Trafton v. Gardiner

Shepley, C. J. — The right of a creditor to attach the property or to arrest the body of his debtor, rests upon the provisions of our statutes. It does not appear to have been the intention to permit a creditor to take the property of a debtor from his possession, or to create a lien upon it, and at the same time to arrest his body. Hence the frame of the writ is such, that an attachment and an arrest are not commanded or authorized at the same time. This was the condition of the law, while this State composed a part of the Commonwealth of Massachusetts. Almy v. Walcott, 13 Mass. 73. In this case the defendant, as a deputy of the sheriff, made his return on a writ in favor of William C. Watson against the plaintiff and William Trafton, that he had on June 5, 1852, attached all the right, title and interest of the defendants in all real estate in the county, and that he had within five days filed with the register oí deeds a regular notice of it. On October 12,1852, he also returned on the same writ that he had arrested the bodies of the defendants and committed them to prison. The plaintiff did not prove to have had any real estate in the county liable to bo attached. But the authority of the officer to arrest the body was not made to depend upon the fact, that the property attached was owned by the debtor, [504] or upon the fact that tbe attachment should prove to be effectual, but upon the want of property to be attached. And that want cannot be alleged to exist, when an attachment of property has been returned upon the writ. Exceptions overruled. Tenney, J., was not present at the hearing and took no part in the opinion.