Mason v. Whipple

Barrett, J. The attachment made by Mason of the property in question was legal and valid. Some five months after-Wards, the defendants gave him a receipt for said property, and as is to be inferred, took it into their possession. By virtue of that attachment Mason was entitled to take and hold the actual custody of the property. In the contemplation of the law it was in his custody and possession from the time of the attachment. By so attaching the property, he assumed a relation of accountability for it, in the first instance, both to the creditor and the debtor in the writ, and that accountability would continue till discharged, either by the act of the parties or as the result of a sale and application of the property pursuant to the provisions of [557] the law. While that accountability should continue he was entitled to possess, control and dispose of the property in fulfillment of his duties to the parties. It appears, as is claimed, that as to Mr. Briggs, such accountability had ceased before this suit was brought. Had it ceased as to Gleason, or has it since ceased? If so, it is in consequence of what he has done in reference to the property since it was attached by Mason. That consists in having, as deputy sheriff, left a copy of a writ in the town clerk’s office and making a return on the original, purporting thereby to attach said property in behalf of another person. Although an attachment of personal property, by leaving a copy in the town clerk’s office, vests in the attaching officer the right of possession, still, as between several attachments, made by different officers, it is clear that the lien and right acquired by the prior cannot be affected by the official force, proprio vigora, of' the subsequent attachment. As against Briggs and all his subsequently attaching creditors, Mason, by his attachment on Gleason’s writ, had acquired the right of exclusive possession of the property attached. Under the statute law of the State, as it then was, Gleason, as deputy sheriff, could not, in virtue of his official prerogative, divest Mason either of possession or the right of possession. In point of fact, Gleason has not assented, by any express claim, nor exercised by any manual act in his own favor,, either personally or officially, any possession of the property. Moreover, it appears that the creditor for whom Gleason made said attachment has not so prosecuted his suit and claim as to have fixed on Gleason any official liability resulting from his having made such attachment. Judgment was recovered in that suit March Term, 1852, and the present defendants paid it without any steps being-taken to charge said property in execution, and thereupon they sold and disposed of the wood, being the property in question. The receipt given by the defendants to Mason, recognizes the attachment that Gleason had made as deputy sheriff. Gleason’s suit against Briggs was duly prosecuted to final judgment, and execution was taken out and placed in Mason’s hands, as an authorized officer, seasonably to charge the property, and Mason, as such officer, made demand thereof seasona [558] bly to fix whatever liability the defendants might be under by virtue of said receipt. As before stated, the right of Mason to the possession of the property under the attachment made by him, was not supplanted by the official force of the attachment made by Gleason, as deputy sheriff, on the National Life Insurance Company’s writ. It therefore remains to inquire whether Gleason has done anything in his personal as distinguished from his official character and right, that absolved Mason from his official duty to retain his possession of, and to respond for the property attached by him on Gleason’s writ. We are unable to see wherein he has so done. Every feature of the case seems to indicate the reverse. His withholding the service of the writ in his hands till he had procured the writ in his own favor and caused it to be served, his refraining to take possession of the property, or in any way manually to interfere with it, his taking out execution and delivering it to Mason, for the purpose of charging the property thereupon, clearly show his continued purpose to stand upon a right acquired by virtue of the attachment made by Mason. The course pursued by Mason in taking the receipt and consenting to be authorized in the execution, and taking the proper steps to charge the property and to charge the defendants as receiptors, shows that he regarded himself in no way absolved from his rights and duties, as the attaching officer, by what Gleason had done. The course taken by the defendants themselves seems to have been adopted in the same view. In giving their receipt for the property to Mason in January, 1852, and therein specially recognizing the attachment that Gleason had made as deputy sheriff, and subsequently paying the judgment obtained under said attachment without taking any steps to charge said attached property in execution upon said judgment, and finally selling the property thus receipted, they put it beyond Gleason’s power to make the attachment by him as deputy sheriff operative upon the property itself, and at the same time relieved him from any duty to do so. We fully recognize the authority of the cases cited in the Massachusetts Reports. They but affirm and apply a well settled elementary principle as to the effect of a resumption of property [559] by tlie bailor or pledgor upon his claim of right in respect thereto as against the bailee or pledgee. There have been several decisions in this State of a similar character. It is difficult to apply them in this case, because it does not appear that Gleason has, either officially or personally, interfered with Mason’s right and duty to hold possession of the property under the attachment made by him. Hence, in our opinion, Mason is to be regarded as still standing under that duty, and, of course, upon the correlative right to make the property available by virtue of his attachment of it upon Gleason’s writ. The judgment of the county court is affirmed.