Higgins v. Kendrick , 14 Me. 83 ( 1836 )

After a continuance, tile opinion of the Court was drawn up by

Wkston C. J.

The defendant, as Constable of Bangor, having on the plaintiff’s writ attached a yoke of oxen, was bound to keep them until taken in execution, or until the attachment was dissolved. For the service of the writ, he was entitled to his legal fees, and for keeping the oxen, a reasonable compensation. That fully satisfied all his claims. We are not now considering rights and liabilities, arising from subsequent attachments. It does not appear that there were any other. The defendant had a right to keep the property, until he could discharge himself of his responsibility to the creditor or debtor, depending on the termination of the suit. When he had it in his power to do that, a further detention on his part, could not be justified.

When called upon by Carr, the deputy, who had the execution, to deliver up the oxen to him, to be taken thereon, within thirty days after the rendition of judgment, if he had done so, he would have discharged his official duty, and relieved himself from liability. We cannot find, that the creditor was under any legal obligation to employ him to serve the execution. If not called upon for the property, within thirty days after judgment, unless he had put it out of his power to produce it, he might have a claim to be discharged. In this case, he had parted with the oxen, and did not succeed in reclaiming them, although he demanded them of his receipter, some months before judgment, as appears by an indorsement on the receipt. If then, tire execution had been put into his hands, he could not have taken to satisfy it, the property attached.

The same objection was taken in Phillips et al. v. Bridge, 11 Mass. R. 242. The attachment, under consideration there, was made by Webster, a deputy of the defendant, and although Webster was still in office, the execution was delivered to Wyman, another deputy, with notice of the attachment. There as well as here, the property had been delivered to a receipter, and had disappeared. But the Court held, that the delivery of the execution seasonably to Wyman, Webster having notice that it had issued, and being called upon for the property, was sufficient to charge both Webster, and the defendant, his principal. The Court say in that case, that an actual delivery of the execution to Webster, was not necessary to continue his liability; for there was nothing, upon which it could be levied. And further, that “ die execution was seasonably delivered to Wyman, another deputy, and had the ship been at Bath, where she had been attached, or any where within die body of die county, and within the control of the Sheriff, she might have been seised on execution.”

The contract made with the receipter, is an affair between him and the officer. The creditor has no interest in it; but the officer acts at his peril. The creditor was present, when the receipt was taken, and made no objection. He Could make none. Before die judgment, the creditor would have taken his pay of die receipter; had he done so, the officer would have been discharged; but the receipter was unwilling to pay. He wanted die debtor to procure another receipter, that he might be relieved. And the debtor went to the plaintiff, and proposed to give other receipters, but the plaintiff was unwilling to consent to it. He shoüld have gone to die officer. It was for him, and him alone, to accede to his proposition. The creditor had no control over the receipt. If it had appeared affirmatively, that he had accepted it, as a substitute for die liability of the officer, he ought to be bound by such an election. But it does not appear. There is no evidence of any negotiation or understanding between him and die officer. The latter, bestirred himself to endeavor to obtain the property, after the failure of the receipter; but it was too late.

With regard to the claim of die officer, to be allowed what it would have cost to keep the oxen, an expense which he did not incur, the decision of the Court was directly against such an allowance, in the case of Tyler v. Ulmer, 12 Mass. R. 163. It is an authority in point; and we perceive no reason why we should depart from it.

Judgment on the verdict.