Briggs v. Hodgdon

• Decision Date: 24 December 1886
• Citation: 7 A. 387,78 Me. 514
• Parties: BRIGGS v. HODGDON and another.
• Court: Maine Supreme Court

7 A. 387

78 Me. 514

BRIGGS

v. HODGDON and another.¹

Supreme Judicial Court of Maine.

December 24, 1886.

On report from supreme judicial court, Piscataquis county. Trespass quare clausum.

Ephraim Flint, for plaintiff.

Peregrine Wliite, for defendants.

HASKELL, J. Trespass quare clausum for cutting timber upon lot 56, in Williamsburg, Piscataquis county, and carrying the same away. Some cutting and asportation are admitted. The case comes up on report, with an agreement that the title to the locus shall be determined.

The evidence fails to prove that the plaintiff has acquired title to the locus by disseizin; and his supposed title must be upheld, if at all, by virtue of an attachment and levy upon the locus as the property of one Soule, who, at the date of the attachment, in 1855, was the owner of two-thirds thereof, and at the date of the levy had conveyed that interest to the defendants' predecessor in title. The record produced shows that the judgment supposed to have been satisfied by the levy was rendered upon a declaration containing three counts,—two upon promissory notes, and. the third for $200, before the date of the writ; "had and received by the defendant, to the plaintiff's use," without more particular allegation or specification. The judgment was on default, for the amount due upon the two notes declared upon.

No attachment of real estate creates any lien thereon, unless the nature and amount of the plaintiff's demand are set forth in proper counts, or a specification thereof is annexed to the writ. Rev. St. c. 81, § 59. This statute, enacted in 1838, (chapter 344,) was in force when the supposed attachment was made.

The first two counts shown by the record are without fault, but the third, count, for "money had and received," does not allege when the money was received, other than prior to the date of the plaintiff's writ; nor does it state from whom the money was received, nor on what account.

A count for money "had and received" may be drawn with sufficient precision, so as to be a specification in itself; but, when drawn without any particularity of circumstance, and not accompanied by a specification of claim, it is not sufficient to support an attachment of real estate. Drew v. Alfred Bank, 55 Me. 451; Phillips v. Pearson, Id. 570; Shaw v. Nickerson, 60 Me. 249; Bank, etc. v. Lumber Co., 73 Me. 404; Bartlett v. Ware, 74 Me. 292.

The levy upon the locus was made after the judgment debtor had conveyed his two-thirds interest therein to a stranger, through whom the defendants claim title. By mistake, the officer making the extent did not sign the return, and asked the court below for leave to amend his return by signing it. It is agreed that the court may determine whether the amendment shall be made, and, if allowed, it is to be considered as made. The truth of the return is not questioned, and no good reason is shown why the amendment should not be allowed. The authorities permit it. Fairfield v. Paine, 23 Me. 498; Wilton Manuf'g Co. v. Butler, 34 Me. 431; Glidden v. Philbrick, 56 Me. 222; Howard v. Tumer, 6 Me. 106; Oilman v. Stetson, 16 Me. 124, Wilson v. Bucknam, 71 Me. 545; Childs v. Barrows, 9 Mete. 413; Pratt v. Wheeler, 6 Gray, 520; Peaks v. Gifford, 78 Me. 362; S. C. 5 Atl. Rep. 879.

Such amendment ought not to be allowed to the prejudice of innocent purchasers, and, ordinarily, should only be allowed by saving the rights of such persons, (Glidden v. Philbrick, supra;) but in this case such reservation is not called for, inasmuch as all interests in the locus adverse to the plaintiff have been conveyed to Mr. C. A. Everett, a counselor and attorney of this court, who was the attorney for the judgment creditor in making the writ, directing the attachment, procuring the judgment, making the extent, and in receiving seizin and possession of the locus for the judgment creditor, and in his name and stead. The office of attorney and counselor is full of responsibility and honor. The law holds out these officers to be competent, honest, and faithful to those seeking their counsel and assistance. The communications of the client must remain with the faithful attorney a secret forever. He can neither voluntarily disclose them, nor can he be compelled to do so by process of law. The law requires from these officers the most implicit fidelity and complete good faith in all their professional "walk and conversation." From them judges of the court of last resort are to be selected,—"persons learned in the law, and of sobriety of manners." Their oath requires the strictest professional demeanor, absolute honesty, fidelity, and good faith both to the courts and to their client.

Mr. Everett...