Provis and Others v. Cheves

Dureee, J.

We tkink tke defendant had no attackable property in tke wood attacked in tkis case, when tke attachment was made. He was then occupying tke farm on wkick tke wood had been cut, and ke had, it would seem, a right, according to tke practice recognized between him and tke owners of tke farm, to cut and sell wood therefrom; but by kis contract with tke owners, ke was bound, after reimbursing himself for expenses, out of tke proceeds of tke sale, to pay over to them tke residue, if any, tke money so received being passed to kis credit in part fulfillment of tke contract. We tkink ke had, strictly speaking, no property in tke wood itself, but merely a power to cut and sell tke same, coupled with an interest in tke proceeds of tke sale for tke purposes mentioned. Except for those purposes, ke could not cut and sell without violating tke rights of tke owners of tke farm. There is also evidence in regard to tke particular wood attacked, that it was cut for a Railroad Company, in pursuance of a contract made with tke Company by tke said owners, wkick tke defendant had agreed to carry out, and that consequently, tke power of tke defendant over it, was perhaps even more limited than we have stated; but taking tke case in tke view wkick we regard as most favorable to tke plaintiff, we tkink tke attachment was invalid.

Judgment for defendant on plea of abatement.,