The Opinion of the Court was delivered by
Thomas, J.This was an action of debt commenced in the Tazewell Circuit Court, by the appellees against the appellant, on a judgment of the Court of Common Pleas, of the county of St. Louis, in the State of Missouri.
The defendant pleaded,
I. Nul tiel record, to which the plaintiffs, by their attorney, say: “plaintiffs here bring record, See. Jones.”
II. Payment, to which there was no replication.
III. That said judgment was recovered (if at all) in a certain action by attachment, instituted in the St. Louis Court of Common Pleas, by the appellees against the appellant, in which said plaintiffs caused to be issued out of the office of the clerk of said Court, a certain writ of attachment, dated See., directed to the sheriff of St. Louis county aforesaid, commanding him, among other things, to attach the said defendant, by all and singular his lands and tenements, goods and chattels, moneys, credits and effects, or so much thereof as should he sufficient to secure the sum of $813-28, with interest and costs of suit, in whose hands the same might be, in his bailiwick; and that under and by virtue of said writ, said sheriff did attach and levy upon certain property of said defendant, to wit, Sec. and that said property so seized and levied upon as aforesaid, was then and there worth the full amount of the said sum specified in said writ of attachment; and that the same has not by said plaintiffs been restored to said defendant, and that said judgment in said declaration mentioned, was, if any such there be, recovered in said action, and the same is, in manner aforesaid, satisfied, &c.
To this plea the plaintiffs demurred generally. Their demurrer was sustained by the Court; and thereupon a trial being had by the Court, a judgment was rendered for the plaintiffs for $851*55 debt, and $54*86 damages, together with their costs.
That judgment the defendant brings into this Court by appeal, and asks its reversal for the following grounds assigned by him for error, to wit:
1. That the Circuit Court sustained the demurrer to the third plea.
2. That the record of the judgment of the St. Louis Court of Common Pleas was admitted in evidence, the same not having been properly authenticated.
3. That the Court rendered judgment against the defendant upon the evidence produced.
4. That judgment was rendered upon insufficient pleadings, there being no answer to defendant’s first and second pleas.
The question involved in the first assignment of error is as to the validity of appellant’s third plea, whether the facts therein alleged warranted its conclusion that the judgment sued on had been satisfied?
In support of the affirmation of this proposition, the appellant insists, that a seizure of goods on attachment stands on the same footing as if made by levy on execution, and consequently, that such seizure may be pleaded in bar of any suit upon a judgment rendered in such attachment. This position, however, is wholly untenable.
The difference in the operation of levies on execution and on attachment, is deducible, as a necessary result, from the difference in the nature and destined offices of the two writs. The one is final, the other mesne process; the one is “the life of the law,” and operative to put the creditor in possession of the fruits of his judgment, the other as a mere means of giving the Court jurisdiction to proceed to judgment against the debtor or his property.
A levy on execution vests in the officer making it, a special property in the goods seized, for the purpose of a sale thereof, for the benefit of the judgment creditor, while it confers upon such creditor, a present unconditional right to have such sale made, and to have the money derivable therefrom. By such levy, therefore, the plaintiff acquires a perfect lien. Hence the doctrine established by numerous decisions and recognized by this Court, in Gregory v. Stark, 3 Scam. 612, that the levy of a fi. fa. on personal property will, until disposed of, suspend the plaintiff’s right to proceed further on his judgment, either by prosecuting another suit, or suing out another execution, and that such levy will consequently be, for such purpose, considered as a satisfaction of the judgment.
