Chase vs. Stevens, 11 Me. 128

Weston J. delivered the opinion of the Court at the ensuing April term in Yorlc. A verdict has been returned in favor of the plaintiff subject to the opinion of the Court, grounded upon an alleged failure of duty in the defendant, in his official capacity. He attached certain goods at the suit of the plaintiff, as the property of his debtor, March. These goods were replevied by John Hale, in due course of law, who claimed them as his property.

The officer, who was charged with the service of the writ of replevin,"was bound to execute it, provided the plaintiff in that writ gave bond, with sufficient surety or sureties, to the defendant, conditioned as the law directs. It was the business of the officer, having the replevin writ, to determine at his peril, whether the condition upon which he was to proceed, had been complied with. He was then to act; and his authority could not lawfully be resisted. It was not for the defendant to refuse to submit to the writ of re-plevin, on account of the alleged insufficiency of the bond.

That would have occasioned an unseemly contest between different of--ficers of the law, tending to bring its authority into contempt. The responsibility as to the sufficiency of the bond, did not rest upon the defendant, but upon the officer serving the replevin. He was held liable to respond in damages, if he presumed to receive a bond, which was not sufficient. In yielding to the replevin then, the defendant did not violate, but fulfilled his duty. The defendant must be held justified, for yielding to the requirements of law.

In receiving the bond, and defending against the suit in replevin, the defendant acted in trust for the plaintiff, the attaching creditor, to whose use, the damages recovered by the defendant, by law enured. Revised Laws, ch. 80, sec. 4. The suit brought by Hale, was defended with vigilance and with success. Hale discontinued that suit on the sixth of November, 1832, being the first day of the term.

The minute on the docket of that day is, “ costs and a return ordered, continued nisi, plaintiff to be heard in the taxation of costs.” A further entry on the docket is, “ judgment, December 17,1832.” Taking the entry together, we must understand that upon the discontinuance, the defendant moved for a return and costs, and the order of that day indicated, that such was to be the judgment, when rendered. The Court did not then render judgment, but continued the cause. The plaintiff was to be heard in the taxation of costs, and time was necessary for that purpose.

It does not appear, that the defendant did not move for final judgment as speedily, as the pressure of business before the Court, would admit. The obligation to return the goods replevied, or to pay the costs was not fixed upon the plaintiff in that suit, or his surety, until it was awarded by the judgment of Court. He was to pay such damages and costs, as the defendant might recover against him, and return the goods, if such should be the final judgment of the court. Until judgment therefore, the replevin bond could not be put in suit.

And the case finds that any attempt to proceed with it afterwards, would have been altogether fruitless. Indeed, according to the case of Ladd v. North, 2 Mass. 514, the bond could not have been sued until a later period. Parsons C. J. there says, “ if the retorno habendo was returned unsatisfied, he (the sheriff or his deputy) might obtain indemnity by action on the replevin bond; or, if the pledges were insufficient, by suit against the coroner.” And this he held to be the common law here, as well as in England.

Whether the defendant was bound, acting in trust, to sue the coroner for the insufficiency of the bond, we need not decide. He did so, and in so doing, proceeded with fidelity for the benefit of the plaintiff. If it was a part of his duty, he had a right to prove its performance; if not, as a measure prosecuted in behalf of the plaintiff, it was properly received in evidence ; as was the replev-in itself and its termination. It was involved in the issue, charging the defendant with a failure of duty, and was necessary for his justification.

Indeed, from beginning to end, the defendant appears to have maintained the character of a vigilant and faithful officer. If by great diligence, of which there is no sufficient evidence, the defendant might have obtained judgment against Male, prior to the fourteenth of November, when his surety parted with his last property, and if the bond might before that have been put in suit, which is not admitted, the plaintiff, and not the defendant, is chargeable with negligence. In pursuance of a previous agreement, the plaintiff took upon himself the whole charge and management of the replevin suit.

If final judgment was not obtained, as speedily as it might have been, the fault was his. In whatever point of view we regard it, there does not appear the least pretence for maintaining the action; and the verdict is accordingly set aside. Plaintiff nonsuit.