Lewiston Steam Mill Co. v. Foss , 81 Me. 593 ( 1889 )


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  • Walton, J.

    The question is whether the mistake of a town clerk in recording an attachment will invalidate it. We think it will not. The validity of the attachment does not depend upon the doings of the clerk, but upon the doings of the officer. If the officer has in all particulars performed his duty, nothing which the town clerk can do or omit to do will invalidate the attachment. This will be made plain by a reference to the statute. The statute declares that:—

    “When any personal property is attached, which by reason of its bulk or other special cause can not be immediately removed, the officer may, within five days thereafter, file in the office of the clerk of the town, in which the attachment is made, an attested *601copy of so much of his return on the writ, as relates to the attachment, with the value of the defendant’s property which he is thereby commanded to attach, the names of the parties, the date of the writ, and the court to which it is returnable; and such attachment is as effectual and valid, as if the property had remained in his possession and custody.” R. S., c. 81, § 26.

    Hero the statute comes to a full stop. And it will be noticed that the validity of the attachment is made to depend upon the doings of the officer, and not upon anything to be done by the clerk. If the officer has made an attachment, and made a proper return of it to the clerk’s office, the express words of the statute are that the attachment shall be “as effectual and valid as if the property had remained in his possession and custody.”

    Then follows another and an independent provision, and one which originally formed a separate section of the statute, directing the clerk to “receive the copy, noting thereon the time, enter it in a suitable book, and keep it on file for the inspection of those interested therein.” But there is nothing in the words of the statute, or its history, or in reason, why the attachment, which has been perfected by the officer, should be dissolved or invalidated by an imperfect performance of duty by the clerk. We think such will not bo the result. We do not doubt the liability of the clerk to any one who may have been injured by his negligence. But the facts reported fail to show any injury to the plaintiff.

    Judgment for defendant.

    Peters, C. J., Daneorth, Virgin, Emery and Haskell, JJ., concurred.

Document Info

Citation Numbers: 81 Me. 593

Judges: Daneorth, Emery, Haskell, Peters, Virgin, Walton

Filed Date: 6/5/1889

Precedential Status: Precedential

Modified Date: 9/24/2021