Lyon v. Rood

The opinion of the court was delivered by Redfield, J. — The facts, in the present case, do not seem to the court to be sufficient to constitute an attachment of personal property. But, as the case must go back for a further trial upon that point, it becomes necessary, in some degree, to consider what is necessary to constitute such an attachment. From the fact that in England, they have no law for attaching property upon mesne process, and, that judgments in that country create a lien Upon property, without the necessity of a formal levy of the execution, questions of this character do not arise there. The cases in the English courts, most analogous to the present case, are those which concern the arrest of the body. In an anonymous case, K. B. 1701. 7 Modern, 8 ; Holt, Ch. J. — says, “ If a window be open, and a bailiff put in his hand and touch one, against whom he has a warrant, he is thereby his prisoner.” In another anonymous case, K. B. 1675, reported in 1 Vent. 306, it is said, “A bailiff, having a warrant, perceiving a debtor’s hand out of the window, seized it; and the court held it a sufficient arrest.” In Gennner v. Sparks, 6 Modern, 173 ; S. C. 1 Salk. 79, it was held, there was no arrest, because the officer had not the defendant in his power. In Horner v. Battyn, Buller’s N. P. 62, the arrest was held to be good, although mere words [238] were used, because the debtor did submit to the arrest. In the case of Williams v. Jones, Ca. Temp. Hard. 301; S. C. 2 Strange, 1049, Lord Hardwicke, Ch. J. — says “ It does not follow an arrest cannot be made without touching the person, for if a bailiff comes into a room, and tells the defendant he arrests him and locks the door (upon him), there is an arrest, for he is in custody of the officer.” And in the great case of Blatch v. Archer, Cowper, 63, Lord Mansfield says, “ That the officer must be the authority that arrests, is certain, but he need not be the hand that arrests, nor in the presence of the person arrested, nor actually in sight, nor in any prescribed distance.” But I take it he must, at the very time, be in pursuit of the very object, and the person making the actual arrest must be under his direction and control. From the foregoing cases, I infer, that to constitute an arrest of the person, the officer must be armed with legal process, he must have the custody and control of the defendant’s body, at least potentially, and he must claim that control by virtue of the process, and unless it is submitted to, must put it in actual exercise. The same rule, with such modifications as the different subject matters may require, will apyply to the attachment of personal property. /It is not perhaps necessary, in any case, that the officer should actually touch the property, but, to constitute a legal attachment, he müst have the custody or control of the property, either by himself or his servants, in such a way as either to exclude all others from taking the custody of the property, or, at least,to give timely and unequivocal notice of his own custody. Hence, in Lane et al. v. Jackson, 5 Mass. R. 157, Parsons Ch. J. — says, “ That to constitute an attachment of goods, the officer must have the actual possession and custody. And in Train v. Wellington, 12 Mass. R. 495, the same rule is adhered to, with this qualification, “ not that every article must be taken hold of, but that the officer must be in view of the whole, with the power of taking them into his actual custody.” In the case of Denny v. Warren, 16 Mass. R. 420, it was held that taking possession of the key of a store and declaring an intention to attach, was a sufficient attachment. The same rule is adhered to in the case of Gordon v. [239] Jenny, Ib. 465. In Naylor v. Dennie, 8 Pick. 198, it was decided, that goods, in the hold of a ship',might be attached by the officer going on board the ship and leaving a keeper to take' care of them. And again, in Merrill v. Sawyer, 8 Pick. 397, it was decided that hay in a barn was sufficiently attached, by putting a notification of the attachment on the barn .door. There is the case of Hollister v. Goodale, 8 Conn. 332, where the court decided that if one officer have the key of a carriage house and go and open it and declare that he attaches a carriage standing therein, and at the same time another officer rushes in and first gets the manual custody of the carriage, he will hold it, as having first legally attached it, which seems not to accord, in principle, with the other cases. In regard to the last case referred to, I can only say, that, if it is correctly reported, it must have been wrongly decided, and Mr; Justice Peters, who tried the case at the circuit, and ruled the law the other way, must have been a man of very singular modesty and urbanity to have said that “ he was inclined- to concur, (with his brethren) though not quite satisfied that the charge was wrong.” If the case were not decided by a very learned court, and sustained by a very elaborate argument from the chief justice, we should hardly have considered it deserving of so much consideration. From •what has been said, it will beo bvious that there is nothing, in the present case, tending to show any attachment of the property by defendant, previous to the sale and delivery to the plaintiff. How far the sale- to the plaintiff might be impeached, it is perhaps not necessary to be now decided. It is well settled, that if the plaintiff was a creditor to the full amount of the purchase, he had the same right to secure his debt by purchase, or other contract, that he would have by attachment. If the plaintiff was not a creditor to the full amount of his purchase, but the purchase was made upon adequate consideration and without any intent to defeat or delay any of the creditors of the- vendor, it cannot be impeached by such creditors, even if the vendor was, at the time, threatened with attachments and this known to the plaintiff. This last point was decided by this court in a case in Windsor county, not yet reported. Judgment reversed and new trial granted.