Morton v. White , 16 Me. 53 ( 1839 )

The opinion of the Court, after advisement, was drawn up by

Shepley J.

On the trial of this action, which was brought against the legal representatives of the former sheriff, for default of his deputy, Thing, the jury were instructed, that a demand must be proved to have been made of the deputy within thirty days after judgment, “ unless the said Thing by his acts or admissions had waived such demand.” It is said, that the waiver was not made by him while in office, and that if it had been, the sheriff was not bound by it. It does appear, that he had ceased to act as a deputy. When a deputy attaches goods, the law supposes him to have the custody of them in that character, until the suit is determined, whether he continues in office or not; and he is officially bound to deliver them to any officer, who may have the execution. But he may decline doing so, until such officer makes known his right to demand them. This demand being for his own personal security and convenience may be waived, and he remain liable in the same manner as if the demand had been made; and his principal will be answerable for his neglect to deliver the goods, it being the neglect of an official duty.

The defendants introduced the debtor to prove, that he was not the owner of the property attached. And it is insisted, that his testimony ought to have been submitted to the jury; and it is supposed to be like that received in the case of Blood v. Harrington. In that case the writing was but a bill of parcels. In this case it was a bill of sale, as the witness said, to secure to the purchaser certain liabilities, and the terms upon which the property was conveyed were particularly stated in the bill of sale. The terms of such a contract were of importance, and the contract itself was the best evidence of them. It is said, that the bill of sale was in the hands of the purchaser, and that the defendants had not the control of it. They were obliged to prove their defence by the best evidence, and there is no apparent reason, why the purchaser might not have been required to attend and produce it.

Exceptions overruled.