Douglass v. Gardner

Virgin, J. By R. S., c. 80, § 42, “every coroner shall serve and execute, within his county, all writs and precepts in which the sheriff thereof or his deputy is a party.” “Party” as here used, means the person whose name is expressly mentioned in the record as plaintiff or defendant. It does not include any person simply interested in the suit but not named, and somtimes denominated “party in interest,” as in R. S., c. 89, § 1. The latter clause of § 42 contains the phrase “is a party or interested,” thus showing the statute recognition of the distinction between a “party” and a person “interested.” This statute early received this construction. Walker v. Hill, 21 Maine, 481. And a similar statute in Massachusetts, so long as it retained the same language, received the same construction. Merchants' Bank v. Cook, 4 Pick., 405. The question raised by the plea in abatement was, therefore, decided correctly by the presiding judge. Perry v. Kennebunkport, 55 Maine, 453. The fact that the replevin bond was not “in double the value of the goods replevied,” as required by R. S., c. 96, § 10, was matter in abatement; and the defendant could have availed himself of it by plea filed within the time prescribed by the rule, but not after a trial on the merits, although he was ignorant of the fact until it came out in the evidence. It is objected that this defendant being the keeper appointed by the attaching officer, did not “take” the property; and being the servant of the officer, the action should have been brought against the latter, and that it cannot be maintained against the former. But “it is not always necessary to prove a taking of the goods since the action may be maintained against a bailee, by proof of an unlawful detention.” 2 Greenl. on Ev., § 561; R. S., [465] c. 96, § 8 ; Ramsdell v. Buswell, 54 Maine, 546. The property was in the actual custody of the defendant. If it really belonged to the plaintiff, and he was actually entitled to its possession, we perceive no legal reason against the plaintiff’s making him the party defendant. Eveleth v. Blossom, 54 Maine, 447; Richardson v. Read, 4 Cray, 441. Again, the bill of sale was absolute in its terms. The property was not claimed by the plaintiff “by virtue of any mortgage, pledge or lien and neither was the “action against the attaching officer,” and hence the notice provided in R. S., c. 81, § 42, was not necessary. The requests to pass upon the evidence were properly declined. No motion to set aside the verdict as being against the evidence in the case has come into the possession of the court; but judging from the defendant’s brief, we are led to believe that such a motion was in fact filed. But upon a careful examination of the whole case, we see no reason for disturbing the verdict. The chai'ge of the presiding judge was full and correct in its law. If the testimony introduced by the plaintiff is true, the verdict is well found. Motion and exceptions overruled. Appleton, C. J., Cutting, Dickerson, Barrows and Dan-forth, JJ., concurred.