Brainard v. Bushnell , 11 Conn. 16 ( 1835 )

Church, J.

Three exceptions have been taken, under the motion, to the opinions expressed by the judge at the trial.

1. That the jury were instructed, that it was neither a matter of legal presumption nor construction, that the writ in fa-vour of Selden Fuller was served, by the officer Bingham, at the same time with any other of the intervening attachments served by him, on the 16th day of July, 1829, as the defendant had claimed.

It was determined, by this court, in the case of Gates v. Bushnell, 9 Conn. Rep. 530. that to preserve a lien created by attachment upon goods previously attached, by a different officer, it is indispensably necessary, that a demand be made upon the prior attaching officer within sixty days after pre-existing incumbrances are removed. It appears from the officer’s returns upon the attachments levied prior to the plaintiffs’, that they had been served at ten successive periods of time, on said 16th day of July, 1829 ; and it became material to determine whether Selden Fuller's writ had been served at yet another dis-tinet time, so as to constitute eleven successive periods from which the existence of liens was to be computed, or whether it was served at the same time with some of the other attachments levied on that day. And it was admitted, that the demand made of Bushnell, the defendant, for the goods attached on the plaintifls’ writ, was in time, if Selden Fuller’s attachment was made at a distinct time from either of the others; but if at the same time, as the defendant claimed, then the plaintiffs’ lien had before that time expired, and the demand was too late.

We know of no reason apparent from the officer’s return upon Fuller’s writ, why we are to suppose that writ was, necessarily, or even probably, served concurrently with any other; and certainly, there is no rule of law requiring any such presumption or construction. Attachments were levied, by the same officer, Bingham, at no less than six different periods,on the same day, upon the same property, and in favour of different creditors ; and the enquiry was very pertinently made at the bar, if Fuller's attachment was simultaneous with either of these, with which was it simultaneous ? If the property attached had been land, and had been set off on executions, with which of the other creditors of the Smith Manufacturing Company would Fuller have been tenant in common? 1 Sw. Dig. 156. 13 Mass. Rep. 527.

2. It was also objected, that Bingham, the officer, was by the court permitted to testify, and that he did testify from a written memorandum, that Fuller's writ was in truth served at 25 minutes past 5 o’clock, P. M., on said 16th day of July, and not at the same time with any of the other intervening attachments served by him, on the same day.

If the opinion already expressed be correct, it is clear, if this parol testimony of Bingham was inadmissible, it was harmless ; but that it was by law admissible, as well as consistent with the uniform practice in this state, we think, admits of no doubt. The return of the officer was not thereby contradicted ; but his testimony was entirely consistent with it. The officer, in his return, only stated the day on which he made service of the writ; and he was bound to do no more: the officer, in his testimony, stated the time of day. Williams v. Cheesborough, 4 Conn. Rep. 356. A day, in legal consideration, is punctum temporis, and the law knows no fractions of it; and yet, when justice requires, this maxim yields, and the exact time when an act was performed, may be shown, by parol evidence. So it is said, there is no progress of time in the term of a court; still, for the purposes of justice, the day on which a judgment was rendered, may be proved and where a town-clerk has made a general entry of the time when a deed or execution was lodged for record, the time of day, when it was so left, may be proved. 3 Stark. Ev. 1406. 1 Ld. Raym. 281. 3 Burr. 1243. 15 Petersd. Abr. 38. Williams v. Cheeseborough, 4 Conn. Rep. 356. Cutler v. Wadsworth, 7 Conn. Rep. 6. And this principle is not inconsistent with any doctrine recognized by this court, in the case of Gates v. Bushnell, 9 Conn.Rep. 530.

3. Finally, it is said, that the court erred in instructing the jury, that it was not necessary that the officers who had attached the same property subsequently to the defendant, should have left with him copies of their several attachments and returns, or any other equivalent written notice ; and of courses that the instructions to the jury regarding the sufficiency of the notice required by law in such cases, were also erroneous.

Copies of writs are by statute made necessary to be left in service, in several specified cases; but no law requires such co pies to be left, or even written notice to be given, in cases like the present; and this court, without assuming legislative powers, cannot declare such notice to be necessary. That the defendant should have been notified, at some time, and in some manner, of the claims of the subsequent attaching creditors, to the goods by him attached, so that he might know when and how to perform his duty before becoming chargeable with a violation of it, was but reasonable ; and therefore, by the general principles of the common law, was necessary; but no prescribed form or manner of notice was required. Nothing more was necessary than that the defendant should have been reasonably informed of such facts, as, when the lien of the attachment in his own hands was dissolved, he might have been enabled, if so disposed, to deliver the estate attached to the rightful claimant, and save himself from the demands of others ; and to this effect were the instructions to the jury. Story on Bailment 92. Roscoe on Ev. 405. Green v. Dunn, 3 Campb. 215. Solomon v. Dawes, 1 Esp. 83. Gunton v. Nurse, 2 Brod. & Bing. 447. (6 Serg. & Lowb. 193.) Alexander v. Southey, 5 Barn. & Ald. 247. (7 Serg. & Lowb. 85.)

The motion for a new trial, we think, should be denied,

In this opinion the other Judges concurred, except Waite, J», who gave no opinion, having been of counsel in the cause.

New trial not to be granted.