But such cannot be the consequence of a mere seizure of goods on attachment. The attaching creditor thereby merely acquires an imperfect, inchoate lien, which, when followed by a judgment, will have relation back to the date of the levy. Martin v. Dryden, 1 Gilman, 213. The goods attached, for the time being, are in custodia legis, the officer levying the writ having a special property in them for the purpose of securing them to answer to a further demand, which may or may not be perfected against them, but for no other purpose. Watson v. Todd, 5 Mass. 271. While the debtor retains his general property in such goods, which is not affected or changed until after a levy and sale on execution. Blake v. Shaw, 7 do. 505. And he may, if he can obtain peaceable possession thereof, sell and deliver them to the purchaser, as against every one except the attaching creditor. Fettyplace v. Dutch, 13 Pick. 388. And the attaching creditor has no property whatever in the goods. Ladd v. North, 2 Mass. 514; Perley v. Foster, 9 do. 112. Nor does the creditor thereby acquire any right to the money to be derived from a sale of the attached property, unless such sale be authorized by some further order or process of the Court, made in pursuance of law. Until then, the duty of the officer is to keep the goods, not to sell them.
If the seizure of goods on attachment operated like a levy on execution, its effect would be to defeat the very object of its use, the rendition of a judgment against the debtor, or his goods. While relied upon as giving the Court jurisdiction for the purpose of subjecting the goods attached to sale for the payment of the debt sued upon, the seizure of the goods might as a consequence of such doctrine be pleaded as a payment of that very debt, and thus be made to defeat a judgment therefor. The statement of the proposition carries with it its own refutation.
This Court, at its present term, has held that the pendency of a prior suit by attachment, on which goods have been seized, may not even be pleaded in abatement of a subsequent suit in personam, against the debtor for the same debt. Branigan v. Rose, ante, 123.
But the doctrine contended for is unsound for another reason. The reason of the doctrine established by the Courts, that a levy on personal goods, by virtue of an execution, is operative to stay further proceedings, by suit or execution, until such levy is disposed of, is, that the further aid of legal process is unnecessary for the purpose of enforcing the rights of the creditor, until the operation of that already issued in his behalf shall have been exhausted. That to permit further process to issue under such circumstances, would be to make the process of the law not beneficial to the creditor, but vexatious and oppressive to the debtor. Consequently, a defence based upon the levy of an execution, must show it to be a subsisting levy when pleaded. Such is the doctrine held in the case of Mountney v. Andrews, Cro. Eliz. 237, to which all the cases on this subject go back. In that case, the language of the plea was, that “the sheriff hath taken divers sheep and yet detaineth them.” And in the case of Gregory v. Stark, 3 Scam. 612, the validity of such a defence is admitted in cases where the levy is still subsisting, and the result of a sale has not proved the insufficiency of the property levied on to satisfy the judgment.
The mere allegation of a seizure of goods on attachment, shows no subsisting lien upon such goods when pleaded. The special property of the officer levying the writ may have been divested, and the plaintiff’s inchoate lien defeated by many means after the seizure of the goods, and if so, there can be no good ground for refusing to the plaintiff the further aid of the Courts and their process to enable him to enforce his rights; therefore, a defendant relying upon a seizure of his goods on attachment, as a ground of defeating a suit upon the judgment rendered upon such attachment, should, in order to bring himself within the rule above stated, show by his plea, that such goods are specifically bound by law for the satisfaction of such judgment, and still held for that purpose, by seizure on execution or otherwise.
Upon the exhibition of such a state of facts, the defendant might, in such case, well insist that the plaintiff’s right of proceeding further against him should be suspended, until the exhaustion of the remedy already progressed beyond its mere incipiency, by the seizure and detention of his goods. He would thus show a satisfaction sub modo; a temporary bar to judgment or execution whose extent would be limited by the result, ripening into a full and perfect satisfaction of the judgment, if the proceeds arising from the sale of the goods attached should be sufficient in amount for that purpose: if not, furnishing a satisfaction pro tanto, and leaving the plaintiff at liberty to perfect his remedy by further proceedings. Further than this we cannot go, but in this connection adopt the language of the Supreme Court of New York in the case of Green v. Burke, 23 Wend. 490, that “there are so many ways invented by which goods may be got from the sheriff; sometimes by fraudulent claims, sometimes by prior liens, and even by his own negligence; that it behoves the Courts to look into the rule now urged upon us as working by a sort of magic, to cut a man off from his debt without the show or pretence of satisfaction.”
