Slate v. Barker

The opinion of the court was delivered by Isham, J. The inquiry in this case arises upon the validity of the plaintiff’s attachment. If that was legal, and has not been in any way abandoned or relinquished, the property was wrongfully taken by the defendants, and the plaintiff is entitled to recover its value. It is insisted that the plaintiff, after his attachment, neglected to take the property into his custody and possession, in a manner to exclude it from the possession of Wiley, and that, for [651] that reason, it was lawfully taken by the defendants on their writs, as his property. In the case of Lyon v. Rood, 12 Vt. 233, it was held, that “to “ constitute a valid, and legal attachment, the officer must take and “ keep the custody and control of the property, either by himself “ or his servants, in such a way, as to exclude all other jDersons, “ so as to afford unequivocal notice of his own custodyand from, the cases of Lane v. Jackson, 5 Mass. 157, Train v. Millington, 12 Mass. 495, and Naylor v. Dennie, 8 Pick. 198, it appears that the same rule is adopted in Massachusetts. In the case of Mills v. Camp, 14 Conn. 219, it was held, “thata transfer of possession “and an actual removal of personal property is necessary, in order “ to render an attachment valid, as against a subsequent attach- “ ment.” The time and manner of that removal must depend, in a great degree, upon the nature and character of the property attached. In all cases, the officer has a reasonable time to effect it; and where the property is cumbrous and incapable of removal, it is dispensed with. In such case, his continual presence, by himself or an agent, is not necessary. It is sufficient if he uses due vigilance to prevent the property from going out of his control. The principle requiring a change of possession of the property attached, and its actual custody by the officer, has always been enforced in this state, for the purpose of giving timely and general notice of the attachment and lien of the officer, and to prevent fraud; as was observed by Sherman, J. in Mills v. Camp, 14 Conn. 225, “ it is not only a rule of evidence, but of policy,” from which, in this state, we feel no more disposition to depart in the case of attachments, than on a sale of personal property. The plaintiff’s attachment was made on the 2d day of January, 1851. The property at the time was in a room which for more than a year had been in the exclusive possession and occupancy of the plaintiff. This occupancy and possession by the plaintiff was not affected by the circumstance, that Henry & Pond occasionally placed a few articles in that room, nor that they or their servants passed through the room on some occasions, to and from its outer door; for they made no claim of a right to its occupancy for those purposes. It was a mere privilege permitted by the plaintiff, and enjoyed, as subordinate to, and subject to the will of the .plaintiff. Of the same character, it would seem, was the occupancy of Mr. [652] Wiley in depositing this property in that room. There is nothing in the case, inconsistent with the right of the plaintiff, to have exercised the exclusive control of the room, as against Mr. Wiley or any other person; and when after the plaintiff’s attachment was made, he fastened the outer door of that room, so as to cut off all public access to it, it was a termination of the privileges which had been previously enjoyed, and a resumption on his part of its exclusive possession, as against Mr. Wiley and every other person. But if we were to consider Mr. Wiley, previous to the plaintiff’s attachment, as having a joint possession of the room with him, the plaintiff had a right, under the authority of the process in his hands, to terminate that possession for the time, at least, that intervened between his attachment and that of the defendants. This was as effectually done, so far as to constitute a legal attachment, by closing and fastening the outer door of that room, as if the property had been in another building, and he had taken the key. Newton v. Adams, 4 Vt. 437. 16 Mass. R. 420, 465. Under the circumstances of this case, we do not think that the plaintiff’s attachment was defeated by not closing the door-way leading from this room to the wood-room in the same building. That passage led to no room that had ever been in the occupancy of Wiley, and it cannot be said, that a reasonable time had expired, for the plaintiff to effect a removal of the property to another place, if such removal was necessary. The case falls within the reason and rule of the case of Newton v. Adams, in which the court observed that, “ it could not with propriety be insisted, that an officer ■“ is bound, in order to avoid the implication of fraud, to secure the •“ property effectually against theives and trespassers; all that can “ be necessary in such cases is, that such possession shall be taken, “ as will give sufficient notoriety to the attachment.” When, in addition to that circumstance, it is found by the referee, that the defendants had actual knowledge of the plaintiff’s attachment, before their attachment, that this plaintiff had marked the property as attached, and notified a clerk or workman of Henry & Pond’s, who occupied other apartments of the same building, of the attachment, and requested him to notify others that came there, of that fact, we must consider, that the attachment was legal, and that the plaintiff had done all that is required in assuming, and main [653] taining the control and possession of the property. We think, therefore, the plaintiff’s attachment is sufficient to perfect his right to that property, and that the defendants were not justified in taking it from him. The judgment of the County Court is affirmed.