Hunter v. Peaks

Walton, J. This is an action upon a receipt given to aii officer for property attached on a writ. The defendants agreed to pay ninety dollars or redeliver the property. They have done neither. Prima facie the plaintiff is entitled to recover. Is there anything shown in defense why he should not recover ? We think not. The fact that the officer attached property greater in value than he was directed to attach in the writ is no defense. Merrill v. Curtis, 18 Maine, 272. The fact that the name of the defendant in the suit in which the property was attached is stated in the receipt to be C. Wood, when it was in fact Bobert C. Wood, and was so stated in the writ, constitutes no defense. The error was made by one of the receiptors, who, being a lawyer, was allowed to write the receipt. He examined the writ before writing the receipt, and if he did not copy the name of the defendant correctly, it was his fault and not the fault of the officer. But we regard the error as wholly immaterial, by whomsoever made. It in no way increased or injuriously affected the liability of the receiptors. Enough remained to leave no doubt of the identity of the suit and of the property attached. The error therefore was entirely harmless. Nor does the fact that one of the receiptors (Mr. Peaks) supposed the suit was against Bobert C. Wood, the son, when it was in fact against Bobert C. Wood, the father, constitute a defense. We are satisfied that the officer neither said nor did any thing to lead Mr. Peaks into such an error, and no reason is perceived why such a misunderstanding on the part'of Mr. Peaks should defeat the security of the officer, when the officer was in lio way responsible for it.' Nor would an amendment of the writ by adding the word " senior ” to the defendant’s name, if made by leave of court (and it could not properly be made without the leave of court), discharge the receiptors. It did not increase or change their liability. It only put into the record what [367] was before true, namely, that the suit was against the father and not against the son. Such an amendment would not discharge the attachment. Nor would the want of a demand discharge the receiptors. True, they had agreed to redeliver the property on demand. But it is also true that they had agreed that if no demand should be made they would within thirty days of the time when judgment should be rendered in the suit in which the property was attached, redeliver it without a demand. And it is now settled law that when such a receipt is given, the receiptors will bo liable, although no demand is made. And it is also settled that the receiptors must ascertain at their peril when judgment in the suit is rendered; that it is no part of the duty of the officer to inform them. It is not therefore necessary to determine whether the officer’s return upon the execution is or is not competent evidence of a demand. The receiptors are liable without a demand. Shaw v. Laughton, 20 Maine, 266; Low v. Dunham, 61 Maine, 566. The only remaining question is the amount to be recovered. The defendants agreed to pay ninety dollars or redeliver the property. Not having redelivered the property within the time agreed upon, they became immediately liable to pay the ninety dollars. We think the plaintiff is entitled to recover that sum and interest from the date of the writ, and no more. No demand was necessary before bringing the suit. When money is payable on demand, the commencement of the suit is a sufficient demand. Judgment for plaintifffor ninety dollars damages, and interest thereon from the date of the writ. AppletoN, C. J., Barrows, Daneorth, Peters andLiBBEr, JJ., concurred.