
    Lyman Fitch vs. Dana Rogers.
    Orange,
    
      March, 1835.
    Where the plaintiff an officer, with a writ of attachment, went within five or ten rods of a wagon, which the creditor’s attorney there turned out on said writ, the said wagon then being in the road, in full view; whereupon the said officer went away to attach other property, and did not go to said wagon, or remove it, or send any one so to do, or to keep control, or give notico to any one, and did not return to the same until-an hour or moro, and in the mean time the defendant, in good faith, and without notice, had purchased' said wagon of the owner, and taken possession thereof, the defendant is entitled to hold the same, '
    This was an action of trespass for a wagon. Plea — general issue. The plaintiff, in support of the issue on his part, proved that he was, in the year 1832, sheriff of Orange county, and that Josiah White was his deputy,
    In farther support of said issue, the plaintiff offered in evidence an original writ from the files of the court, and the officer’s return thereon. Said writ was in favor of- -- against Joseph Huse, which was objected to by the defendant, and admitted by the court; and defendant excepted.
    In farther support of said issue, the plaintiff gave evidence tend>-ing to prove, that on the 13th day of July, 1832, Daniel Azro A. Buck Esq. and Josiah White,.deputy sheriff, went to West-Fair-lee, to attach the property of said Joseph Huse, — that in looking for the said Huse’s property, the said Buck and White, when with* in a distance of from five to ten rods of said wagon, saw it. The hind wheels were near the said Huse’s house — the fore wheels near them, and the body lay by the fence.
    (At the distance aforesaid, from said wagon, the said Buck, turned the same out to said White, who then had said writ in his pos* session for service. The said White went, at that time, no nearer said wagon, nor sent any one to secure it for him ; but went in pursuit of other property.) — In an hour or so he returned and found the defendant and one Robinson putting the wagon together. The said White then claimed that he had attached said wagon, as the property of said Huse. The said Rogers claimed that he had purchased of said Huse, said wagon; but said White took the wagon, (the said Rogers declaring he would sue him,) and put it into the possession of Mr. Southard, for safe keeping.
    Defendant admitted that he took said wagon, standing on the premises of said Southard, as his own property.
    The defendant, in support of the issue on his part, adduced evidence tending to prove, that he was a bona fide creditor of the said Joseph Huse, and that on the forenoon of the 13th July, 1832, he purchased said wagon of the said Huse, in part payment of his debt against him, and that he went with Robinson to put said wagon together, and take it home with him, not knowing that the said White or Buck had seen or attached it; — that when the said White came up, and claimed that he had previously attached it, the said Rogers stated that he had purchased it, and forbid the said White taking it away; but he did take it.
    The counsel for Rogers requested the court to charge the jury, that if the said White and Buck only went within five or ten rods of said wagon, when they made their pretended attachment, and then went away without sending any person to remove said wagon, or take the custody of it; and Rogers, a bona fide creditor of Huse, purchased it in payment of his debt, without any notice that the said White had seen it, or claimed to have attached it — the said Rogers having got possession of said wagon, can hold against the pretended attachment of said White.
    That if the wagon was legally attached by the said White, and he left it in possession of the said Huse, and Rogers, after said attachment, and without notice it had been made, purchased said wagon, in payment of his debt against Huse, and got possession of the same, before said White, he can hold it by virtue of his putv chase.
    Whereupon, the court refused to charge the jury as requested by the counsel for the defendant, and charged as follows, viz:
    That if they found that Mr. Buck, the attorney for the plaintiff, in the suit named, went with White, a deputy sheriff, to the residence of Huse, the debtor, for the purpose of attaching property, and finding the wagon in question in the road or field, near said Huse’s, in full view of said Buck and White, being within five or ten rods thereof, and attorney directed said officer to attach the wagon, said officer having the writ in his hands, intending to make said attachment, and so then declared or expressed himself, the wagon being within his control, then, while said officer was attaching other property of the same defendant on the same writ near by, if the defendant, within an hour, bought said wagon of Huse, on a bona fide debt, yet the attachment was valid in law, and would take priority of the purchase.
    To this charge, the counsel for the defendant excepted; and also to the refusal of the court to charge as requested. Said exceptions were allowed, and after verdict and judgment for the plaintiff, the cause passed to the supreme court for revision.
    
