Enos v. Brown

Chipman, Ch. J.

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 judgment, delivered the execution to the same officer who served the attachment, and who had the legal custody of the property. The officer, then, in the true sense of the law had the property in execution, and he had until the return day of the execution, to levy the money of that property. He is not bound, in such case to proceed immediately, but with due diligence, for which he is accountable to the creditor only.

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' cIiai'Se bim in case the property has been eloigned. The same steps must be taken if the officer, who served the attachment shall be out of office. On the point now in question, the analogy is full and clear. If the Sheriff keep the gaol by deputy as he may, and usually does, the deputy has the immediate custody of the prisoner, yet if the execution be delivered to the Sheriff, the prisoner is charged in execution the same as though he was in the immediate keeping of the Sheriff. So, although, the officer, who serves an attachment on mesne process, deliver the property attached to some third person, on receipt for safe keeping as he lawfully may, yet the law considers the property in the custody of the officer ; and on the delivery of the execution to him, the property is immediately charged, or, to use the words of the Statute, is taken in execution. If the third person receiving the property' for safe keeping, suffer it to be eloigned, the officer alone is accountable to the attaching creditor. In both cases, the officer has his remedy over against his substitute in case of delinquency. The gaoler as to the detention, or discharge of the prisoner, is under the direction and control of the Sheriff; so is the person, who receives property for safe keeping which the Sheriff has attached.

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.