Hemmenway v. Wheeler

Massachusetts Supreme Judicial Court

Hemmenway v. Wheeler

31 Mass. 408

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1833

StatusPublished

This text of 31 Mass. 408 (Hemmenway v. Wheeler) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hemmenway v. Wheeler, 31 Mass. 408 (Mass. 1833).

Pincite

Opinion

Shaw C. J.

delivered the opinion of the Court. If any question of fraud were intended to be raised in the present case, if it were contended that the plaintiff had designedly concealed his attachment with a view to defraud other creditors, that fact should have been put in issue and tried by a jury. The question therefore is, whether the prior attachment made by the plaintiff, was sufficient to bind and hold the property against the after attachment made by the defendant.

[410]*410The evidence shows that there was a sufficient seizure of these bulky articles, to constitute an attachment. The officer went to the place where the stones were, and upon and among them, declaring that he attached them. Train v. Wellington, 12 Mass. R. 495.

And we think he remained in the constructive possession in such manner as to continue the attachment in force. Notoriety is not necessary to give effect and validity to an attachment of personal property. It is not necessary to continue an attachment, that an officer or his agent should remain constantly in the actual possession. Gordon v. Jenney, 16 Mass. R. 465; Ashmun v. Williams, 8 Pick. 402. [See also Fettyplace v. Dutch, 13 Pick. 388.] The nature of the possession and custody which an officer is to keep, will depend upon the nature and position of the property, as ships, rafts, piles of lumber, masses of stone, or lighter, more portable, and more valuable goods. In general it may be said, that it shall be such a custody as to enable an officer to retain and assert his power and control over the property, and so that it cannot probably be withdrawn, or taken by another, without his knowing it. Here it is manifest, that the officer did not intend to abandon the attachment, and that the measures which he took, considering the bulky nature of the property and the situation in which it was placed, were sufficient to continue his possession and preserve his attachment.

Defendant defaulted.

Free access — add to your briefcase to read the full text and ask questions with AI

Shaw C. J.

delivered the opinion of the Court. If any question of fraud were intended to be raised in the present case, if it were contended that the plaintiff had designedly concealed his attachment with a view to defraud other creditors, that fact should have been put in issue and tried by a jury. The question therefore is, whether the prior attachment made by the plaintiff, was sufficient to bind and hold the property against the after attachment made by the defendant.

[410]*410The evidence shows that there was a sufficient seizure of these bulky articles, to constitute an attachment. The officer went to the place where the stones were, and upon and among them, declaring that he attached them. Train v. Wellington, 12 Mass. R. 495.

And we think he remained in the constructive possession in such manner as to continue the attachment in force. Notoriety is not necessary to give effect and validity to an attachment of personal property. It is not necessary to continue an attachment, that an officer or his agent should remain constantly in the actual possession. Gordon v. Jenney, 16 Mass. R. 465; Ashmun v. Williams, 8 Pick. 402. [See also Fettyplace v. Dutch, 13 Pick. 388.] The nature of the possession and custody which an officer is to keep, will depend upon the nature and position of the property, as ships, rafts, piles of lumber, masses of stone, or lighter, more portable, and more valuable goods. In general it may be said, that it shall be such a custody as to enable an officer to retain and assert his power and control over the property, and so that it cannot probably be withdrawn, or taken by another, without his knowing it. Here it is manifest, that the officer did not intend to abandon the attachment, and that the measures which he took, considering the bulky nature of the property and the situation in which it was placed, were sufficient to continue his possession and preserve his attachment.

Defendant defaulted.

Cite This Page — Counsel Stack

Bluebook (online)

31 Mass. 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hemmenway-v-wheeler-mass-1833.

Opinion

Related

Cite This Page — Counsel Stack