Wentworth v. Sawyer

• Decision Date: 25 October 1884
• Citation: 76 Me. 434
• Parties: JOHN WENTWORTH v. HENRY K. SAWYER and another.
• Court: Maine Supreme Court

76 Me. 434

JOHN WENTWORTH v. HENRY K. SAWYER and another.

Supreme Judicial Court of Maine.

October 25, 1884

ON REPORT.

Trespass for taking and carrying away seven tons of hay which belonged to the plaintiff. The writ was dated December 4, 1882. The plea was the general issue and brief statement setting forth the defence stated in the opinion.

The opinion states the material facts.

John H. Webster, for the plaintiff.

If a valid attachment was made it was not preserved. If preserved the officer's duty towards it and his jurisdiction were ended, and moving the hay afterwards constituted a trespass.

As the common law required property attached to be kept by the officer or his servant, so is the law to-day, except when express statutes make other provisions. And if the officer or his servant suffers it to go into the hands of defendant, the attachment is discharged, even if a receiptor be taken. Knap v. Sprague, 9 Mass. 258; Campbell v Johnson, 11 Mass. 184; Bridge v. Wyman, 14 Mass. 190-3; Gower v. Stevens, 19 Me. 92; Pillsbury v. Small, 19 Me. 435; Nichols v Patten, 18 Maine, 231; Thompson v. Baker, 74 Me. 48; Sanderson v. Edwards, 16 Pick. 144; French v. Stanley, 21 Me. 512; Mitchell v. Gooch, 60 Me. 110; Waterhouse v. Bird, 37 Me. 326.

The fact that it has been deemed necessary to provide by special enactment for retaining an attachment lien upon some articles without retaining possession, is conclusive proof that as to all others the lien can only be retained by actual possession.

The first statute provision for retaining a lien by virtue of an attachment of articles capable of being removed, without removal, that I find, is c. 60, § 34, statutes of 1821, which allows hay in barn, sheep, horses, neat cattle to be left with the debtor on security given, etc. What the necessity of that enactment if without it, on security given, the lien could be retained and the property remain with the debtor? The same provision, with the omission of sheep, is incorporated into every revision of the statutes since made. R. S., 1841, c. 114, § 37; 1857, c. 81, § 34; 1871, c. 81, § 23, and is now the law of this state.

By these statutes since March 15, 1821, a mode, in addition to the common law mode of retaining an attachment lien was provided, making two modes of retaining lien, on hay in the barn, horses and neat cattle, and from March 15, 1821, to July 31, 1841, on sheep. On July 31, 1841, by that revision, c. 114, § § 39, 40, 53, 54, 55, 56, 57, 58, three different modes applicable to different articles therein specifically named are provided, and by § 52, a fourth, applicable to all articles is provided, by which a lien by attachment or its equivalent is retained. Those different provisions applicable specifically to the same specific articles have been re-enacted in the various revisions since, and are now the law of this state. R. S., of 1857, c. 81, § § 35, 47, 48, 49, 50, 51 and 46; R. S., 1871, c. 81, § § 23, 24, 29, 30, 31, 32, 33 and 28.

All these different provisions being in the same chapter, are to be construed so as to harmonize and to give effect to each, if possible. 1 Black's Com. 89; Merrill v. Crossman, 68 Me. 412; Winslow v. Kimball, 25 Me. 493; Ingalls v. Cole, 47 Me. 530; Dwelly v. Dwelly, 46 Me. 379; Collins v. Chase, 71 Me. 434; Holbrook v. Holbrook, 1 Pick. 248; Com. v. Cambridge, 20 Pick. 267; Com v. Kimball, 24 Pick. 366; Cleveland v. Norton, 6 Cush. 380.

The naming of living animals in R. S., 1841, c. 114, § 53, et seq. ; R. S., 1857, c. 81, § 47, et seq. ; R. S., 1871, c. 81, § 29, et seq. is conclusive evidence that hay in the barn is not subject to any other provision in those chapters than those which provide for leaving it with the debtor on security given or sale by consent.

The officer attempted to make use of three modes of preserving his supposed lien by attachment, thereby so far abusing legal process and increasing the expense as to render him a trespasser, ab initio. Bradley v. Davis, 14 Me. 44; Six Carpenters' case, 8 Coke 146; Ross v. Philbrick 39 Me. 29; Blanchard v. Dow, 32 Me. 557; Knight v. Herrin, 48 Me. 533; Sawyer v. Wilson, 61 Me. 529.

When the officer left the hay in defendant's barn without a keeper or security given, and gave defendant the summons, he abandoned the attachment. Gower v. Stevens, 19 Me. 92.

