Huntington v. Blaisdell, 2 N.H. 317

2 N.H. 317 | Superior Court of New Hampshire | 1820

'Woodbury, J.

If a sheriff makes a valid attachment of property,he certainly acquires such an interest, in it as to be able to maintain trespass against one who removes it from his possession. 1 N. H. Rep. 289, Poole vs. Symonds.

In this case, then, the only difficulty is to determine whether Huntington, at the time when this property was removed by the defendants, had made such an attachment of it. To constitute a valid attachment it is contended, that the articles must be actually touched or handled by the officer. It cannot be questioned, that to constitute an arrest of the body, some part of the officer must come in actual contact with some part of the person who is arrested.(1)

It is not sufficient to be in sight, or hearing. An attachment of property is an arrest, or seizure, or taking of it; and consequently would seem to be defective, unless the property be touched. In this case, it is not necessary to deny the premises, nor to attack the analogy between an arrest and an attachment. The merits of this case lie in the principle, that articles of property from their number and nature can be taken or delivered without an actual touching or removing of every distinct article.

Thus, in respect to real estate, the delivery of seisin or possession, is by touching only a handle of the door, or a twig or the turf of the land. An attachment of land, or of a pew jn a church, may now be effected in the same way.(2) r ’ J '

. . , In respect to personal estate, when sold, a delivery of a sample is a delivery of the whole ; and touching a part as for the whole, or taking into actual custody a building, or the key of it, so as to have the whole contents under one’s control,is a receipt,or taking of the whole. 10 Mass. Rep. 308.-12 ditto 300.—1 East 192.-7 ditto 558.-5 John. 344, Willes et al. vs. Ferris. So “ if a landlord comes into a house and seizes upon some goods as a distress in the name of all the goods in a house, that is a sufficient seizure, of all.”(3) An attachment of personal estate can therefore be effected in the same way. The whole articles must doubtless be with-⅛ the power of the offker.(4) That is, they must not be inaccessible to him by their distance, or, by being locked up from his reach in an apartment not under his control; or by being so covered with other articles,or so in the custody of another person,that the officer cannot see and touch them.(l) The officer must also continue to retain this power over them, by remaining present himself, by appointing an agent in his absence, by inventorying and marking them, or by a seasonable removal of them. 9 John. 132-3.—16 ditto 288. 1 Wils. 44, Bradley vs. Windham.—12 Mass. Rep. 131, 495.—14 ditto 190, 356.—15 John. 428. The law in respect to a distress for rent is somewhat analogous. Str. 717.—2 Ld. R. 1424.—2 Dall. 67.

(1) 5 Mass. Rep. 157, 163, 271.

In the present case,the articles were all within one house ; the plaintiff first entered that house and touched some of the furniture and gave notice that he attached the whole; be then proceeded to inventory the whole ; remained within the house and could have closed the doors if wishing to be absent. He, therefore, had control over the whole and retained that control till the defendants entered and by force divested him of it.

Consequently the attachment was valid, and judgment must be entered on the verdict.^*

* 16 Mass. Rep. 420, Daney vs. Warren, 465 Gordon vs. Jenny.