7 Conn. 271 | Conn. | 1828
From the detail of facts, in this case, it appears, that after the property was attached, it was suffered to remain in the house occupied by the debtor and others, six days, and, a part of the time, in the room wherein he resided ; that two days, viz. from the 10th to the 12th, it was not in the custody of any one ; and that two days more, that is, from the 12th to the 14th, it was not in the actual possession of Jones, or under his oversight, nor in the actual possession of any person. Nor is the slightest necessity for this conduct made to appear. It is not stated, that the plaintiff was so much occupied, by other important business, as to be unable to exercise personal attention to the subject, or to procure a person to do
The personal estate of every debtor is liable to be taken on process, and held to respond the judgment that may be rendered against him. This is effected, not by permitting it to remain in his possession, but by fastening upon it with a writ of attachment, and holding it in the custody of the law. Possession of personal property is the only indicium of ownership ; and the suffering of the debtor, after the service of an attachment or an execution, to retain the possession, is prima facie proof, that the attachment or execution levy is fraudulent in respect of creditors. It is of the very essence of a lien by attachment, that possession be taken and held ; and when this is relinquished, there is a termination of the lien, and the general owner is remitted to his property unencumbered. To this point the decisions of the courts are uniform and numerous. Chancellor v. Phillips, 4 Dall. 213. United States v. Conyngham & al. 4 Dall 358. Barnes & al. v. Billington & al. 4 Day 81. n. Burrows v. Stoddard, 3 Conn. Rep. 160. 164. 431. The plaintiff then, having abandoned the possession of the goods attached, the lien upon them was gone, and they were out of the custody of the law, when taken and carried away by the defendant. Of consequence, the plaintiff had no special property or possession, and cannot sustain the action of trespass.
Instead of charging the jury with the principles before-mentioned, and leading their minds to the enquiry whether the goods attached were in the plaintiff’s custody, at the time of the alleged trespass, the judge took from them the consideration of this, the only material question in the case, and assumed a new principle ; one, in my opinion, altogether inadmissible. They were instructed, “ That it was immaterial whether Jones consented to take the care and charge of said goods f@r the plaintiff after the 12th of May ; for that the property was out of the possession of Beckwith; and, of course, he could not
On the whole, there is no doubt, that the charge of the judge in this case was incorrectand, of consequence, a new trial is advised.
New trial to be granted.
