Gates v. Bushnell

Church, J. The questions raised by this motion, for a new trial, are, First, Whether the plaintiff, in order to preserve the lien, created by her attachment, should have caused demand to be made of the defendant, who was the officer, who had, by virtue of previous attachments in favour of other creditors, attached the same property, and taken it into his possession j and whether she should have taken the other legal measures preparatory to the levy of her execution upon the properly attached? And Secondly, Whether the duration of the liens created by the several previous writs of attachment, in favour of other creditors, as set forth in the motion, is to be calculated from the dates of the several returns of the officers thereon, and from the times of actual service, or according to the order in which the writs of attachment were delivered to the officers for service ? 1. The statute regulations on this subject, are, that “No estate attached, shall be held to respond the judgment, obtained by the plaintiff, at whose suit the same is attached, either against the debtor, or any other creditor, unless such creditor take out execution on such judgment, and have the same levied on goods or personal estate, within sixty days after final judgment; or if such goods are encumbered, by any prior at* tachment, the execution to be levied within sixty days after such incumbrance is removed.” Stat. 37, And in this state, it has been considered, that personal estate which has been attached, by one officer, may, notwithstanding, be subsequent!)7 attached, by another officer, subject to the prior attachment. Cole v, Wooster, 2 Conn. Rep. 203, It is also directed by statute, that an officer, to whom an execution is directed, shall repair to the debtor’s usual place ot abode, if within his precincts, unless he find him in some other place, and make demand of the debt; and upon refusal, or neglect of payment, the officer shall indorse on the execution, when and where he made demand of the debt, and the sum due thereon, and shall levy the same on the personal estate of the debtor. Slat. 56. A lien created by attachment, exists only for the purpose of enabling an attaching creditor to perfect an incipient right, by a legal levy of his execution, upon the property attached! [542] but there can be no legal levy of the execution within the time necessary to preserve the lien, if within that time, the preliminaries to a valid levy, are not observed, among which a demand is indispensable ; and if this is not made in cases where the law requires it, the property attachedisexonerated from the operation of the lien. Cole v. Wooster, 2 Conn. Rep. 203. So too, whenever an officer has attached estate, and holds it to respond the judgment, if the execution come into the hands of another officer, a demand must be made of the attaching officer; otherwise, Ije could never know how long to retain, or to whom to deliver it, and would have right to presume, that the creditor had abandoned his lien. Scott v. Crane, 1 Conn. Rep. 255. The operation of these principles, in the present case, is attempted to be avoided, by the claim, that the defendant, before the plaintiff’s lien had expired, had disposed of the articles attached, and had fraudulently sold them to Champion, and thus had put it out of his power to restore the property, or deliver it upon the demand of the officer holding the plain*: tiff’s execution ; and therefore, a demand, under these circumstances, was not necessary; and the case of Burrows v. Stoddard, 3 Conn. Rep. 431. is relied upon, in support of the position. If the authority of that case were free from doubt, it establishes no principle governing this. Here it is proper to remark, that the plaintiff makes no claim under the second count in her declaration, which is in trover, but founds herself entirely upon her rights as attaching creditor. She never had either the possession, or right of possession, of the goods attached ; and this makes the distinction between the present case and the case of Burrows v, Stoddard. In that case, the plaintiff, who was the attaching cre'ditor, was also the receipts-man of the property attached. The officer delivered it into his actual possession. The action was trespass, founded upon the plaintiff’s possessory rights as bailee, which the Court say “ alone lays the foundation for a recovery against a wrong-doer.” It seems clear, then, that it was legally necessary, that a demand and all other pre-re-quisites of a legal levy of the plaintiff’s execution, should have been made. [543] 2. But the question is, when should it have been made ? During the existence of the lien, created by the attachment,. certainly; and this lien continued no longer than sixty days after all prior incumbrances had been removed. No demand was made , and no other steps were taken, to collect the plaintiff’s execution, before the 18th day of March 1831; and it is admitted, that if the duration of previous incumbrances, created by prior attachments, is to be calculated from the dates of the officer’s returns, and the times of actual service, all those attachments, appearing from said returns to have been levied at the same time, being regarded as concurrent, then the plaintiff’s lien had expired before the said 18th day of March 1831. ⅛| Nothing short of an actpal attachment can create a lien ; and this attachment can be made only by some act of the offi- - cer serving the writ, which, in legal contemplation, is equiva* lent to the actual possession and custody of the property, erefore, the mere act of the party, in ’delivering a writ of ⅜1 attachment to an officer for service, is no part of the attachment. Hollister v. Goodale, 8 Conn. Rep. 332. Lane & al. v. Jackson, 5 Mass. Rep. 157. Train v. Willington, 12 Mass. Rep. 495. Turner v. Austin, 16 Mass. Rep. 181. Denny v. Warner, Id. 420. Gordon v. Jenny, Id. 465. Naylor & al. v. Dennie, 8 Pick. 198. Merritt v. Sawyer, Id. 392. Beekman v. Lansing, 3 Wend. 446. : The attachment of property under a writ of attachment, is ⅛ part of the process of serving the writ, an incipient step in the commencement of the suit; and a suit, in this state, is commenced only by the service of the writ, and not by its de-to an officer for service. Clark v. Helms, 1 Root 486. v. Parsons, 2 Conn. Rep. 377. Jencks v. Phelps, 4 Conn. Rep. 149. j I conclude, then, that the duration of the previous incum-brances, is to be calculated from the actual times of the service of the respective prior attachments, as ascertained by e dates of the officer’s returns thereon ; and, of csourse, that the plaintiff’s lien upon the property attached had cxpi-red, before any demand or other necessary proceedings, were had under her execution. The officer’s return is the only safe and certain criterion, by which third persons can ascertain the existence ot prior incumbrances; to this al! persons interest544 gd may resort for information ; and without this, I know oí no means of knowledge, which creditors, purchasers or others can have, as an officer cannot be compelled out of court to speak on this subject, The plaintiff’s lien upon the property attached, therefore, having expired before she had taken any steps to levy her execution, her situation does not differ from that of other creditors of the Smith Manufacturing Company, who had never attached ; and she, no more than they, has suffered injury, by the alleged misconduct of the defendant. Smith v. Blake, 1 Day 258. A new trial ought not to be granted. The other Judges were of the same opinion ; Peters, J. remarking, that he was glad to see Burrows v. Stoddard shaken, and he thought it would not survive another concussion. New trial not to be granted.