Marshall v. Marshall

7 Del. 125

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

But the Court charged the Jury,

that it was incumbent upon the plaintiff in the action to prove that he had attached the property in question and had it in his possession under and by virtue of the attachment at the time the same was taken away by the defendants, that is to say, either in his actual or constructive possession; and if they were satisfied that the logs taken away by the defendants were the same as had been attached by the plaintiff under the writ, though lying in the creek, the law would adjudge the possession of them to have been in the plaintiff, as constable, at that time. That no informality, nor irregularity in the process of attachment, nor in the affidavit on which it was issued, nor in the docketing of the suit before the justice of the peace, could avail the defendants in the present action, as the possession of the plaintiff was a lawful possession and the legal custody of the property was then in him, and he was legally responsible for the forthcoming of it, and the gist of the action against the defendants, was the wrongfully depriving the plaintiff of the possession of it.

O. R. and C. S. Layton for Plaintiff.

G. M. and M D. Gallen for Defendants.