Leland v. Wescott

• Decision Date: 30 August 1919
• Docket Number: 13.
• Citation: 260 F. 343
• Parties: LELAND v. WESCOTT.
• Court: U.S. District Court — District of Maine

260 F. 343

LELAND v. WESCOTT.

No. 13.

United States District Court, D. Maine, Northern Division.

August 30, 1919

Nathan W. Thompson and George C. Wheeler, both of Portland, Me., for libelant.

Fellows & Fellows, of Bangor, Me., for libelee.

HALE District Judge.

In June, 1917, the two-masted schooner C. Taylor, 3d, was chartered to carry pulp wood from Trenton to Brewer. Having finished loading her cargo of 32 cords of pulp wood, on June 21st she started on her trip from Mt. Desert bridge, in Trenton. While proceeding in the fog she fetched up on a ledge at Job's Cove, Oak Point, in that town. The next morning Capt. Ralph G. Leland, her master and owner, with the aid of others, got most of the cargo ashore and saved it thus lightening the schooner, in an effort to float her.

On the following day, Harland Murch, one of the seamen, after demanding his pay, brought suit for his wages, $43.83 against Capt. Leland. His writ was put in the hands of John Suminsby, a deputy of Ward W. Wescott, Esq., the sheriff of Hancock county.

While the schooner was still grounded upon the ledge, Suminsby appeared with his writ, and said to Capt. Leland that he had come to collect Murch's pay. Capt. Leland told the deputy that he could not pay him at that time, but that he would do so as soon as the vessel was in a safe place. The captain testifies that the deputy then told him that he had attached the schooner, and that he (Leland) must not touch it. The conversation between the parties took place on the shore about 500 yards from the schooner lying upon the ledge. There is evidence tending to show that the schooner had laid upon the bottom, near Mt. Desert bridge, a part of the previous winter, and that she was not worth more than $100.

Capt. Leland brings this suit against Wescott, the sheriff, contending that Suminsby, the deputy, made an attachment of the schooner and prevented the captain and crew from saving her. He contends, further, that, whether Suminsby actually made the attachment or not, he led the libelant to believe that there was an attachment, and prevented him from taking such action as would have saved the schooner.

He says, also, that on the day the deputy attached her he could have floated her to a safe place, but that afterwards he was not able to float her for many days and until she had suffered great injury.

Suminsby, the deputy sheriff, denies that he made the attachment, or that he ever said he made it. He says he made demand for the sum due Murch, and that, upon being refused payment by Capt. Leland, he said to him:

'If you don't settle I may have to attach the schooner.'

Whereupon Capt. Leland said:

'You can't attach that vessel without going on board, and putting a keeper on board, and nailing a paper to the mast.'

Capt. Leland denies that he said this. The deputy did not go aboard the vessel and never exercised any dominion over her. From the proofs, I must come to the conclusion that no attachment of the vessel was made. In Bradstreet v. Ingalls, 84 Me. 276, 24 A. 858, in speaking for the court of Maine, Chief Justice Peters said:

'To make an effective attachment of a vessel, or of any personal property, an officer must make an actual seizure. ' Nichols v. Patten, 18 Me. 231, 35 Am.Dec. 713.

But the libelant urges that, even if Suminsby did not attach the...