Wheeler v. Fish , 12 Me. 241 ( 1835 )

Weston C. J.

The question presented to our consideration is, whether the lien, created by the attachment on the original writ, was dissolved; the property not having been seised on execution, within thirty days after the rendition of judgment. And we are of opinion that it was. The lien depends for its existence altogether on the act respecting the attachment of property. Statute of 1821, ch. 60. That provides, that the goods attached shall be held thirty days after final judgment, to be taken on execution. It is implied, of course, that the lien would have no efficacy after that period. But that there might be no room for misapprehension, as to the intention of the law, it is further expressly provided, that if the creditor shall not take the goods in execution within thirty days, the attachment shall be void. This was not done. We cannot, therefore, adjudge the hay further holden by the attachment, without directly violating the law. The creditor having put the execution seasonably into the hands of the officer, and he having failed in his duty, has an adequate remedy against him and him only; the hay having in the mean time been sold to the plaintiffs.

The case of Webster v. Coffin, cited for the defendant, differs essentially from this. Coffin had promised as receipter, to deliver the ship attached to the plaintiff on demand, without limitation as to time. As this, however, is taken for the officer’s indemnity, he is not permitted to charge the receipter, unless he is liable to the creditor. The officer’s liability being fixed in that case, the court held it not necessary to charge Coffin upon his contract, that a demand should be made upon him, within thirty days after judgment.

Judgment on the verdict.