Adams v. Abbot

after stating the case, delivered the opinion of the court. — The trial proceeded, in this case, as if the action were trover merely ; and the bill of exceptions, allowed at the trial, contains no intimation of any .grounds assumed by either party, but such as might arise in trover. The present argument seems to have proceeded upon the same ground, till a late suggestion, that the declaration contains:a count, also, in case for detaining the property. We do not discover, that this circumstance affects the merits. If this were not urged on the trial, there could be no decision upon it now to be revised ; and nothing, in the bill of exceptions, presents any question, but what would arise upon the count in trover. Besides, there is no-proof of any wrong in the original taking, but only in the not returning the property, after a discontinuance of the suit in which the same had been attached. This presents the only question in the action, whether the creditor, who turns out property to an officer, for him to attach, is liable toan action, if that property is not returnedimmediately upon a discontinuance of the suit? We think him not so liable. The officer who attaches properly, is the lawful keeper of that property ; and must, at his peril, have it ready for the creditor, if he recovers in the suit, and takes out execution and pursues his lien, ■■ and have it ready for the debtor if he recovers, or when the lien of the creditor is in any way discharged. Let the property be ' inhere it will, there is no constructive possession in any person 'but the attaching officer, while the lien, created by the attachment, is continued. The creditor has no right to the possession. His claim is, that the officer shall safely keep and sell for his benefit. If the officer should deliver the property to the creditor for Safe keeping, he would be, like any third person, -the keeper or *388the officer. If when the lien is discharged by a discontinuance ° J of the suit, the property be demand of him who has the actual custody, and he refuse to deliver it to the debtor, probably trover w°Md lie ; because the officer would then have no claim but for the debtor. Whether that be so or not, this shows Abbott never to have had the actual possession oj this property, and the charge of the court, holding him liable to the debtor, under such circumstances, was erroneous, and the judgment of the county court is reversed, and, A new trial is granted.