Newton v. Adams

Phelps, J. The plaintiff’s title to the property in question, ■and, of course, his right to recover, depends upon the validity of •the attachment of the property, made by him, as constable of St. Albans,' at the suit of the Bank of St. Albans against Anson Field. The defendants contest its validity, upon two distinct and independent grounds. The first is, that the plaintifl’s return of his doings is so defective as to render the attachment nugatory., and the second, that he neglected to take that possession of the property which the law requires, in order to give validity to his lien, as against the creditors of Field, one of whom the defendants represent. That the return is defective, must be conceded. A return, that he left a true and attested copy of the writ, at the last and usual place of abode of said Field, without stating the situation in •which such copy was left, clearly does not shew a compliance [444] with the statute directing the mode of service. See Rev. Laws, p. 64 ; Marvin vs. Wilkins, 1 Aik. Rep. 110. But an important question here arises, whether this service is to considered as absolutely void, or voidable merely. In the former case, nc after proceeding can give it validity, but in the latter, the defeet may be supplied, cured, or waived. , The-object of the service was two fold, viz., to obtain security on the property, and to give notice to the defendant; but the purpose of leaving a copy with the defendant is to give notice merely. The attachment is effected by seizing 'the property ; and from necessity this is prior to giving notice to the defendant. The title of the officer must be good in the interim ; and, ofcourse, trespass might be sustained for the taking, without shewing a copy to have been previously left. If no copy be left within the time-allowed for serving the writ, the attachment might be considered as abandoned : but the attachment is certainly good, if a copy be left with the defendant at any period within that time. The law requires but twelve days notice in such cases, and it makes no distinction,in this respect, between cases where property is attached and others. The most which could be contended for, is, that a copy should be left within a reasonable time, in order to give notice to other creditors. What would be the effect of unnecessary delay in this respect, it is not necessary now to decide, as the case furnishes no ground for such an objection. Supposing it necessary, however, that a copy should have been left in this case, in order to protect the attachment, the question recurs, what consequence is attached to the defect in this return ? There can be no doubt that the officer might have been permitted', after the entry of the suit, to amend his return, and to add, if the facts would warrant it, all that was necessary t.o render his return conclusive evidence of notice to the defendant. It would also be competent for the plaintiff, under certain circumstances, to prove the actual reception of the copy by the defendant. And, even if no actual notice had been given, it would have been prop.er for the court to have continued the action, aud directed notice, as provided by statute. There are many cases, where the court may proceed to judgement, although there has been no actual notice, leaving the party to his remedy by writ of review. In all such cases the property attached is holden to respond the judgement. So too, the defect might be cured by the defendant’s appearance and pleading to the action. See 1 Aiken’s 110. For [445] aught we know, the defendant, Field, might have been out of the state, at the time of service, and the case continued agreeably to the statute ; and for aught we know, he appeared, and answered to the suit.* At all events, this subject of notice was under the control of the court, to which the writ was returnable; and they having proceeded to judgement, it is tobe presumed, that the defect^was cured or supplied. Their proceedings are to be presumed regular and valid, and are not to be impeached in this collateral way. The result is, (and in this we are all agreed,) that the service in question is valid to create a lien on the property, and is a sufficient title to sustain the action. It is further contended, that the plaintiff did not take such possession of the property attached as the law requires, to protect it against-subsequent attachments. That it was necessary for him to take possession of the property, is not questioned ; but it is insisted by the plaintiff, that the acts done by him did amount to such possession as the law requires. All that can be necessary, in such cases, is that such possession shall be taken, as will give sufficient notoriety to the attachment. This is done when the property is so far in the custody of the officer, as necessarily to exclude acts of dominion over it by others. In this case, a part of the property was lelt in the room where it was found, and a part was removed from another room and deposited there. The plaintiff proceeded to fasten the doors and windows of the room ; and had he done so effectually, there would have been no question on this point. It seems, however, that from some cause, and, perhaps, from accident, one avenue to the room was not secured. We are not prepared to say, that such an omission would render the attachment fraudulent. Had this been done with a view to give the former owner access to it, the case would have heen different; but, in this case, it does not appear that he was aware of the existence of the trap door, and such an avenue to the room might hastily have escaped his notice. He certainly attempted to secure the property within his own control ; and to predicate fraud upon a mere, oversight, would be a novelty in jurisprudence. Nor can it with propriety be insisted, that an officer is bound, in order to avoid the implication of fraud, to secure the property effectually against thieves or trespassers. The very idea, that the action of trespass may be supported by an [446] officer, by virtue of his lien, presupposes that the property may lawfully be left by him in a situation to be eloigned by a mere act of trespass. Had Field been present, or in possession of the building, or in a situation to exercise acts of ownership over the . r properly, it might have varied the case. But he had absconded ; and, although some of his servants were in another part of the building, yet it does not appear that they had, either before or after the attachment, assumed any control or authority over the property in question. But, admitting that the plaintiff did not originally take a sufficient possession, yet we all agree, that, if he did subsequently, and without any intervening attachment, acquire a sufficient possession, the rule of law is satisfied, and his attachment is valid. It appears that the day following the attachment, the attorney of the creditor proceeded to take the exclusive possession of the building, and to exclude all access to the property. As this was done, evidently in be.half, and for the benefit, of the plaintiff, and with a view to protect his lien, we consider, that, although the act was purely voluntary on the part of the attorney, the plaintiffis entitled to the benefit of it. It having been done professedly under his authority, he was at liberty to sanction the proceeding, more especially, as there was a sort of privity or connexion between them as agents of the creditors. At the time of the attachment by the defendants, the building was in the exclusive possession of the ■ plaintiff or his agents. All others were excluded, and the defendants found it necessary to break the door, in order to get access to the property. Whatever, therefore, might have been the previous state of things, the plaintiff had, at the time of the attachment by the defendants, an actual unequivocal possession of the property. It is urged that the plaintiff’s possession is to be considered unlawful, inasmuch as the proceeding in taking possession of the shop, is contended to be a trespass; and authorities are cited to show, that an officer is liable in trespass, for unlawful acts commit- - ted under such circumstances. It is admitted, however, that the original entry of the building for the purpose of making the attachment,waslawful ; and the supposed trespass consists in subsequently excluding others. Without stopping to enquire, whether an attachment effected by breaking the dwelling of the defendant, which is under the protection of the law, would be valid or not, it is sufficient, for the purpose of the present case, to remark, that the attachment, being originally lawful, could not be affected by [447] any subsequent act of the plaintiff of the character mentioned. Although the subsequent unlawful act (if unlawful it was) might, by fiction of law, render the officer a trespasser ab initio, yet this fiction of law would not extend to the lawful official act in which the creditors were interested. The judgement of the county court is affirmed. Footnotes [*] It appears from the record, that Field did appear by attorney and answer to the suit. This circumstance not having been mentioned in the bill of exceptions, it probably escaped the attention of the Court at the time the opinion was delivered. — Ed.