Lothrop v. Abbott , 16 Me. 421 ( 1839 )

The opinion of the Court was by

Weston C. J.

The question in controversy between these parties was, whether the oxen replevied in this suit, at the time of the sale made by Zenas Lothrop to the plaintiff, were under attachment, as the property of Zenas, at the suit of Jesse Page. The officer who served the writ in favor of Page, returned that he had attached these oxen, on the twelfth of August, 1835, which was prior to the sale to the plaintiff. The Judge ruled, and so instructed the jury, that this was prima facie evidence of that fact, and that in the absence of all opposing testimony, the attachment would be valid, until thirty days after judgment. It does not appear to us, that the correctness of this opinion can be questioned. It was the legal and appropriate evidence of the existence of an attachment. No question as to what constitutes an attachment, or under what circumstances it is to be regarded as dissolved, is involved in this instruction.

If the counsel for the defendant would have raised the point, whether upon the evidence in the case, any attachment was in fact made, or whether if made, it was not lost or abandoned, he should have moved the Court to have instructed the jury, according to his views of the law. We are called upon only to decide upon the correctness of the instructions given, not whether other and further instructions might not have been appropriate. Other instructions may have been given ; although those only are stated, in regard to which exceptions are taken. The exceptions are overruled; and there must be judgment for a return, damages and costs.