Shephard v. Butterfield

Dewey, J. The lien by attachment of the muriatic acid, and of the other articles in the factory building, may well be sustained. These articles were duly attached, inasmuch as an entry into the building, and a public declaration by the officer that all the property therein was attached; the locking up of the building, in which the goods were; and the placing the key in the hands of an agent, with directions assented to by him to keep the property for the attaching officer; were, taken together, sufficient acts to constitute a valid attachment of the property thus found in the building. The attachment as to these articles was not lost by any abandonment. The facts stated in the case are sufficient to [430] avoid such a result. We perceive no difficulty in sustaining the ruling of the court of common pleas, as to the lien of the attachment upon all the articles returned as attached, except the soda-cakes, as to which the facts are different in regara to the custody of the attaching officer. The inquiry is, then, whether the attachment of .these articles was not lost or abandoned ? The court below instructed the jury, that if these facts were found to exist, namely: 1st. Actual attachment by Butterfield; 2d. That the plaintiff had notice of such attachment before recording his mortgage; 3d. That Butterfield took all the care and custody of the articles, which, from their bulky nature and small value, could be reasonably required; and, 4th. That the officer never intended to abandon the attachment ; then there had been no abandonment of the attachment, that could be set up by the plaintiff. No further question arises as to the carboys; as the court confined the plaintiff to one act of conversion, which, as it is now conceded, was proper. The facts relating to the soda-cakes, as we understand them, are these: They were in an open shed, about thirty feet from the manufactory, in which the muriatic acid was kept, and which latter building was closed and under a lock and key. After the surrender of the key of the building, by the agent who had the same, to the officer, the officer took no actual charge of the soda-cakes, which remained deposited in the open shed, and while there the same was transferred by mortgage to the plaintiff. If these facts shall be in evidence, on a new trial, it will be the duty of the presiding judge to instruct the jury, that the attachment was thereby abandoned and lost. To preserve an attachment of personal property, the officer must continue in possession of it, either by himself or a keeper; and mere notice that an attachment was- made of the articles is not enough to prevent a second attachment of the same articles. Gower v. Stevens, 1 App. 93. The difficulty in such cases is this; that the party, though notified of the previous attachment, might also know that the attachment had been lost by the default or neglect of the attaching [431] officer Bayley v. White, 4 Pick. 395. The result is, that the exceptions are overruled, except as to the soda-cakes, in reference to which, upon the facts as stated, the attachment, if ever made, was lost; and to that extent the verdict must be set aside.