20 Conn. 364 | Conn. | 1850
This being an action of replevin for goods attached, the plaintiff can recover only by proving himself to be the owner of them. Brown v. The Chicopee Falls Co., 16 Conn. R. 87.
The first and most material question arising here,is, whether the legal title to the property in controversy vested in the plaintiff, before it was attached by the officer, on the second writ of attachment. Walcutt was the owner of the goods, and the contract between him and the plaintiff, made on the 22d day of August, 1848, was, that the plaintiff should have them, if he would pay the claim of Hubbell, who then had them under attachment. This was a contract of sale, upon a condition precedent. It was not, that he should have them, upon his promise to pay Hubbell, at some future time ; but if he paid in fact-which was equivalent to saying, upon his paying, or when he paid. 1 Sw. Dig. 195.
No title, therefore, vested in the plaintiff, on the 22d day of August, as he did not pay Hubbell’s claim until the 28th of that month. It is important, of course, to determine whether, in the mean time, on the 26th day of August, they were attached and legally holden, by the defendant, as he claimed. For if so, this action can not be sustained.
As to this, it appears, that Hubbell, a creditor of Walcutt, had attached the property in question, on a suit in his favour against Walcutt, on the 12th day of August; the writ in that suit was served, by Stoddard, a constable of Derby, who placed the goods attached by him in the hands of Hubbell, as his bailee, to keep them for him, and not to be given up, without a written order. And the defendant claimed, that, while Hubbell was thus holding them, he caused them to be attached on a suit in his favour against Walcutt, by a writ, served by the same officer, Stoddard, on the 26th day of August, two days before the plaintiff paid up the claim of
It was as competent for the attaching officer to make Hubbell, the creditor, his bailee to hold the property attached for him, as to have placed it in the custody of any other person ; and while he was thus holding it, it was, in legal effect, continuing in the care and custody of the officer, or in custody of the law. The same or any other officer could again have attached it, while in this situation. If it had been attached the second time, by a different officer, he would have had no right to take it away from the custody of the first one; and as it was attached by the same officer, there can be no reason why he should have removed it from the possession of his own bailee, to whose custody he might have remanded it the next moment.
The law requires no act of notoriety to constitute an attachment of property. Nothing more is necessary than that the officer should so take it as to have it in his power or custody. Perhaps, in the present case, the delivery of the second writ of attachment to the first attaching officer, with directions to attach these goods, was, of itself, a sufficient attachment of them. But, here was more than this ; the officer attached them in fact, not constructively, and they remained in the same custody under both attachments, until Hubbell’s first attachment was settled, on the 28th day of August. The officer had given no written order to Hubbell, nor had he done any other act relinquishing his legal custody of the goods. Hollister v. Goodalp, 8 Conn. R. 332. Turner v. Austin, 16 Mass. R. 181. Widgery v. Haskell, 5 Mass. R. 157. Denny v. Warren, 16 Mass. R. 420. Lyon v. Rood, 12 Verm. R. 233.
It would have been very proper, and indeed to have been expected of the officer, to have notified Hubbell, his bailee, that the property was again attached ; but we know of no law requiring this, and can not say, that the attachment was invalid, for want of such notice. So far as this might have conduced to prove a fraudulent attachment, the plaintiff has
The defendant’s writ of attachment was served, by Stod-dard, a constable of Derby. He attached the property situated in Derby, in that town ; but inasmuch as the defendant Walcutt resided in the town of Naugatuck, the attaching officer left his copy with the defendant in Naugatuck, describing the property attached ; and for this cause, the attachment is objected to, as invalid.
Where there is but one defendant, the service of process upon him is but an entire act, the performance of but one entire duty, and can be performed only, by one officer. We know of no law or practice authorizing one officer to commence such a service, and giving power to another, to complete it. If a writ of attachment against property is issued, the taking or attaching of it, is the first and principal step in the process of service; and the officer thus commencing the service, must finish it, by leaving his copy and returning his writ, setting forth his whole proceeding under it; and this, in the present case, he could not do, without going into the town of Naugatuck.
On the trial, the defendant offered in evidence the first writ of attachment in favour of Hubbell against Walcutt, with the officer’s return of service indorsed upon it, accompanied by the testimony of Stoddard, the officer. This was objected to, because the writ had not been returned to court, and the suit had been discontinued. If the object had been to make claim under the attachment, this objection might well enough have been made ; but it was only to show what was the situation of the property, when the last writ was served-that it was then in custody of the law, and under the controul, and in the legal possession, of the officer, when the defendant’s writ of attachment was levied upon it; and for this purpose, this evidence was admissible.
We sustain the judge at the circuit, in his charge, and in the admission of the evidence objected to.
New trial not to be granted.
