was in him, both at the time of the attachment, and the demand thereof. And the terms of the receipt sufficiently guard his right to claim the property, and defend this suit upon the receipt.

The defendant insists, that the record shows that he has had no such notice as the statute requires in c. 91, § 20, which should be actual notice. Such construction cannot be admitted. If the statute had prescribed the " notice ” to be given, such as was actually given by the order of Court, it could not'be insisted, with propriety, that it was insufficient. And when it is left to the Court to order such notice as it thinks is proper, and it is given accordingly, can it have any less validity than it would have if given in pursuance of the statute provision? The meaning of the term "notice” is not so restricted as the defendant contends.

Whether there is a judgment against the logs, is a question, which may be material to the correct decision of some cases, like the present in some of its features, but not so here, from the view we take upon another point presented in argument. It cannot, however, be denied, as the record of the judgment, which makes a part of this case, stands, that a want of that precision, which should always be exhibited in a record, designed to have a conclusive effect upon the property, against the consent of the owner, is quite manifest. It is insisted in behalf of the plaintiff, that the record, showing that the "defendants, though solemnly called to come into Court, do not appear, but make default,” and, " it is therefore considered by the Court, that the plaintiff recover against the said defendants, the sum,” &c., the term " defendants ” is sufficiently broad to embrace the logs referred to. But the same record, immediately following the recital of the count in the writ of indebitatus assumpsit, proceeds — "Yet, though often requested, the said defendants the same have not paid but neglect it.”- This language can hardly be said to apply to the logs in question, but to the alleged debtors. We think such looseness should be avoided in judicial proceedings, especially in the record of judgments.

But the defendant relies upon the points that the mandate in the execution is insufficient to authorize the plaintiff, as an officer, to seize and dispose of the logs, and hence the delivery to him would be a useless ceremony, inasmuch as he could do nothing with them in this case, as the general owner thereof was the receiptor and the defendant.

The case of Cunningham v. Buck, 43 Maine, 455, was where the, officer, who attached property, (not that of the debtor,) on mesne process, where a lien was claimed in favor of the plaintiff therein, was called upon by another officer, who had the execution, within thirty days of the judgment, and made demand upon him for the property attached, the mandate of the execution authorizing the seizure of the property of the debtor only, and it was held that the officer who made the attachment was not liable. Hathaway, J., in delivering the opinion of the Court, says : — "The demand made by Wilson, (the officer who had the execution,) must have been for property attached, which he could lawfully dispose of and appropriate the proceeds thereof, in payment of the. execution in his hands, and which the defendant was under legal obligations to deliver to him for that purpose.” This case is in point, and decisive against the maintenance of the action. Plaintiff nonsuit.

Rice, Appleton, Cutting and Kent, JJ., concurred.