Ginsberg v. Pohl
| Decision Date | 22 March 1872 |
| Parties | SAMUEL GINSBERG and ISAAC OPPENHEIM v. EMILIE POHL, Wife of ANTON POHL, by her next friend, GEORGE H. SPRECKELMEYER. |
| Court | Maryland Court of Appeals |
APPEAL from the Court of Common Pleas.
The case is stated in the opinion of the Court.
Exception--The defendants offered five prayers, the first of which was conceded, the third, fourth and fifth were granted, and the second, as follows, was rejected:
If the jury shall find that the goods and chattels mentioned and specified in the schedule offered in evidence in this cause by the plaintiff, were at the time of the levy under the attachment issued at the suit of the defendants, actually in the custody, or in the possession and under the control of the sheriff of Baltimore city, by virtue of prior attachments issued at the suit of other creditors of Anton Pohl, then the plaintiff is not entitled to recover in this action, and the verdict of the jury must be for the defendants.
The defendants excepted to the rejection of their second prayer and the verdict and judgment being for the plaintiff, they appealed.
The cause was argued before BARTOL, C.J., STEWART, BOWIE, BRENT ALVEY and ROBINSON, J.
James A. Buchanan and Wm. Schley, for the appellants.
John H. Ing and Milton Whitney, for the appellee.
This is an action of trespass de bonis asportatis, for the seizure by the appellants, of the goods and chattels of the appellee, under a writ of attachment issued against her husband.
The appellants, defendants below, contend that at the time of the service of their writ, the goods and chattels of the appellee were in the possession of the officer, under prior attachments, issued by other creditors against the husband, and being thus in the custody of the law, the appellee has no right to bring an action of trespass for the alleged seizure of the same property under a subsequent attachment.
To maintain an action of trespass de bonis asportatis, the plaintiff must have either the possession, or the title with the right to immediate possession of the property taken. Where goods and chattels however are taken by an officer under an attachment, they are in the custody of the law, and the officer holds them to satisfy the plaintiff's demand, or to return them to the owner upon the dissolution of the attachment. Being thus responsible as well to the creditor as to the debtor, the officer is entitled to the possession, and it is well settled that he may maintain an action of trespass or trover against any one wrongfully interfering with the same. Now it is quite clear, that neither the actual possession, nor the exclusive control of the same goods and chattels, can be in two persons at the same time, and hence it follows, that when they are once taken under an attachment, the owner thereof has not either the possession, or the title with the right to immediate possession of the same. So long as the attachment lien exists they are in the custody of the law, and although they cannot be taken by another officer under a subsequent execution or attachment, yet if the latter be directed to the same officer, he may schedule the property already in his possession, and hold the surplus after satisfying the prior executions or attachments. In making the levy under the subsequent writs however, he cannot be sued as a trespasser, because the goods and chattels were at the time in his possession under prior writs. The owner may sue him in trespass for the original taking, i. e. under the prior writs, or he may sue in case for damages sustained by the levy under the subsequent writs, so also if instead of taking the goods, he suffers them to remain with the owner after the seizure under the writs.
In such a case, so long as the attachment lien exists, the possession of the owner is the possession of the officer, and although he may schedule the goods under subsequent writs, yet when he actually takes possession of them the law will refer the taking to the prior writs.
But the rule of law is supposed to be different where the officer takes the goods of a person other than the debtor. In Cromwell, et al., vs. Owings, 7 H. & J., 55, this Court held that goods taken under an execution are in the custody of the law, and could not be replevied out of the officer's hands, either by a stranger, the lawful owner thereof, or by the defendant in the...
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Western Nat. Bank v. National Union Bank
...that the former was first issued and levied, and it therefore became the first lien, and is entitled to precedence in payment. Ginsberg v. Pohl, 35 Md. 505. This attachment was for a note of $3,250, and is more sufficient to consume the entire fund, which must be paid to it to the exclusion......
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Outerbridge Horsey Co. v. Martin
... ... Beaston, 7 Gill. & J. 421, 28 ... Am. Dec. 226; Buckey v. Snouffer, 10 Md. 149, 69 Am ... Dec. 129; Everett v. Neff, 28 Md. 176; Ginsberg ... v. Pohl, 35 Md. 505 ... The ... reason of the rule, as stated by the courts, is that, when a ... court acquires ... ...
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Baltimore, C. & A. Ry. Co. v. H. Klaff & Co.
...the mischief would be just as great as to permit a defendant to replevy property taken in execution out of his own possession." In Ginberg v. Pohl, 35 Md. 505, a case in which the goods had been seized under an attachment, which was still pending, the opinion in Cromwell v. Owings was refer......