Sanderson v. Edwards , 33 Mass. 144 ( 1834 )

Shaw C. J.

delivered the opinion of the Court. Several questions arise upon this report, which it is not necessary to determine, and on which we give no opinion, because we consider one point decisive. It is a settled rule of the law of attachment, that in order to maintain the lien created by an attachment of personal property, the officer must in some form, by himself or another, retain the custody of the property; Carrington v. Smith, 8 Pick. 419. What act, what species of possession, and what degree of vigilance, will constitute legal custody, is often a question of difficulty, depending upon a variety of circumstances, having respect to the nature and situation of the property, and the purposes for which custody and vigilance are required ; such as protection from depredation by thieves, preservation from the weather, and other causes of damage, and especially giving notice to other officers, and to all other persons having conflicting claims. So it has been held, that wood and lumber on a wharf, placed under the charge of a keeper, who has the key of the gate delivered to him, but who leaves the wharf a part of the day. on a Sunday, are still in his legal custody. So heavy blocks of granite, put in charge of a keeper, whose house is within sight of them, and who passes them daily in going to and from his work, are sufficiently, in his custody to preserve the lien.

In the present case it is shown, that before the attachment made by the defendant, the keeper appointed by the officer, ko keep the property under the attachment made for the plaintiff, went off, and abandoned all possession and custody of the 1 property; and the Court are all of opinion, that the lien created by the plaintiff’s attachment, was thereby lost, and that the attachment by the defendant, therefore, was rightful and valid. If the keeper was employed by the officer, at the plaintiff’s request and upon his risk, he must bear the loss ; but whether so or not, his remedy, if he has any, is not against the defendant.

It was stated bv Pritchard, the officer who made the first attachment, that besides appointing a keeper, he posted a written notice on a beam in the barn. It was supposed by the defendant’s counsel, that Merrill v. Sawyer, 8 Pick. 397, might be relied on as an authority to show, that this notice would make the attachment valid, although the keeper abandoned it. But it must be considered, that in that case, the question was, what taking would constitute an attachment, not what notice or other custody would preserve one. The fact of posting notice on the barn door, was one circumstance relied on, among others, to prove, that the officer claiming a special property had made an actual attachment. That case therefore does not affect the present question. In the present case, it is manifest, that the officer did not rely on such notice, as a means of retaining the custody of the property, but appointed a keeper, in the usual form, and with the usual authority and instructions, to keep actual possession. This keeper went off, substituting no person in his place, but as appears by the report, carrying his written authority or warrant with him, and thereby the legal custody of the property obtained by the attachment, and to be preserved by the keeper, was relinquished and lost.

Plaintiff nonsuit.