Plaisted v. Hoar , 45 Me. 380 ( 1858 )

The opinion of the Court was drawn up by

Tenney, C. J.

The plaintiff, having in his hands, as a deputy sheriff, an execution in favor of Joel Wright against John Hoar, dated April 9, 1851, seized thereon certain personal property, and, instead of advertising and selling the same according to law, delivered it to the defendant, taking therefor his receipt, dated May 31,1851, which is the contract declared on in this suit. In the receipt, the defendant promised that he would safely keep the property three months, and, at the expiration of that time, deliver the same to the plaintiff or to his successor in office, on demand, free from expense to the plaintiff or the creditor; and it was agreed therein by the defendant that a demand on him should be binding; and, if no demand should be made within three months from the date of the receipt, he would re-deliver the property, that the same might be taken on execution; or that he would pay the execution and all costs.

The plaintiff offered to prove, but was not allowed to do so, that the receipt was given at the request of the debtor in the execution, and that the plaintiff, the debtor and the defendant were present together when the receipt was made, and the said request was well known to the defendant; and that, soon afterwards, on June 1, 1851, the creditor assented to and ratified the doings of the plaintiff, who duly demanded the property on Sept. 3,1851, of the defendant, who declined to deliver it.

It is well settled, that when an officer has attached personal property on mesne process, unless the execution obtained upon the judgment, in the same action, is put into his hands within thirty days-after the rendition of the judgment, or unless a demand is made upon him to deliver the property attached, by another officer, having the execution, within that time, he is discharged of his liability created by the attachment. This is upon the ground that the attachment is vacated within that time, without the officer’s fault.

If the officer takes an accountable receipt for personal property so attached, the receipter will be released, by the discharge of the officer; for the officer can have no interest whatever in the goods, excepting by virtue of the attachment. But, if the officer’s liability is fixed, by placing the execution in- his hands within thirty days after the judgment, or by a demand upon him, before the expiration of the attachment, and. he has duly demanded the property of the receipter, within the same time, so that the latter is liable to the officer, the creditor may, by an arrangement between himself and the officer,- enforce- the contract .in the receipt in the name of the officer.

By R. S. of 1841, c. Ill, § 4, goods and chattels taken on execution shall be kept by the officer, for the space of four days, at least, next after the day on which they were taken, exclusive of Sunday, and they shall be sold within fourteen days next after the day of seizure, except as is provided in the same chapter; and the . exceptions are not applicable in the present case.

The title of the owner of personal property seized on execution is not divested till the same is sold. He holds it, as before the seizure, subject only to the claim of the officer, by virtue of the seizure. The officer’s claim is extinguished at the expiration of the fourteen days, unless the case falls within the exceptions referred to. A voluntary surrender of the property by the officer, so that his interest therein under the seizure is lost, operates as a restoration of all right in the same to the owner, or to whomsoever he may have transferred the title. And, if the officer takes an accountable receipt for the same, at the time of the surrender, containing a promise to keep the property beyond the term of fourteen days from the day the seizure was made, without the authority of the creditor, and in consideration of the surrender, the act of the officer is unlawful, and the contract of the receipter cannot be enforced. If the officer gives up the property absolutely, in the manner supposed, by the consent of the creditor, the latter thereby consents that the claim of the officer shall be relinquished, and the officer’s liability is annulled. The receipter’s obligation, being only an indemnity to the officer, is discharged when the officer is released.

This suit having been brought and prosecuted by Wright, the creditor in the execution, by his attorney, can give the nominal plaintiff, if he be such only, no greater rights than he could otherwise have. He is the party to the contract as well as to the action, and he can confer no greater rights to an assignee in equity than he possessed himself.

The case of Bird v. Smith, 34 Maine, 63, is not analogous to the one before us. The officer having the execution discharged it, on receiving the check of the debtor. In this case, it is agreed that the execution was not discharged.

Exceptions overruled.

Hathaway, Cutting, MaY, Goodenow, and Davis, J. J., concurred.