Morse v. Hurd

17 N.H. 246 | Superior Court of New Hampshire | 1845

Woods, J.

The defendant, having a writ which it was his duty, as a deputy sheriff, to secure by attaching the chattel in question, on the 29th of August, 1843, came into the shop of Thayer, adjoining the room in which the chattel at the time was kept, which room also appears to have been in the possession of Thayer, and gave notice to him of his instructions for attaching it, and soon after informed him that he would attach it. At the same time he made a return upon the writ, to the effect that he had attached the carpet, and afterwards returned the writ into court. Do these facts amount to evidence of a taking and carrying away of the chattel, as alleged in the declaration ? It is apparent that the officer had access to and opportunity to attach the carpet, and he made return of the fact upon the writ.

In order that a chattel may be attached, it is only necessary that the officer have the possession and control of it. It is not necessary that he remove it, or even touch it; but if he have access to it, and manifest a purpose of exercising control over it, this is sufficient to disturb the possession of any one having had a prior custody of it, and to lay the foundation of an action in his favor, if such disturbance is not warranted by the occasion. Odiorne v. Colley, 2 N. H. Rep. 66; Huntington v. Blaisdell, Id. 318.

A cause of action is furnished, if the plaintiff’s possession of the chattel has been disturbed, so that he could not, for the time being, had he chosen to do so, exercise that perfect control over the chattel which he might have done but for the adverse act of the party complained of; and the taking and carrying away, which the form of action requires to be alleged, is sufficiently established by the proof of such disturbance of the owner’s possession.

In short, an attachment is perfected when the officer has obtained access to the goods with a purpose of attaching them. Such attachment vests the possession in the officer, so that he may maintain an action for the disturbance of it. The possession of the officer excludes the possession of all others; and the owner of chattels, whose possession is disturbed, may maintain an action of trespass de bonis asportatis against him who so disturbs it without right. Miller v. Baker, 1 Met. 27.

But it is said that the plaintiff, having given the defendant a receipt for the chattel, to be rendered to him on demand, in the form in which such receipts are given to officers by the bailees of property which has been attached, in which receipt he has recognized the chattel to be the property of Thayer, is precluded by his own written acknowledgment from claiming the property as his own.

How that might be if the action were in behalf of the officer, and upon the receipt, it is not necessary to determine in this case. But there is no peculiar force in the admission itself, that distinguishes it from any other admission that has not been made for the purpose of inducing some particular action on the part of him to whom it has been made, and has not been acted upon by him accordingly. The party who has made it may show that it is not true.

It was accordingly held, in Barron v. Cobleigh, 11 N. H. Rep. 557, that one who has thus receipted for goods attached, and converts them to his own use, is not estopped by his receipt from saying that the goods were his own, in defence of an action brought by the party from whose possession they were taken, for so converting them.

And in Massachusetts it has been expressly decided that if goods, attached in an action against one who is not the owner, be bailed to the owner, who gives the customary receipt for them, he is not precluded by his receipt from maintaining an action against the officer for taking them. Robinson v. Mansfield, 13 Pick. 139.

By the taking, the officer rendered himself liable for the value of the goods, and an action accrued to the plaintiff to recover that value, to sue out execution, and obtain satisfaction against the sheriff for the same. He had a right, from the consummation of the trespass, to consider the property as gone from himself, and to refuse to receive it back in atonement for the tort. In receipting for the property, he did nothing to divest himself of that right, or of the right of action; and in admitting the property, at the officer’s request, to be attached as the property of another, he does not preclude himself from sotting up in himself a title anterior to the trespass. There must be

Judgment on the verdict.