12 N.H. 502 | Superior Court of New Hampshire | 1842
It is contended that the use of the horse by Butters, from the time of the first to the time of the second attachment, was ipso fado a dissolution of the first attachment. The case of Dunklee vs. Pales, 5 N. H. Rep. 527, is often referred to as an authority in favor of the position, that wherever goods attached are permitted to return to the possession of the debtor, the attachment is ipso fado dissolved, so that any other creditor may attach and hold them. Indeed, such is the language of Richardson, C. J., in pronouncing the judgment of the court.
It may be well to enquire, what was the precise question in Dunklee vs. Pales, and what point it was necessary to decide. In that case, the property of Taylor was attached and bailed to the plaintiff', who locked it up in a chamber in Taylor’s house, the key of which he retained. He after-wards gave the key to Taylor, who used the property as before the attachment. It was then attached upon another writ against Taylor, by the defendant, Fales, who removed it, and thereupon Dunklee brought an action of trover against him. The second attaching creditor had notice that a previous attachment had been made.
The question, therefore, was whether, when goods attached are found in the possession of the debtor, another creditor, who knows that an attachment of them has been made, may, by another officer, attach and hold the property. The judgment of the court, was, that he might, and that conclusion
The mere fact, then, that the property is used by the debtor, would not seem to be enough to dissolve the attachment, so that another officer could acquire a lien upon it, particularly where he knew there was a subsisting attachment. The knowledge must, it is true, extend beyond the fact that the goods had been once under attachment. What act, what species of possession, and what degree of vigilance, will constitute legal custody, is often a question of difficulty, depending on a variety of circumstances, having respect to the nature and situation of the property, and the purposes for which custody and vigilance are required ; and especially, to the notice to other officers, and persons having conflicting claims. Sanderson vs. Edwards, 16 Pick. 144. But where goods attached were put into the debtor’s store, but the sheriff did not keep the key, and had no control over the store, nor any possession by any one as his servant, for thirty or forty days
The cases referred to show that wherever there are conflicting attachments, the knowledge by the officer that the goods have been attached has an important bearing upon his rights. On this point the principles deducible from the cases seem to be these : Where the officer finds property in the possession of the debtor, the mere knowledge on his part that the property has been attached will not prevent him from making a valid attachment of it. This was all the knowledge possessed by the defendant in the case of Dunklee vs. Pales. But if he know that there is a subsisting attachment, and an unrescinded contract of bailment, although the debtor might at the time have the possession of the property, he cannot acquire a lien by attaching it. And these principles are not unreasonable. If the officer find property in the possession of the debtor, and know only that it has once been attached, he might well presume that it was there, because the suit had been compromised and the attachment dissolved. But if he know that the attachment and the bailment still subsist, and that the property is in the hands of the debtor merely for his temporary convenience, he will not be misled, and can make no such presumption.
If these principles be correct, in cases where attachments
The plaintiff is met, also, by another difficulty. This is an action of trover, and a conversion must be proved. But the defendant has not converted the property. The sale was by the plaintiff, and that before any demand was made upon the defendant, and while the horse was still in the keeping of Gove. The plaintiff has seized and sold the horse, so that the defendant could not deliver him, and now brings his suit because the defendant has not done that which the plaintiff has rendered it impossible for him to do, and which he might have done, had it not been for the act of the plaintiff. Upon no ground, therefore, can the action be maintained.
It may be said, that as this suit was brought to enforce the lien created by the first attachment, this result is a hardship upon the first attaching creditor. But the care of his rights was entrusted to the plaintiff, his agent; and if that agent have so conducted as to sacrifice any of those rights, the creditor has his remedy against him. It does not follow, because this suit cannot be maintained, that the tenefit of the first attachment must be lost. The course, however,
Nor has the second attaching creditor any reason to complain. All the facts relating to the transaction were known to the plaintiff, his agent, and notice to the officer is notice to the creditor in such case.
Judgment for the defendant.