Clark v. Washburn

The opinion of the Court was delivered by

The first question arising in this case relates to the authority of the plaintiff, to attach the property. In relation to this the court are not unanimous in opinion, but a majority of the Judges, present, are of opinion that the plaintiff bad legal and sufficient authority to serve the writ of attachment, as the same was served by him. The next question relates to the lien being kept and retained upon the property on the debt of *308McLean and Wallace. The statute provides, (Yol. 1. p. 88. Sec. 33.) “ Where the goods or chattels of any person shall be taken on mesne process, the same shall be holden thirty days from the time final judgment shall be rendered in said suit. And unless the plaintiff in said suit shall, within the term of thirty days from the time of rendering such judgment as aforesaid, take said property in execution, the same shall be discharged from said process, and be no further liable to answer said judgment, than though the same had not been attached.” The true meaning and effect of this statute has been a frequent subject of judicial investigation, and has been very clearly, and we think, very correctly, decided. The officer, serving the attachment, is the keeper of the property, in custody of law, and, for this, the law furnishes him authority for the full term of thirty days after final judgment, and no longer. If the property is not then taken in execution, the officer must deliver the same to the owner, or it will be subject to his control and to the attachment and executions of all his creditors. If the execution be, within the thirty days, delivered to the same officer, who has the property, this furnishes him authority to retain it, and it is taken in execution. If the execution be delivered to some other officer, though done within thirty days, this, most obviously, would not put the property into his custody, and if nothing more was done, most clearly no action could be sustained against him for not safely keeping the property, which he never had. Therefore, it cannot be said, that by the mere giving out the execution to an officer, who never had the property, the property is taken in execution. The officer, who has the property, unless the demand is made of him, has no means of knowing that any execution has issued. When the thirty days has expired, the officer, holding the property, should have some clear and certain knowledge whether he may then deliver the property to the owner, or suffer his other creditors to take it, or should be able to deny them this with safety. This security cannot be furnished him but by having the execution delivered to him or unless the officer holding it shall actually take the property or demand it of the attaching officer, within the thirty days. In analogy also to the arrest of the body, this equally holds true. In that case, if the execution be seasonably delivered to the sheriff, who has the prisoner in custody, it charges the body, but if seasonably delivered to a *309different officer that does not charge the body in execution, until a copy with the officer’s return is also left, within the time.

In this case, the attaching officer had not used up the property nor sold it, nor delivered it to the owner, within the thirty days, and the same being, without his fault, taken on the tenth day of December, 1835, could not excuse the first attaching creditor from charging it seasonably in execution. In the case, Enos v. Brown, D. Chip. R. 280, Chipman, C. J., says: “ So if the “ attachment of personal property, on mesne process, was made “ by the sheriff, and the plaintiff deliver his execution to the “ constable, he does not thereby charge the property in execu- “ tion. He must see that the execution be delivered thereon “ within thirty days, or a demand be made of the sheriff to charge “him, in case the property has been eloigned.”

In this case, the property was taken by defendant, before the thirty days expired, but it was legally applied on the proper debt of the owner of the horses. The plaintiff is not liable to Me Lean & Wallace, as their lien was discharged. He is not liable to Patterson, as the property has been legally applied on his debt by the defendant. Therefore, if the taking by tne defendant, were, when done, a tort on the plaintiff’s possession it could only enable the plaintiff to recover nominal damages. This verdict and judgment for the full value of the property must be reversed.

Judgment reversed.