Dunklee v. Fales

5 N.H. 527 | Superior Court of New Hampshire | 1831

The opinion of the court was delivered by

RichaRdson, C. J.

The cpiestion in this case is, whether the attachment made by virtue of Dodge’s writ was to be considered with respect to the other creditors of Taylor, as dissolved at the time, when the defendant took the goods, the goods being at that time in the possession of Taylor, the debtor ?

This question is easily settled. What is an attachment by virtue of mesne process ? It is an actual seizure of goods, in order that they may be held to satisfy the judgment, which the plaintiff may recover. If the goods are so situated that they cannot be actually seized and taken into the possession of the officer, they cannot be attached. 2 N. H. Rep. 66, Odiorne v. Colley ; 2 ditto, 317, Huntington v. Blaisdell; 13 Mass. Rep. 114, Vinton v. Bradford; 5 ditto, 157, Lane v. Jackson ; 5 ditto, 271, Watson v. Todd; 9 ditto, 258, Knap v. Sprague ; 11 ditto, 319 ; 16 ditto, 265 and 420.

When the officer has obtained possession, he must retain it. He may keep the goods in his own custody, or in the custody of a servant. But to preserve the attachment he must have the goods under his control. If he, or the person, with whom he entrusts the goods, permit them to go back into the possession of the debtor, the attachment is ipso facto dissolved, so that any other creditor may attach and hold them.

in order to make an attachment, the officer must take possession of the goods. In order to retain the lien, which the attachment creates, he must keep the goods out of the possession and control of the debtor. If he permit the goods, which he has attached, to be in the possession and under the control of the debtor, any other creditor, although 'no may be aware of such attachment, may attach and hold them. 4 Pick. 395, Bagley v. White; 8 ditto, 397 and 419 ; 14 Mass. Rep. 195 ; 12 ditto, 133 and 495.

It is not necessary, in all eases, that the goods attached should be removed. But they must, in all cases, be put out of the control of the debtor, otherwise the attachment will be lost.

In this case, the goods were in the possession of the debfor when the defendant took them, and he is entitled to hold them against this plaintiff.

Verdict set aside.