Odiorne v. Colley

2 N.H. 66

Opinion

Woodbdrv, J.

Though possession alone will sometimes enable a party to maintain trespass ; yet trover will not lie without evidence of property in the plaintiff. 1 Chitt. Pl. 150.—2 Saund. 47.—1 N. H. Rep. 110.—11 John. 529—13 John. 289.—14 John. 352.—15 John. 207.

Because in trespass, if the plaintiff had only the naked custody of the articles, he ought not to be disturbed in it by any body but the owner ; and hence may recover for the mere injury to his possession against a wrong doer. While in trover, which is not predicated on a disturbance of the possession of the plaintiff, but on a conversion of his property, the plaintiff must prove his property in the articles, also a right to the present custody of them.

Among the different kinds of evidence of property, peaceable and exclusive possession by the plaintiff is one ; yet that is only prima facie evidence, and in this case was not proved by the plaintiff. He never saw the goods in dispute, except when they were in the custody of Gilman, the receipt-er of the defendant. Gilman never parted with that custody; and though he verbally promised to retain them for the benefit of the plaintiff, after the claims of the defendant were satisfied; yet he did not so retain them, but, before the expiration of thirty days after judgment upon one of the first attachments, returned the goods into the possession of the defendant. The plaintiff next relies upon his attachment of the goods as sufficient evidence of property to maintain trover.

If his attachment was a valid one, he undoubtedly could now sustain the present action; because he would have acquired a special property ;(1) and the two prior attachments by the defendant being afterwards dissolved, he would, also, have a right to the immediate possession of the articles attached.

(1)2 John.429-9 John. 108.-13 Mass. Rep. 123

Footnotes

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Bui the doings of an officer in respect to personal estate cannot amount to a valid attachment, unless the articles are Piker into his actual cus'odjg or are placed under his exclusive control. 1 Wils. 44.—9 John, 132.—5 Mas. Rep. 157, 163, 271.

In respect to real estate, reasons exist for less strictness.(1) By actual custody and exclusive control, we do not mean,that.an officer must touch or remove every article,before the attachment can be deemed valid, but that the articles must be so within his power as to enable him to touch or remove them; and to prevent a dissolution of the attachment, they must, in due season, be inventoried, and constantly retained under the absolute dominion of himself, or an agent. 1 Lord Ray. 251.—7 Mod. 37.-2 D. & E. 596.—1 Es. Ca. 205.—15 John. 428.—12 Mass. Rep. 131, 495.

Such a power over these articles the plaintiff never possessed, either de jure, or de facto.

He could not possess it, de jure; because, at the time of bis attempted attachment, the goods were in custodia kgis, having been taken on two prior writs, and, after a removal, left in the possession of an agent of the defendant. Those writs were then in full force ; and it seems well settled, that property, once in the custody of the law, cannot be re-seized by another officer, unless the first seizure was informal; (4 D. E. 651, Farr vs. Newman†) or fraudulent; (Holt 643, Backhurst vs. Klinckard.—4 D. & E. 640.—7 Mod. 37.— Bac. Ab. “ Sheriffs N. 4.—14 John. 87.—14 Mass. Rep. 190, —Bridge vs. Wyman el a!.) or, at the time of the second seizure, had become dissolved.

This follows, as a necessary inference, from the doctrine before mentioned concerning the validity of an attachment. Because neither the actual custody nor exclusive control of the same articles can, at the same time, exist in two distinct persons ; and hence, while the first officer retains this pow er, the second officer is without it, and can make no valid attachment. To say, that the second officer has a subor-dinatc power, is to say, that he has not enough to constitute a valid attachment. To say, also, that the possession of property by one deputy sheriff is, in law,,the possession of it by another deputy, is to carry beyond the reason of the principle and into flagrant absurdities the maxim, that the sheriff, with his deputies, constitute but one person. This maxim means only, that the sheriff is, in a civil action, responsible for the official acts of his deputies, as if they were his own acts. Cowp. 65, 391.-2 D. fyE. 154 — el auth.passim. Hence a writ, delivered to a deputy for service, is considered as a writ delivered to the sheriff, so far as to render the sheriff responsible for the service ; and an escape permitted by a deputy is considered as permitted by the sheriff. But such delivery or escape is not a delivery or escape in respect to another deputy ; and it was never seriously apprehended, we believe, that an arrest or attachment by one deputy became ipso fado an arrest or attachment by another absent deputy on another precept.

(1) Cowp' 65' (2) 13 Mass. Rep. 116’

Precepts in this state are directed to the deputy as well as to the sheriff, and the deputy acts in his own name, which, not being the case in England.(l) increases here the difficulties of the construction contended for by the plaintiff'.

His construction would, also, lead to infinite confusion and inconvenience.(2) Nor is it at all necessary for the protection of creditors. Because, if the property attached exceeds in value the demand contained in the first precept, a second precept can be delivered to the officer who served the first one, and he, with equal benefit to creditors, and in perfect consistency with principle, can make a second attachment subject to the first attachment,*

The next inquiry is, whether a delivery of the goods to a receipter, who engaged to return them on demand, or pay their value, was such a relinquishment of power over the goods as to dissolve the first attachments made by the defendant.

ii; I V il Rep. 289. (2) 11 Mass. Rep. 215. — 23 ditto 295. (3) Hobart 207. — Cro. El. 504.

. This contract of the receipter was in the usual form, and only expressed in writing what the law would imply without writing against any servant or agent of the officer, who might by him be entrusted with the custody of the goods. It was merely written evidence of a bailment; and, in a neighboring state, has been held to vest no property whatever in the receipter or agent.

But, in this state, we have held, that it vests a special property, subordinate, however, to that of the sheriff.(l) The sheriff still retains, in law, the power to control the goods, and at his pleasure may retake them into his personal custody.(2) Indeed, the sheriffhimself continues alone responsible for them to both debtor and creditor. The receipt-er could not, by any arrangement with the plaintiff, convey to him an interest, in the goods, so as to make the second attachment valid. The sheriff himself has no power to sell goods attached, except at public auction.(3)

Consequently, he could convey no such power to the re-ceipter. Nemo plus juris in alium transferre potest, quam ipse habet. Pothitr Con. pt. 1, JV. 7.

But, as we have before remarked, the receipter only promised to retain the goods for the plaintiff, subject to the rights of the defendant ; and as the defendant, before the first attachments were dissolved, rightfully demanded and received the goods from the receipter, the arrangement became a mere nullity.

The plaintiff, therefore, never possessed, either defacto or dejure, that power over these -goods, which is necessary to constitute a valid attachment. And the dissolution of the first attachments at a subsequent time could, by no relation or fiction, strengthen and ratify what was a mere nullity.

Verdict set aside, and plaintiff nonsuit.

17 John 128.

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17 John 116.