The opinion of the Court was delivered by
Williams J.The plaintiff claims title by the levy of an execution in his favor, against one Samuel Dallibee, and the defendants title is a deed from Dallibee dated 13 February, 1828.— The attachment on which the judgment in favor of the-plaintiff was rendered on which the execution issued was served prior to the date of the deed. The question is, whether that attachment was served, so as .to create any lien on the land in question; and this depends on the conr struction of the law regulating attachment; more particularly the Statute passed in 1823, in relation to attaching real estate. The doings of the officer in serving the writ of attachment as well as the knowledge that the defendant had of the proceedings, .appear from the case as allowed by the Judges who sat at the trial.
Previous to passing the Statute of 1823, nothing more was required of the officer serving a writ of attachment, to create a lien on the estate than .to leave a copy of the writ with a description of the land attached with the town Clerk and with the defendant in the writ. There was no taking possession as there is when personal property is attached— leaving the copy with the town Clerk, was the attachment which created the lien, and wha.t gave notice to all of the incumbrance thereby created.
This ¿ct is unrepealed, and the same ceremony must stijl be performed in attaching real estate.
*55But from some inconveniences suffered, possibly those Suggested in the argument, as that the'cópy frequently was l-ost (though it was the duty of the town Clerk to keep it,) the Statute of 1823, was passed. The object of this Statute was more effectually, to give notice of the incumbrance created by the attachment, and more effectually to preserve the evidence of the same. The officer was required to' cause to be recorded in the town'Clerk’s office, in a-book to be kept for that purpose, the substantial' part of the writ and the officer’s return' thereon. This Statute was directory to the officer; prescribed no consequences as attaching to his neglect in this particular, and without his doing it, so far the parties are concerned, the service would be good to hold them' to appear'; and to' give jurisdiction to the Court over them.
It is obvious that the officer cannot control the town Clerk ; he has neither the physical nor the legal power to compel him to procure a book to be kept for the purpose, nor to record what is requisite, at any time that he may wish. The Clerk might bé’ engaged, and it might be several days before he would be able in the regular course of his business to make the necessary record. It is therefore sufficient for the officer to do as hé did in this case ; leave a true and attested copy with the town Clerk, and direct him to record the substantial part of the writ as pointed out by the Statute, and pay him' his fee therefore. As the original is not to be recorded, but only the substance of the' same, and as- the. copy is to be authenticated by the certificate of the officer, the Clerk may safely record what is necessary to be done from that copy, and it would be liable to none of the objections which are raised against recording from a copy unauthenticated by the certificate of any one who is authorised to certify the samo.
It may then be enquired what is to be the effect, if the town Clerk neglects his duty in this particular. Since the Statute of 1823, the record of these attachments are to be made in a book kept for the purpose. To this book persons are to resort, who wish to obtain information whether any land has been attached, and if a creditor or person de-sireous of purchasing finds no such record on enquiry, he may safely attach or purchase, unless he has other notice *56that an attachment has been made. Under the former-lari’ he was compelled to take notice of ah attachment when a copy had been left. Rut- under this Statute he has no constructive notice, unless the substance is recorded — but he may still be affected by actual notice of an attachment.
Messrs. Fletcher & Mattocks-, for Plaintiff Messrs. Cahoon & Faddsch; for Defendant.Inasmuch, however, as the attachment is valid when the officer has left the copy and given* the necessary direction, although the substance is not recorded — as between the parties to the suit, and as the object of the latter Statute is solely for notice and to perpetuate the evidence thereof, a- purchaser or attaching creditor who has actual notice of any such prior attachment, must be postponed and take the estate on the lien subject to the first attachment.
Having this view of the nature of an attachment, and the service thereof, and the object of the Statute ; as it is found that the' defendant had notice of the attachment of the plaintiff, being informed thereof by the town Clerk, and having seen the copy of the attachment and the filing thereof in- the town Clerk’s office, previous to taking his deed, and as there is no other objection to the attachment or service thereof the title of the defendant is subsequent to that of the plaintiff, and the plaintiff must recover!
In the case of Miner vs. the same defendant, the tithe on both sides is similar to the one which we have been' considering, except there is a trifling omission in the copy left with the town Clerk on comparing it with'the original.
With respect' to this! the general rule is, that if the copy is so wholly defective that the original, if like it, would be altogether'void, and cofild not be made' good' by amendment — it is no notice of á regular attachment. Those who are to be effected by it mhy consider the'original as similar to'the copy, aiid need not enquire any further, but may-treat it as void. This was decided' in’ the case of Herring vs. Harmon in Orleans County March'Term 1832.. In the present case tire variance was trifling and immaterial", and the original writ, if like the copy! would not' have been liable to any serious objection. A lien was thereibrfe' created in favor of this plaintiff also by tiré attachment and the result will be the same in both cases!
The judgment of the County Courfiir both cases must be. affirmed! — Judge Royce dissenting^—