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persons for the payment of such debts, as the other estate of the deceased is not sufficient to pay. If he dies without issue, such lot shall descend and be disposed of as any other property.1

112

46. Burying-GROUNDS. When any persons appropriate a piece of land for a burying-ground containing not more than half an acre, it shall be exempt from attachment and execution, and inalienable and indivisible by the owners without the consent of all; and be kept fenced and occupied as a burying-ground; and they shall cause a written description of it, under their hands, attested by two disinterested witnesses, to be recorded in the registry of deeds in the county or district where it lies, or by the clerk of the town where it is situated.114

47. When an individual appropriates a piece of land for a family burying-ground containing not more than one-fourth of an acre; causes a description of it to be recorded in the registry of deeds of the same county, or by the clerk of the town where it is situated, and incloses it with a substantial fence, it shall be exempt from attachment and execution; and no subsequent conveyance of it shall be valid, while any person is interred therein; but it shall remain to him and his heirs as a burial-place forever. Said clerks shall receive fifty cents for recording such deed.115

HOW AND WHEN ATTACHMENTS ARE DISSOLVED.

48. An attachment of real or personal estate continues thirty days and no more after final judgment in the original suit, and not in review or error, except attachments of equities of redeeming real estate mortgaged or taken in execution; or equities of redemption sold on execution; or an obligee's conditional right to a conveyance of real estate on execution; or property attached and replevied; or property attached belonging to a person dying thereafter, or specially provided for in any other case 116

(b) Where an attachment was made on mesne process, the action duly prosecuted to judgment and execution; and where, at the next succeeding term of the court, on motion of the plain

112 R. S. c. 5, § 36.-114 R. S. c. 15, § 6.—115 R. S. c. 15, § 7.-116 R. S. c. 81, § 64.

tiff, it was ordered that the judgment and execution be annulled, and that the execution be returned into the clerk's office; and the action was thereupon brought forward to that term, the attachment had become dissolved.117

(c) If goods are attached and receipted for to the officer, and the execution is delivered to him and he demands the goods of the receiptor within thirty days of the time when the judgment was rendered, the attachment is not dissolved, nor the goods released therefrom; and the receiptor may, after the expiration of the thirty days, take the goods and deliver them to the officer to be sold on the execution.117a

49. All attachments of real or personal estate are dissolved by final judgment for the defendant; by a decree of insolvency on his estate before a levy or sale on execution; by a reference of the suit, and all demands between the parties thereto, by a rule of court, and judgment on the report of the referees; and by an amendment of the declaration, by consent of parties, so as to embrace a larger demand than it originally did, and judgment for the plaintiff thereon, unless the record shows that no claims were allowed the plaintiff not originally stated in the writ.118

(d) If in an action of assumpsit, another person be made a co-plaintiff, by amendment of the writ by leave of court, the attachment of property upon the writ is thereby dissoved.119 So, also, by increasing the ad damnum.120

(e) It has been repeatedly held, that where the attaching officer delivers goods attached on mesne process upon a written promise by the receiptor to pay a given sum or to redeliver them on demand, that the receiptor has the election to determine which he will do, and that consequently the attachment is thereby dissolved. 121 But it is otherwise when the receipt does not contain the alternative clause.122

50. When an attachment is dissolved by judgment for the defendant, the clerk of the court, on payment of twenty-five cents, shall give any person applying therefor a certificate of that fact, which the register of deeds shall note on the margin of the record of the attachment; and before or after judgment, the plaintiff in such suit may cause a discharge of such attachment, signed by him, to

117 Leighton v. Reed, 28 Me. 87.-117a Merrill v. Curtis, 18 Me. 272.-118 R. S. c. 81, § 65.-119 Moulton v. Chapin, 28 Me. 505.-120 Langley v. Adams, 40 Me. 125. 121 Waterman v. Treat, 49 Me. 309, and cases infra.-122 Perry v. Somerby, 57 Me. 552.

be entered on the margin of the record thereof; or he may give a certificate, signed, sealed, and acknowledged by him, that such attachment is, in whole or in part, discharged; which the register of deeds shall record, with a reference thereto on the margin of the record of the attachment, for which he shall be entitled to twenty-five cents, and for entering such discharges, twelve cents each.123

(f), An attachment of real estate may be dissolved by an at taching creditor otherwise than is provided in the foregoing section. Thus, where two creditors severally attached their debtor's real estate, one on Sept. 1, and the other Sept. 5, 1860, and in November following, prior to any levy, the former attaching creditor, for a valuable consideration, executed and delivered to the latter attaching creditor a release of his attachment "so far that the second attachment shall at all times take precedence in any levy he may make on said real estate." The second attaching creditor thereafter extended his execution on the premises in June, 1861, and subsequently conveyed by deed of quitcliam to third persons. The former attaching creditor extended his execution in June, 1863, and conveyed, to other parties; and it was held that the release was valid, and that the latter attaching creditor's levy took precedence.12

