Allen v. Doyle , 33 Me. 420 ( 1851 )

Shepley, C. J., orally.—

The deposition of Edmund Watson was excluded, because it did not appear that Mr. Tabor, who was notified and was present as the attorney of the plaintiff at the taking of the deposition, had before that time acted as his attorney, or had indorsed the writ or had otherwise held himself out as such attorney. His authority to appear could be shown only by his having indorsed the writ, or indorsed his name on the summons left with the defendant, or appeared for his principal in the cause, or given notice in writing, that he is attorney., R. S. chap. 133, sect. 7. The statute is peremptory on this point, and the deposition was properly excluded.

The defendant offered to prove, that the property attached was of less value than stated in the officer’s return in the writ.

Whether, in an action on the receipt, it would be competent for the parties to show, that the property was of less value than stated in the receipt, is not now the question.

The officer’s return on the writ states the value of the property attached. The creditor had a right to rely upon that return, and to abstain from efforts to get further security. The officer is not now at liberty to deny or qualify the facts stated in that return.

The approval of the receipt by the plaintiff only shows, that he took the risk of their inability. It did not exonerate the officer from making effort to find the property which had been attached, or from the duty of bringing a suit upon the receipt. It does not appear, that the goods could not be found, or that, if the action had been brought upon the receipt, the amount of it could not have been collected.

The default is confirmed.