Thompson v. Taylor , 13 Me. 420 ( 1836 )

After a continuance, the opinion of the Court was drawn up by

Weston C. J.

— By the act in relation to foreign attachment, stat. of 1821, ch. 61, sec. 16, it is provided, that a judgment creditor may pursue that process, if he does, within seven days after such process is served, discharge the body of the debtor, in case he is taken in execution upon the same judgment, by a note or memorandum in writing, directed and delivered to the officer, who has him in custody, stating the reason and occasion of the discharge of the person of the debtor. That was done in this case, and it is all which the statute requires. It is not made necessary, that such notice should be communicated by the plaintiff to the debtor. We are therefore of opinion, that the action is well maintained ; and that the plaintiff is entitled to judgment.

Ephraim Bowley, the supposed trustee summoned, is by his disclosure the debtor of William Taylor, one of the principal defendants. Each of the defendants is liable to the plaintiffs for their whole demand. The goods or estate of each are liable to be attached, or taken on the execution, which may issue on the plaintiff’s judgment. We perceive no reason therefore, either on principle or authority, why the several credit of either may not be attached on this process. The plaintiffs have leave to amend their writ, charging Ephraim Bowley as the trustee of Taylor, and thereupon he is adjudged trustee, according to his disclosure. This being debt on judgment, of which the fees of commitment constitute no part, they cannot be recovered in this action.