Chadbourne v. Sumner

Parker, C. J. The attachment of the plaintiff was lost because no possession was retained by him. It is the duty of the officer who makes an attachment to retain the possession of the property, if it is not receipted for. Odiorne v. Colley, 2 N. H. 66; Dunklee v. Fales, 5 N. H. 528; Young v. Walker, 12 N. H. 506. The rule is the same in other States where attachments on mesne process are allowed. Sanderson v. Edwards, 16 Pick. 144 ; Nichols v. Patten, 18 Me. 231. Cases may exist in which it is his duty to attempt to procure a receipter, or to secure the property in the place where it is found. Barrett v. White, 3 N. H. 210. But if this can not be done, and a removal is necessary in order that he may retain possession, it is the duty of the officer to remove it, and the fact that the removal will be attended with some inconvenience, does not furnish an excuse for a neglect to retain the possession. In this case no receipter was procured. No person was placed in custody of it. There was not even an agreement of the debtor that it might remain in the barn without interference, if that with the posting of notices might have .been sufficient. The plaintiff ' retained no custody of the property in any way. On this state of the facts the defendant might well attach the property. He had no notice ; and had he possessed merely knowledge that an attachment had been made, that will not avail to prevent a subsequent attachment, if no possession be retained. Young v. Walker, 12 N. H. 502. It is but the common case of property attached, which goes back into the hands of the debtor by [133] means of a settlement, or receipt, or some arrangement that dissolves the attachment. The objection to the admission of the return upon the defendant’s writ as evidence of the attachment upon that, “because no judgment was ever had thereon,” can not avail. The general principle is stated in Brown v. Davis, 9 N. H. 76. That the return of the sheriff of matters material to be returned upon a writ, is evidence, seems to be generally admitted. The question has been, whether it is conclusive, or only prima fade, evidence. As between the parties to the suit and those claiming under them as privies, and all others whose rights and liabilities are dependent upon the suit, the return is conclusive. But it is not conclusive as to third persons whose interests are not connected with the suit, but whose interests may be affected by the proceedings of the sheriff^ nor as to collateral facts or matters not necessary to be returned. It is sufficient for the purposes of this case if the return was only prima fade evidence. There was nothing to contradict it. And it is not necessary in order to its admission as evidence that the action should have proceeded to judgment and the return have thus become a matter of record. Writs are made returnable to the next term of the court. The officer is commanded to make return of his doings. When served it is proper that they should be returned even if the action is settled. It may be important to the security of the officer. Perhaps it is necessary that the return should become matter of record in order to give it the character of evidence. Brown v. Davis, 9 N. H. 79, 81. But it will be so, within our practice, if it be returned and placed upon the files of the court without any extended registry by the clerk as a recording officer. The objection in this case was, not that the writ had not been returned, but that the action had not been prosecuted to judgment. If the objection had been that the writ had not been returned, and such [134] was the fact, 'the court might have permitted the writ to be filed on motion. This may be done, by leave, after the return day. There was evidence therefore of a lawful attachment by the defendant, and the agreement to sell and apply the proceeds to the payment of the debt was valid. Whether the statute provisions for that purpose were strictly pursued or not, is of no importance to the plaintiff. The attachment which he made having been dissolved, he has no ground of objection on account of what was done by the parties subsequent to the defendant’s attachment. Judgment on the verdict.