Preston v. Hicock

Williams, J.

The statute regulating the service of attachments, requires, that a copy of the writ and of the return, describing the estate attached, shall be left with the debtor, at least twelve days before the session of the court; and that the officer shall make his return forty-eight hours before said session. In this case, the officer made his return in proper time and manner; but the copy left is claimed to be insufficient, because it is not attested as a true copy of his return. The officer certifies upon it, that by virtue of the original writ, of which this is a true copy, he attached the property in question, describing it; but he does not add, that this is a true copy of his return upon the original writ.

The plaintiff claims, that this process is defective, for want of such attestation.

■ The law requires the copy left with the debtor, to be left twelve days before the session of the court, and the return forty-eight hours only before the court. His return, which is nothing but a simple history of his proceedings with the writ, must, of course, state, that he has left a copy with the debtor; and the plaintiff claims, and a literal construction of the statute will seem to justify it, that the copy left must be an attested copy of his return, so far as regards the description of the property attached. To comply thus literally with the statute, the officer must sit down and make his return before he leaves the copy, that he has left a copy with the debt- or ; or he must leave a copy with the debtor, attesting it as a true copy of his return as to the description of the property, before that return is made. Either mode is impracticable, consistently with truth ; in consequence of which, a practice arose — which I had supposed very extensive — -like that adopted by the officer in this case. It is claimed, that this practice is not general nor legal. And in support of its illegality, it is said, that when property is thus taken by law in invitum, the law' must be strictly pursued. This general principle is certainly correct; but in looking into a statute, which seems to involve contradictions, we are to give it such a construction *534 as ⅛ agreeable to the general custom, and which will best carry into effect the object of the legislature in making it.

Formerly, goods might be taken on mesne process, and no notice whatever given to the debtor, of what goods were taken, unless incidentally, by the officer’s taking possession of them, and until the return of the wrrit. But it was deemed important, that notice should be given to the debtor, not merely of the existence of the process, but of what was done by virtue of it; and in the year 1770, the provision in question was introduced, by which the debtor was to be officially informed of what proceedings had taken place upon the process against him; and I can see no other object but this. It is said, indeed, that one object is, to see that the property is lawfully out of his hands ; but the proper place to look for this, is the return upon the writ rather than upon the copy of that return, or by comparing one with the other.

Besides, it is very difficult to perceive how an attested copy of the description of the goods attached could shew better the illegality of the proceedings, than the description of the goods themselves, attested to be true. The truth is, that the description, in the writ, of the goods attached, and on the copy, if both are correct, must, of course, be substantially the same, although neither is copied from the other. The debtor, then, has all that it could have been intended he should have, an official statement from the officer, of the goods taken. The return contains the same statement. The court and the public are informed of that fact; and the same fact is cominuni-ted to the debtor, by the description on the copy of the writ. The attesting of it as a true copy of the return on the writ, is no higher evidence of the property taken, than the debtor would have without it. It was suggested, that the debtor might thus have an opportunity to judge of the validity of the attachment; but as it is not claimed, that the whole return is to be copied and left with the debtor, it is manifest that this knowledge can c>nly be completely obtained, by the return itself.

Upon the whole, then, this practice gives to the debtor, in a plain and direct manner, that information, which it was the object of the statute he should have. It gives to the officer the privilege, which it was also intended he should have, of taking more time to make his returns than to make his copies. And it makes one part of the duty of the officer consistent *535 with the other part, instead of requiring from him what would 1 ■ . , * , . . . , . be impracticable, or at least, inconsistent with the other quirements of the statute.

I am, therefore, of opinion, that the defendants acquired a lien, by their attachment; and that the superior court be advised to render judgment in their favour.

The other Judges were of the same opinion.

Judgment for defendants.