Gilmore v. McNeil , 45 Me. 599 ( 1858 )

The opinion of the Court was drawn up by

Cutting, J.

This action is founded on the defendants’ accountable receipt to the plaintiff, sheriff of the county, for property by him previously attached on a writ in favor of one Wallis, and against McNeil. The receipt is not made a part of the case, and we have no knowledge of its tenor, except that it “ specified that a demand on one should be a demand on both,” but we may assume that it is in the usual form of receipts to officers for the safe keeping and delivery of attached property on demand.

It appears that the plaintiff testified that he made a demand on McNeil within the thirty days after judgment, and that he had the receipt and execution with him at the time. This evidence, if believed, was sufficient to have authorized the jury to return a verdict for the plaintiff. The law is well settled, in Freeman v. Boynton, 7 Mass. 483, “that, whenever a demand of payment is made, the person making the demand should have with him the evidence of the debt; for, otherwise, the debtor may well refuse to pay, on the ground that he has a right to have his obligation or contract, or to see it can-celled when he is called upon to discharge it.” See, also, Shaw v. Reed, 12 Pick. 132. But the verdict, it seems, was rendered for the defendant, and we must conclude that the jury either disregarded the plaintiff’s testimony, or were improperly instructed by the presiding Judge in a matter of law. The plaintiff contends, as a person placed in his situation very naturally would, that the error was in the Judge, who, in answer to a question by the foreman as to what constituted a demand, replied “ that the officer must have the execution and the receipt in hand, in order that, if the property be surrendered on demand, he may surrender the receipt,” &c. Hence, the question arises as to what the jury understood by the words in hand. It is urged in argument, by the defendant’s counsel, that their fair import is the same as in his possession, or on hand, and that such construction is inferable from what follows, viz.: — “in order that the property may be surrendered,” &c. To one conversant with legal terms and phrases, such might be deemed the fair interpretation ; but, would it be so to the common and ordinary mind untrammeled by the nice distinctions and technicalities of the law ? The plaintiff had previously sworn that, when he made the demand, he had both execution and receipt with him; and it seems that the foreman wished to satisfy himself whether “ with him” was sufficient. lie undoubtedly argued to himself in this wise — if the execution and receipt were with him, still they might have been concealed from the observation of the person on whom demand was made, and I wish to know whether it be necessary that they should be exhibited, taken from his pocket and presented for inspection. Hence, ho ventures the inquiry and asks the Court for instruction on this point, and when he receives it “ in hand,” he thereupon, probably, said to his fellows, “this is as I supposed, they must be in hand so as to be exposed to view; the defendant ought to have seen them, of which, there is no evidence, and consequently there has been no legal demand,” and thereupon he conscientiously signs and returns his verdict, which, according to the construction of the defendant’s counsel, convicts the plaintiff of perjury, but of no such thing, according to the jury’s construction of the language of the Court. A verdict cannot stand based upon an instruction so well calculated to mislead a jury. The learned Judge had, no doubt, the true legal idea in his mind, but was unfortunate in his communication. •

Again, the Judge instructed that not only the receipt, but also the execution must be in hand. If the receipt was in the usual form, the presence of the execution would be unnecessary; a demand might have been made even before judgment. And, in this particular, there was error.

Exceptions sustained, and verdict set aside.

Tenney, C. J., Rice, Hathaway, Appleton, and Goodenow, J. J., concurred.