43 N.H. 115 | N.H. | 1861
As between tbe sheriff' and the defendant, the special property acquired by the seizure of the goods still subsisted, and although the sheriff did not remain with them, nor place them in the custody of another, yet as to the debtor he is to be deemed to have retained the possession of them. They were taken out of the defendant’s possession, delivered by the receiptor in front of his house to the plaintiff, that being the place of sale, and the sale thereupon publicly adjourned, in the presence and hearing of the defendant, to a future day; and the defendant knew of the delivery to the plaintiff, and understood that he intended to sell the property in question on the day to which the sale was so adjourned.
At that time then the goods were out of the defendant’s possession and in that of the plaintiff, and clearly under his control, and the only question is, whether his lien was afterward lost by leaving the goods there, without any keeper. Had they so been left in the defendant’s possession, it maybe conceded that they would have been liable to attachment by another officer, provided he had no notice of the prior attachment, and that it -was still subsisting. But with such notice it has been held, in the ease of property receipted, that a second officer could not make a valid attachment as against the first; Young v. Walker, 12 N. H. 502; and it is also held that the language of Dunklee v. Fales, 5 N. H. 528, upon this point, is somewhat too broad. Upon the principle laid down in Young v. Walker, and from which we see no occasion to dissent, the attachment or levy would not have been necessarily dissolved as to the defendant, had he been the owner of the land upon which the goods wei’e left. The doctrine of Young v. Walker is also maintained by Parker, C. J., in Whitney v. Farwell, 10 N. H. 9, where the goods were allowed by the receiptor to go back into the possession of the debtor, and it was held that the attachment was so far dissolved that another officer, without notice of a subsisting attachment, might seize and hold the goods. But it was distinctly held that the first attachment was still in force for the security of the first attaching officer, till the second was made, and he might again seize the property by virtue of the first attachment. And in accordance with this doctrine are the cases of Train v. Wellington, 12 Mass. 497, and Baldwin v. Jackson, 12 Mass. 131.
Indeed the principle which requires that the officer should take and retain tbe custody of goods attached, in order to acquire a valid lien as against a subsequent attaching officer, appears to be based upon the idea that such retention and use by the debtor is evidence of fraud. 5 Dane’s Abr., ch. 136, a 16, sec. 28, and cases cited in Edwards v. Harben, 2 D. & E. 596, and Bradley v. Wyndham, 1 Wils. 44.
In the case before us, of course, no such question could arise, and as to the defendant the lien must be regarded as subsisting.
It is true that no license appears to have been given by Shute that the goods might remain on his land, nor did he agree to take chai’ge of them. But this is a matter between the plaintiff and Shute, and does not, as we can see, concern either this defendant or other attaching, creditors. It is enough for them that it is taken from the debtor’s possession, and kept in a place of deposit selected
Had the goods been originally stored by the defendant with Shute, and so not removed, a different question might have been presented. 'Where corn was attached and removed by the officer to the corn barn of a third person, by his permission, who declined to take any custody or responsibility in regard to it, it was held that it must be regarded as in the custody of the sheriff. Marshall v. Town, 28 Vt. 14. So in Fletcher v. Cole, 26 Vt. 170, an attachment of lumber in a mill-yard of a third person, and a removal of it three or four rods in the same mill-yard was held good. So an attachment of hewn stones, not removed at all, but receipted by the creditor, whose place of business was within fifty or sixty rods, was held good against a subsequent attachment. So where a buggy wagon was attached and placed by the officer in an open shed, and afterward removed by some person without the officer’s consent, into the highway, where it was attached by another officer, it was held upon an agreed statement of facts, that there was no voluntary abandonment of the attachment, and that the possession was constructively in the first attaching officer, whose attachment then subsisted. Butterfield v. Clemence, 10 Cush. 269.
It is true, in this case, that the place of deposit might not have been well chosen, and under some circumstances an action on the case for negligence might have been sustained. But it would not on that account be an abandonment of the attachment. There must be, therefore,
Judgment on the verdict.
