Dodge v. Way

The opinion of the court was delivered by Kellogg, J. The principal question raised in this case, and the only one necessary to be considered, is, whether the plaintiff, by his alleged distreining of the property, for which the action is brought, created a lien upon the property, and continued it, until the taking and conversion of the property by the defendant. The plaintiff having legal rate bills for taxes against the defendant, and warrants empowering him to collect the same, if by his proceedings, as detailed in the bill of exceptions, he created a valid lien upon the property and continued the same; then the decision of the county court was clearly wrong. It has been held by this court, that, to constitute an attachment of personal property, it is necessary that the officer should, either by himself, or his servant, take and maintain the actual custody and control of the property. Such was the language of the court in Lyon v. Rood, and it is believed, that the same doctrine is equally applicable to a distress for non [460] payment of rates, or taxes. The inquiry, then, arises,[did the plaintiff take and maintain the actual custody and control of the property in question 1 The facts stated in the bill of exceptions fully answer the inquiry. He neither by himself, nor his servant, took the actual custody and control of the property, and consequently did not make a valid and legal distress, so as to create any lien upon the property. We are therefore entirely satisfied with the judgment of the county court, and the same is affirmed.