Osgood v. Holyoke

The opinion, adopted by a majority of the Court, was drawn up by Appleton, J. It would seem that a valid attachment might, according to the opinion of the Court in Fairbanks v. Stanley, 18 Maine, 296, be made on a writ containing only the money counts. After the attachment, the effect of which was considered in that case, the statute of 1838, c. 344, was passed, which [413] became embodied in R. S., 1840, e. 114, § 33, and is still continued in force in the revision of 1857, c. 81, § 31. By that Act, it was provided that no attachment “ shall be valid, unless the plaintiff’s demand on which ho 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.” The writ, in the suit, Hancock Bank v. Williamson, contained a count specially on a note of hand, and for money had and received,' but no specification of the claim to be proved under the latter count was annexed to the writ. The money count contained no sufficient specification of “ the nature and amount” of “ the plaintiff’s demand.” Judgment was rendered generally upon the declaration. Under the money count, another note or notes than that described in the declaration might have been introduced. The note declared upon might have been omitted and formed no part of the judgment. Other and different notes or claims might have formed the basis of the judgment. The declaration contains no specification, by which the substitution of another demand could be prevented. The nature of the plaintiff’s claim is not sufficiently indicated by the money count. The rights of the parties are dependent upon the facts disclosed by the declaration; not upon such as may be subsequently proved or ascertained. The writ must set forth “ the nature and amount” of the plaintiff’s claim, else the attachment is declared to be invalid. “ The intention of the statute must have been,” remarks Wells, J., in Saco v. Hopkinton, 29 Maine, 268, “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. When 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 [414] was required to be given, than' could be obtained from the general counts.” The construction of the section in question, as given by this Court in the case of Saco v. Hopkinton, must be regarded as affirmed by the Legislature, by its subsequent reenactment, in the same language, in the revision of 1857. Such is the universal rule. Myrick v. Hasey, 27 Maine, 9. Plaintiff nonsuit. Tenney, C. J., Rice, Cutting and Datis, JJ., concurred. May, Goodenow and Kent, JJ., dissented..