Scott v. Manchester Print Works , 44 N.H. 507 ( 1860 )

Bartlett, J.

If the articles in question are to be regarded as part of tbe realty, and that had belonged to Carter, still the attachment, if at all effectual, would have given this plaintiff, the officer who served the writ, no right of property in or possession of the real estate. Kittredge v. Warren, 14 N. H. 526.

If the articles are to be regarded as personal property, we think the return does not show a sufficient attachment. In Lathrop v. Blake, 23 N. H. 59, the question whether machinery could be attached by merely leaving a copy of the writ and return with the town-clerk was left undecided.

Section 14 of chapter 184 of the Revised Statutes provides that “the officer attaching grain unthreshed, &c., manufacturing or other machinery, &c., may leave an attested copy of the writ and of his return of such attachment thereon as in the attachment of real estate; and in such case the attachment shall not be dissolved or defeated by any neglect of the officer to retain actual possession of the property.” The provision is not that the attachment Inay be made, as in case of real estate, by leaving a copy. Rev. Stat., ch. 184, sec. 3; Kittredge v. Bellows, 7 N. H. 427. Indeed, no attempt is made to change the mode of making the attachment, but a new and easier method of preserving it is provided. Before this statute there was not SO' much difficulty in making as in preserving attachments of the various articles enumerated in the 14th section of chapter 184. Hemmenway v. Wheeler, 14 Pick. 410; Sanderson v. Edwards, 16 Pick. 144; Reed v. Howard, 2 Met. 38; Shepherd v. Butterfield, 4 Cush. 425; Bicknell v. Trickey, 34 Me. 273; Miller v. Baker, 1 Met. 32. As the statute has only provided a new mode of preserving attachments of the articles specified, it is still essential to a valid attachment of them that they should be taken into the possession or placed under the control of the officer. Odiorne v. Colley, 2 N. H. 66; Huntington v. Blaisdell, 2 N. H. 318, 319; Chadbourne v. Sumner, 16 N. H. 132. In Maine a statute, providing that “when any personal property is attached, which, by reason of its bulk, &c., can not be immediately removed, the officer may, within five days thereafter, file in the office of the clerk of the town, &e., an attested copy of so much of his return, &c., and such attachment shall be as effectual and valid as if the property had remained in his possession and custody.” The Maine statute (Rev. Stat., ch. 81, sec. 35), has received a similar construction. Darling v. Dodge, 36 Me. 370; Nichols v. Patten, 18 Me. 238; see Heard v. Fairbanks, 5 Met. 114.

The decisions in Bucklin v. Crampton, 20 Vt. 261; Fullam v. Stearns, 30 Vt. 443, and Putnam v. Clark, 17 Vt. 82, were founded upon a statute differing somewhat from our own, as the Yermont statute enacts that “when machinery, &c., shall be taken by virtue of any writ of attachment, &c., the officer serving such process shall lodge a copy of the same with his return in the town-clerk’s office, &c., which shall be as effectual to hold such property against subsequent sales, &c., as if such property had been actually removed and taken into the possession of such officer.” Vermont Rev. Stat., ch. 18, sec. 15. ,

In the present case the officer does not return an attachment generally, but an attachment made by leaving a copy, &c.; and this we think is insufficient. There must be

Judgment on the nonsuit.