Colson v. Wilson , 58 Me. 416 ( 1870 )

Dickerson, J.

The plaintiff claims title to the oxen, which are the subject of the trespass, under a mortgage from one Abner D. Colson; and the defendant justifies the taking by his deputy, Phipps, as attaching officer of a creditor of the mortgager.

The counsel for the plaintiff contends, that the case shows that the taking was several days prior to the attachment, and that, therefore, the defense set up by the defendant is not open to him. The writ upon which the oxen ivere attached was dated November first, 1867, and appears to have been served November 12th. The writ in the case at bar bears date Nov. 2, 1867.

This apparent anachronism, however, is readily explained by reference to the officer’s return upon the writ in the original suit, which, though dated November 12th, after reciting that the officer had attached the oxen as the property of Abner D. Colson, said to be subject to a mortgage to Benjamin J. Colson, contains the following clause, “ whereupon I notified said Benjamin J. Colson of said attachment, and demanded an account in writing of the amount due upon the debt secured by the mortgage, and such account not being given within ten days of said attachment, I retain said oxen under attachment.”

The writ in the case at bar is dated November 2d, and the plaintiff testifies that he sued it out immediately after he had notice of the attachment. It is fairly inferable from these facts that the attachment was made and notice was given to the mortgagee November 2d, and that the officer, after waiting ten days, the time allowed by the statute for the mortgagee to render a statement of his claim, made his return, dating it ten days after the attachment, instead of the day of the attachment. The objection based upon the discrepancy of dates is thus obviated.

It is further argued, on the part of the plaintiff, that the oxen were exempt from attachment at the time of the taking. It appears from the evidence, that the debtor in the former suit, who is the plaintiff’s mortgager, owned a mare and a colt at the time the oxen were attached. By the R. S. of 1857, as amended by c. 102, § 1, of the laws of 1867, a debtor is allowed to hold, exempt from attachment and execution, “ one pair of working cattle, or instead thereof, one pair of mules, or one or two horses, not exceeding in value three hundred dollars.” The debtor cannot hold the cattle and the horse or horses, but he may hold either of them exempt from attachment if he own both. The one may be more valuable or desirable to the debtor than the other, and it would be contrary to the policy of the law to allow the creditor to deprive him of the right of choice. The exemption is for the benefit of the debtor, and the right of election is in him. But if he would avail himself of this right, he must signify his wishes to the officer, when the attachment is made, if he has the opportunity to do so; otherwise he will be deemed to have waived his right thereafterwards to hold the property as exempt from attachment and execution. No such election was made by the debtor at the time of the taking, and it is now too late to make it. The law has made it for him. Smith v. Chadwick, 51 Maine, 515; Clapp v. Thomas, 5 Allen, 158; Nash v. Farrington, 4 Allen, 157.

The oxen, not being exempt from attachment, were subject to the provisions of c. 81, § 64, of the K,. S. of 1857, in the same manner as any other mortgaged personal property. The plaintiff “ omitted, for the space of ten days after notice of the attachment given to him by the officer, to deliver to him a statement of the amount due on the mortgage,” as required by § 2, c. 114, of the laws of 1859, and must “ be deemed to have waived his right to hold the property by virtue of his mortgage.”

Plaintiff nonsuit.

Appleton, C. J.; Cutting, Walton, Daneorth, and Tap-let, JJ., concurred.