Kimball v. Davis

Supreme Judicial Court of Maine

Kimball v. Davis

19 Me. 310

CourtSupreme Judicial Court of Maine

DecidedJune 15, 1841

StatusPublished

Cited by1 cases

This text of 19 Me. 310 (Kimball v. Davis) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kimball v. Davis, 19 Me. 310 (Me. 1841).

Pincite

Opinion

The opinion of the Court was delivered by

Shepley J.

It was decided in the case of Betts v. Norris, 15 Maine R. 468, that an officer was not obliged to make an actual attachment of property without written directions to do so. It was not decided, if he should make an attachment without such directions, that he would not be holden to preserve and account for the property. Nor that it was necessary to designate in writing the particular property to be attached. By a written order to attach, the intention is communicated, that it should be an actual attachment of property of some value, and not a nominal one ; and the officer thereby becomes entitled to the larger fee. All, which the statute does or was designed to require, is, that a written order should make this intention known. And the admission of parol evidence of the particular articles or species of property to be attached does not contradict, vary, or change the legal effect of such an order. There is nothing in the statute requiring, that such written direction should be signed by the plaintiff or his attorney ; and when it is placed on the back of the writ it must be presumed, until the contrary is made to appear, to be rightfully there.

In this case the order was not so plainly written as might be desirable or necessary for those unaccustomed to such business ; but sufficient was written, though the words were abbreviated, to make known to attorneys, officers, and others, [313]*313familiar with such business, the design. The officer appears to have understood and to have been governed by it.

Mr. Vose is not shown to have been so interested as to prevent his being a competent witness for the plaintiff. Phillips v. Bridge, 11 Mass. R. 242; Union Bank v. Knapp, 3 Pick. 96. He was admissible on the ground, that he wras the agent of the plaintiffs, without sufficient evidence of neglect, to prove that he would be liable to them, if they should not recover against the defendant.

Exceptions overruled.

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The opinion of the Court was delivered by

Shepley J.

It was decided in the case of Betts v. Norris, 15 Maine R. 468, that an officer was not obliged to make an actual attachment of property without written directions to do so. It was not decided, if he should make an attachment without such directions, that he would not be holden to preserve and account for the property. Nor that it was necessary to designate in writing the particular property to be attached. By a written order to attach, the intention is communicated, that it should be an actual attachment of property of some value, and not a nominal one ; and the officer thereby becomes entitled to the larger fee. All, which the statute does or was designed to require, is, that a written order should make this intention known. And the admission of parol evidence of the particular articles or species of property to be attached does not contradict, vary, or change the legal effect of such an order. There is nothing in the statute requiring, that such written direction should be signed by the plaintiff or his attorney ; and when it is placed on the back of the writ it must be presumed, until the contrary is made to appear, to be rightfully there.

In this case the order was not so plainly written as might be desirable or necessary for those unaccustomed to such business ; but sufficient was written, though the words were abbreviated, to make known to attorneys, officers, and others, [313]*313familiar with such business, the design. The officer appears to have understood and to have been governed by it.

Mr. Vose is not shown to have been so interested as to prevent his being a competent witness for the plaintiff. Phillips v. Bridge, 11 Mass. R. 242; Union Bank v. Knapp, 3 Pick. 96. He was admissible on the ground, that he wras the agent of the plaintiffs, without sufficient evidence of neglect, to prove that he would be liable to them, if they should not recover against the defendant.

Exceptions overruled.

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Bluebook (online)

19 Me. 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimball-v-davis-me-1841.

Opinion

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