Holmes v. Balcom

Embry, J. The defendant was the sheriff of Washington county. His deputy attached eighty-two cases of sardines on a writ against Peter M. Kane. At the time of this attachment, the sardines were on board ship at Eastport consigned by Kane to Hansen and Dieckman at New York, and the ship master had — 232 — delivered the usual bills of lading therefor, and Hansen and Dieekman on receipt of the bill of lading had advanced to Kane four hundred and fifty dollars on the sardines by accepting his draft for that amount. It is conceded that, under these circumstances, Hansen and Dieekman at the time of the attachment had a valid lien on the sardines to the extent of their said advances. Gragg v. Brown, 44 Maine, 157. The attaching officer, however, did not at any time pay or tender the amount of their said lien to Hansen and Dieekman ; nor did he at any time give them any written notice of his attachment as provided by B. S., c. 81, § 45. The suit against Kane was prosecuted to judgment, and upon the execution the officer sold the sardines so attached, from the proceeds of which he satisfied the execution, and paid the balance to Kane. It is further conceded that, if Hansen and Dieekman had given the attaching officer notice of their lien claim under B. S., e. 81, § 44, before such sale of the sardines and application of the proceeds, they could have maintained an action against the sheriff for such attachment. But no such notice was given till long afterward; and it is contended that the failure to give such notice before such sale, bars an action by the claimant against the officer for the original attachment. -This is the principal question in the case. No notice whatever at any time was required by the common law preliminary to. a suit by the lienor against the attaching officer. Indeed, by the common law, there could be no lawful attachment of personal property in the situation of these sardines. Sargent v. Carr, 12 Maine, 396. The statute authorizing such attachment isB. S., c. 81, § § 43 to 46, inclusive ; therefore, the lienor need only give such notice and at such time as is required by the statute. If-the legislature had intended to so far abridge the common law right of action as to require a notice before the sale of the property, we think it'would have made such intention clear by express words. The statute, however, does not say that the notice must be given before the property is sold by the attaching officer, nor does it limit the time — 233 — for bringing the suit. The action may be brought as before, at any time within the statute of limitations, without reference to the situation of the property, or its disposition by the officer. The notice provided is merely preliminary to the action. The only time named for the notice is that it shall precede the action by forty-eight hours. Within that limit of time, the officer can restore the property, if he then has it, or if he has it not, he can pay the claim, and in one way or the other avoid further liability. If the officer desires to have such notice given him before he sells the property, he can give written notice of the attachment under § 45, and then if notice of the claim is not given him within ten days, he can assume there is no claim, and can sell, without fear of judgment against him. In this case, however, the officer gave no written notice of his attachment and cannot now effectually object to the delay in the notice to him of the claim. But Hansen and Dieckman, the consignees and lienors, instead of bringing an action directly against the sheriff, libeled the vessel in the admiralty court in New York for non-delivery of the sardines according to the bill of lading, and recovered judgment for the value of their interest in the sardines, and costs. The owners of the vessel paid this judgment, and then brought the present action in their own names, against the sheriff to recover the same value. The defendant makes two objections to the maintenance of this action by the plaintiffs, the owners of the Aressel: (1,) that there is no right of subrogation inasmuch as the judge of the admiralty court in his opinion based the judgment against the present plaintiffs on the ground of their laches, in not notifying the consignees of the attachment. (2,) that the right of subrogation is equitable only, and only permits an action in the name of the original claimant. We do not think either objection is tenable or material. The plaintiffs Avere common carriers, and as such, at the time of the attachment, had received and receipted for the property, and it was in their possession to be carried to Hansen and Dieckman. As such carriers they had a special ownership in the property — 234 — thus in their possession, and for which they were accountable. They were bound to protect against third parties, the respective interests of the consignor and consignee, and were bound to both these for the safe delivery of the property according to the bill of lading. If the property had been taken from them without legal process, they could rightfully have pursued and recaptured it, or they could have maintained in their own names actions of replevin or actions for the value. If the property was taken from their possession upon legal process against the consignor, and ■they were prevented thereby from delivering it to the consignee according to their contract, they had the same rights and remedies in order that they might be able to answer over to the consignee for the value of his interests. Certainly, if they pay such consignee for his interest with or without suit, they succeed to all his rights of recapture, or rights of action. Vermilye v. Express Co. 21 Wall. 138. We think the plaintiffs are entitled to recover the amount of the consignees’ interest which they have paid, but are not entitled to recover the costs or expenses of the suit against them. These latter they should not have incurred. The excess in value of the sardines over the consignees’ interest, was in effect paid to the consignor by being applied to his debt. A judgment for the plaintiffs, therefore, for the amount of Hansen and Dieckman’s lien, four hundred and fifty dollars, with interest from the date of the attachment, August 17, 1888, seems consonant with law and equity, inasmuch as that sum is less than the whole value. Warren v. Kelley, 80 Maine, 512. Judgment accordingly. Peters, C. J., Walton, Virgin, Foster and Haskell, JJ., concurred.