Page:Harvard Law Review Volume 9.djvu/164

136 136 HARVARD LAW REVIEW. tee process arises from the fact that there is no possession in the company of the property deposited in its safes. That is the dis- tinguishing feature of this kind of bailment. The company leases a safe to a depositor, and retains the controlling or master key to the lock. The holding of this key leaves with the company the control of the access to the safe, but in no wise gives it possession of the property therein placed. The master key is retained in order to perfect the security from theft or molestation that the company undertakes to provide. The company does not obtain or desire possession of the property. That remains absolutely in the de- positor. To enable garnishment to lie against a bailee, he must have more than constructive possession, as well as custody, of the prop- erty in his charge. Thus, to quote from Waples on Attachment, Art. 453: — " It would seem, therefore, that . . . baggage, though given to the rail- road company for transportation, is still in the owner's possession. It is in much the same condition as when given to an expressman at the end of the journey to be taken to a hotel. . . . No one would think the ex- pressman . . . subject to garnishment as the possessor of the passenger's property. ... As the keeper of a livery stable cannot be subjected to garnishment because horses of the defendant in an attachment suit are kept in his stable, so a like temporary possession of the trunk for trans- portation from depot to hotel, with like liability to have the owner take possession at will, ought not to subject the carrier to garnishment should a creditor of the passenger seek to attach them. The trunks may be at- tached, — the horses in the livery stable may be, — but not attached in the hands of third persons under the circumstances suggested. They may be seized by the sheriff as in the hands of the defendant, and taken directly into the sheriff's custody."^ So, from the opinion of the court in Gregg v, Hilson (8 Phila. 91):- " I think it very clear that these rented safes cannot be the subject of attachment under the Act of June 16, 1836, sect. 35, Pamph. L. 767. They are not a debt due to the defendant, or a deposit of money made by him, or goods or chattels pawned, pledged, or demised. The contents of the safe are in the actual possession of the renter of the safe ; they have not been deposited with or demised to the company. I am asked to make an 1 Hall V. Filter Mfg. Co., 10 Phila. 370 ; West. R. R. v. Thornton, 60 Ga. 300.