Wason v. Martel ( 1896 )

Irrespective of other objections which it is unnecessary to consider, it is enough to say that if the plaintiff's requests should be granted it would not avail him.

The attachment precept is fatally defective as against the opposing creditors. In order to preserve a lien, it is necessary that the precept should clearly identify or describe the property intended to be charged, or at least, as definitely as the nature of the case will reasonably admit. Hill v. Callahan, 58 N.H. 497, 499; Mundy v. Munson, 40 Hun 304, 308; Drake v. Taylor, 6 Blatchf. 14; Kennedy v. House, 41 Pa. St. 39, — 80 Am. Dec. 594; Stevens v. Osman, 1 Mich. 92. It is hardly necessary to say that a mandate to attach "one million brick of the goods or estate of A. Martel of Brentwood in the county of Rockingham" is not such a description. Nor can such a mandate be amended to the prejudice of subsequent attaching lien-creditors, or other third persons having rights in the property. P. S., c. 222, s. 8.

In short, the case presented is one of a suit in rem which does not describe the res, or, at most, gives only an attempted description which does not describe. But in addition to this, and in the absence of any evidence to the contrary, it must presumptively be taken that the officer followed the mandate in his return of the attachment.

The plaintiff's requests should be denied.

All concurred.