| Superior Court of New Hampshire | Dec 15, 1840
It is perfectly clear that an attaching creditor can take no greater interest by his attachment, and exercise no greater rights over property taken, than the debtor himself could. If we can determine, then, the precise rights of the bailor in the case before us, and the extent to which he might go in asserting any claim over the boat or schooner bailed, we shall fix the limits and powers of an attaching creditor over the same property.
It is well settled that the bailee has the exclusive right to property during the time of bailment, while exercising this right according to the terms and conditions of such bailment. This right is not only exclusive against third persons, but against the owner of the property, who has no right to disturb him. Story on Bailments 262; 2 Taunt. 268, Roberts vs. Wyatt. If the owner disturbs the bailee in the use
A recovery by a bailee against a trespasser is a bar to an action by the bailor for the same injury. 1 N. H. Rep. 189, Chesley vs. St. Clair; 2 N. H. Rep. 143, Bissell vs. Huntington. A bailor cannot maintain trover or replevin against a person who converts property bailed; because, although he has a reversionary interest, he has neither the possession or right of possession. 7 T. R. 9, Gordon vs. Harper; 3 Pick. 255, Wheeler vs. Train.
If such be the limitation of the rights of the bailor of property, and if the attaching creditor has no greater right over the property than the bailor, we see no ground for the interference of either with the property bailed in the present case.
The bailee had hired the property for five months, under an agreement to pay a certain sum monthly for its use. This contract had been fully kept by him ; and while he is without fault or blame on his part, the property is attached on a suit against the bailor, and taken from the possession of the bailee. The officer making the attachment is, therefore, a mere trespasser against the bailee. He has no rightful claim to the possession of the property ; and, so far as the bailee has been prejudiced, he has his remedy upon the officer.
If such be the case, the contract betwixt the bailor and bailee remains wholly undisturbed. There was nothing to show that the attachment was made through any agency, direction, or interference of the bailor, who is the present plaintiff. He is clearly entitled, then, to recover the amount stipulated to be paid him, until such time as the contract betwixt him and the bailee shall be legally terminated.
It has been suggested that a doctrine of this kind would enable debtors to screen their property from attachment, by nominal leases, or bailments for hire. But if such lease or
We see nothing, then, to prevent the payment of the rent agreed to be paid by the bailee. The bailee must be held to the performance of his contract; and if others have improperly interfered with his rights, he is entitled to his remedy against them.
Judgment on the verdict for the plaintiff.