Joseph Berry vs. Elkanah Spear, 13 Me. 187

After a continuance, the opinion of the Court was drawn up by Weston C. J. Both parties claim under the title of Halsey Healy. The demandant makes out a title derived from him, the legal operation of which commenced on the twenty third of Jan. 1830, provided the levy of the Thomaston Bank, his immediate grantors, was seasonably recorded. The levy of the execution on the real estate in controversy, was made on the tenth of Sept. and it was recorded on the tenth of Dec. 1830. The statute requires, that this should be done within three months of the levy.

In the computation of time, there is no settled and uniform rule, whether the terminus a quo shall he included. It is excluded in instruments for the payment of money, in a certain number of days. According to the reasoning of the court, in Presbrey et als. v. Williams, 15 Mass. R. 193, it should be included; for there is no doubt but the levy might have been recorded on the day it was made. We have been referred to no authority directly in point; and the decisions have been so various, that we have no settled principles for our guide.

We have no doubt the statute intended to give the levying creditor full three months, within which to record his levy. The whole or the greater part of the day of the levy may be, and usually is consumed in examining the land, making the appraisement, and completing the return. If that day is computed as part of tlie throe months, the creditor will not be allowed that full period, after his levy is in a condition to be recorded. And upon the whole, our opinion is, that the registry on the tenth of Dec. was seasonable under tbc statute.

And if it had not been, there having been no intervening attachment, levy or purchase, the title of the attaching creditor could not have been defeated upon this objection, according to the case of McLellan v. Whitney, 15 Mass. R. 138. The demandant having made out his title must prevail, unless the tenant, who claims also under Healey, can show that his title commences from an earlier date.

IIo shows am attachment by John Dresser, under whom lie claims, which purports to have been made on the eighth of Jan. 1830, and if this point is established, or he can show a lawful attachment, prior to the twenty-third of the samo January, such proceedings have been bad, as would give effect to Dresser’s attachment. But Dresser’s writ is dated the eighteenth of January, upon which a service is returned as having boon made on the eighth. Both cannot be right. It is said however, that this was matter in abatement; and that the judgment which followed was rendered by the consent of Healey, the defendant.

That judgment was doubtless valid against him ; but other attaching creditors have a right to require, that it should be made to appear affirmatively, that Dresser’s attachment had precedence of theirs. The writ necessarily precedes the service. It is a part of the record, and it has an equal claim to the verity, which belongs to that species of evidence. It may be within the power of the court to order an amendment, either of the writ or the return.

The counsel for the tenant insists, that the date of the writ is right, and that of the service wrong-; and he offers to prove it by the attorney by whom the writ was made. Upon the facts of the case, two inquiries are presented; first, whether Dresser’s attachment, as the record stands, appears to have been prior to that of the Thomaston Batik; and secondly, whether the court below should have received the testimony, and allowed the amendment proposed.

We are of opinion, that as the service could not have been made before the date of the writ, if made after, it is entirely uncertain as it stands, when it was made ; and therefore that it cannot have precedence of the bank attachment, about which there is no uncertainty. And we are further of opinion, that the rights of other attaching creditors having intervened, the presiding Judge properly refused to permit the officer’s return to be amended. This question was fully considered and settled in Means et al. v. Osgood, 7 Greenl. 146. The exceptions are accordingly overruled. Judgment on the verdict.