Cooper v. Cree

Hutchinson, C. J., pronounced the opinion of the Court.— The plaintiff’s whole claim is by virtue of his having attached the property in question upon a writ in favor of one Lake, against Oliver Ingham, one of these defendants-. He ought to have added to his present declaration, the return of his writ, the entry of the action, and proceedings therein to final judgementthe taking out execution,, and. delivering of the same to the officer, within thirty clays from the judgement. He cannot recover against Ingham, the original owner, without he has kept his lien good, and that must appear in the declaration,. Should we treat as surplussage .what is said about the plaintiff’s being deputy sheriff, it would not cure the defects} for that is incorporated into the promise, and into every important part of the declaration. Besides, it once appearing in the declaration, that the property in question was attached as the property of Ingham, one of the defendants, nothing can entitle the plaintiff to recover short of his lien kept good to the end of the first suit, and the delivering out of execution in thirty days. Judgement, that the declaration is insufficient. Afterwards, on request of plaintiff’s counsel, he was permitted tQ enter a nonsuit, with full costs.