Shaw v. Laughton , 20 Me. 266 ( 1841 )

The opinion of the Court was by

Weston C. J.

By the agreement of the parties, the plaintiff is to become nonsuit, if the contract, upon which he relies, is- illegal, or if by law, either a prior demand or notice of the rendition of judgment, in favor of the attaching creditor, was essential to the maintenance of the action. If the Court should determine otherwise upon these points, the defendants are to be defaulted. It must be understood, that no other grounds of defence exist, except as to a part of the damages, which will be subsequently noticed.

We perceive no objection to the legality of the contract. The plaintiff had assumed official responsibility in consequence of the attachment, from which he had a right to be protected, upon delivering the property to the defendant. Authorities have been cited to show, that an action against a receipterof property attached cannot prevail, if the liability of the officer has ceased, by the negligence of the creditor or otherwise. It is a sufficient answer to say, that no such point is presented to our consideration in the agreement of the parties. Nor does it there appear, that when the goods' should have been delivered, the plaintiff was no longer an officer, as has been assumed for the defendants in argument.

By the contract the goods were to be delivered on' demand; but if no demand was made, the defendants were to re-deliver the property “ at the above named place,” (Qrono,) and to notify “ said officer,” (the plaintiff) of such delivery, within thirty days, from the rendition of judgment. This part of the contract is not to be disregarded. It is perfectly intelligible ; and as it clearly imposes an obligation upon them without demand, and has not been complied with, no previous demand is necessary to render them legally liable. And in our opinion, as one of the defendants was a party to that judgment, they were bound to take notice of its rendition. Hobart v. Hilliard, 11 Pick. 143.

With regard to the horse, it having died before the expiration of the time, limited for its delivery, and no fault appearing in the defendants, they should not be held to answer for its value. The officer would be excused in such a case, and so ought the receiptors to be, who are keepers for him. Carpenter v. Stevens & al. 12 Wend. 589; Melvin v. Winslow & als. 1 Faif. 397. These cases were on replevin bonds, but they are analogous in principle.

Defendants defaulted..