Tested by these principles, the plea under consideration will be found wholly defective in not showing, that by the laws of Missouri, the attached property was- specifically liable to be sold for the satisfaction of the judgment to be obtained on the attachment, and that they were, when the plea was filed, still legally held for that purpose. •
For anything that appears from the plea, the process of attachment may be used in Missouri simply for the purpose of securing the appearance of the defendant; but if not, still the plea does show a seizure by the sheriff, and he alone, and not the plaintiffs, had"the custody of thegcods, and could control their possession. Consequently, the allegation that the said goods have not been restored by the plaintiffs to the defendant does not exclude the conclusion that the sheriff may have done so, or that said goods, by some other means, had been discharged from the operation of the plaintiffs’ lien, if they had any.
The Circuit Court did not err in holding the authentication of the record sued on sufficient, and admitting it in evidence, the defendant’s objection to the contrary notwithstanding, as alleged by the second error assigned. That record, as appears by reference to the hill of exceptions taken on the trial, was proved by the attestation of the cleric of the Court rendering the judgment, and the seal of the Court annexed, together with the certificate of the sole Judge of that Court that the said certificate was made by the proper officer, that said attestation was in due form, &c. This was in strict compliance with the requisition of the Act of Congress in such case made and provided.
The ground on which the appellant bases his third assignment of error, to wit, that the evidence produced on the trial was insufficient to warrant the judgment rendered upon it, might, if true in point of fact, have constituted a sufficient reason for the granting of a new trial in the Court below; hut, in the shape in which it is now sought to be presented, is not examinable in this Court. To have made it so, a motion should have been made in the Circuit Court for a new trial, and then such motion being overruled, the action of the Court thereon might have been assigned for error. Barnes v. Barber, 1 Gilman, 401.
But this assignment, if inquirable into here, is not sustained by the record. The bill of exceptions does not profess to exhibit all the evidence heard on the trial, but nevertheless does show enough to warrant the rendition of the judgment of the Court now complained of.
The only question remaining to be disposed of, is one of pleading, and it is perhaps to be regretted, that in determining it, as we must do, upon long established and well settled principles of law, the benefit growing out of the reversal of a judgment, appearing from the evidence in the cause to have a good and sufficient foundation in law and fact, should be made to enure to a defendant who is not shown by the record to have had any valid and sufficient defence to the suit against him, if put upon his proof of such defence by the pleading of his adversary. But our province is to expound the law as we find it, and not to give to it an attribute of flexibility which it does not possess, for the purpose of varying results. Then, without an entire departure from the line of our duty, we cannot say otherwise than that one of the defects in pleading complained of in the fourth assignment of error does exist, and is such as imperatively to require a reversal of the judgment.
This defect is not found in the replication to defendant’s plea of nul tiel record. That is substantially sufficient. To such a plea the plaintiff should reply, “there is such a record,” and conclude his replication “prout palet per recordumP 6 Com. Dig. title, "Pleader,” 378;; 1 Chitty’s Pl. 619. The omission of such conclusion is cured by verdict, and will not affect the judgment. Rev. Stat., Ch. V. § 9; 1 Chitty’s Pl. 723.
But the defendant’s plea of payment is wholly unanswered, and this defect is entirely incurable by any intendment of law.
It is not the case of a defect in matter of form, which is cured by verdict. 6 Com. Dig. 141. Nor of a party attempting to take advantage of his own defective pleading, which he may not be permitted to do. Ib.; Waters v. Simpson, 2 Gilm. 577. Nor does it prevent the question sometimes assuming a doubtful aspect, as to the extent to which defects in an insufficient bar or replication will be cured by verdict; but the defendant interposes a plea which completely answering the declaration entitles him, if successful on it, to judgment in bar of the action. Dana v. Bryant, 1 Gilm. 104. As to this plea, there was no controversy. The matter set up by it not being denied, the defendant was entitled to judgment on it, and the Court consequently erred, as well in proceeding to the trial of the remaining issue in the cause, as in rendering judgment against the defendant. For this error the judgment will be reversed with costs, and the cause remanded to the Circuit Court of Tazewell county for further proceedings on a venire de novo.
Judgment reversed.