Garity v. Gigie

130 Mass. 184, 1881 Mass. LEXIS 45

• Court: Massachusetts Supreme Judicial Court
• Decided: January 6, 1881
• Status: Published

Opinion

Gray, C. J.

As a general rule, when it is necessary for the furtherance of justice to determine the exact time of an attachment, the hour at which it was made, if not stated in the officer’s return, may be proved by other evidence. Bigelow v. Willson, 1 Pick. 485, 495. Lemon v. Staats, 1 Cowen, 592. Brainard v. Bushnell, 11 Conn. 16. In Fairfield v. Paine, 23 Maine, 498, and in Taylor v. Emery, 16 N. H. 359, cited for the plaintiff, the right of a bona fide purchaser had intervened.

In the case stated, it is agreed that the writ in New Hamp shire was served upon the trustee before the writ in this Commonwealth was served upon him. The fact that the service in New Hampshire was by leaving a copy at his abode, and not upon him personally as stated in the officer’s return, either mode being sufficient under the statute of that State, did not impair the jurisdiction of the New Hampshire court. That court having first acquired jurisdiction of the fund attached, and having, after a full disclosure by the trustee of the facts relating to the suit pending and the service made in this Commonwealth, rendered judgment and execution against him upon which he has paid over the fund, that payment affords a conclusive reason for not charging him anew. „ Hull v. Blake, 13 Mass. 153. Whipple v. Bobbins, 97 Mass. 107. American Bank v. Bollins, 99 Mass. 313. Stockwell v. McCracken, 109 Mass. 84.

Judgment affirmed.