Inhabitants of Saco v. Hopkinton , 29 Me. 268 ( 1849 )

Wells, J.

The demandants claim under a deed from Joseph Woodsum, who attached the demanded premises on the fourteenth day of February, Í843, as the property of Samuel Woodsum, under the administration of Jeremiah Gordon, and having obtained judgment in his suit, in which the attachment was made, caused his execution to be levied on the premises, on the twenty-fourth of November, 1845.

Samuel Woodsum conveyed the same premises to John and Jabez Woodsum, on the nineteenth of March, 1833, and the deed of conveyance was recorded on the nineteenth of April of the same year. John subsequently obtained the title of Jabez Woodsum.

John Woodsum conveyed the premises to Edmund P. Den-nett on the tenth of September, 1845, Edmund P. to Daniel Dennett, on the third of September, 1846, and the latter to the tenants and Orrin Dennett on the twenty-first of January, 1847.

It is contended that the deed from Samuel to John and Jabez Woodsum, was fraudulent and void against Joseph Woodsum a prior creditor of Samuel, and that the attachment in Joseph’s suit, having been made before the deed to Edmund P. Dennett, the demandants are entitled to recover.

By the Revised Statutes, c. 114, <§> 33, “ No such attachment, though made and notice thereof given as directed in the preceding section, shall be valid, unless the plaintiff’s demand, on which he founds his action, and the nature and amount thereof are substantially set forth in proper counts, or a specification of such claim shall be annexed to such writ.” This section is a revision of the fourth section of the act of March 23, 1838, c. 344.

The intention of the statute must have been to require an attaching creditor to furnish such information by his writ to subsequent attaching creditors and purchasers, as would enable them to know what his demand was, and that it should be so specific as to prevent any other demand from being substituted in the place of that sued. Where the demand is not exhibited by the counts in the writ, it must be made to appear by a specification of it, annexed to the writ. Information more certain and definite was required to be given, than could be obtained from the general counts.

Joseph Woodsum’s writ against Samuel Woodsum contained two counts. The first was indebitatus assumpsit according to the account annexed. The second was for money lent and accommodated, had and received, and laid out and expended.

The account annexed to the writ was in the following words.

“ Samuel Woodsum to Joseph Woodsum, Dn.

To balance due on account, and interest, $1500

“April i, 1841.”

Neither of the counts, nor the account annexed, furnish the necessary information, such as the statute requires. They are too general. No one could ascertain from the writ what the claim in reality was, except it was a “ balance due on account and interest.” It does not disclose the nature of the transactions between the parties, nor whether the account was for money, labor, or goods sold. And it could not be known whether the account, upon which the judgment was rendered was the same as that for which the suit was brought.

It appears by the testimony, that paper marked A, containing four charges for money and one for a hogshead of rum, amounting to $593,00, was put into the writ when it was made, but was not annexed to it,?and remained in the writ at the time when the judgment was rendered.

If this paper should be considered a sufficient specification of what the plaintiff in that suit claimed, still there is a failure to comply with the statute, for it was not annexed to the writ.

The laying a loose paper within the folds of a writ does not make it any part of the writ, nor can it be said with any propriety of language to be annexed to the writ. The removal of such paper by the plaintiff would not be a mutilation of his writ, nor render him amenable to any one.

The statute intended, that the exposition of the claim should be so annexed to the writ, that it could not, after the service, be lawfully removed.

It is stated in argument, that the conveyance to Edmund P. Dennett was not made in good faith, and that the attachment would be valid against him, and that Daniel Dennett and the tenants, having acquired their title after the levy, had by the record, constructive knowledge of it.

But there is no satisfactory evidence in the case, nor any offered to be shown, that Edmund P. Dennett was not an hon-esl purchaser for a valuable consideration. It does not appear that any such suggestion was made at the trial.

Note. — Howard, J. had been consulted in this case, and therefore took no part in its decision.

And if he had been informed before he purchased that the premises had been attached in the suit of Joseph Woodsum, a notice of an attachment not valid by the statute, could not affect his title.

It is not necessary to examine the other questions raised in the case.

According to the agreement of the parties, the demandants must become nonsuit.