Waterhouse v. Bird , 37 Me. 326 ( 1853 )

Tenney, J.

— The only question involved in this case, is whether the attachment of the sloop, made by the plaintiff, on the writ in favor of Elizabeth Clough against Lemuel Eoss, was dissolved at the time the same property was attached by the defendant ■ on a writ in favor of J. M. Deering.

One fourth part of the vessel, when attached, was owned by Lemuel Eoss, and three fourths by Ira Andrews and his brothers, and was then used in the performance of a job of work, in which the owners were jointly interested, and so continued till the. job was completed; Ira Andrews being master of the sloop.

On the day of the attachment by the plaintiff, and after it was made, he took the contract of Ira Andrews and three others, in which they agreed with him, for value received, that they would jointly and severally pay to him, constable of Portland, his heirs, executors and administrators, the sum of one hundred dollars on demand; or re-deliver the property, represented in the contract to have been attached by him in the aforenamed suit, on demand, in like good order and condition as when taken, free from expense to the plaintiff; and if no demand should be made for the property, they would re-deliver the same within thirty days after judgment in the action, in which it was attached. On giving the receipt, the vessel was given up to Ira Andrews by the plaintiff, who said, “ you have got your vessel back again,” and she continued to be used in the job, which the owners had undertaken, and afterwards completed.

This case is unlike that of Bond v. Paddleford, 13 Mass. 394, which is relied upon by the plaintiff, in which the person, whose property was attached, and for safe keeping; was put into the hands of a third person, a receipt therefor being taken, brought an action against the officer, who took possession of the property afterwards, while the suit was in progress, and undisposed of. The Court considered that the action against the officer was misconceived, and that the receiptor was the servant of the officer, who never parted with the property, and that the owner of the property returned as attached, could not complain of the officer.

We are unable to make a distinction favorable to the plaintiff between the case before us, so far as it respects the question presented, and the cases of Denney v. Willard, 11 Pick. 519; Robinson v. Mansfield, 13 Pick. 139, and Weston v. Dorr, 25 Maine, 176. In the case last referred to, it was held, that where an officer has attached goods on mesne process, and has delivered them up, on the written promise of two persons, to re-deliver them on demand, or pay their value, the receiptors have the election, whether they will pay the value or deliver the property, and the officer must be considered as having abandoned the possession, and permitted the goods to go to whomsoever they may belong.

Here the receiptors cannot be regarded as the servants of the plaintiff j for it is manifest, that he relied upon their contract for his security, and not upon the property itself; and they were,left at liberty by him to do whatever they pleased with it; to permit it to go into the hands of the owner, or retain it in their own hands, for their security, on account of their liability on their agreement with the officer. The property attached did in fact go back into the same condition, in which it was before the attachment, and was used in precisely the same manner, in the prosecution of the work, in which che owner had been and continued to be engaged and interested. The plaintiff abandoned the property so far, that the attachment was dissolved, and that made by the defendant was by legal authority.

Plaintiff nonsuit: — Judgment for a return.

Shepley, C. J., and Wells, Howard and Appleton, J. J., ■concurred.