Thurston v. Huntington

17 N.H. 438

• Court: Superior Court of New Hampshire
• Decided: December 15, 1845
• Status: Published

Opinion

Parker, C. J.

The fact that the town-clerk was not present does not affect the attachments.

Aside from the fact that the sheriff returned the attachments in a particular order, subject to each other, the evidence would show the attachments to be simultaneous. They were made at the same time.

When attachments are simultaneous the attaching creditors are entitled to equal portions. 13 Mass. 529, Shove. v. Dow; 14 Pick. 414, Sigourney v. Eaton; 6 Conn. 170, Lee v. Hinman, cites 1 Swift’s Dig. 156.

The main question, then, is, what effect that fact has upon the case.

Returns may so be made. This is often done in attachments of personal property. It does not show that the attachments were not made at the same time, but indicates the order in which the writs were delivered to the officer, and in which he served them.

This has no effect upon the attachment of-Herschell Davis. It makes no difference to him whether the other attachments had as respects themselves a particular order of priority. They were all made at the same time with his. He takes a share in the proportion of his claim to the whole number of claims.

But it has the effect to give priority among the others. They take the residue in their order. This results from the return of the defendant, making them subject to each other. If he had no right to do so, they have a remedy against him. But if he returned them in the order in which they were received, he gave them their rightful precedence.

Verdict amended and judgment for the plaintiff.