Cheshire National Bank v. Jewett , 119 Mass. 241 ( 1876 )

Colt, J.

The defendant contends, upon the facts agreed, that there is no valid subsisting attachment of personal property, against which, since the bankruptcy of the original defendant, a special judgment can now be rendered; first, because, the property taken on the writ was, from its nature and situation, exempt from attachment, next, because the mode adopted by the offices in this case did not constitute a valid attachment; and, lastly, because the lien, if any, thereby created, has been since lost by the neglect or misconduct of the attaching officer.

The property attached was tobacco stored in barns, hanging on poles, in process of curing, and in such condition that it could not be moved without great damage.

In this Commonwealth all personal property liable to be taken on execution is subject to attachment, except such as, from da nature or situation, has been considered as exempt according to the principles of the common law here adopted and practised on. Gen. Sts. c. 123, § 32. In Bond v. Ward, 7 Mass. 123, it was accordingly held that hides in a vat for tanning could not be attached, because they could not be returned in the same plight. And the same rule was said to apply at common law to sheaves of corn or hay in a cock or barn, “ because they would be injured, as the grain of the sheaves would be shattered.” This rule was affirmed in Campbell v. Johnson, 11 Mass. 184, but was held not to apply to hay in a barn, because on account of the changed condition of husbandry, the reason of the rule “has ceased with us.” It has long been held in this state that corn or other growing products of the soil, when ripe and in a fit state to be gathered, could lawfully be attached or taken on execution, and that the officer might enter, cut down, seize and sell the same as personal estate. Penhallow v. Dwight, 7 Mass. 34. Heard v. Fairbanks, 5 Met. 111. Mulligan v. Newton, 16 Gray, 211.

An exception to the old rule which forbids the attachment of property which cannot be returned in the same plight, is thus established by our decisions, which embraces all annual products of the soil when ripé and fit for harvest, and includes tobacco when in the- condition here described. In the application of this exception, it would be impracticable to distinguish tobacco from other annual crops simply on the ground that the successful harvesting and curing of it require more time and care. And the objection that the duties required to secure the crop are such as do not properly belong to the attaching officer, applies equally to all crops which require harvesting.

As to the validity of the attachment on other grounds, the case comes within the provisions of the statute which authorize a return to the town clerk’s office when an attachment is made of personal property which, by reason of its bulk or other cause, cannot be immediately removed. Gen. Sts. c. 123, § 57. It is true the only reason here given for not removing the tobacco at the time of the attachment is, that it could not be then removed without great damage. But that is one way of stating that the property was not in a condition for immediate removal within the fair meaning of the statute. In determining that question, the liability of the property to injury, as well as the expense and difficulty attending its removal, are to be considered. Polley v. Lenox Iron Works, 4 Allen, 329.

The officer acquired a special property in the tobacco attached by virtue of his attachment in this form, which was good, at least so long as the difficulty of its removal remained, as against all persons interfering, and which remained good until some title was acquired which could be set up as valid against the attachment. Before any such title was acquired, the sheriff took actual possession of the property and placed it under lock and key. There is nothing to show a voluntary surrender or abandonment of the attachment on the part of the officer or the plaintiff in this suit at any stage of the case. And we do not find any such neglect on the part of the officer, after actual custody was taken by him, as should defeat the creditor’s lien upon this property. Butterfield v. Clemence, 10 Cush. 269. Shephard v. Butterfield, 4 Cush. 425.

Special judgment for the plaintiff.