Wheeler v. Eaton

39 A. 901, 67 N.H. 368

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1892
• Status: Published

Opinion

Per Curiam. *

If the boards had been the property of Gustus, it is admitted that the attachment would have constituted a valid lien upon them, and that they would have been in the constructive possession of the officer. G. L., c. 224, s. 16. But the question of title did not affect his possession of the property, and unless he afterwards parted with that possession, he cannot justify his act as against the true owner. When he informed the plaintiff that he had not attached the plaintiff’s boards, but had attached all boards belonging to Gustus, and that the plaintiff could take the boards away if they belonged to him, both parties understood that the attachment was not released, and that the plaintiff would take them at his peril. The permission given him to take them was contingent, depending upon the question of title, which the officer did not attempt to decide. Fie retained the same possession of the boards after this conversation that he had before. He still had the plaintiff’s property without right.

Exception sustained: judgment for the plaintiff.

Clark, J., did not sit: the others concurred.

* See foot-note on page SO.