Gower v. Stevens , 19 Me. 92 ( 1841 )

The opinion of the Court was delivered by

Weston C. J.

To constitute and preserve an attachment of personal property, by process of law, the officer serving-such process must take the property and continue in possession of it either by himself, or by a keeper by him appointed for this purpose. It has never been understood that he could, consistently with the preservation ■ of the lien constitute the debtor his agent to keep the chattels attached. Except so far as authorized by special statute provision, he cannot leave such property with the debtor, without dissolving the attachment. Woodman v. Trafton & al. 7 Greenl. 178. Nor are we aware, that it can be preserved against persons having notice of the facts, although an implication to this effect may be found in the case cited and in Bruce v. Holden, 21 Pick. 187. Both those cases are strong authorities to show, that an attachment is dissolved, by leaving the property in the hands of the debtor; and if once dissolved, we are not satisfied that it can be revivéd by notice.

If an officer attaches goods in a store or warehouse, and leaves them in the possession and under the control of the debtor, it does not appear to us that a second attaching creditor and’ his officer can be repelled, by mere notice from the- debtor, or from any other person who may happen to have had knowledge of the first attachment. Both might well reply, that such attachment had been relinquished, or had been lost by a want of care and vigilance on the part of the first officer The statute of 1821, c. 60, § 34, cited for the plaintiff, is based upon the assumption, that but for the provision there made, the first attachment would be dissolved by suffering the' property to remain in the possession of the debtor. ¡

The counsel' for,the plaintiff has attempted to bring the attachment ’of the oxen-within the statute cited. But it cannot be held availiable for his benefit, unless ’ upon taking security, as is therein provided, which was not .done. The law of attachment cannot be varied by the consent of the creditor. He can do; nothing to impair the rights of third persons.

It is insisted, that the plaintiff may hold the horse, wagon and buffalo robe, as he'had once attached them, and being in his possession,"'when taken by the defendant. It is a sufficient answer to this position, that the attachment made by the plaintiff had been dissolved for nearly three months, and that when he took the property a second time, the return day of the writ, from which he derived his authority was passed.

Nonsuit confirmed.