ment in common form, and by whom the property was previously attached; and if the goods have not been replevied, by leaving a certified copy of the writ, omitting the declaration, and of the return of that attachment, with the former officer, if living, or if dead, with his executor or administrator, or if none are appointed, with the person having the possession of the goods; or if the goods have been replevied, and the officer who made the original attachment is dead, such copy shall be left with the plaintiff in replevin, or his executors or administrators; and the attachment shall be considered as made, when such copy is delivered in either of the modes before described.54

28. Goods that have been taken by replevin from an attaching officer, shall not be further attached as the property of the original defendant in any other manner than that provided in the four preceding sections, so long as they are held by the person who replevied them, or by any one holding under him, unless the original defendant has acquired a new title to the goods.55

ATTACHMENTS AND ACTIONS WHERE A PARTY DIES.

29. The attachment of personal property continues in force after the death of the debtor as if living, unless before a sale thereof on execution, his estate is decreed insolvent; but it is dissolved by such decree, and the officer, on demand thereafter, shall restore such property to the executor or administrator on payment of his legal fees and charges of keeping.5

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30. If after such decree, and before such demand, the officer has sold the property on execution, he shall be liable to the executor or administrator in an action, not of trespass, but for money had and received for the proceeds, if in his hands; but if paid over to the judgment creditor, such creditor shall be so liable; and shall not set off any demand he has against the executor or administrator on the estate of the deceased.57

31. After the death of a defendant and before a decree of insolvency on his estate, the executor or administrator

54 R. S. c. 81, § 47.—55 R. S. c. 81, § 48.—56 R. S. c. 81, § 49.—57 R. S. c. 81, § 50.

may demand of the attaching officer a certified copy of his return on the writ with a description of the property attached, so that it may be described in the inventory of the estate subject to the attachment, and the appraisers may demand a review thereof so as to appraise it; and if the officer fails to comply with either demand, he forfeits to the executor or administrator not less than ten nor more than thirty dollars.58

31. (a) When a plaintiff in an action dies before the expiration of thirty days from the rendition of judgment in his favor, execution may issue as is now provided, and all attachments then in force shall continue ninety days. after the next term of the court in that county.58a

32. An action, brought by an officer for taking from him personal property attached by him, shall not abate by the death of either party; but may be prosecuted by or against his executor or administrator. If the officer is dead and his representative recovers the property or money, it shall be held and applied as if he was alive; but if he fails to recover he shall return the property or pay the damages awarded in full, though the estate of the deceased is insolvent.59

33. If any officer, authorized to serve precepts, dies pending a suit for or against him for official neglect or misconduct, and no administration is granted on his estate within three months thereafter, the party, for whose benefit the suit is so prosecuted or defended, may carry it on in his own name by entering his appearance and giving security for costs, as the court directs.

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ATTACHMENT OF REAL ESTATE.

34. All real estate liable to be taken in execution as provided in the revised statutes, chapter seventy-six; the right to cut and carry away grass and timber from land sold by this State or Massachusetts, the soil of which is not sold, and all other rights and interests in real estate, may be attached on mesne process, and held to satisfy the judgment recovered by the plaintiff; but the officers need not enter on or view the estate to make such attachment.61

58 R. S. c. 81, § 51.58a Public Laws of 1873, c. 139.—59 R. S. c. 81, § 52.-60 R. 8. c. 81, § 53.-R. S. c. 81, § 54.

(z) The right, title, and interest which any person has, by virtue of a bond or contract, to a conveyance of real estate on specified conditions is attachable.62

(a) And when such interest is seized on execution and sold agreeably to the statute, the lien of the creditor becomes fixed, and is not dissolved by a voluntary surrender of the land to the obligor by the obligee or his agent without consideration.63

(b) The obligee of such a bond who has forfeited his right by a non-performance of the condition precedent has no attachable interest in the estate; and, if after a nominal attachment of the same is made, the obligor should, without fraud, procure a renewal of the bond, and sell and assign the same, his assignee's rights would not be affected by the attachment.64

(c) A right, acquired in any legal mode, to the conveyance of real estate, though resting entirely in contract, is attachable.65

(d) The interest of a mortgagee of land prior to foreclosure is not attachable; nor is the interest acquired by a judgment creditor in his levy on land, during the year allowed by law for its redemption; nor will a levy of it as his property during that time avail him although it should not be redeemed; nor that of the purchaser of an equity of redemption, during the year within which it may be redeemed.68

(e) The husband has a life-estate in the real property of his wife, acquired prior to the Pub. Laws of 1844, c. 117, which may be attached for his debts.69

35. When a right of redeeming real estate mortgaged or taken on execution is attached, and such estate is redeemed or the incumbrance removed before the levy of the execution, the attachment shall hold the premises discharged of the mortgage or levy, as if they had not existed.70

(f) An attachment of a right of redeeming real estate mortgaged is sufficient to sustain a levy upon the estate in fee, if at the time of the levy the incumbrance created by the mortgage had been removed.

