Webster v. Coffin

Where one had received a ship from an officer, who had attached her on mesne process, and had promised to deliver her to the officer on demand, and he afterwards permitted the owner to continue possession, and to carry her to sea, he was hoi den liable to the officer upon his promise, although no demand was made on him within thirty days after judgment was rendered in the suit on which she had been attached; the officer having been held to answer to the attaching creditor.

This action was assumpsit upon the receipt and undertaking of the defendant, which is recited in the report of the preceding case of Bridge vs. Wyman 8f AL, and was referred to the determination of the Court, upon certain facts agreed and stated by the parties. The facts stated are substantially contained in the preceding case, viz., the attachment of the ship by the now plaintiff, then a deputy sheriff; his delivery of it to the defendant upon his said receipt, and undertaking to redeliver it on demand; the recovery of judgment and execution by Phillips and others against Noyes; the continuance of the ship in the hands of the former owners until her sailing, in November, 1808, when the said Noyes sailed in her; the situation of Mr. Coffin’s place of business; the delivery of Phillips’s execution to * Wyman; his return of the same in no part satisfied ; and a demand of the ship by Webster of Coffin, September 22, 1812. It is also agreed that the present defendant has paid no part of the judgment recovered by Phillips against Jones; that Phillips has recovered against the sheriff Bridge the sum of 2396 dollars, for the default of himself and his deputies in the discharge of their duty relative to the said action against Jones, and that Bridge has paid the same with additional expenses ; that Bridge has brought his actions against Webster and Wyman and their respective sureties for indemnity; that Wyman attached the said ship at the several suits of Barker and Clark, as stated in the defendants’ rejoinder in the said case of Bridge vs. Wyman Al.; that he delivered her to one Webb, taking his engagement in writing to deliver the same on demand ; that the actions of Barker and Clark were continued in court until long after January, 1809, when Phillips &• Al. recovered their judgment against Noyes; that no other demand was ever made upon Coffin for the ship but that before stated; and that Webster had no property therein except by virtue of his attaching her at Phillips’s suit, and that he never had any other writ against said Jones and Noyes than that sued by Phillips, as aforesaid. In the case of Phillips &f Al. vs. Bridge, the Court say that the injury to the plaintiffs there, and of consequence to the present plaintiff, accrued when the ship was restored to the debtors, which was long before judgment was rendered in the suit upon which the attachment was made. The ship being, at the time of the judgment rendered, out of the defendant’s control, a demand at that time would have been nugatory. In short, the defendant, acting as the servant of the plaintiff, must be answerable over to him, so far as by his misconduct the plaintiff has been made to suffer. (3) The action was continued for advisement, and at this term the opinion of the Court was delivered by