Hooper v. Day , 19 Me. 56 ( 1841 )

The opinion of the Court was delivered by

Sheflet J.

It is contended, that the goods were so entrusted or deposited, that they could be attached by the ordinary process of law; that the attachment made on the following day by such process should be regarded as the only legal one; and that the trustee should be discharged. And reliance is placed on the cases of Allen v. Megguire, 15 Mass. R. 490, and Swett v. Brown, 5 Pick. 178, to sustain these positions. In the former case it is said, that the trustee process “ will lie only where the goods cannot be come at to be attached by the ordinary process of law.” This is only a statement of the statute provision, and it does not assist one to determine, when they are so deposited. There is a more important intimation in the case, that a person summoned as trustee, “ and not disclosing any thing by which it might be inferred, that he exposed them to attachment,” may be considered as the trustee and charged accordingly. The latter case decides, that a person having possession of the goods of the debtor without his consent or contract, may be liable to this process, When they cannot be attached by the ordinary process. In the case of Burlingame v. Bell, 16 Mass. R. 318, it was decided, that a construction so close as to be confined to the literal effect of the words of the statute was inadmissible; and it is said that goods may be so placed in the hands of another “ as to be physically Within the reach of an officer to attach; and yet there may be difficulties in the Way of attaching them, which a creditor may fairly wish to avoid.” In this case the trustee does not state, that he expósed the goods so that they could be attached by the ordinary process. They were in trunks locked .and boxes nailed, which were placed in one of the chambers of the dwellinghouse of the trustee. It does not appear, that the officer did or could know the contents of them, or in what part of the house they were to be found, or that he would be permitted to search for them. He as well as the creditor might well desire to avoid the risk of attaching articles not exposed to sight, and which might not be liable to attachment. They were not so situated as to enable the officer acting with prudence to make an attachment without the danger of subjecting himself to an action of trespass for taking goods not liable to attachment. Goods so situated cannot be regarded as liable to attachment by the ordinary process in the sense contemplated by the statute.

Exceptions overruled»-