51. Any defendant, whose interest in real estate is attached on mesne process, may petition in writing to a justice of the supreme judicial court, in term time or vacation, setting forth the names of the parties to the suit, the court and county in which it is returnable or pending, the fact of the attachment, the particular real estate, and his interest therein, its value, and his desire to have it released from the attachment. Such justice shall issue a written notice, which shall be served on all parties to the suit living in the State, including trustees mentioned in section seventy-one, and on the plaintiff's attorney ten days at least before the time fixed therein for a hearing.125

52. If, at the hearing, such justice finds that such interest is worth as much as the amount ordered in the writ to be attached, he shall order such defendant to give bonds to the plaintiff, with sufficient sureties, conditioned. to pay the judgment recovered by the plaintiff, with his costs on the petition, within thirty days after judgment. If he finds it is worth less, the bond shall be condi

123 R. S. c. 81, § 66.-124 Bachelder v. Perley, 53 Me. 414.-125 R. S. c. 81, § 67.

tioned to pay the value of such interest so found, and costs on the petition, within said time.126

53. The petition and proceedings thereon shall be filed in the clerk's office in the county where the action is pending or returnable, and recorded as a part of the case; and the bond, when approved by such justice, shall also be filed therein for the use of the plaintiff.127

54. The clerk shall give the petitioner an attested copy of the petition and proceedings, with a certificate, under seal of the court, attached thereto, that such bond has been duly filed in his office; and the recording of such copy and certificate in the registry of deeds in the county where such real estate or interest therein lies, shall vacate the attachment.1 128

55. When personal property is attached and actual possession is taken by the attaching officer, the same proceedings may be had, as provided in the four preceding sections, and the officer shall also be notified of the hearing and the delivery to him of the copy and certificate mentioned in the preceding section, shall vacate the attachment, and he shall return the property to the petitioner on demand. When the property attached is stock in a banking or other corporation, or is such that the attachment is required to be recorded in the town clerk's office, such copy and certificate shall be filed with the officer of such corporation or the town clerk with whom the attachment is filed; and thereby the attachment is vacated,129

56. In cases of foreign attachment the same proceedings originated by any principal defendant may be had, except that the bond to the plaintiff shall be conditioned to pay the amount, if any, which he may finally recover against the trustees, with costs on the petition, within thirty days after judgment, not exceeding the amount of the judgment against the principal defendant. The justice shall also require the petitioner to give bond to each trustee named in the petition, with sureties, in a sum sufficient to protect him against any judgment recovered by the plaintiff and paid by him, and his legal costs

126 R. S. c. 81, § 68.-127 R. S. c. 81, § 69.-128 R. S. c. 81, § 70.-129 R. S. c. 81, § 71.

in the suit, and the costs allowed him by such justice at the hearing on the petition if he appears. Such bonds, when approved by such justice, shall be filed in the clerk's office for the use of the trustees. The delivery of the copy and certificate, herein before mentioned, to the trustees, shall vacate the attachment of any goods, effects, or credits in their hands belonging to the petitioner.130

CHAPTER VII.

ARREST.

(a) The power of arresting a person for a debt or other civil cause, and, except in actions of assumpsit, based simply upon the allegations in the declaration in the writ, unaccompanied by even the oath of the party plaintiff, and before any proof whatever is made of the justice of his claim, is one of the most remarkable anomalies in the laws of our Republic. The right of personal security is the most sacred of rights; and an arrest being a sort of personal indignity, should never be resorted to for the purpose of gratifying the vengeful feeling of any person, but only in the clearest cases of right; for an unnecessary arrest is morally an assault and battery.1

(b) How made. To "arrest" etymologically means "to stop." It is the beginning of imprisonment, when a man is first restrained of his liberty by virtue of lawful authority. It is the taking of a person into custody. This is usually done by putting the hand upon the person, though it is not absolutely essential, if the officer have the party in his power, or if the person has submitted himself to the officer. Bare words will not constitute an arrest; but Mr. Howe in his Practice says, without citing any authority therefor, that any touch, however slight, will be sufficient to constitute a valid arrest, even though it be through a door or window. If the officer making the arrest, have several processes against the party arrested, the latter is considered arrested on them all. It is not essential that the arrest be made by the officer personally, but an assistant verbally appointed may make the arrest, if the officer be near, and acting in the arrest, though not in sight.

130 R. S. c. 81, § 72.

1 Colby's Pr. 131.-2 Jacobs' Law Dict. Arrest; French v. Bancroft, 1 Met. 502. 8 Genner v. Sparks, 1 Salk. 79.-4 Howe's Pr. 146, and cases infra.- Genner v. Sparks, supra. Howe's Pr. 145.-7 Howe's Pr. 147.-8 Com. v. Field, 13 Mass.

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