McArthur v. Lane , 15 Me. 245 ( 1839 )

The opinion of the Court was drawn up by

Shepley J. -

'The plea in abatement, alleges the property at the time of taking to have been jointly in the plaintiff and another. The objection to the plea is, that it would be sufficient for the plaintiff to prove property in himself at the time of suing out the writ. But the settled rule seems to be, that it must be at the time of the taking. Co. Lit. 145, b. As the property was then in the plaintiff and another, the plea in abatement is good. Hart v. Fitzgerald, 2 Mass. R. 509.

The plea contains no prayer for a return of the property; but a petition is filed and a suggestion made, that the property was attached by the defendant, as a sheriff, by virtue of a writ against the joint owner other than the plaintiff; and he prays for a return, that it may be held to respond that attachment. If it did not appear, that the defendant had a legal right to have possession, a return would not be awarded. Gould v. Barnard, 3 Mass. R. 201. The defendant might lawfully attach the share of the other joint owner, and having done so, is entitled upon his petition and suggestion to a return of the property. Quincy v. Hall, 1 Pick. 360. But no damages can be allowed, as there is no issue upon which they can be estimated.

Writ abated. Judgment for a return, and costs without damages.