majority">

The opinion of the Court was drawn up by

Whitman C. J.

— This case comes before us upon exceptions taken to the instructions and rulings of the Judge in the *515District. Court. The action is against the defendant, as late sheriff of Kennebec, for the misfeasance of his deputy, Davis. The plaintiff’s declaration contains two counts. As to the misfeasance alleged in the first no evidence appears to have been offered. In the second the deputy is alleged, on an original writ of attachment, in favor of the plaintiff, and against one Barker, to have attached a horse of the value of 150,00, as the property of the debtor ; and not to have kept it so that it could be taken on execution, thereafter issued on a judgment duly recovered by the plaintiff in the same suit, although it was seasonably placed in the hands of the same deputy for the purpose.

The evidence of the attachment consisted of the return thereof, made by the deputy on the writ of attachment. That return it was not competent to the defendant to contradict. It must therefore be taken and deemed to be true. The defendant, however, attempted to prove, that the horse, so attached, was a certain mare, called the Stimson mare, and that she was not the property of the debtor. By a series of decisions in our Courts it has been settled, that, if property be attached, and it turns out not to have been the property of the debtor, at the time of the attachment, the officer making it shall be exonerated from his liability to have it forthcoming on execution. Whether this would or should extend to a case in which the officer, of his own mere motion, had knowingly attached property not belonging to the debtor, as the evidence in the defence, in this case tended to show was done by the deputy, may possibly be questionable. However that may be, it was incumbent on the defendant to show, that the Stimson mare was the horse actually attached by his deputy, as well as that she was the property of some one other than Barker. The evidence upon this point was derived from the deputy himself, who had probably been released by the defendant, although the case does not show it. But his testimony does not show that he actually attached the mare: He only says, that he got into the wagon, in which the mare was harnessed, and told Barker that hé attached her as ibis property, and he thinks *516Barker and lie rode down the street together in the wagon at the same time. No other act of possession, on his part, took place. He left the mare as he found her in Barker’s possession with a promise, as he says, on the part of Barker, to get a receiptor for her. This cannot be regarded as proving an attachment of the mare. It does not appear, that she had been under his control for a moment; and if it could be considered that he had an instantaneous possession, it was as instantaneously abandoned. If there had been an actual attachment, and it was immediately abandoned, it became a nullity, and must be considered the same as if none had been made; and therefore a return, in such case, that one had been made, would be in substance a false return. Hence the proof, that the mare was the horse attached, is not made out, and fails to support that part of the defence.

The case then stands upon the evidence of the deputy’s return upon the writ, as to the horse thereon attached, which must be taken to be other than the one attempted to be proved to have been attached, there appearing to have been no attachment of that horse; and as there was no other evidence of the value of the horse, which must be supposed to have been actually attached, than what is contained in the return itself, that must be deemed to have been .its true value. The direction, therefore, of the Judge to the jury, was correct as to the right of the plaintiff to recover, in this action, the amount due on his execution, if any thing, it being short of the ascertained value of the horse attached.

The instructions of the Judge are excepted to on another ground. He charged the jury that, if they were satisfied, from all the evidence, that Davis made no attachment on the writ, and his return thereon was merely nominal, the defendant was precluded from showing Barker’s utter insolvency in defence, in order to make it appear, that the damage to the plaintiff was merely nominal. This instruction may not have been perfectly correct; especially as there is no count in the plaintiff’s wait for a false return on the writ against Barker. If, however, the finding of the jury, upon a view of the *517whole cace, as then presented to them, was correct, the defendant cannot be considered, in the language of the statute authorizing the filing of exceptions, as a party aggrieved ; and exceptions in such case would not be sustainable. Hathaway v. Crosby & al. 17 Maine R. 448 ; Camden Rail Road v. Belknap, 21 Wend. 354. Now, if there be in the case no other ground of exception than this, we cannot doubt, upon a careful examination of the evidence, but that the verdict of the jury was correctly found, and that, thereupon, none other could legally have been returned.

A Judge in giving his reasons for an opinion may often err; but if in substance a right direction is given to the cause no exceptions thereto should be sustained. Had the Judge said to the jury, that, as the evidence failed as to the Stimson mare’s being the horse attached, although they might apprehend no horse was in fact attached, yet, as Davis returned, that there was, and his return is conclusive of the fact, they would find ior the plaintiff, the amount duo on his execution, that being short of the value of the horse as stated in the return; and in such case the insolvency of Earlier was out of the question; no complaint could have been justly made against it. How does the charge delivered differ in effect from that ? The jury found in the one case, as they would have done in the other. Should these exceptions be sustained, the effect will be, that a new trial must be granted. Now when we see, in the case itself, that substantial justice has been done by the verdict, and that it couid not have been legally rendered otherwise than it was, it seems to be preposterous that a new trial should be granted. Brazier & al. v. Clap, 5 Mass. R. 1 ; Jones & al. v. Fales, ib. 101 ; Farrar & al. v. Merrill, 1 Greenl. 17 ; Kelley v. Merrill, 14 Maine R. 228; Jewett v. Lincoln, ib. 116; Buddinglon v. Shearer & al. 22 Pick. 427; Thorndike v. Boston, 1 Metc. 242; Weeks v. Clutterbuck, 2 Bing, 483.

There is still another ground of exception relied upon. It is, that the Judge should have nonsuited the plaintiff, because it was not proved in the first instance, directly, that the exe *518cution reached Davis within thirty days, after the rendition of the judgment against Barker. The evidence to this point first introduced, and relied upon by the plaintiff, was, that the attorney of the plaintiff, a few days after the judgment, enclosed' the execution to Davis, and put it into the mail, directed to him at Augusta, his place of residence and business, in season to have reached him, according to the course of the mail, before the expiration of the thirty days. ■ From these facts the plaintiff insisted that the jury would be authorized to presume, that it must have reached him in due season. The Judge declined to order the plaintiff to .be called. This afforded no ground for an exception to be taken. It was purely a matter ■ of discretion with the Judge, whether to take or decline to take that course. In Massachusetts, and in England, it has been held, that a nonsuit cannot be ordered in the course of atrial to the jury, but upon the express or tacit consent of the plaintiff. Watkins v. Tower, 2 D. & E. 280; Mitchell v. New Eng. Ins. Co. 6 Pick. 117. In this State it has been held otherwise, in Perley v. Little, 3 Greenl. 97, and in subsequent cases.

The deposition of Davis, introduced by the defendant, shows that the execution was in Davis’ hands;. and, if it had not reached him within the thirty days, the defendant could not have failed to have drawn that fact from him. The whole evidence to this point was properly left to the jury; and it cannot be questioned, but that the evidence should have been, and was, to their entire satisfaction upon the point.

Exceptions overruled and Judgment on the verdict?

Citation profile

Relationships

How this case has been treated — in progress