Thayer v. Comstock , 39 Me. 140 ( 1855 )

Shepley, 0. J.

— An original writ maybe framed with an order to attach property, and for want thereof to take the body, or it may in form be a summons to appear, with or without an order to attach property, c. 114, § 23.

All writs of attachment against administrators are to run against the goods and estate of the deceased, but the statute does not require that a writ of attachment should be used. c. 120, § 1.

The plaintiff has, in many cases, an election to use a writ of one form or of another, but he must select one appropriate to his case; one which may be lawfully executed.

When a party appealing from a judgment of commissioners on an insolvent estate commences an action and recovers a judgment against the administrator, no execution is to be issued to enforce the collection of the damages. The amount of the judgment therefor is to be added to the list of debts.

The statute making provision for an equal distribution of such an estate, all attachments made prior to a representation of insolvency are dissolved. An attachment made afterward would be illegal. A writ which commands an unlawful act is bad in form.

The service of the writ which was used, was a correct service for such a writ. Blanchard v. Day, 31 Maine, 494.

The writ in this case was abateable, but there does not appear to have been any motion made or plea filed to have it abated or quashed. It is now too late. By agreement of parties, the case will stand for trial.