Brady v. Royce

62 N.E. 960, 180 Mass. 553, 1902 Mass. LEXIS 1138

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1902
• Status: Published

Opinion

Hammond, J.

The judge before whom this case was tried without a jury may well have found upon the evidence that the first attachments were not made for the purpose of enabling the last to be made, and were abandoned simply because the plaintiff did not have in the writs the' right name of the defendant, that the last attachments were made on writs issued for the purpose of correcting the mistake, and that in all this the plaintiff and the officer acted without fraud and in good faith. If he so found, then the last attachments were valid; even if the property was not returned to the owner before they were made. Gile v. Devens, 11 Cush. 59. Wiggin v. Atkins, 136 Mass. 292. Choquette v. Ford, 178 Mass. 6.

The case is easily distinguishable from Ilsley v. Nichols, 12 Pick. 270, and similar cases upon which the plaintiff relies.

If the last attachments were valid, then, since the actions in which they were made were still pending at the time of the issuing of the writ in this present action, neither of the counts in contract can be maintained.

Since the plaintiff has not argued upon his brief the exceptions as to the admission of evidence, in view of their nature we consider them waived.

Exceptions overruled.