Strong v. Hoyt

Curia.

The Court observed, that if the action had been brought upon a receipt solely executed by a person who had no interest in the property attached, the plaintiff, as the attaching officer, could have maintained an action upon it at any time within the limitation act, as he was accountable to produce such property on the levy of the execution for the benefit of the plaintiff at whose suit it was attached; and even if such plaintiff failed in his suit, as attaching officer, he could recover the property for the purpose of restoring it to the lawful, owner; but when property is attached and receipted by the defendant, and goes into the possession of him who owns it, though another should sign the receipt with him as surety, the officer taking the receipt loses his lien on the property attached and receipted, after the expiration of thirty days from the rendering the final judgment, to respond which the property was attached.

That in trover the case is much stronger for the defendant; for here the whole right of action will rest on the special property acquired by the plaintiff in his official capacity, from attaching it by process in law, without a shadow of an express promise in the defendant to redeliver it. That the duration of this special property is circumscribed by the statute— “ That when 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 *211the 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.”

Baylies, for plaintiff. Buck, for defendant,

That it being in evidence that the defendant Hoyt had no interest in the property attached, but merely acted as surety for John Starr, the rightful owner, and no demand having been made upon the defendant while he was responsible, to redeliver it, he is justified by the law in suffering it to go into the possession of John Starr, and not accountable to the present plaintiff.

Rule made absolute.

Judgment for the defendant.