Moulton v. Chapin , 28 Me. 505 ( 1848 )

The opinion of the Court, Whitman C. J., Tenney and Wells Justices, was prepared by

Wells J.

— A deputy sheriff having made an attachment of property, is answerable for it, either to the creditor or debt- or. If it has gone back into the hands of the debtor, the officer is released from any claim, to be made by him.

It appears by the evidence, in the present case, that the property attached was never removed from the possession of the debtors. They cannot therefore, have any claim for it, upon the plaintiff.

And if the attaching creditor has released the officer from his liability to him, then, as neither creditor nor debtor has any claim upon the officer the latter can maintain no action against the receipter. Norris v. Bridgham, 14 Maine R. 420.

After the action of Pearsons, the creditor, was entered in Court, an additional plaintiff was inserted in the writ, by leave of Court.

Any action, brought against the plaintiff, for a violation of his duty, in relation to the property attached, after judgment upon the demand claimed, in the amended process, must necessarily be in the name of the creditors, mentioned in the judgment. But the plaintiff might very properly answer to such action, that he never made service of any writ for them. He could not be answerable to a person, towards whom he had never sustained the relation of an officer, nor for whom, he had performed any official duty. No obligation could rest on the plaintiff, in relation to a person with whom he had had no official intercourse.

The amendment, having united the creditor, originally named in the writ, with the new party, creates a union, fatal to any .claim upon the plaintiff, for the property attached. He cannot make the officer liable to another, with whom he has associated himself, and for whom the officer never acted.

The Rev. Stat. c. 115, <§> LI and 12, authorize amendments in relation to defendants, and the officer who served the writ would continue liable to the' defendant, whose property he had attached, in the same manner, as if no amendment had been made.

It results that the plaintiff not being liable to the creditors or debtors, the liability of the defendant to him has terminated.

In the case before cited, the plaintiff recovered nominal 'damages, because there was good cause0 of action, when the .suit was commenced. The receipter was sued, before judgment was rendered, in the action, in which the property had been attached, a previous demand for it, having been made •on him. . But by a subsequent neglect, to demand the property •attached, of the officer making the attachment, it was released, and his claim to full damages was defeated.

When the present action was brought, the plaintiff was entirely exonerated from any claim of the creditors or debtors, ■and no ulterior proceedings could revive or continue it. He, itherefore, had no cause of action, when it was commenced.

Plaintiff nonsuit.