Moulton v. Chadborne , 31 Me. 152 ( 1850 )

Shepley, C. J. orally.

1. The first instruction, though the court would not be understood to sanction it as law, was as favorable to the plaintiff as could be justified. An officer may attach a vessel for $50, without waiting to see if a horse was free from incumbrances and might be held.

2. The officer is not bound to take any receipt for property. If he should do it, without consent of the creditor, he would be liable to him, at all events, for the property.

Should he do it, the contract would be a legal one, and it is frequently best for all concerned, that it should be done. But there is no obligation on the officer to do it.

3. The offer, by Goodwin, to deposite $100 was of no legal effect. It was not attachable on writ, and it was not the property of Moulton.

4. Equally unimportant was the request, that the officer should take other property as a substitute for the vessel. He was not compellable to do it.

It was the officer’s duty immediately to attach personal property, if so directed. He could not excuse himself by attaching real estate only.

D. Goodenow and Leland, for defendant. Appleton and Eastman, for plaintiff.

If, by delay in examining title, he should fail to secure the debt, he would be responsible for it to the creditor.

5. The instruction was therefore right, that the conduct and motives of the officer, at the day and hour of making the attachment, was to be looked at, in determining whether he acted unlawfully.

6. The offer to have the vessel appraised was incomplete. But if complete, the statute provision does not apply to a vessel situated as this was. Exceptions overruled.