Holbrook v. Weatherbee , 12 Me. 502 ( 1835 )

Parris J.

•Prior to the statute of March 25, 1831, Chap. 508, cases had frequently occurred where a subsequent attaching creditor, of property previously attached, had been compelled to stand by and permit á judgment to be rendered against his debt- or on a fictitious demand, whereby his subsequent attachment would be wholly defeated; and if, by any fortunate arrangement with the officer having the execution issued on such fraudulent judgment, or in any other manner, he might afterwards have opportunity to contest the validity of such judgment, he would find the burden of proof of its fraudulent character thrown upon him, so that, instead of the fraudulent plaintiff being required to prove the bona •fide character of his demand, a judgment would be procured, by collusion with the defendant, which would be conclusive upon all subsequent attaching creditors, unless they could shew that it was fraudulent.

By the wholesome provisions of the statute above mentioned, in all cases where the same estate has been attached on mesne process in two or more suits, the plaintiff in any suit after that in which the first attachment shall have been made, may petition the court whereunto the writ is returnable, at any time during the pendency of such suit, for leave to defend against such first suit in like manner as the party therein sued might have done, which petition may be granted, if the court shall deem it just and proper. If the court admit such petitioner to defend, he is to give bond to pay the plaintiff all such costs as the court shall adjudge and decree to have been occasioned to the plaintiff by such defence, and it is to be entered on the record that such petitioner is admitted to defend.

The motion now is that Sylvester and Hoyt should not be permitted to defend further. They have filed their petition, made oath to the facts therein stated, given the bond required, and been' duly admitted on the record. ■

What would be the consequence of granting the present motion ? Would it not be that Sylvester and Hoyt would be liable on their bond for all such costs as have been occasioned to Holbrook by their interference ? Again, the statute provides that, if the petitioner prevails in defending against such previous action, the court shall render judgment thereon, and shall award execution to the petitioner for his reasonable costs. In what situation should we place Sylvester and Hoyt as to the costs which they have incurred, if we were now to refuse them permission to defend further ? They have taken upon themselves the defence of the suit, have been in court for several terms, and incurred expense arising from such defence, and yet they are not the prevailing party, and consequently could not have a judgment for costs. It would be manifestly wrong that an honest creditor should be thus harassed by the parties to a fraudulent sale, and after having incurred heavy costs in exposing the fraud, have the door at once closed upon him without the possibility of remuneration. And yet such would be the hazardous situation of creditors situated like Sylvester and Hoyt, if the motion of Holbrook, now before us, is to be granted as matter of right. They may have defended the original suit with complete success through all the intermediate stages up to the time for the final trial; they may have expended, in such defence, a sum much larger than the debt which they are endeavoring to secure, and when the fraud is about to be conclusively established and the party plaintiff, a participator in the fraud, has no other means of escaping the accumulated costs, shall it be that he can do so by still further colluding with the defendant ?

Inasmuch as the petitioners, Sylvester and Hoyt, have been admitted to defend by the Court of Common Pleas, and have sustained the defence for several terms in that court, as well as in this, and are still desirous of defending, we think it would be unreasonable now to turn them out of court remediless as to costs, and, perhaps, even liable on their bond.

The motion of the plaintiff is, therefore, denied.