Torrey v. Otis , 1877 Me. LEXIS 106 ( 1877 )

Danforth, J.

March 27, 1871, the plaintiff attached a quantity of wood, valued at $150, on a writ in favor of William J". Fogg against Henry D. Byard et als. and on the same day delivered it to the defendant for safe keeping, taking from him the instrument upon which, this action is brought. That writ went to judgment and such proceedings had thereon as to hold the officer accountable for the property attached; audit is conceded that such accountability, and, in consequence thereof, the liability of the defendant, continued up to and for some months subsequent to .the date of the writ in this suit. December 23, 1875, the present action pending in court, the attaching creditor in the original suit gave to the present defendant a writing acknowledging the receipt of $55.86, net proceeds of the sale of wood attached “in full discharge of all costs and of the receipt given John F. Torrey, deputy sheriff, by said Otis on attachment of said wood.”

The only question raised is as to the admissibility of this paper as testimony and its effect in defense of the present action.

As the defendant was liable at the time this suit was commenced, it is not claimed that it is admissible otherwise than in mitigation of damages. But waiving any objection to its reception on the ground of insufficiency of pleading, we see no principle of law upon which it is competent for any purpose, even if it had been given before the commencement of this action.

It does not appear, as in Farnham v. Gilman, 24 Maine, 250, 254; and in Hapgood v. Fisher, 30 Maine, 502, that tbe receipt for the wood attached was taken at the request or with the approval of Fogg, the attaching creditor, or that he subsequently ratified the act. Nor does it appear that the property attached was returned to the owners. On the other hand, it. does appear by the officer’s return on the execution that it was delivered to Otis and his receipt taken therefor. It follows that neither the creditor nor debtors were in any sense a party to the receipt, or had any interest in or control over it. It was taken by the officer upon his own responsibility and for his own benefit. It could therefore be discharged only by him. Clark v. Clough, 3 Maine, 357. Whittier v. Smith et als. 11 Mass. 211. The liability of the officer growing out of the attachment remained in full force, and to that and that alone are the parties to the suit to look to enforce such rights as they may have. Ho was liable to the attaching creditor so long as the attachment continued in force, and to the debtor for the return of the property when the attachment should be dissolved.

It is true that, if the officer were discharged from both these liabilities, his right and interest in the property attached would cease, and, having no longer any interest, he could not recover upon the receipt. But, until he is thus discharged, the liability of the signer of the receipt can only be released by his consent.

In this case, there is no pretense that the original debtors have done anything to relieve the officer from any claim they may have, if any such there may be.

It is quite probable that the paper given by the creditor might release the officer from any suit in his favor, but how can it affect the debtor. True the creditor’s judgment is sufficiently large to cover all the property attached, and his demand having been seasonably made, he is entitled to have the property applied to it. So the debtors have the same right. They are interested that the judgment against them should be paid and have a legal claim upon the officer that the property attached should be so applied, unless it is restored to them, neither of which has been done. The receipt given purports to discharge that given for the attached property, but it does not discharge the debt or any part of it, or purport to do so.

It was given for an amount very much smaller than the estimated value of the property and for the net proceeds of its sale, while there is no evidence whatever tending to show that the wood was not worth its estimated value, or that it was sold by consent of the parties in interest, or in pursuance of any provisions of law.

The judgment stands against the debtors and they have received no benefit from their property, nor has it been disposed of with their consent or by authority of law. Their claim then, against the officer for its value, or to have it applied in payment of the judgment, remains unimpaired.

It is however said in the argument, that “no liability over to the debtors is alleged or disclosed; but the officer declares, as his ground of action, that he is answerable to tbe creditor.” What the allegations may be we are not informed, as no copy of the writ has been furnished. But the report informs us that the action is “assumpsit upon an officer’s receipt,” which would be sufficient to hold the defendant if the officer is liable either to the creditor or debtor, as we have seen he is.

But assuming that the writ places the officer’s liability upon the ground supposed, it would be literally correct as the facts were at its date and substantially correct as they now are. The judgment is not discharged, the property has not been applied ,in its payment and it is the duty of the officer to see that it is so applied. If the defendant has taken a receipt from one not authorized to give it and has neglected to see that the property was properly disposed of, the officer is not relieved from his duty of making such application, and if the writ is not now technically applicable to a change of facts illegally made, it is not for the wrongdoer to complain.

The report of the case makes no provision for the assessment of damages, but only for a default if the receipt is not admissible or does not constitute a defense. As it is not admissible a default must be entered, but as there is good reason, as shown by the report, to suppose that the officer may have been in part at least relieved from his liability resulting from the attachment, as would be the case if the property has in whole or in part been legally applied in payment of the judgment, and as the defendant’s liability is commensurate with that of the officer, there should be a hearing in damages.

Defendant defaulted to be heard in damages.

Appleton, C. J., Walton, Dickerson, Barrows and Peters, JJ., concurred.