
    Taintor against Williams.
    It is essential to the preservation of & lien created by the attachment of personal property, that possession be taken and held ; and when this is relinquished, there is a termination of the lien, and the general owner is remitted to his property unencumbered.
    The reason of this is, that possession of personal property is the only indicium of ownership ; and the suffering of the debtor, after the service of an attachment, to retain the possession, is prima facie proof, that the attachment is fraudulent in respect of creditors.
    Personal property, not in the actual possession of any one, is in the constructive possession of the general owner.
    Therefore, where an officer, by attachment, on the 8th of May, took the goods of Ain that part of the house which A. occupied, and, without removing them, put them into the custody of B ; on the next day, C., who lived in another part of the same ouse, at the request of the officer, took the goods into his charge, and had the custody of them until the 10th ; from that time until the 12th, they remained in A.’a part of the house, under the particular charge of no one ; on the 12th, the officer removed them into O.’s part of the house, and put them into his possession, but he immediately afterwards bade the officer take them away, declaring, that he wished to have nothing to do with them; there they remained, though not in C.’s custody, until the 14th, when they were taken and carried away, by a stranger ; it was held, in an action oftrespass de bonis asportatis, brought by the officer against such stranger, that the plaintiff was not entitled to recover.
    This was an action of trespass de bonis asportatis; tried'at Norwich, January term 1828, before Lanman, J.
    On the 8th of May, 1827, the plaintiff, a deputy sheriff, by-virtue of a writ of attachment against Joseph C. Beckwith, took the goods mentioned in the declaration, mostly articles Qf household furniture, in the house occupied by Beckwith and pi!t jn tjje cust0(]y of one Chappell, without otherwise removing them from the possession of the debtor. On the next day, the plaintiff requested Francis Jones to take charge of the goods ; who did so, and had the custody of them until the 10th of May, at noon. They remained under Beckwith’s roof until the 12th of May; but in whose possession they were from the 10th to the 12th, did not appear. On the 12th, the plaintiff removed them into the East part of the same house, and put them into the possession of Jones. Immediately after-wards, Jones told the plaintiff to take them out of his part of the house, declaring that he wished to have nothing to do with them. They remained there, however, though not in Jones’s custody, until the 14th of May, when the defendant took them and carried them away. The defendant contended, that to enable the defendant to recover, in this action, it must be proved, that Jones had the charge and custody of the goods for the plaintiff down to the time when they were taken by the defendant. But the judge charged ihe jury, that it was immaterial whether Jones consented to take the care and charge of the goods for the plaintiff, after the 12th of May; for that the property was out of the possession of Beckwith, and of course, he could not dispose of it to defeat the attachment. The jury returned a verdict for the plaintiff; and the defendant moved for a new trial for a misdirection.
    
      Isham, in support of the motion.
    
      Goddard, contra.
   Hosmer, Ch. J

From the detail of facts, in this case, it appears, that after the property was attached, it was suffered to remain in the house occupied by the debtor and others, six days, and, a part of the time, in the room wherein he resided ; that two days, viz. from the 10th to the 12th, it was not in the custody of any one ; and that two days more, that is, from the 12th to the 14th, it was not in the actual possession of Jones, or under his oversight, nor in the actual possession of any person. Nor is the slightest necessity for this conduct made to appear. It is not stated, that the plaintiff was so much occupied, by other important business, as to be unable to exercise personal attention to the subject, or to procure a person to do it, or to remove the property ; and yet the exigency of the case required it. Jones refused to be the depositary of the and of consequence, they were not in the custody of any one. They, likewise, were within the house, and within the power of the debtor, and all this with the plaintiff’s knowledge. The court should have charged the jury, that the lien by attachment had terminated ; and that, on this account, the plaintiff, not having a special property in, or the actual possession of the goods, could not maintain trespass.

The personal estate of every debtor is liable to be taken on process, and held to respond the judgment that may be rendered against him. This is effected, not by permitting it to remain in his possession, but by fastening upon it with a writ of attachment, and holding it in the custody of the law. Possession of personal property is the only indicium of ownership ; and the suffering of the debtor, after the service of an attachment or an execution, to retain the possession, is prima facie proof, that the attachment or execution levy is fraudulent in respect of creditors. It is of the very essence of a lien by attachment, that possession be taken and held ; and when this is relinquished, there is a termination of the lien, and the general owner is remitted to his property unencumbered. To this point the decisions of the courts are uniform and numerous. Chancellor v. Phillips, 4 Dall. 213. United States v. Conyngham & al. 4 Dall 358. Barnes & al. v. Billington & al. 4 Day 81. n. Burrows v. Stoddard, 3 Conn. Rep. 160. 164. 431. The plaintiff then, having abandoned the possession of the goods attached, the lien upon them was gone, and they were out of the custody of the law, when taken and carried away by the defendant. Of consequence, the plaintiff had no special property or possession, and cannot sustain the action of trespass.

Instead of charging the jury with the principles before-mentioned, and leading their minds to the enquiry whether the goods attached were in the plaintiff’s custody, at the time of the alleged trespass, the judge took from them the consideration of this, the only material question in the case, and assumed a new principle ; one, in my opinion, altogether inadmissible. They were instructed, “ That it was immaterial whether Jones consented to take the care and charge of said goods f@r the plaintiff after the 12th of May ; for that the property was out of the possession of Beckwith; and, of course, he could not dispose of it to defeat the attachment.” The charge proceeds the hypothesis, that whether the plaintiff had possession Gf die goods or not, was an irrelevant enquiry, as the defendant did not actually possess them. It seems to have been forgotten, that the plaintiff was bound to establish a title, which he could do only by shewing a legal attachment and the actual custody of the goods under it; and if Beckwith had not possession, that it would be of no avail in the plaintiff’s favour. Beckwith, however, had not only title, but the possession also, in contemplation of law. When personal property is not in the actual possession of anyone, by the established law, it is in the constructive possession of the general owner, and he may sell and dispose of it at pleasure. Bro. Abr. tit. Trespass. pl. 303. 346. Latch 214. 2 Bulstr. 268. Bac. Abr. tit. Trespass. C. 2.

On the whole, there is no doubt, that the charge of the judge in this case was incorrectand, of consequence, a new trial is advised.

Daggett, J. was of the same opinion.

Peters and Lanman, Js. dissented.

Brainard, J. was absent.

New trial to be granted.  