Harriman v. Wilkins

20 Me. 93

• Court: Supreme Judicial Court of Maine
• Decided: June 15, 1841
• Status: Published

Opinion

The opinion of the Court was by

Shepley J.

In making service of the writ of replevin and in taking the bond, the deputy was acting in his official capacity. The plaintiff in replevin could not be a trespasser in taking the goods, if he offered sureties satisfactory to the officer. And if the officer took a bond to the defendant in replevin with insufficient sureties, he was guilty of official misconduct, for which the defendant must be responsible. In the case of Purple v. Purple, 5 Pick. 226, the officer was regarded as a trespasser because he took the bond to himself instead of to the defendant in replevin. The case of Morris v. Van Voast, 19 Wend. 283, was decided upon the peculiar provisions of the statute of that State differing from ours.

. The officer is required io take a bond “ with sufficient surety or sureties.” And reliance is of necessity placed upon the surety, for all persons are entitled to the writ whether of ability to respond in damages or not. In such cases the officer is put upon a guarded watchfulness to take good security for one, from whom he takes valuable property and delivers it over to another. And he could not be justified for taking an insufficient surely by shewing, that the plaintiff was a person of abundant property. There would not be a compliance with the letter or spirit of the law.

The defendant’s counsel contended, that the action barred by the Statute, c.‘ 62, § 16, which provides “ that all actions against sheriffs for the misconduct or negligence of their deputies shall be commenced and sued within four years next after the cause of action.” An action upon the case to recover damages for such misconduct or neglect cannot be maintained without proof of actual injury. Whether the plaintiff in this case would be injured by the misconduct of the officer could not be known, until he had recovered judgment for a return of the property, and the defendant in replevin had fathed’ to restore it. The general rule in actions of tort is that the statute commences to run from the time when the consequences of the act arise or happen, and not from the time when the act was done. Roberts v. Read, 16 East, 2115; Gillon v. Boddington, 1 C. & P. 541. The cases relating to the negligence of attorneys, cited for the defendant, were actions of assumpsit, in which a different rule prevails.

If the verdict, of a former jury had been fraudulently or designedly .delivered to the jury to influence them, and it had - been proved by competent testimony, it might have afforded sufficient reason for setting aside the verdict. There is nothing in the motion for a new trial in this case to authorize it.

Judgment on the verdict.