      
      Uphamfor defendant. — The question in this case arises upon exceptions taken to the charge of the judge in the court below.
    It is insisted by the defendant, 1, That White, the deputy sheriff, made no valid attachment of the wagon in question, before the defendant purchased it, and took it into his possession.
    To constitute an attachment of goods, the officer must have the actual custody of them : it is not sufficient that he has a view of them at the distance of ten rods. — Lane et al. vs. Jackson, 5 Mass. Rep. 157. Train vs. Wellington, 12 Mass. Rep. 495. Phil* lips et al. vs. Bridge, 11 Mass. Rep. 242. Lyman vs. Lyman et al. 11 Mass. Rep. 317. Knapp vs. Sprague, 9 Mass. Rep. 258. Vinton vs. Bradford, 13 Mass. Rep. 114.
    2. If the officer, White, made a legal attachment of the wagon at the distance of ten rods, and went away in search of other property, without removing it, or sending any one to take charge of it, and the defendant without any knowledge that it had been so attached, or seen by White, the officer, purchased it in good faith, in payment of a bona fide debt against him, and took immediate possession of it, he can hold it against the claim of White, the officer, founded upon his pretended attachment. And the jury should have been so instructed. — Vide Denny vs. Warren. 16 Mass. Rep* 420. Gordon vs. Tenney, 16 Mass. Rep. 463. Bagley vs. White, 4 Pick. Rep. 395. Gale vs. Ward, 14 Mass. R. 352.
    
      Buck for plaintiff.
    
    — The first question presented in this case is, as to the title of the plaintiff to the property mentioned in the declaration. The right of the plaintiff depends upon the attachment, as related in the bill of exceptions; and the .jury, by their verdict, find, that the plaintiff had a writ of attachment against Huse, was shown the property in question, and directed to attach it on the writ — was within from seven to ten rods of the wagon, then standing in the highway, and that the plaintiff might have taken actual possession and moved it off. This constitutes a valid attachment, and the plaintiff thereby acquired possession of the goods.- — 12 Mass. Rep. 485, Train vs. Wellington.
    
    A second question in this case is, has the plaintiff lost his right of possession to the goods attached ? On this point, the charge of the court was correct. The lapse of time before the sheriff removed the goods, is no evidence of abandonment; they were not left in possession of the debtor, and were removed within one hour from the attachment; and they find that the pretended purchase of the defendant was made after the attachment.-
   The opinion of the court was delivered by

Collamer, J.

— There is in this case testimony tending to show the turning out of this wagon to the officer, but there is none tending to show he had taken or manifested any intention- to take it, until after the defendant had taken it. It was improper for the court to leave to the jury a point on which there was no testimony. It is unnecessary here to decide precisely what possession must be taken to constitute an attachment, in the abstract. Perhaps less would be required as against the owner or a wrong-doer than against a bona fide purchaser or creditor. It has been fully and repeatedly decided, in this state, that to constitute a sale as against subsequent purchasers or attaching creditors,- possession must accompany and follow the sale; which possession must be visible, continued' and exclusive. In strict analogy with this, and for the same reason, an attachment must have the same character. Such we consider the weight of authority, in the case Newton vs. Adams et al. (4 Vt. Rep. 437,) the court say, “ Such possession shall be taken as will give sufficient notoriety to the attachmentand in that case, stress was laid on the officer having exclusive possession of, and fastening up the building. Even in the case of Train vs. Wellington, (12 Mass. R. 495,) relied on by the plaintiff here, the court-lay stres's on the fact that the officer continued in possession by his-servant, who gave notice to the defendant before he took the goods. We have failed to find any adjudged case which sustains this plaintiff. In alT cases where the attachment has been holden good as against third persons, acting in good faith, the officer has been in actual, visible possession by himself or servant, or has secured the place of deposit, or there has been actual notice. In this case the officer took no actual, visible possession, nor did he leave any keeper, or lock np the place of deposit, or remove the property, or give any notice either to the owner or any other person that he had taken qr; even intended to take the wagon, until after the defendant had purchased' and taken it. The attaching officer and purchasing, creditor being in equal right, the first actual possessor must hold.

Judgment reversed-;,-  