Morse v. Smith

47 N.H. 474

Opinion

Bellows, J..

The motion is to set aside the verdict for error in the instructions to the jury, and the only question, therefore, is, whether those instructions were correct or not. Upon a careful examination of them, we are satisfied that they were sufficiently favorable to the defendant, inasmuch as the jury were permitted to determine, upon the proofs adduced,’and upon directions which we deem correct, as to what constitutes an attachment, whether, in fact, a valid attachment was made; whereas, in truth, the return of the officer was conclusive against the defendant, having notice of such attachment.

The defendant here claimed by a purchase of the debtor subsequent to the attachment; and the jury have found that he purchased with notice of that attachment; and under those circumstances the return of the officer that he had attached the goods is conclusive.

The law is now well settled in New Hampshire, that the return of an officer of an attachment of personal property is conclusive, as to all facts material to be returned, between the parties to that suit, and those claiming under them as privies, and all others whose rights and liabilities are dependent on the suit, as bail and endorsers. The leading case on this subject is Brown v. Davis, 9 N. H. 76, where the authorities were reviewed and carefully considered, and an able opinion delivered by Parker, J. The question was as to the validity of the attachments by two officers of the same goods, in suits against the same debtor, one returned as made on the eighth day of November, and the other on the tenth of the same month. The party making the latter offered evidence that no seizure of the goods was actually made by the former on the eighth of November, and that he was not where he could have taken possession of them. The court, however, decided on a case reserved, that the evidence was inadmissible, and that the return could not be contradicted by the subsequent attaching creditor claiming title under the same party.

The general doctrine is fully recognized in Lewis v. Blair, 2 N. H. 68 ; Hall v. Tenney, 11 N. H. 516 ; Atherton v. Gilmore, 9 N. H. 185 ; Parker v. Guillow, 10 N. H. 103 ; Lathrop v. Blake, 23 N. H. 67; Angier v. Ash, 26 N. H. 99 ; Messer v. Bailey, 31 N. H. 9 ; Dickinson v. Lovell, 35 N. H. 16. In this last case, a privity in estate is said to be a "person who must necessarily derive his title to the property in question from a party bound by a judgment return, &c., subsequently to such judgment, return, &c., and therefore it was held that one who had derived his title before such return, though from the same party, was not bound. It will be perceived, also, that Brown v. Davis, before cited, holds the same doctrine, and without any regard to the fact whether there was or was not notice of the attachment.

Upon these authorities the purchaser in this case subsequent to the attachment, would seem to be bound by the return whether he had notice or not. At all events, we have no doubt, that, as to the debtor, Still, the return is conclusive evidence of a valid attachment, and that a subsequent purchaser of Still with notice would be bound by it. There are cases where, although a valid attachment has been made, the officer will lose his lien by suffering the goods to go back into the possession and control of the debtor, when they are attached by another creditor without notice of the prior attachment. If he have notice, however, of the attachment, and that it still subsists as between the debtor and the first attaching officer, his subsequent attachment will avail nothing. Young v. Walker, 12 N. H. 502; Treadwell v. Brown, 43 N. H. 292, and cases cited.

Upon these grounds, without going further, we think the verdict must be sustained. Besides, we think there was evidence upon which the •jury might have found a valid attachment of the horse and the other property, even if the return had not been conclusive. The case finds that the wagon, harness and buffalo robe were at or near the plaintiff’s house ; that the officer went there with his writ, and Still was sent for, and when he came the officer told him he had come to attach these articles, together with the horse, which was in O’Neil’s barn not far distant, and also some goods in the shop; that Still requested that the goods might not be taken and removed so as to make any public stir; and it was agreed by the officer, Still, and the creditor, this plaintiff, that the horse, wagon, harness and buffalo robe should be in the charge and keeping of the plaintiff, and the officer left a little before noon. At this time the wagon, harness and buffalo were in sight, but the horse was not seen by the officer. At noon the plaintiff went to the barn and fed the horse with hay, and at the same time Still gave him some meal.

Here was no manual possession of the goods by the officer, but we think the jury might have found it within his control. The wagon, harness and buffalo were present and in sight, and although he could not see the horse, the jury might have found it was within his control. He assumed to attach it with the rest, it may have been all within his reach, as much as goods in a store, or furniture in the remote parts of a house which the officer could hot see; the debtor assented to the attachment, and for his convenience it was put into the possession of the plaintiff as bailee, by agreement of the debtor, officer and plaintiff, putting it upon substantially the same footing as if the debtor had procured a receipter for the goods ; and thereupon the plaintiff proceeds to feed the horse in company with the debtor. It is objected that the officer did not see the property, but we do not think this is essential. It was in a barn where the debtor kept it near by ; the officer knew where it was ; it was in his control as much as if he saw it, and that is the essential point, as in the case of goods in a store. He assumed to attach it, and the debtor assented and joined in an arrangement for its safe keeping for the officer, and the bailee did what the jury might well have found was taking possession-of it, and the jury also have found that the officer obtained the control of the horse and the rest of the property.

Upon this evidence we have no doubt that the jury might legally have found, as against the debtor, an attachment of the property including the horse, and if so, as there was notice to the defendant, he also is bound. These views are supported by the decision in Treadwell v. Brown, 43 N. H. 290, holding that there must be an actual seizure or its .equivalent; and see cases cited therein on pages 291-2, and Cooper v. Newman, 45 N. H. 339.

Judgment on the verdict.