Hollister v. Goodale

Hosmer, Ch. J. The enquiries in the case, are, what constitutes a legal attachment; and whether on this subject, the charge was correct. 1. The word attach, derived remotely from the Latin term attingo, and more immediately from the French attacker, signifies to take or touch, and was adopted as a precise expression of the thing; nam qui nomina intelligit, res etiam inlelligit. The only object of attachment is to take out of the defendant’s possession, and to transfer into the custody of the law, acting through its legal officer, the goods attached, that they may, if necessary, be seized in execution, and be disposed of and delivered to the purchaser. From both these considerations it is apparent, that to attach is to take the actual possession of property. Hence, the legal doctrine is firmly established, that to constitute an attachment of goods, the officer must have the actual possession and custody. It was laid down in these express words, by Ch. J. Parsons, in Lane & al. v. Jackson, 5 Mass. Rep. 157. 163. and by Ch. J. Parker, in Train v. Wellington, 12 Mass. Rep. 495. 497. Nor is there, so far as my investigations have enabled me to discover, a single determination opposed to the preceding principle. The case of Turner v. Austin, 16 Mass. Rep. 181. decided, that no overt act, by the sheriff, was necessary to constitute an attachment of property, previously in his custody on another attachment. But this is entirely consistent with the principle [335] advanced. The sheriff already had the actual custody; and mere form or ceremony, for form’s sake, and not for the preservation of substance, can never be required. It was likewise adjudged in Denny v. Warren, 16 Mass. Rep. 420. that an officer, who entered a store to attach goods, where there was no competition, received the key from the clerk, and locked up the store, having declared his intention to attach, had made a sufficient attachment. And in Gordon v. Jenney, 16 Mass. Rep. 465. the determination was to the same effect. So in Naylor v. Dennie, 8 Pick. 198. it was decided, that inaccessible goods, covered up in the hold of a ship, were attached, by the officer’s going on board, and leaving a keeper to take care of them; and in Merrill v. Sawyer, 8 Pick. 397. that hay in a barn was duly attached, by putting a notification of the attachment on the barn door. Now, in all these cases, the court went on the principle, that the actual possession and custody was necessary to constitute an attachment; although there being no race for priority of attachment, they held that to be the actual custody and possesion, which, perhaps, was constructive possession only. The analogous cases all demonstrate the necessity of actually taking the property. This is the established law concerning the levy of executions; that is, the property levied on is actually taken into the custody of law. So when an attachment or execution is levied on the body, it is effected, by a corporal seizing or touching of the body, and thus putting it in the cutody of the law; (3 Bla. Comm. 288.) or by what is tantamount, a power of taking possession and the party’s submission thereto. Genner v. Sparkes, 1 Salk. 79. Horner v. Battyn, Bul. N. P. 62. But if the person do not submit, (and this dead property cannot do) the body must actually be seized. 2. The question now arises, in view of the preceding facts and principles, whether the charge to the jury was correct. That the plaintiff was at the door of the carriage-house, with a a writ of attachment in his hand, only proves his intention to attach. To this no accession is made, by the lawful possession of the key and the unlocking of the door. Suppose what does not appear, that the key was delivered to him, by the owner of the barouche, that he might attach the property; this would be of no amount. He might have the constructive possession, which, on a sale, as between vendor and vendee, would be suf [336] ficient; but an attachment can only be made, by the taking of actual possession. As little importance is attached to the unlocking of the door, and the declaration that the plaintiff attached the carriage. This was not the touching of the property, or the taking of the actual possession. The removal of an obstacle from the way of attaching, as the opening of the door, is not an attachment, nor was the verbal declaration. An attachment is an act done; and not a mere oral annunciation. From these various acts, taken separately or conjointly, the plaintiff did not obtain the possession and custody of the barouche, and therefore, he did not attach the property. On the contrary, if the facts contended for, by the defendant, were proved, his defence was complete. Between two officers having separate attachments, there was a race for priority. They both had arrived at the carriage-house ; and, so soon as the door was opened, the defendant outstripped his competitor, and seized on the barouche. By this act, he had the actual possession, and was successful in his intended prior attachment. I would, therefore, advise a new trial of the cause. Daggett and Williams, Js. were of the same opinion. Peters, J. was also inclined to concur, though he was not quite satisfied, that the charge was wrong. Bissell, J. was absent. New trial to be granted,