Pettes v. Marsh

The opinion of the court was delivered by Royce, J. The sole question is, whether the action of trover can be sustained upon the facts appearing in this case, That trover will lie, in an ordinary case, in favor of an officer against the receiptor of goods attached, was fully decided by this court in Sibley v. Story, 8 Vt. R. 15. But it is urged, that, in this instance, there was no sufficient attachment of the sheep, to vest in the officer the requisite legal interest to support this form of action. We are asked to treat the attachment, for the present purpose, as if no such property existed at the time of the alleged service of the writ, — to' regard it, in all respects, as a fictitious attachment. And whilst it is conceded that, in this view, it would be sufficient to uphold the contract of the receiptors, it is insisted that it cannot subject them in tort. It is not my purpose to controvert the able argument which has been founded upon this view of the case. Did we consider that the transaction must necessarily be regarded [459] in this light, I should be disposed to yield to the argument. But we think the attachment ought not to be considered fictitious. The case shows that this defendant actually owned, and had upon his farm, five hundred sheep ; that the officer went there to make service of the writ; and that, without requiring the ceremony of going to view the sheep, or separating the flock, the defendant, and another person, executed a receipt for 350 of the sheep, which the officer returned, as being attached upon the writ. Now there is no doubt but that the legal requisites of a valid attachment are such as the counsel has contended for. It is nothing less than the actual seizure of property, or having it within the power and control of the officer. But this definition is framed with reference to an attachment, in the strict sense of a proceeding altogether in invitum, — the power of the law operating against the will, or without the concurrence, of the party affected by it. As against an unwilling party, or a third person, whose rights are affected, it must, doubtless, conform to this description. It is competent, however, for a party to dispense with forms or ceremonies which he might have insisted on, and still leave the attachment effectual as against himself. He may consent to be treated as being under arrest, when the officer has not acquired the actual control of his person ; and so he may consent that his goods shall be treated as being attached, when the officer has not actually seized them. In each case it is but submitting to the power of the law, without constraint. And if, under such circumstances, the officer returns the arrest, or attachment, with the party’s assent, that return should be, as it legally is, conclusive evidence of the fact. And if the principle here advanced be a sound and just one, the present is surely a strong case in illustration of it. The property did exist, and was attachable ; and but for the voluntary arrangement between the defendant and the officer, it would have been regularly seized and removed. But the defendant chose to have it treated as being attached, (waiving the ceremony of actual seizure and removal,) and undertook ,to keep it for the officer, who, with his assent, charged himself with a liability for it. He cannot now say, that his subsequent possession of the property was not subservient to the officer’s right. It appears that the property was afterwards duly demanded, [460] but, having been previously disposed of, was not restored. that upon such a state of facts, the action of trover can be maintained. Judgment of county court affirmed.