Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-11-16

WASHINGTON COUNTY.
ALDEN W. KELLEY VS.. CHARLES T.
TARBON.
Rcs2ript by Spear, J.
This is an action in which the plaintiff
Judgment creditor of Harry l.. Smith
seeks to recover OF the defendant sheriff
Fred L. ellison, one OF ms deputies to
make demand. within 30 days from the
date OF judgment. upon an execution, for
peisontl property attached by John p.
LonSfcllow, former sheriff Of the County,
upon the original writ i'll favor of Kelley
vs.. Smith upon which said judgment and
execution Were obtained.
The plaintiffs exceptions show that
After the evidence upon both sides was
introduced the Court ruled that III" de-
PENDANT was not Fable for the failure of
tachinG Office" for the goods alleged to
have been attached. unless it be shown
that there was valid attachment of
Sucl. goods.
THAT til" return Of the officer upon tho
original writ showing that an attachment
was attempted to b" maintained by filing
cory of his rctull under T.. S. e. ". sec.
-. of the present r. S. did not show Il
valid an'. maintained attachment Of such
goods. since it appears that the goods
reason why. the same could not have
been Immediately removed
That in Wow of the officers return il
was incumbent upon the plaintiff to
prove by evidence outside of tn" officers
return that a valid attachment of tho
good; in question was made and MAIN
tanned. and that thcr" is no presumption.
III view of the officers return, that the
attachment was properly made and main
tain"d and that there was II" sufficient
evidence thereof.
Th" court further ru'rd t'rNt w a"ti,n
could rot be ma;HtIir.d ;:.'.2 ~ r.-:!ir.n
ordered 4 verdict tor TIC t'rrrt'!-tlt.
The de cision of this ease must finally
turn upon the question of fact whether
the deputy she riff Fred T. ellison made 4
demand uron isaac L. LonGfcllow the
former sheriff for tho goods and chattels
attached uron the original writ
BY the stipulation in the- record the
court is to determine this issue Of fact.
the exc cutior r.as placed in Gilson,S
hands with directions to make a demand.
and that it was returned in no part sat
iSiied and without any demand endorse
upon it. it then developed upon the de
t"ndant if lie would intcrpose the de-
fence that a demand WAS made tn as
sumo the Affirmative of that proposition.
1t was incumbent uron him to sustain
ion that, upon the evidence he has failed.
We must then proceed farther and. I'M
on the assumption that no demand was
mad". determine the ruling of the court.
The first question that arises for dis
CuSSiOn is whether the officers return
showed Il valid attachment Of the goods
in question.
The return Of the officer is the wi
d"rrc. that prorerty referred tc -her"in
has been attachcd.
HELD that the return Of the Officer on
the writ of Kelley W. Smith is at least
prima facie evidence that the property
therein enumerated WAS attached. and
that tho filing Of the ccrt .ficatc Of the
goods attached was an 1ct independent
of the attachment. and WIS calculated T.
operate only as one Of tho nodes of pre-
serving On attachment already made
Tls' officers return shows n valid at
ta"hmcnt in tho original suit but the pre-
siding Justice in ordering a nGn-Suit held