7 Me. 348 | Me. | 1831
delivered the opinion of the Court at the ensuing May term in Kennebec.
The plaintiff’s attachment was prior to that of the other creditors named in the brief statement; but the defendant, representing those creditors contends that those proceedings which were had between Clark and Small, after the service of the writ and before the entry of judgment in the original action, have by legal operation released Clark’s attachment in toio ; and if so, the defendant is entitled to judgment on the verdict. We will first state certain principles which have been settled, having a relation to the subject under consideration; and then examine the facts reported, and see how far those principles are to influence the decision of this cause. In a civil action, when a special attachment of property has been made, or bail taken, on mesne process, if the plaintiff and defendant enter into a reference of that action and all demands, it is an admitted principle that such reference operates as an absolute and immediate release
Where A and B are creditors of the same person, and an attachment'of the same property is made at the suit'of each, A’s attachment being prior to that of B ; should A have leave to amend his declaration, and, under such general leave, insert one or more counts, and therein set forth a new cause of action, such a proceeding dissolves or releases the attachment. Willis v. Crooker, 1 Pick. 204. It does not appear that there was any fraudulent intention in that case in making the amendment; still, as the result of it would have prejudiced the rights of the second attaching creditor, had it been sanctioned, the court decided that its legal operation was to release the attachment. Whether this release is to be considered as the effect of a waiver of it, as in the case of a refer-
It does not appear by the report of the Judge, that there was any objection to the introduction of any of the proof of those facts contained in it; we are therefore to examine and judge of them in forming our opinion. The account on which the balance is stated, for which judgment was rendered, exhibits a debt against Small amounting to ‡817,90, and a credit to him amounting to ‡112,00, leaving, as due, a balance of ‡705,00. The ad damnum being only ‡700, judgment was rendered for no more than that sum. Among other items in this account, not stated or alluded to in the account annexed to the writ, is a charge of a note of hand for .f68,32, principal and interest; and sundry other charges amounting to $366,-30. ■ The defendant contends that the last mentioned note, and
Judgment on the verdict.