of the suit; but the court may, in any case, order further notice.15

8. Want or defect of service cured. When the property of a defendant is attached on a writ, and no service is made on him before entry, or if service in any case is defective for any cause, without the fault of the plaintiff or his attorney, the court may order a new service, which, when made, shall be as effectual as if proper service had been made in the first instance.16

(h) Where. All writs must be served within the respective precincts of the officers who serve them, that is, within the counties for which they are commissioned by sheriffs, deputy sheriffs, and coroners, and within their towns, by constables.17

9. When. No person shall serve or execute any civil process on the Lord's day; but such service shall be void, and the person executing such process shall be liable in damages to the party aggrieved, as if he had no process.' [For service by arrest, see Chap. VII.]

18

CHAPTER VI.

OF ATTACHMENT.

All goods

1. ATTACHMENT OF PERSONAL PROPERTY. and chattels may be attached and held as security to satisfy the judgment for damages and costs which the plaintiff may recover, except such as, from their nature and situation, have been considered as exempted from attachment according to the principles of the common law as adopted and practiced in this State, and such as are hereafter mentioned. Such personal property may be attached on writs issued by a trial justice, or judge of a police or municipal court in any county in the State, when directed to the proper officer.i

2. When hay in a barn, horses or neat cattle are attached, and are suffered to remain, by the permission of

15 R. S. c. 81, § 20.-16 R. S. c. 81, § 21; ante, 19.-17 Howe's Pr. 133.-18 R. S. c. 81, § 78.

1 R. S. c. 81, § 22.

the officer, in the defendant's possession on security given for their safe-keeping and delivery to the officer, they shall not be subject to a second attachment to the prejudice of the first.2

(a) The taking of such security does not dissolve the attachment. But the taking of an alternative receipt to pay a certain sum or redeliver the goods on demand, dissolves the attachment.3a

(b) To preserve such an attachment it is sufficient if it appear that the security was given by a third person at the request of the debtor's wife, the debtor being absent at the time of the attachment.4

66

(c) But a verbal promise on the part of the debtor to keep and return a pair of oxen thus attached does not constitute security" within the meaning of the statute.5

3. When any personal property is attached, which by reason of its bulk or other special cause, cannot be immediately removed, the officer may within five days thereafter, file in the office of the clerk of the town, in which the attachment is made, an attested copy of so much of his return on the writ as relates to the attachment, with the value of the defendant's property which he is thereby commanded to attach, the names of the parties, the date of the writ, and the court to which it is returnable; and such attachment shall be as effectual and valid as if the property had remained in his possession and custody. The clerk shall receive the copy, and note thereon the time of his receiving it, and enter it in a book kept for that purpose, and keep it on file for the inspection of those interested therein, for which he shall be entitled to ten cents. When such an attachment is made in an unincorporated place, such copy shall be filed and recorded in the office of the clerk of the oldest adjoining town in the county.

(d) An attachment of a barn as personal property will not be preserved under the foregoing section, unless the statute certificate is filed as therein provided.7

(e) There is no constructive possession of goods attached, in the officer, after he has left them in the possession of the debtor.8

4. Different attachments in one or more counties may be made successively upon the same writ, and by different officers, before the service of the summons upon the

R. S. c. 81, § 23.-3 Woodman v. Trafton, 7 Me. 178.-3a Mitchell v. Gooch, 60 Me. 110.4 Merrill v. Curtis, 18 Me. 272.5 Gower v. Stevens, 19 Me., 92. R. S. c. 81, § 24.-7 Wetherell v. Hughes, 45 Me. 61.8 Pillsbury v. Small, 19

Me. 435.

person whose property is attached; but none after such service. And personal property attached by a coroner may be again attached by a sheriff, deputy sheriff, or constable, subject to the former attachment by giving notice thereof to the coroner and furnishing him with a copy of the precept within a reasonable time thereafter, and so property attached by the last named officers may be again attached by a coroner in like manner; and personal property attached by a constable may be again attached by a coroner or by a deputy in the same manner.9

5. When the share or interest of any person in any incorporated company is attached on mesne process, an attested copy of the writ with a notice thereon of the attachment, signed by the officer, shall be left with the clerk, cashier, or treasurer of the company; and such attachment shall be a lien on such share or interest, and on all accruing dividends; and if the officer having the writ of attachment exhibits it to the officer of the company having custody of the account of shares or interest of the stockholders, and requests a certificate of the number held by the defendants, and such officer unreasonably refuses to give it, or willfully gives him a false certificate thereof, he shall pay double the damages occasioned by such refusal or neglect; to be recovered against him in an action on the case by the creditor.10

6. The franchise and all right to demand and take toll, and all other property of a corporation, may be attached on mesne process, and the attaching officer shall leave an attested copy of the writ with a notice of the attachment thereon, signed by him, with the clerk, treasurer, or some officer or member of the corporation, as provided in R. S. c. 81, § 18.11

7. Shares in a corporation, formed under chapter fiftyfour of the R. S. concerning " aqueducts," are personal estate, and may be attached on a writ and sold on execution for the debts of the holders like shares in other corporations; and the franchises, fixtures, pipes, fountains, and interests in lands of such corporations are liable to attachment and sale on execution, as personal property, for their

