
    Andrews Dennis vs. Franklin O. Sayles.
    The St. of 1838, c. 163, § 19, does not authorize proceedings in insolvency against a debtor who does not dissolve an attachment of his goods or estate, made on mesne process, unless it distinctly appears, by the return of such process, that an attach» ment has been made of the debtor’s specific goods, or of his real estate described, or of both.
    On a writ against C. and A., the officer’s return was, “ I have attached all the right, title and interest the within named C. and A. have in and to any real estate in the towns of W. and A., and in the county of B.” This attachment was not dissolved, and a creditor of A. petitioned for proceedings in insolvency against A. Held, that this was not such an attachment of A.’s estate as authorized proceed mgs sgainst him, under St. 1838, c. 163, § 19
    
      A judgment, on which an execution has issued, and been returned satisfied by-a levy on real estate, although such estate was not the property of the judgment debtor, is not such a demand as will authorize proceedings in insolvency against such debtor, on the judgment creditor's petition, until the levy has been set aside, on scire facias, pursuant to the Rev. Sts. c, 73, § 21.
    This was a petition for a writ of mandamus to be directed to the respondent, commanding him to issue a warrant, under St. 1838, c. 163, § 19, appointing a messenger to take possession of the estate of Philena Arnold.
    The facts of the -case were these: On the 22d of April 1845, the petitioner presented to the respondent, a master in chancery, a petition praying for proceedings against Philena Arnold, as an insolvent debtor. It was alleged in the petition that said Philena was indebted to the petitioner in the sum oí $548-98, on a judgment recovered by him against her, at the October term of the court of common pleas, in 1842; that her goods and estate were attached, for the sum of $100 and upwards, on the 10th of February 1845, on a writ sued out against her by the petitioner, returnable to the court of com mon pleas held on the fourth Monday of said February; that the writ was entered at said court; and that she did not dissolve the attachment on or before the last day of said term of the court..
    Notice of the aforesaid petition to the respondent was given to said Philena, who appeared and opposed the granting of the prayer thereof. Thereupon the petitioner, to prove the aforesaid attachment, produced a copy of a writ, in which he was plaintiff, and said Philena Arnold and Thomas Carpenter were defendants, dated February 10th 1845, and returnable to the court of common pleas on the fourth Monday of said February, and also a copy of the officer’s return on said writ. The return, dated February 10th 1845, stated that the officer had “ attached all the right, title and interest the within named Carpenter and Arnold have in and to any real estate in the towns of Williamstown and Adams, and in the county of Berkshire,” and that he had given each of them a summons. And the petitioner, to prove his debt against said Philena, produced a copy of the record of the judgment recited in his petition to the respondent, and also a copy of the execution which issued on that judgment, and of the officer’s return thereon. This return stated that the officer, on the 29th of November 1842, “ took the judgment debtor’s interest, right and title in a farm and buildings situated in Adams, known as John Arnold’s farm ; the said debtor’s interest in said real estate for life is one undivided third part thereof; and levied said execution on the rents and profits thereof; ” and the execution was returned wholly satisfied. It was admitted by said Philena and by the petitioner, at the hearing before the respondent, that said Philena’s dower In the real estate, of John Arnold, her deceased husband, was never in any way assigned or set out to her, and that her right to dower in said estate was conveyed by her, subsequently to the aforesaid levy of the petitioner’s execution, and more than two years before said hearing, to H. H. Carpenter and J. A. Arnold.
    On the foregoing facts, the said Philena’s counsel moved that the petition for proceedings against her, under St. 1838, c. 163, should be dismissed. 1st. Because there was no evidence that she had any real estate in the county of Berkshire, at the time of the attachment. 2d. Because it appeared that the judgment, set forth in the petition, was satisfied by a levy upon her real estate. 3d. Because the attachment, set forth in the petition, was made by the petitioner on a writ sued out in his own name and for his sole benefit. The respondent thereupon dismissed the petition.
    This case was decided at the last September term.
    
      Byington, for the petitioner.
    
      Harmon & Robinson, Jr. for the respondent.
   Hubbard, J.

The attachment, upon which the petitioner relies, purports to be of all the right, title ánd interest which Thomas Carpenter and Philena Arnold had in and to any real estate in the towns of Williamstown and Adams, and in the county of Berkshire. Although such an attachment might perhaps be held sufficient (the proper notice being lodged in the clerk’s office) to create a lien upon real estate m the county, actually belonging, at the time of the service of the writ, to the person sued, yet it is not such an attachment as is contemplated by the act for the relief of insolvent debtors, (St. 1838, c. 163, § 19,) and which, if not removed, may become a cause of insolvency under the statute. To authorize an application for a process, in invitum, against a debtor, under that section, there must have been either an arrest in a civil action wherein bail has not been given before the return day of the writ; or the party must have been actually imprisoned more than thirty days upon mesne process or upon execution in a civil action; or his goods or estate must have been attached on mesne process, and the same not have been dissolved before the last day of the term of the court to which the process was returnable. The several cases, thus specified in the statute, all look-to an actual arrest, imprisonment, or attachment of the person, goods, or estate of the debtor; and the arrest, imprisonment, or attachment should be so distinctly set out on the process, that the magistrate can determine the alleged existence of the fact by inspection of the return.

In the case at bar, it does not appear that any actual attachment of any real estate was made by the officer, or if there was, whether it- was of the joint estate of Carpenter and Arnold, or the separate estate of the one or the other, or of which of them. It is indefinite and uncertain. It may or may not prove to be an attachment of the estate of Carpenter or Arnold, as the fact may turn out, whether they or either of them happened to be owners of real estate in Berkshire at the time of the service. It is the cast of a net at a venture, and is made without hazard. But to bring the case within the meaning and intent of the statute, and subject to its requisitions, the attachment must be of specific goods, or of real estate described, or of both, and must be the goods and estate of the debtor; and the judge of probate or master in chancery is not required to examine the records of the county, nor to inquire aliunde, as to the. debtor’s interest in the estate, m order to ascertain whether a possible attachment may prove to have been valid. If the return does not aver it distinctly, the magistrate is not called upon to go beyond the return. If a return of an attachment like the present would authorize a petitioning creditor, after the close of the term, to procure a warrant of insolvency against an alleged debtor, then any person sued might be declared insolvent, who should not give bonds with sureties for the security of a demand upon which he is sued, although he contests the claim upon which he is prosecuted, and although he is not the owner of any rea estate thus purported to be attached; and the statute would be converted into an engine of oppression, instead of being, as was intended by its framers, an act for the “ relief ” of insolvent debtors. On the other hand, I am of opinion that though an attachment may be correct in form, and may state distinctly that the goods or estate attached are the property of the debtor, yet that such return will not be held to conclude him, but that he may contest the truth of it, if an attempt should be made to subject him to the provisions of the act, as an insolvent debtor, by reason of such attachment.

As to the second objection, we think the decision of the master was correct, that no sufficient evidence of a valid demand was exhibited to him, in order to justify him in issuing process against the alleged debtor. The judgment produced had been satisfied by a levy of the writ of execution that issued thereon; and before the judgment creditor could successfully maintain that the judgment was not satisfied, he was called upon to sue out a writ of scire facias, to procure a judgment of the court vacating such levy, and a grant to him of an alias execution. Rev. Sts. c. 73, § 21. Till this was done, the master was not required to receive the demand and issue a process.

In regard to the third objection, that the petitioner, being himself the attaching creditor, could not apply for this process, we do not deem it necessary to express any opinion ; because we think the first two' reasons assigned are sufficient for the dismissing of the petition.

Petition dismissed.  