| N.H. | Jun 15, 1861
The plaintiff’s motion to amend his return was reserved for our consideration, and the facts upon which the motion was founded, as stated in the case, seem to us to authorize the amendment. Johnson v. Stone, 40 N. H. 197; Mahurin v. Brackett, 5 N. H. 11. The motion should, therefore, be granted. This conclusion renders it unnecessary to examine a number of questions that might otherwise arise.
We do not propose to inquire whether the defendant Heath, at any time, had a lien upon the bricks, for if he once had, we think that fact does not furnish a defense to him, and if not to him, certainly not to Little. The plaintiff seems to have had no notice of the claim of lien, and to have attached the bricks without reference to it. If Heath had a lien, the attachment was not void, but was merely voidable, at most, at his election. Scott v. Whittemore, 27 N. H. 320; Hills v. Wiggin, 31 N. H. 292. Instead of avoiding the attachment, Heath admitted and confirmed it by his receipt, which is not shown to have been given under any mistake. State v. Richmond, 26 N. H. 238. The defendants are, therefore, in no position to deny the validity of the attachment.
Although a receiptor may defend, by showing that the property has been taken from him by a person having a paramount title, (Scott v. Whittemore, 27 N. H. 321; Barron v. Cobleigh, 11 N. H. 558,) or by showing his own title, in some cases, (Hills v. Buffum, Hills. Co., June term, 1861) the defendants fail to show such a ease. While the property was in the defendants’ possession, at most they could only claim the right of detention in Heath till payment for the manufacture. The bricks were not retained by the defendants, or either of them, but were given up by them to Peaslee, who paid Heath the sum for which the lien is now claimed. After this, Heath had no lien, and, therefore, the defendants show no paramount title or right of possession in him, or in Peaslee, for the
Tbe return upon Hall’s second writ sufficiently describes tbe propei’ty attached (Reed v. Howard, 2 Met. 36" court="Ky. Ct. App." date_filed="1859-10-15" href="https://app.midpage.ai/document/kennedy-v-commonwealth-7129717?utm_source=webapp" opinion_id="7129717">2 Met. 36); and it is no objection to tbe receipt that it contains a description of tbe property more specific, in one particular, than tbe return.
Tbe principles on which damages were assessed were sufficiently favorable to tbe defendants. Scott v. Whittemore, 27 N. H. 323; Phelps v. Gilchrist, 30 N. H. 180.
Upon tbe amendments being made, there must be judgment for tbe plaintiff, according to tbe finding of tbe court at tbe trial tex*m.