R. S. c. 81. § 27.-10 R. S. c. 81, § 25.-11 R. S. c. 81, § 26.

corporate debts; but the purchaser thereof at such sale shall not interfere with the possession of the corporation for two months after the sale; and within that time, it may redeem such franchise and property by paying the sum for which they were sold, with interest; but if not so redeemed, the purchaser shall have the same rights under the franchise, and to such property as the corporation had. Any creditor of such corporation, whose execution has been satisfied by an ineffectual sale of such franchise or property, may revive the judgment by scire-facias.11a

(f) In determining what shall constitute an attachment of personal property, regard must be had to the nature of the property, its situation, the expenses of a removal, and to the kind of possession of which it is susceptible.12

(g) To constitute and preserve an attachment of mill-logs, found in a river or upon its banks, it is not necessary that there should be the same manual possession or the same constancy and extent of supervision, as would be requisite in case of many other sorts of property, less cumbrous and more easily movable.13

(h) To constitute an attachment of saw-mill gear, hoops, &c., in and about the mill, it is not necessary that the officer should handle the property attached; but he must be in view of it with the power of controlling it and of taking it into his possession; and in case of an attempt by another to interfere or take possession, the officer should take such measures as to prevent it, unless resisted.14

(i) And to preserve an attachment the officer must by himself or his agent retain his control and power of taking immediate possession in all those cases in which the property is capable of being taken into actual possession, except in those where the statute prescribes a different rule; otherwise, the attachment will be regarded as abandoned.15

(j) An officer must be present at the place where wood is situated in order to justify a return of attachment of it.16

(k) Property can be attached only to secure the demand sued; and if other demands be afterwards introduced by amendment, the attachment will not be good against subsequent attaching creditors.17

(1) Where goods are left in possession and under the control of the debtor by the officer making the attachment other than as provided in §§ 23 and 24, c. 81, R. S., they may be attached by another officer, and such attachment will be valid though the second attaching officer had notice of the prior attachment. 18

11a R. S. c. 54, $ 6.-12 Bicknell v. Trickey, 34 Me. 272.-13 Ibid.-14 Nichols v. Patten, 18 Me. 231.-15 Nichols v. Patten, 18 Me. 231; Waterhouse v. Smith, 22 Me. 337-16 Darling v. Dodge, 36 Me. 370.-17 Fairbanks v. Stanley, 18 Me. 296. 18 Gower v. Stevens, 19 Me. 92.

(m) An officer cannot break the outer door of a dwelling-house to make an attachment of the owner's goods, or to arrest the person of the debtor, or to execute civil process generally; 19 otherwise as to breaking the outer door of a warehouse or store.20

(n) An attaching officer acquires a special property in goods attached by him which are liable to attachment,21 and it enables him to protect the rights he has thus acquired; 21 and this special property constitutes an insurable interest, which he may protect by obtaining insurance thereon, though he is not under obligation to do so.22

8. When personal property is attached, by consent of the debtor and creditor, the officer may sell it on the writ before or after entry, observing the directions for selling on execution; and if it is attached by different officers, it may be so sold by the first attaching officer; or in case of his death, if he was a deputy-sheriff, by the sheriff or another deputy by the written consent of the debtor and all attaching creditors; and the proceeds of sale, after deducting necessary expenses, shall be held by the first attaching officer or the sheriff, subject to the successive attachments as if sold on execution.23

(0) But if sold without the consent of the creditor and debtor, or otherwise than by the mode prescribed, the sale will make the officer a trespasser ab initio.24

(p) Payment of the proceeds of a sale under the statute, by the officer, to the attaching creditor's attorney before judgment is rendered, is payment to the creditor.25

9. When any personal property liable to perish, be wasted, greatly reduced in value by keeping, or kept at great expense, is attached, and the parties do not consent to a sale thereof, the same may be examined and appraised before or after the entry of the action, as follows.26

(q) It seems that a vessel in good repair, at the port of the owner's residence, is not among the kinds of property, of which an appraisal may be had under the previous section.27

(r) Nor do the provisions of the statute apply to logs seized on a writ brought to secure the statute lien thereon, in favor of one who has rendered services in cutting and hauling them, if the owner of the logs is not a party defendant in the writ.28 But they do apply to a vessel on the stocks.29

19 Swain v. Mizner, 8 Gray, 182.-20 Platt v. Brown, 16 Pick. 553.-21 Nichols v. Valentine, 36 Me. 322; Bradley v. French, 28 Vt. 546.-22 White v. Madison, 26 How, Pr. R. 481.-23 R. S. c. 81, § 28.-24 Ross v. Philbrick, 39 Me. 29.-25 Ducett V. Cunningham, 39 Me. 386.-26 R. S. c. 81, § 29, as amended by Pub. Laws of 1871, c. 184, § 1.-27 Moulton v. Chadbourne, 31 Me. 152.-23 Hinckley v. Gilmore, 49 Me. 59.-29 Snow v. Cunningham, 33 Me. 161.