Dubois v. Harcourt

20 Wend. 41

• Court: New York Supreme Court
• Decided: July 15, 1838
• Status: Published

Opinion

By the Court, Nelson, Ch. J.

In Ray v. Harcourt, 19 Wendell, 495, it was held that an attachment from a court not of record, if actually levied, has a preference over an execution from a court of record in the hands of a sheriff under which such levy has not been made. That case disposes of the first question here presented ; but another arises, viz. whether the plaintiff here can maintain this action, inasmuch as the property had been previously seized under other attachments, and at the time of the levy by him was in the custody of the law.

To maintain this action, a plaintiff must show, 1. Either an absolute or special property in the goods, the subject of the action, at the time of the conversion ; and 2. A right to the actual possession. 12 Johns. R. 403. 2 Saund. Pl. and Ev. 869, 873. Now, although Dubois may have had a special property in these goods by virtue of his levy" under the attachment, which, however, is questionable upon authority, 1 Show. 174; 2 Bacon, 715; 10 Peters, 403, it is perfectly clear that he had no right to the possession at the time of the conversion by the defendant, Ray, the other constable, had attached the whole of the goods, and in judgment of law was in the possession of them, and had a right to the absolute control for the time being, as much so as if he had been owner. There may be some difficulty in securing the lien acquired by the second attachment upon the property; that is not, however, a question involved in this case, and it would be useless here to speculate upon it. It is impossible to give each officer the legal control of the property consistent with law or the right of the party making the first levy. Neither can these conflicting equitable claims growing out of several seizures, be adjusted in a court of law, without involving the interests of the parties in great confusion. Indeed, it is altogether impracticable.

New trial granted.