Bradstreet v. Ingalls

84 Me. 276 | Me. | 1892

Peters, C. J.

The plaintiffs sued Isaac- T. Hobson, and undertook to attach on the writ a steamboat, standing of record at the custom house in Hobson’s name, by having the officer return a copy of his doings on the writ into the clerk’s office of the town where Hobson resided; although the steamboat was not actually seized by the office?" at the time of the pretended attachment nor until after the term of court had adjourned to which the writ was returnable. The boat was afterwards seized by the officer when it came within his jurisdiction, and released upon the agreement, given by the defendant in this action to-the plaintiffs, to the effect that he would pay the plaintiffs’ claim! if their attachment should be held by this court to be valid.

The sheriff’s amended return is as follows: "Lincoln, ss. On the first day of June, A. D., 1888, by virtue of this writ, I have this day, at six o’clock in the afternoon, attached the steamer Lincoln of Wiscasset, as the property of the within named defendant, valued at five thousand dollars, now at sea, so far as I have the power to make such attachment, the said steamer being at sea and so far as is known to me is not in the town of Wiscasset, or within my precinct or jurisdiction, its present location being unknown to me, and on the second day of June, A. D., 1888, within five days after said attachment as aforesaid, I filed in the office of the clerk of the town of Wiscasset an attested copy of so much of my return on this writ as relates to said attachment of said steamer, with the value of the defendant’s proporty which I am by said writ commanded to attach, the names of the parties, the date of the writ and the court to which it is returnable. John E. Kelley, sheriff.”

An interesting argument has been submitted by plaintiffs’ counsel in support of the validity of the attachment, founded upon maritime rather than common law theories, but impressing us as being in contradiction of our statutory system on the subject of attachments, and contrary to a long settled and well approved practice. The innovation would be too great to admit the legality of such an attachment. To make an effective attachment of a vessel, or of any personal property, an officer must make an actual seizure. Nichols v. Patten, 18 Maine, 231. He cannot attach a vessel absent and afloat upon the sea while he is upon the land. The facts fail to support the action.

Plaintiffs nonsuit.

Walton, Virgin, Emery, .Foster and Haskell, JJ., concurred.