Baldwin v. Hatch

WaltoN, J.

The officer, (Stevens,) seems to have acted upon the supposition that he would not be authorized to deduct from the funds in his hands the expense of keeping and selling the goods attached unless the amount was first taxed and allowed in the plaintiffs’ bill of cost. In this he was mistaken.

In Twombly v. Hunewell, 2 Maine, 221, only $30 were taxed and allowed for the officer in the plaintiff’s bill of cost. The officer deducted from the funds in his hands $175, in addition to the $30 thus allowed, and the Court held that he was justified in so doing.

In Tyler v. Ulmer, 12 Mass., 168, Chief Justice Parkeii, in declaring the judgment of the Court, says, " the expense of keeping is always eventually a charge upon the debtor; for the officer, if he pays that expense, will deduct it from the proceeds, before he pays them over to the creditor; and So much less of the debt will therefore be paid.”

And in Sewall v. Matton, 9 Mass., 535, the Court went so far as to say that, "when an officer attaches the debtor’s cattle, the debtor is bound to support them, after notice to him by the officer that they are attached; and if he neglects to dó it, and they perish from that cause, the loss will be his.”

And the Revised Statutes, c. 81, § 46, provide that when successive attachments have been made, and the property has been sold, the proceeds of the sale, after deducting necessary expenses, shall be held subject to the successive attachments as if the sale had been on execution.

The attaching officer was not a party to the suit in which the property was first attached, and was not bound by the taxation of his fees therein; and if enough was not therein allowed, he had a right to deduct from the funds in his hands a further sum sufficient to afford him a reasonable compensation; but this should have been done before he proceeded to satisfy the executions in his hands ; he had no right to take money which had been appropriated to satisfy the plaintiff’s execution for such a purpose, and thus throw the burden of taking care of the property upon the creditor instead of the debtor. Exceptions sustained.

New trial granted.

Appletox, C. J., Cutting, Kent, DaNpoetii and Tap-let, JJ., concurred. Baeeows, J., did not concur.