The absolutely fatal defect in defendant's proceedings is the misnomer of defendant, the present plaintiff in the writ, and particularly in the officer's return to the town clerk's office. Flood v. Randall, 72 Me. 439; Dutton v. Simmons, 65 Me. 583; Moulton v. Chapin, 28 Me. 505; Shaw v. O'Brion, 69 Me. 501; Bessey v. Vose, 73 Me. 217; Com. v. Hall, 3 Pick. 262; Com. v. Shearman, 11 Cush. 546; Com. v. McAvoy, 16 Gray 235; 1 Gray 167; 4 Gray 72.

C. A. Harrington, for the defendants, cited: Darling v. Dodge, 36 Me. 370; Reed v. Howard, 2 Met. 36; Cain v. Rockwell, 132 Mass. 193; 28 Vt. 546; Drake on Att. § 290; Carr v. Farley, 12 Me. 328; Brownell v. Manchester, 1 Pick. 232; Bond v. Padelford, 13 Mass. 393; 43 N.H. 115; Hubbell v. Root, 2 Allen 185; Spaulding's Pr. 332; Emerson v. Upton, 9 Pick. 167.

FOSTER J.

The plaintiff claims that the defendants were trespassers in the attachment and removal of a quantity of hay, of which he was the owner, in a suit wherein he was defendant, and Sawyer, one of the present defendants, was plaintiff. The question involved in this suit is whether the officer proceeded legally in the discharge of his duty in making said attachment, and in the subsequent removal and sale of the property on mesne process.

The case shows that on the 18th day of November, 1882, the defendant Sawyer sued out a writ of attachment against this plaintiff by the name of John A. Wentworth; that on the 20th of said month the writ was placed in the hands of the other defendant, a deputy sheriff, for service, and that on the same day he made service by attaching seven tons of hay then lying in the plaintiff's barn in Smithfield, filing a certificate of the attachment in the office of the town clerk as provided by R. S., c. 81, § 24, and leaving a summons at the defendant's place of last and usual abode. On the second day of the following month, ascertaining that the hay was diminishing in quantity, the officer, in company with the other defendant in this action, proceeded to remove it from the premises to a place of safety, and after due proceedings, before judgment in the suit, advertised and sold the same on the 20th day of April, 1883.

At the December term of court, being the term at which the action was entered, the writ on which the attachment had been made was amended by striking out the letter A in the defendant's name.

The plaintiff seeks to recover in this action on the ground that the proceedings of the officer were irregular in perfecting the attachment, and if any was made that the same was not preserved; that the misnomer, and amendment of the writ, dissolved any attachment if made; and lastly, that the officer did not leave the requisite amount of hay which the statute exempts to a debtor, and thereby he became a trespasser ab initio.

We will consider these objections in the order in which they are raised.

It is not denied that the officer was present at the place where the hay was situated at the time of the attachment, and that he took it into his possession so far as in reference to this description of property it could be conveniently done, and that his acts and dominion over the property were such as to justify him in making the return that it had been attached. The facts set forth in his return would be prima facie evidence, until the contrary were shown. Bruce v. Holden, 21 Pick. 189; Darling v. Dodge, 36 Me. 370.

The nature of the property was such that the officer was justified in preserving the attachment by filing with the town clerk a copy of the return, and a certificate of other facts prescribed by statute. Before the enactment of the statute authorizing a copy of such return and certificate to be filed with the clerk of the town, the law required that in order to perfect and continue an attachment of personal property, the officer should retain possession and control of the same. Nichols v. Patten, 18 Me. 238; Gower v. Stevens, 19 Me. 94; Heard v. Fairbanks, 5 Met. 113. Difficulties afterwards arose as to the kind of possession and control necessary to satisfy the requirements of the law. To obviate these difficulties, and give a more complete notice, R. S., c. 81, § 24 provides that " when any personal property is attached, which by reason of its bulk or other special cause cannot be immediately removed, the officer may, within five days thereafter, file in the office of the clerk of the town, in which the attachment is made, an attested copy of so much of his return on the writ, as relates to the attachment, with the value of the defendant's property which he is thereby commanded to attach, the names of the parties, the date of the writ, and the court to which it is returnable; and such attachment shall be as effectual and valid, as if the property had remained in his possession and custody." It will be seen by this provision that " no attempt is made to change the mode of making the attachment, but a new and easier method of preserving it is provided. Before this statute there was not so much difficulty in making as in preserving attachments" of this kind of property. Scott v. Manchester Print Works, 44 N.H. 508.

Nor are we satisfied that the officer, by filing with the town clerk the copy and certificate required by statute, deprived himself of the right to regain actual possession of the property attached, and remove it whenever necessary for its preservation. The sheriff is the " mere minister...