Daniels v. Willard ( 1834 )

Shaw C. J.

delivered the opinion of the Court. It has been held in several instances recently, that inasmuch as the general ownership of goods remains in the debtor, notwithstanding an attachment of them upon mesne process, a good and valid conveyance of them can be made by the owner, subject to the attachment. But as the temporary possession is with the officer, to preserve the lien, no actual delivery pursuant to the sale, can be made, and of course a symbolical or constructive delivery is sufficient. Notice to the officer, and to the keepers, who are the agents of the officer for the purpose of keeping possession, and an authority to deliver the goods to the vendee, .is a good constructive delivery of the goods, and of course when the lien to which they were sub ject, is discharged, the officer is bound to deliver the goods to the assignee on demand, and a refusal to do so, constitutes a conversion. In the present case, the attachment which subsisted at the time of the assignment, was so discharged ; of which the deputy of the defendant had notice. But he refused to deliver the goods, on the ground of the attachment subsequently made, in behalf of Wilkinson. The sole question then is, whether this was a good ground of refusal; and this depends on the question, whether this property was liable to that attachment, made subsequently to the assignment. Some evidence was offered to show, that Wilkinson had assented to and confirmed this assignment, by his acts, and could not now be admitted to avoid it. But we have not thought it necessary to consider whether this fact is sufficiently proved or not; it is proved to the satisfaction of the Court, that this assignment of the property, made by the voluntary act of the owner, for a good consideration, though not valid according to the laws of Massachusetts, because not made with the assent of the creditors, is still good and valid according to the laws of the State of Rhode Island; and on the grounds stated in another case at the present term, (Whipple v. Thayer, ante, p. 25.) as against the plaintiff, a citizen of that State, the assignment is valid, and the plaintiff cannot by his attachment, avoid it.

Defendant defaulted.