Stanley v. Drinkwater , 43 Me. 468 ( 1857 )

May, J.

This is an action upon a receipt, dated March 10th, 1855, given by the defendants to the plaintiff, as a deputy sheriff, wherein they promise and agree to re-deliver to the plaintiff one eighth part of the schooner called the Flying Arrow, with all her tackle and appurtenances, the same having been taken as the property of one Alvan Elwell, upon an execution against him in favor of one James Lancaster, subject, however, to a previous attachment upon a writ in favor of Gilmore Sylvester against said Elwell. By the terms of the receipt the property was to be re-delivered to the plaintiff, or his successor in office, on demand; and in case no demand should be made, then to be re-delivered within thirty days from the rendition of judgment in the action aforesaid.

The writ in said action was returnable to this court, at the May term, 1855, but was not entered; and the plaintiff thereupon, on the eighth day of said May, made a demand of said property upon his said receipt, and the defendant neglected to re-deliver the same. It further appears that the plaintiff in that suit, had on the eighth day of the preceding March, become the purchaser of said eighth part of said schooner, her tackle and appurtenaces, and that said Elwell on that day had conveyed the same to him by a bill of sale in duo form, and recorded at the custom-house in accordance with the statute requirements of the United States. This sale appears to have been made upon good consideration; and there is no testimony in the case tending to impeach it on the ground of fraud. By it the purchaser took all Elwell’s interest in the schooner, subject only to such attachments as then existed upon it. Weston v. Dorr, 25 Maine, 176.

The attaclnnent on Lancaster’s execution appears to have been made on the twelfth of February preceding, and the officer’s return thereon, states that “ said attachment by reason of said prior attachment is suspended.” The plaintiff testifies that subsequently he learned that the defendant, Drinkwater, had bought a part of the schooner, and was going to sea in her, and that he then took the receipt on which this action is founded. At this time he appears to have been ignorant of the sale from Elwell to Sylvester; and neither he or Lancaster had any knowledge of any settlement of Sylvester’s suit, or of the dissolution of his attachment, if it had then been dissolved.

The plaintiff does not appear to have taken at the time of his attachment of the schooner upon Lancaster’s execution, any steps to secure the benefit of such attachment, other than to notify the receiptor for the property upon Sylvester’s writ of the fact of such subsequent attachment, and of the suspension of further service by reason of the prior one. He did not seize and retain possession of the schooner when the first attachment -was made. He therefore must have relied upon his receipt, and not upon a continued attachment. Under such circumstances it was competent for Elwell to sell the schooner, and the purchaser would acquire a good title. Weston v. Dorr, 25 Maine R., 176, before cited. The taking of the first receipt operated as a dissolution of the first attachment, and subjected the property to a second attachment free from the first. Waterhouse v. Bird, 37 Maine R., 236.

At the time, therefore, when the attachment upon the execution was made, there was no such cause existing as to justify the suspension of further service, under the statute, as is now contended for. The sale by the officer should have been made in the same manner as if no prior attachment had been made.

It follows also that when the plaintiff took the receipt in suit, Elwell, the debtor in the execution, had no attachable interest in the schooner. He had parted with all his interest before. That such fact is a good defence to an action upon the receipt, is too well settled to require the citation of authorities to sustain it. If, however, we could regard the first attachment as subsisting when the second was made, and the suspension of further service as justified by the Revised Statutes of 1841, chap. 117, secs. 33 and 34, still it is difficult to perceive any ground upon which the plaintiff can prevail. By the provisions of this statute the last attachment upon the execution was continued only thirty days after the first attachment should be dissolved. Assuming that the officer’s return shows a suspension of the further service of said execution by reason of the prior attachment, and not an entire suspension of the attachment itself, as the language of the return seems to indicate, of which we give no opinion, it then becomes necessary to determine when the attachment upon Sylvester’s writ was dissolved, so that the plaintiff in this suit would no longer be responsible to the creditor for the property returned upon that writ. Does not the evidence in the case show such a dissolution more than thirty days before the demand relied upon in this suit? We think it does. We cannot doubt that Sylvester’s attachment was in fact dissolved on the eighth day of March, 1855, when he tuok his bill of sale. By that act the officer would be relieved from all further obligation to detain the property. The fact of the purchase, as well as the language of the covenants contained in the bill of sale, which must have been known to the creditor, is altogether inconsistent with any other idea than that the parties to that bill of sale must have intended that the attachment should then be dissolved. Such mutual intention then took effect. The fact that the action was not entered renders it probable that the bill of sale was made for the purpose of paying Sylvester his debt, then in suit. Such dissolution of his attachment, and the consequent discharge of the officer from all liability to keep and detain the property, deprived the officer of all right to reclaim the property from the debtor by virtue of that attachment, or upon his first receipt, and left the property open to a levy upon Lancaster’s execution; but the property not having been seized or demanded within thirty days from such dissolution, all benefit of his attachment was thereby lost. Pearsons v. Tinker, 36 Maine, 384.

It is contended that the prior attachment ought not to be regarded as dissolved until the final adjournment of the court to which the writ was returnable. It is said that the action might by law be entered at any time during the term, and thaft until the term had expired neither the officer nor the execution creditor, could, jiave had, and that they in fact did not have, any certain knowledge of the dissolution of the attachment. The statute clearly contains no such provision; and if such provision is desirable, it belongs to the legislature, and not to the court, to make it. By the statute as it now stands it is the fact of the dissolution of the attachment, and not the time when it becomes known by which we are to determine when the thirty days during which it continued, actually commenced. In view of all the facts, the attachment having been lost when the demand was made, the plaintiff must become nonsuit.

Plaintiffs nonsuit.

Tenney, C. J., Hathaway, Appleton, and G-oodenow, J. J., concurred.