Opinion
No. 3959.
Decided December 5, 1950.
The attachment of all the personal property of the defendant located within a store building, which was closed, locked and unoccupied, by affixing new hasps and padlocks to each door and retaining the keys, sufficiently placed the goods under the sole control of the officer without entry, since store buildings may forceably be entered in such case if permission is refused or unavailable. Where goods are placed under the actual control of the attaching officer no such detailed description of them in the officer's return is required as is necessary to give notice of a bulky article attachment.
ACTIONS OF ASSUMPSIT to recover for goods sold and delivered by the plaintiffs to the defendant. Attachments were made by the several plaintiffs on January 19, 1950, and the writs served on the defendant's treasurer on January 24. On January 28, the defendant made an assignment for the benefit of creditors in favor of Paul A. Toussaint, the intervenor. The question of the validity of the plaintiffs' attachments was submitted to the Court upon an agreed statement of facts. To the ruling that the attachments are valid and take precedence over the assignment, the assignee duly excepted. He also excepted to divers other rulings contained in the findings and rulings of the Court. The exceptions were reserved and transferred by Goodnow, C. J. Further facts are stated in the opinion.
Edgar M. Bowker, for the plaintiffs, furnished no brief.
Paul A. Toussaint, assignee, pro se, furnished no brief.
No error is apparent in the rulings to which exceptions were taken. The attachments as returned by the sheriff were of "all the chattels and personal property of every nature and description belonging to [the defendant] and located in the brick building situate at the corner of Pleasant Mechanic Streets in Berlin, New Hampshire." According to the findings, the defendant hardware company closed its doors on Christmas, 1949. When the attachments were made its store was still closed and it was unoccupied and the doors locked. The sheriff effected no entry and attempted none, but attached a new hasp to each of the three locked doors and locked each with a padlock, the key to which he retained. Subject to exception the Court ruled that since the sheriff might lawfully have broken in to take possession of the goods, the "exclusive possession and control" which he obtained and retained by means of the locks was sufficient to constitute a valid attachment.
It is established law in this jurisdiction that "to constitute a valid attachment of personal property, it must be taken into the possession or be placed under the control of the officer." Johnson v. Farr, 60 N.H. 426, 427. In Huntington v. Blaisdell, 2 N.H. 317, it was held that a valid attachment of furniture in a dwelling house was made where the officer gave notice of the attachment and had "laid his hands" on some of the goods. The validity of the attachment was said to arise from the fact that the entire contents came under his control. See also, Odiorne v. Colley, 2 N.H. 66; Dunklee v. Fales, 5 N.H. 527.
In Swain v. Mizner, 8 Gray (Mass.) 182, and Ilsley v. Nichols, 12 Pick. (Mass.) 270, it was held that an officer is without right to break into a dwelling house for the purpose of making an attachment. See Closson v. Morrison, 47 N.H. 482. But where a shop or store is involved, the officer may enter by force if permission has been refused and the attachment will be valid. Platt v. Brown, 16 Pick. (Mass.) 553; Clark v. Wilson, 14 R. I. 11; Fullam v. Stearns, 30 Vt. 443. In Haggerty v. Wilber, 16 Johns. (N. Y.) 286, 287, where a store was unoccupied, it was said: "There can be no doubt that the sheriff had authority to break open the store, and seize the goods."
We take it to be established therefore that the defendant's goods were in fact within the power of the officer, in the sense that they were not inaccessible to him by reason of being locked up in a place where he could not lawfully reach them. Cf. Huntington v. Blaisdell, supra. Under our own decisions it was unnecessary for him to remove them. It was sufficient that they were "put out of the control of the debtor" (Bryant v. Osgood, 52 N.H. 182, 185), and placed and held under the control of the officer. Odiorne v. Colley, supra; Johnson v. Farr, supra. "[T]aking into actual custody a building, or the key of it, so as to have the whole contents under one's control, is a receipt, or taking of the whole." Huntington v. Blaisdell, supra, 318. But for the authority of the writ, the action of the sheriff was such an interference with the debtor's right of control as would have constituted a trespass. 4 Am. Jur. 879.
Although the Court made no express ruling on the subject, the intervenor excepted "to the . . . ruling that the Sheriff's returns . . . constitute a legal return of valid attachments." The returns were sufficient, within the requirements of our decisions. Ela v. Shepard, 32 N.H. 277, 282; Clement v. Little, 42 N.H. 563. The descriptions were not so inadequate as to "signify inability or failure to attach" (Dupont v. Moore, 86 N.H. 254, 257), and the particularity necessary to give notice of a bulky article attachment (Bryant v. Osgood, supra), was not required where actual control was retained by the sheriff.
Exceptions overruled.
All concurred.