Stickney v. Batchelder

The object of the trustee process, or process of foreign attachment, is, to reach goods, chattels or money deposited or left by the principal debtor in the possession of another, in such manner that the property cannot be reached by an attachment in the common form. This is the case where the party in whose custody the chattels are asserts some right to control them for his own benefit, as in cases of bailment, or where, for any cause, he conceals or withdraws them from the view of such as would subject them to process. N. H. Prov. L. 126; Cush. Tr. Pr. 19.

It is not necessary to decide that the process lies in no case in which the attachment, by the ordinary method, is possible, because there may well exist cases in which a *42party, seeking such kind of security for a debt, may elect between the two forms of procedure. The statute provides for some of them. Rev. Stat., ch. 368, sec. 15; ch. 208, see. 16.

But in the present case the goods had become the absolute property of the defendant. The delivery had become perfect. The trustee retained no right or interest in them, and claimed none. They were in no sense in his custody or possession as bailee or otherwise. He permitted them to remain upon his premises, to which place he had requested and invited the defendant to come for the purpose of removing them. Had a stranger taken them away, the trustee could not have maintained trover, or trespass de bonis asporfatis.

The defendant had obtained permission to leave the goods upon the trustee’s land, upon a vague promise to “ make it right with him for the use of the shed.” If that amounted to a promise to pay any thing, it was in the nature of rent and not storage, and created no lien on the goods, and imposed no duty in respect to them upon the trustee.

It does not appear, in short, that any impediment whatever existed against a specific attachment of the goods ; for whatever question may exist as to the right of an officer to break the door of any one, for the purpose of seizing the goods of a stranger there, no reasonable doubt can be maintained that where the doors are open, the officer may enter for such purpose, whether the goods are deposited within for an honest purpose, or through covin. Semayne’s Case, 5 Co. 91.

The trustee, therefore, had no such possession of the goods as the statute contemplates as necessary for charging him, and he must be discharged.

• Trustee discharged.