Snow v. Cunningham , 36 Me. 161 ( 1853 )

Howard, J. —

The plaintiff’s attachment was numbered fifteen, and was subject to fourteen prior attachments of a vessel upon the stocks, and to four previous attachments upon “ a lot of rigging on board said vessel, and the spars belonging to the same.”

The vessel and spars were appraised under the provisions of the R. S. c. 114, § § 53, 56, and delivered to the debtor, on his giving to the attaching officer a bond, conformable to section 57, of the same chapter. The bond and his certificate were returned by the officer, with the writ on which the vessel was first attached. Section 58.

It does not appear that the spars or rigging were fitted or attached to the vessel, though intended for her use. They were not, therefore, embraced in either of the first ten attachments, which were of the vessel, only, eo nomine. They might have been appraised and disposed of under process numbered eleven, on which they were first returned as attached, but could not, properly, have been appropriated in that manner, under the first attachment of the vessel. Delivering them to the debtor, under such appraisal and proceedings, furnishes no protection to the officer. He is accountable for the spars, precisely as if no appraisal had been attempted. For the rigging, which was not appraised, he is accountable in a like manner.

A creditor’s remedy under his attachment of the vessel, is by suit upon the bond taken by the officer from the debtor, and not by action against the officer. The proceedings under the statute referred to, when correct, are conclusive, and they constitute a justification to the officer, and exempt him from liability for the property attached, and disposed of under the appraisal.

The action is, therefore, maintained, for default of the officer in failing to appropriate the spars and rigging to the satisfaction of the plaintiff’s judgment, in the order of his attachment. But, by the agreement, he is to have judgment for such damages, only, as shall be assessed by the Court, on hearing. Defendant defaulted.

Hearing in damages.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.