John Whipple versus Royal Thayer, 16 Pick. 25

Shaw C. J. delivered the opinion of the Court. All questions as to the execution and validity of the assignment, under which the plaintiff claims the property, are precluded by the facts agreed ; and no question is made, that by the laws of Rhode Island, the assignment constituted a good contract of sale from Wilkinson to the plaintiff to pass the property, there, if there was a sufficient delivery, and in other respects the sale was completed conformably to the rules of law.

It is clear from the facts, that at the time of the first attachment made by the defendant at the suit of Beckwith, the cotton was the property of Wilkinson, liable to the attachment ; that the attachment was valid ; and that the officer acquired the lawful possession. It has been repeatedly decided, that as the general property in goods attached remains in the owner, he may make a valid sale of them subject to the lien created by the attachment. Denny v. Willard, 11 Pick. 519 ; Fettyplace v.

Dutch, 13 Pick. 388. 'But as the possession, for the purpose of maintaining the lien, is with the officer, no actual delivery can be made, and a symbolical delivery is sufficient. Tuxworth v. Moore, 9 Pick. 347. The delivery of the bill of sale, or assignment, with an authority to collect, receive, and take possession of the property, is such symbolical delivery, and therefore notice to the person having the possession of it and demand of delivery, after the lien is removed, gives to the assignee the right of possession sufficient to enable him to maintain replevin.

In the present case it appears, that at the time of the assignment of Wilkinson to the plaintiff, the goods, having been sent by Wilkinson to a distance, had been found on board of a canal boat, and attached by the defendant, and that he had them in his possession. That attachment being valid, the defendant had the rightful possession. After the assignment, the defendant attached them again at the suit of another creditor. As the cotton still remained in his custody, do new seizure was necessary to give effect to this second attachment, if the property had been at that time subject to the attachment.

After this second attachment, thus good in point of form, the debt for which the first attachment was made, was paid, and that attachment discharged ; of which the defendant had notice. After this, the plaintiff, having given the defendant notice of his title, demanded the property, which the defendant refused to deliver. This was an unlawful detention, for which replevin lies.

Then the only objection made to the assignment relied on by the plaintiff is, that it was a trust assignment by an insolvent debtor, providing for a distribution of his property among his creditors, and it not appearing that the creditors had signified their assent by becoming parties to it, by the laws of our own State it is not to be considered valid, against an attaching creditor.

Without at present deciding the more general question, whether this assignment, made by the owner of property, in a mode conformable to the laws of the place of his domicil, would be good against a subsequent attachment, made by a citizen of this State, the Court are all of opinion, that as against a citizen of Rhode Island, the assignment was good, and therefore, that the defendant could not justify his refusal to deliver the goods to the plaintiff, the assignee, under his attachment in behalf of Harkness & Stead, citizens of Rhode Island, and that the plaintiff is entitled to hold the goods.