Page:Harvard Law Review Volume 9.djvu/166

138 HARVARD LAW REVIEW. expedient for the success of fraudulent devices, which might render the laws of the State for the collection of debts entirely powerless. No such effect could be given to a deposit of that nature without at once defeating the object plainly designed to be secured by the law in rendering the debtor's property liable to the process issued in favor of his creditors in actions brought to recover their just debts. Against that, his dwelling alone is secured against the intrusive action of the officer. And that in no sense can be so extended as to include either the safe or tin box in the custody of the Mercantile Trust Company for the defendant. A case has been presented on the points relied upon by the company's counsel, supposed to be in conflict with this conclusion. It arose under the laws of Pennsylvania. And it was there held that the company could not be required to furnish a certificate of the contents of the safe, because they were virtually in the possession of the lessee. It is not necessary to con- sider the point whether this decision was properly made, for if it was then it is very clear that the only way in which the debtor's property held in that manner can be rendered liable to the owner's creditors is by seizure under attachment issued to the sheriff. If a certificate cannot be ob- tained showing the property so held for the debtor, and it cannot be seized under attachment or execution, then certainly the creditors are deprived of all means for applying it to the satisfaction of their debts. And an effectual mode would at last be discovered for enabling the debtor to withhold his property from his creditors. The law has not yet, and prob- ably will not very soon, lend its aid to the success of such an expedient for the protection of a debtor's property against the clearly defined rights of his creditors." The sherifT, then, must make the seizure of the property himself, and the question that at once arises is what assistance he may de- mand from the company. The courts have made it very clear that the company can be com- pelled to take no action that would cause a breach of trust on its part. Thus, in Bottom v. Clark, it was held that the officers of the bank could neither open the trunk placed in their charge, for the purpose of ascertaining whether or not it contained attachable property, nor could they give the trunk over into possession of the sherifT, for the reason that they had no knowledge of its contents, and therefore could not act on a supposition in regard to them. In Gregg V. Hilson, on much the same grounds, the court would not permit the safe-deposit company to open a box for the purpose of disclosing its contents to officers, since the company had no pos- session of the property, and could consequently presume to exercise none over it.