Mitchell v. Gooch

60 Me. 110

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1871
• Status: Published

Opinion

Appleton, C. J.

This is an action on an officer’s receipt for property attached.

The attachment was made July 13, 1869, in a suit, Enoch Martin v. Charles J. Little. On Sept. 25, 1869, Little filed his petition to be adjudged a bankrupt, and on 27th of the same September he was so adjudged.

The attachment not having been made four months previous to the proceedings in bankruptcy is dissolved. As the attachment was dissolved by operation of law, the officer’s liability to the creditor, at whose suit the attachment was made, is at an end.-

The receipt bears the same date as the attachment. It was given to relieve the property from attachment. It is in the alternative, to pay a certain specified sum or deliver the goods attached. The attachment, upon giviug this alternative receipt, was dissolved. Waterman v. Treat, 49 Maine, 309. Being dissolved, the debtor held the property attached divested of all lien. He might sell it, or it might be attached as his property. The control of it at once passed to him, and it nowhere appears that he has parted with such control.

Upon the dissolution of the attachment, as it is admitted that the goods attached went into the possession of the debtor, the officer does not require their possession for the purpose of returning them to him, for he has them. Nor does he need them to return to his assignee in bankruptcy, for he must look to the bankrupt who has' the goods, and not to the officer who has them not.

In Perry v. Somerby, 57 Maine, 552, the attachment was made more than four months before the petition in bankruptcy of the defendant in the suit in which the attachment was. The officer, consequently, was liable to the attaching creditor, and the receiptor to the officer. The receipt given was not in the alternative as in the one under consideration, and the receiptor was there properly held liable as the bailee of the sheriff. The case, therefore, does not apply.

The liability of the receiptor is limited to and determined by that of the officer. As the officer is not liable to either plaintiff or defendant in the suit on which the attachment was made, neither is the receiptor, and a nonsuit must be entered. Plaisted v. Horr, 45 Maine, 380; Sawyer v. Mason, 19 Maine, 49; Butterfield v. Converse, 10 Cush. 317; Shumway v. Carpenter, 13 Allen, 68.

Plaintiff nonsuit.

Kent, Walton, Danforth, and Tapley, JJ., concurred.