Brown v. Howard

Citation86 Me. 342,29 A. 1094
PartiesBROWN v. HOWARD.
Decision Date31 March 1894
CourtSupreme Judicial Court of Maine (US)

Exceptions from supreme judicial court, Androscoggin county.

Action of trover by David Brown against Nelson Howard, deputy sheriff, to recover damages for the conversion of two heifers. Heard on agreed statement of facts. There was a judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

Trover against the defendant a deputy sheriff, submitted on an agreed statement of facts to the presiding justice, at nisi prius, when he gave judgment for the plaintiff, and the defendant excepted. It appears from the agreed statement of facts that the action was brought to recover the value of two heifers attached by the defendant upon a writ in favor of John Starbird, against the plaintiff, and returnable to the municipal court for the city of Lewiston at its September term, 1892. The writ was not dated, but the defendant's return of his attachment thereon is dated June 26, 1892, and contains a count in trespass q. c, and a count on account annexed.

It was agreed: That the cattle attached upon the writ were the property of the plaintiff, and were two and three years old, respectively, and that neither was giving milk at the time. That at the time said cattle were attached said plaintiff owned other cows, but that this attachment was made without the knowledge of the plaintiff in this suit, and without any opportunity being afforded him to make any election as to which he would have exempt. The cattle were in possession of the plaintiff in the writ upon which they were attached at the time of the attachment, and he claimed, and it was admitted for the purposes of this case only, that he could prove, if admissible, that at the time of the attachment there was no pound or pound keeper in the city of Auburn; that the cattle were trespassing on the land of Starbird, and were taken by him while committing said trespass, and shut up and detained by him until attached by the officer; and that they entered from the highway, and not through any neglect on the part of Starbird to maintain any partition fence. That the cattle so taken by Starbird were detained by him until the damages occasioned by their said trespass should be paid by Brown.

Wallace H. White and Seth M. Carter, for plaintiff. McGillicuddy & Morey, for defendant.

WISWELL, J. This is an action of trover to recover for the conversion of two heifers. It is admitted in the agreed statement of facts that the heifers were the property of the plaintiff, and that they were attached by the defendant, a deputy sheriff, upon a writ in favor of John Starbird, against the plaintiff in this action.

It is claimed by the defendant's counsel that the case does not show a conversion, and that for this reason the action cannot be maintained. To constitute a conversion there must have been either a wrongful taking, a wrongful detainer, an illegal using, a misusing, or an illegal assumption of ownership. Fifield v. Railroad Co., 62 Me. 77.

The case shows that the property was attached by the defendant Nothing else appearing, it must be inferred that there was a valid and sufficient attachment it must be presumed, in the absence of facts showing the contrary, that the officer did his duty.

To effect and preserve a valid attachment of personal property, such as this in controversy, the officer must, either by himself or his servant, take and retain possession and control of the property attached, or have the power of taking immediate possession. If the possession is abandoned, the attachment is dissolved. Nichols v. Patten, 18 Me. 238; Weston v. Dorr, 25 Me. 176; Wentworth v. Sawyer, 76 Me. 434. If such a taking and retaining possession as are necessary to effect and retain a valid attachment of personal property of this description are not...

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8 cases
  • Rush v. Buckley
    • United States
    • Supreme Judicial Court of Maine (US)
    • 19 de junho de 1905
    ...facts were apparent upon the face of the warrant, so that the officer who served the process was not protected by it. In Brown v. Howard, 86 Me. 342, 29 Atl. 1094, the writ under which the officer justified in an action of trover against him was void, and the defect was apparent upon the fa......
  • Telefsen v. Fee
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 23 de março de 1897
    ......Ingalls, 97. Mass. 524; Bergin v. Hayward, 102 Mass. 414;. Chesebro v. Barme, 163 Mass. 79, 82, 39 N.E. 1033;. Howard v. Proctor, 7 Gray, 128; Hubbard v. Garfield, 102 Mass. 72; Rawson v. Spencer, 113. Mass. 40; Hines v. Chambers, 29 Minn. 7. 11 N.W. 129; Hann v. ...395;. Pearce v. Atwood, 13 Mass. 324; Eames v. Johnson, 4 Allen, 382; Thurston v. Adams, 41. Me. 419; Harwood v. Siphers, 70 Me. 464; Brown. v. Howard, 86 Me. 342, 29 A. 1094; Rosen v. Fischel, 44 Conn. 371; Frazier v. Turner, 76. Wis. 562;, 45 N.W. 411; Sheldon v. Hill, 33 Mich. 171; ......
  • Saliem v. Glovsky
    • United States
    • Supreme Judicial Court of Maine (US)
    • 4 de abril de 1934
    ...the attachment is dissolved." Wheeler v. Nichols, 32 Me. 233, 240; Gower v. Stevens, 19 Me. 92, 36 Am. Dec. 737; Brown v. Howard, 86 Me. 342, 344, 29 A. 1094. The subsequent retention of the money taken was tortious and Thus the defendants, by their own and their agent's acts, exceeded the ......
  • Telefsen v. Fee
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 23 de março de 1897
    ...v. Atwood, 13 Mass. 324;Eames v. Johnson, 4 Allen, 382; Thurston v. Adams, 41 Me. 419; Harwood v. Siphers, 70 Me. 464; Brown v. Howard, 86 Me. 342, 29 Atl. 1094; Rosen v. Fischel, 44 Conn. 371; Frazier v. Turner, 76 Wis. 562;, 45 N.W. 411;Sheldon v. Hill, 33 Mich. 171;Poulk v. Slocum, 3 Bla......
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