Ginsberg v. Pohl

Robinson, J., delivered the opinion of the Court. This is an action of trespass de bonis asporfatis, for the seizure by the appellants, of the goods and chattels of the appellee, under a writ of attachment issued against her husband. The appellants, defendants below, contend that at the time of the service of their writ, the goods and chattels of the ap ⁵⁰⁷ pollec were in the possession of the officer, under prior attachments, issued by other creditors against the husband, and being thus in the custody of the law, the appellee has no right to bring an action of trespass for the alleged seizure of the same property under a subsequent attachment. To maintain an action of trespass de bonis asportatis, the plaintiff must have either the possession, or the title with the right to immediate possession of the property taken.

Where goods and chattels however are taken by an officer under an attachment, they are in the custody of the law, and the officer holds them to satisfy the plaintiff’s demand, or to return them to the owner upon the dissolution of the attachment. Being thus responsible as well to the creditor as to the debtor, the officer is entitled to the possession, and it is well settled that he may maintain an action of trespass or trover against any one wrongfully interfering with the same. ISiow it is quite clear, that neither the actual possession, nor the exclusive control of the same goods and chattels, can be in two persons at the same time, and hence it follows, that when they are once taken under an attachment, the owner thereof has not either the possession, or the title with the right to immediate possession of the same. So long as the attachment lien exists they are in the custody of the law, and although they cannot be taken by another officer under a subsequent execution or attachment, yet if the latter be directed to the same officer, he may schedule the property already in his possession, and hold the surplus after satisfying the prior executions or attachments.

In making the levy under the subsequent writs however, he cannot be sued as a trespasser, because the goods and chattels were at the time in his possession under prior writs. The owner may sue him in trespass for the original taking, i. e. under the prior writs, or he may sue in case for damages sustained by the levy under the subsequent ivrits, so also if instead of taking the goods, he suffers them to remain with the owner after the seizure under the writs. In such a case, so long as the attachment lien exists, the possession of ⁵⁰⁸ the owner is the possession of the officer, and although he may schedule the goods under subsequent writs, yet when he actually takes possession of them the law will refer the taking to the prior writs. But the rule of law is supposed to be different where the officer takes the goods of a person other than the debtor.

In Cromwell, et al., vs. Owings, 7 H. & J., 55 , this Court held that goods taken under an execution are in the custody of the law, and could not be replevied out of the officer’s hands, either by a stranger, the lawful owner thereof, or by the defendant in the judgment, and this whether such goods when taken, were in the possession of the defendant or not. The Court say: “ The question whether the goods of a stranger taken out of his possession, on an execution against another person, can be replevied out of the hands of the officer, having also been discussed, and being a question in which the public is materially concerned, and therefore proper to be settled, we avail ourselves of this occasion to express our opinion upon the subject. In Thompson vs. Button, 14 Johns., 86 , and Clark vs. Skinner, 20 Johns., 465 , it is held that in such a case a replevin will lie.” The decisions in these cases were disapproved of by this Court, and it was held, that the property whether' wrongfully taken or not, was in the custody of the law, and could not be replevied by the owner, although a stranger to the execution. We are of opinion therefore, that goods and chattels taken under a valid writ of attachment, whether belonging to the debtor or a third person, are in the custody of the law, and the owner thereof cannot maintain an action of trespass de bonis asportatis, either agaiiist the creditor or the officer for attaching the same under a subsequent writ. ■ This brings us to the question, as to whether there is any evidence in this ease, tending to prove that the property of the appellee, was in the custody of the law at the time of the service of the appellants’