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Hamlin Rand versus Samuel Sherman
May 1, 1832 - Opinion
Case records
Open case page| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| May 1, 1832 | Hamlin Rand versus Samuel Sherman Current page | Opinion | Supreme Court | Reporter |
Hamlin Rand versus Samuel Sherman.
A writ of ar.Rehm-rt iw use'1 m the commence inení of ü icoi acLuu and goods may l»e atrnclied and held, to pay the costs of I ho > tit.
This was a writ of entry. The tenant craved oyer oi the writ, which was as follows.
“ THE STATE OF NEW-IfAMPSHIEE.
Grafton, ss. To the sheriff, &c.
We command you to attach the goods or estate of Samuel Sherman, Ac. to the value of fifty dollars, and summon the said Sherman to appear, &c. then and thereto answer to Hamlin Rand, &c. in a plea of land, Sic.
He then prayed judgment of the writ, because it was not in the form by law prescribed for a writ, in suelta case.
To this plea there was a demurrer, and the tenant joined in the demurrer.
J. Smith, for the demandant.
The question is, whether a writ-of attachment is a proper process in a real action, and whether property may be attached, to secure the payment of the costs, in such an action ?
The forms of writs, prescribed by statute, are general,, and are left, by the legislature, to be applied to particular eases, according to the principles of the common law.
That a writ of capias was once used in real actions, is certain; and the statute of February 9, 1791, provided, “ that no person, against whom any action of ejectment, or trespass and ejectment,.shall be brought, in this state, shall be held to special bail, bat his or her own bail shall be deemed sufficient.” If a capias was never ur-eo:a real action-, this provision wa« idle and nneratory
Aw. the siatUK' of January J. Í Am. enacted. * rimt no terser. nja.AH xLcm any rea; action, or any action r*i ejectment, or trespass and ejectment, shall be brought, shall be liable to be arrested on mesne process in such suit.” This statute has taken away a capias, in a teal action, but it is very clear, that, until this statute was passed, the body might have been arrested on mesne process, in a real action. And if the body was liable to arrest in such a case, a fortiori, an attachment of goods was lawful, and a writ of attachment still remains, a proper process, in such a case.
Goodall and Woods, for the tenant.
13y the court.
In practice, it has rarely, if ever, happened, of late years, that a writ of attachment has been used, in the commencement of a real action. The process in common use, in such cases, has been a summons. But we see no reason why a writ of attachment may not be used. In personal actions, goods and estate may be attached, and held to pay the costs, as well as the debt or damage. We are, on the whole, of opinion that the plea must be adjudged insufficient.