delivered the opinion of the Court.
In this case the writ of execution was delivered to the same officer who served the attachment; and the question is, whether the delivery of the execution, to such officer, is a taking of the property in execution, within the true intent and meaning of the 33d section of the judiciary act. The clause in this section “unless the plaintiff in such suit, shall within the term of thirty days from the time of rendering such judgment as aforesaid, take such property in execution, the same shall be discharged &c,” is clearly not to be construed literally, for the creditor cannot personally take the property in execution ; but, the true construction is, shall cause such property to be' charged in execution by a proper officer. Personal property, attached on mesne process is considered as in the custody of the law, in the keeping of the officer who served the attachment, for the purpose of satisfying the execution, which may be obtained in the suit, and is on the delivery of the writ of execution to him, by that very act, charged, or taken in execution. In this case, the creditor, within thirty days from the rendition of the
The case is analogous, to that of a person in gaol on mesne process. By the 39th section of the judicary act it is provided, “ that when any person shall be attached on mesne process, and shall be committed, agreeably to the provision of this act, and shall be in gaol, at the time final judgment shall be rendered against himj he shall be discharged from confinement, unless the plaintiff in such action, within fifteen days after rendering of final judgment as aforesaid, shall charge him with execution.” Now, in this case, the debtor being in gaol, a prisoner in the custody of the Sheriff, a delivery of the execution to the Sheriff, is charging such prisoner in execution. It would be so, if the debtor were in gaol, in the custody of the Sheriff on process in favor of a third person, and not on process in favor of the plaintiff. This is a clear, and well settled doctrine of the common law. And, from the common law we are to ascertain what the legislature meant by charging a debtor with execution. It is true, that the attachment of property, as authorized by our statute, was unknown to the common law; but, being introduced by statute, it comes within the analogy, the principles and reasons are the same, and the analogy holds good in most of the cases, which can be put. But if the debtor be in gaol, in,the custody of the Sheriff, and the creditor deliver his execution to a constable, who has no connection with the Sheriff, and has not the custody of the debtor, such delivery of the execution to the constable, will not charge the debtor in execution. The creditor must, in such case, at his peril, see that the constable charge the debtor in execution, by delivering to the keeper of the gaol a copy of the execution, with his return of the commitment thereon indorsed, within the fifteen days. So if the attachment of personal property on mesne process was made by the Sheriff, and the plaintiff deliver his execution to a constable, he does not thereby, charge the property in execution. He must see that the execution be levied thereon, within thirty days, or a demand be made of the Sheriff, to'
As to the objection suggested by the defendant’s counsel, that the promise contained in the receipt, shews that the custody oí the property was changed, and that the officer relied solely on the promise, it is a sufficient answer, that the law would have implied the same promise, had no such promise been inserted in the receipt. It was never thought, that an express promise or a bond of indemnity to bail, took away their right to the custody of the principal, or to deliver him up in discharge of themselves. The Court are clearly of opinion, that the exceptions to the opinion of the County Court are well founded, that the judgment is erroneous and must he reversed.