Whitney v. Farrar , 51 Me. 418 ( 1864 )

The opinion of the Court was drawn up by

Davis, J.

The plaintiffs were mortgagees of a vessel on the stocks, during its construction. After the mortgage had been given, they sold to the builder, Seth G. Low, certain anchors, cables, and chains. The vessel was destroyed by fire while still unfinished; and the anchors, cables, and chains being saved, the plaintiffs caused them to be attached in a suit against Low. Whether they had been so attached to the vessel that the plaintiffs could have held them under their mortgage is not quite clear from the evidence. But that question is entirely immaterial; for a mortgagee may waive his lien under his mortgage, and attach the mortgaged property in a suit at law. Libbey v. Cushman, 29 Maine, 429.

The attachment was made by a deputy of the defendant. He at first caused his attachment to be recorded in the town clerk’s office, as the statute provides for certain kinds of property; but he afterwards gave it up, taking an accountable receipt therefor. The plaintiffs recovered judgment in that suit; and the property was seasonably demanded of the attaching officer, upon the execution. For his default in not delivering it, this action is brought against the sheriff.

Upon the trial these facts were all admitted, or clearly proved; but the verdict was for the defendant.

Some instructions were given upon the degree of care which the attaching officer should have exercised in keeping the property. As he voluntarily gave it up, and secured himself by taking a receipt, the instructions might have led the jury to believe that the question of care was before them, when it was not. But, as there is no pretence that any defence was shown to the suit, the verdict was clearly against the evidence ; and it must be set aside for that reason. Motion sustained. — New trial granted.

Appleton, C. J., Cutting, Kent and Walton, JJ., con- " curred.