36. No attachment of real estate on mesne process shall create any lien thereon, unless the nature and amount of plaintiff's demand is set forth in proper counts, or a specification thereof is annexed to the writ, nor unless the officer making it, within five days thereafter, files in the office of register of deeds in the county or district in

62 Whittier v. Vaughan, 27 Me. 301; Houston v. Jordan, 35 Me. 520.-63 Jame son v. Head, 14 Me. 34.-64 Brett v. Thompson, 46 Me. 480.-65 Neil v. Tenney, 42 Me. 322-66 Thornton v. Wood, 42 Me. 282; Brown v. Bates, 55 Me. 520.67 Kidder v. Orcutt, 40 Me. 589.-68 Thornton v. Wood, 42 Me. 282; Rogers v. Wingate, 46 Me. 436.--69 Beale v. Knowles, 45 Me. 479.-70 R. S. c. 81, § 55.11 Jewett v. Whitney, 43 Me. 242.

which all or any part of said estate is situated, an attested сору of so much of his return on the writ, as relates to the attachment, with the value of the defendant's property which he is thereby commanded to attach, the names of the parties, the date of the writ, and the court to which it is returnable. If the copy is not so filed within five days, the attachment shall take effect from the time it is filed, if before the entry of the action, although it is after service on the defendant. But all recorded deeds shall take precedence over unrecorded attachments.72 Every register shall receive all copies of special attachments, made and attested by any officer, of real property situate in the county or district of which he is register; minute on them the time when they are received; keep them on file for the inspection of parties interested, and enter them in a book kept for that purpose."

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(g) Where the writ contained a count for money had and received, but no specification of the claim to be proved under it, the attachment is void.74 So, also, when in addition to the money count, the writ contained a special count on a promissory note, and judgment was rendered generally upon the declaration, but was entered up for the amount of the note only.75 And such an attachment is not made valid by striking out the general count, and taking judgment on the count upon the note alone; for an attachment of real estate invalid when made, cannot be made valid by an amendment of the writ.76

(h) The return of an attachment of real estate by an officer to the registry of deeds, in which the name of one only of several defendants is given, is sufficient to hold the real estate of the defendant named, but not that of the others." "S. J. C., August Term, Kennebec County, 1856," sufficiently shows to what court and term the writ is returnable.77

(i) When the amount of several counts exceeds the ad damnum, a recital of its amount in an officer's return, as the "sum sued for," is a compliance with the statute.”

(j) A simple copy of so much of the officer's return on the writ as relates to the attachment, without being attested, is not such a compliance with the statute as to create a valid attachment.78 Nor is the filing of a statement of the "sum sued for" instead of "the value of the defendant's property," which the officer is commanded to attach.78

(jj) To constitute a valid attachment of real estate, the officer's return must show that the "attested copy "required to be filed in the office of register of deeds was in fact filed.78a

72 R. S. c. 81, § 56; Public Laws of 1873, c. 128.-73 R. S. c. 7, § 16.-74 Osgood V. Holyoke, 48 Me. 410; Forbes v. Hall, 51 Me. 568.—75 Drew v. Alfred Bank, 55 Me. 450; Phillips v. Pearson, 55 Me. 570.-76 Drew v. Alfred Bank, 55 Me. 450. "Lincoln v. Strickland, 51 Me. 321.78 Farrin v. Rowse, 52 Me. 409.-78a Carle ton v. Ryerson, 59 Me. 488.

(k) The object of requiring specifications under money counts is, that notice may be given of the nature and amount of the claim on which the action is based. Therefore an attachment of real estate made on a writ specifying that "the claims intended to be proved under the foregoing money counts are moneys obtained of plaintiff by defendant on notes" specifically described, may be valid as against a subsequent purchaser, although neither of the notes mentioned was due at the time the writ issued.79

37. When a right to redeem real estate under a mortgage, levy, sale on execution or for taxes, or a right to a conveyance by contract, is attached, the plaintiff in the suit, before or after a sale on execution, may pay or tender to the person entitled thereto, the amount required to discharge such incumbrance or fulfill such contract; and thereby the title and interest of such person shall vest in the plaintiff, subject to the defendant's right to redeem as he might from such person; but such redemption by the defendant or any person claiming under hini by a title subsequent to the attachment shall not affect such attachment, but it shall continue in force, and the prior incumbrance as against it, shall be deemed discharged.90

38. Such person, on written demand, shall give the plaintiff a true written statement of the amount due him; and on payment or tender thereof, shall release all his interest in the premises; and if he refuses, he may be compelled to do so by a bill in equity. But such release shall recite that under the authority of this and the preceding section, the plaintiff had attached the premises and paid or tendered the amount due the grantor; the plaintiff shall thereupon hold such title in trust for the defendant, and subject to his right of redemption, without power of alienation till after one year from the termination of said suit, or from the sale of the equity on any execution recovered therein.81

PROPERTY EXEMPT FROM ATTACHMENT.

(1) On general principles. Where property is of such nature that an attachment of it would produce a sacrifice and great injury to the defendant, without benefiting the plaintiff, it is not attachable. Such as the defendant's private papers and books in which his accounts are kept.82 The rule also applies to property which is in its nature so peculiarly perishable, that, manifestly, the purpose of the attachment cannot be effected before it will

79 Jordan v. Keen, 54 Me. 417.-80 R. S. c. 81, § 57.-81 R. S. c. 81, § 58. 82 Oystead v. Shed, 12 Mass. 506.