Perry v. Somerby , 57 Me. 552 ( 1869 )

Tarley, J.

On the 14th day of December, 1866, Sylvanus R. Lyman commenced an action at law against Charles Spear, in this court, and the plaintiff, then a deputy of the sheriff of the county of Cumberland, having the writ ibr service, attached the steaüier Lady Lang, as the property of said Spear. On the same day-, the defendants executed and delivered to the plaintiff the receipt in suit.

The action, Lyman v. Spear, was duly entered in this court, and continued from term to term, until the 13th day of October, 1868, when judgment was recovered against said Spear, “the Same to be levied only of the goods, chattels, and estate of the said defendant, attached upon the plaintiff’s writ in said action, the -same not having been attached within four months next preceding the commencement of proceedings in bankruptcy by said defendant, and not otherwise against either the said defendant or his property, for the sum of eight hundred and eighty-eight dollars and forty-three cents, debt or damage, and forty-two dollars and forty-seven cents costs of suit.”

Upon this judgment execution was duly issued October 14,1868, and on the 22d of the same month and year, demand was duly made by the plaintiff for the property described in the receipt, and the defendants thereupon and thereafter refused and neglected to return the same in accordance with the terms of their agreement. 'For the breach of this agreement this action is brought and commenced on the 18th day of November, 1868.

Several objections have been urged by the counsel for the defense against the maintaining of this action.

1. It is said the attachment of the steamer created no lien upon it at common law, or by statute in this State.

It appears by the report, that the record title of the steamer was in one McCready, but that the equitable title was in Spear, and that she was in Spear’s possession. The defendants in this case declare, in their receipt, that she is the property of Spear. We have no doubt Spear had an attachable interest in her, and that the attachment created a lien upon her.

2. It is said, if this be so, it was dissolved by the officers taking the'receipt, approved by the counsel of the creditors in the suit.

We do not understand that the taking of the receipt discharged the lien upon the steamer. There is nothing in the paper showing any such design. Whether in an action to recover the possession from a third party who had purchased, bona fide, with no knowledge of the attachment, it would have been effectual to obtain it, is not now a question. These defendants had knowledge of it and recognized it, and because of it they became the keepers, and agreed to return it within thirty days after judgment, that the lien might be perfected by sale; and the possession thus delivered them is a sufficient consideration to support their agreement in the receipt.

3. It is said the liability of the receipters was conditional, that the creditors should obtain judgment against Spear. This is apparent from the terms of the receipt. They were not required by its terms to return the steamer until after judgment, and their liability was limited to the sum of fifteen hundred dollars.

Judgment was obtained October 13, 1868, and thus this condition was fulfilled.

4. It is said further, however, that Spear had been adjudged a bankrupt, and duly obtained his discharge in bankruptcy, and that this discharge was a complete bar to the suit of Lyman and others, against him.

We do not understand that such a discharge was interposed in that suit, or, if interposed, that it would have furnished a bar to the further maintenance of the suit. The attachment of the steamer, as we before remarked, created a lien upon her, and having been made more than four months before the proceedings in bankruptcy were commenced, it was not affected by those proceedings, but was, at the time when the judgment was rendered in this case, a subsisting lien, and one that could be perfected by the sale of the property attached upon the execution issued in this case.

In the case of Leighton v. Kelsey, ante, 85, this matter was considered and settled; a further discussion of it in this case is unnecessary.

A valid attachment having been made and preserved until a legal judgment was rendered, it became the duty of the defendants to return the steamer in accordance with their agreement, and for such damages as flowed from the breach of their agreement, they must be held responsible.

The damages awarded in the court below seem not to have been the subject of exceptions, nor indeed do we perceive the assessment to be erroneous. ^Exceptions overruled.

Appleton, C. J. ,• Cutting, Dickers on, Barrows, and Dan-forth, JJ., concurred.