Fuller v. Loring

Howard, J. The doctrine, that the property of the debtor in goods, is changed and lost by a mere seizure on execution, rests, mainly, upon incidental dicta of Judges, that may be gathered from books, and not upon settled opinions of courts, where the point has been directly raised and considered. And so are derived the notions that the property is altered from the owner, and given to the party at whose suit it was seized, and that the general property in goods, after seizure on execution, is in abeyance. Such dicta may be found in Wilbraham v. Snow, Lev. 282; Clerk v. Withers, 6 Mod. 293; 1 Salk. 323; 3 Salk. 159; Ladd v. North, 2 Mass. 517; Ladd v. Blunt, 4 Mass. 403; Bailey v. French, 2 Pick. 590. The law is, manifestly, otherwise. For, by the seizure of goods on execution, the officer acquires a special property in them; but the general property remains in the debtor until they are sold. The seizure is but the inceptive step in the transmutation of the property, which may be abandoned by the officer, before a change is consummated. Ho may restore the goods to the debtor, or they may be taken from Mm by the latter, “or by act of God,” or the public enemy ; and in neither ease, would the execution be satisfied, or the debt cancelled, or the debtor be discharged, though the goods were [488] of sufficient value to satisfy the judgment. But should the officer waste the goods, or misappropriate the money derived from their sale, or fail to return the execution, the debtor would be discharged. Shelton's case, Dyer, 676, note; Thomson v. Clark, Cro. Eliz. 504; Payne v. Drewe, 4 East, 522; The King v. Allnutt, 9 East, 282; Blake v. Shaw, 7 Mass. 506; Ludden v. Leavitt, 9 Mass. 105; Rice v. Tower, 1 Gray, 429; Nichols v. Valentine, 36 Maine, 322; Churchill v. Warren, 2 N. H., 298; Folsom v. Chesley, 2 N. H., 432; Lewis v. Richardson, 6 Rich. 382; Nelson v. Rockwell, 14 Ill. 375. The execution was in force when the plaintiff’s goods were seized and sold, and the sale was effective to pass the property to the purchaser. The plaintiff, though a surety upon the note, was a joint debtor in the judgment and execution, and was under the same obligation, as the principal, to pay the judgment creditor; and it was competent for the latter to cause the property of either to be taken to effect the payment of the debt. The mere seizure of the goods of the principal, as has been shown, did not discharge the debt, or release the debtors. By abandoning to the owner the property seized, wholly, or in part, the creditor, in the case under consideration, did no wrong to the principal; and there is no proof that it was detrimental to the surety, otherwise than would have been the fulfillment of his contract. The shop, first seized, was not wasted; but the creditor not choosing to risk his whole debt upon it, might well seek payment or satisfaction more readily from other property of either debtor. He was under no obligation to pursue the seizure of the principal’s property, for the benefit of the surety, without request or indemnity, and upon his own hazard. This is not of the class of cases where the creditor takes security from the principal which he is bound to appropriate in payment of the debt. Neither the attachment, nor the seizure of the property of the principal, constituted security in that sense. It was not given by the principal, or received as such by the creditor, but taken by the officer per invitum. It might be taken from him by legal process; the title might [489] be questionable, and it might not then appear to be sufficient on sale, to discharge the debt and costs. Compelling the creditor, therefore, to resort to the debtor’s property first seized, in order to collect the debt, would impose an unreasonable restriction upon his rights, which might, in many cases, operate much to his inconvenience and detriment. He was not bound by his general duty to active diligence in collecting the debt, to collect it in a particular manner, or from a particular source. If the surety would compel the creditor to collect the debt of the principal, he should give suitable indemnity against the risk, delay, and expense that might be incurred. Wright v. Simpson, 6 Ves. 734; Hayes v. Ward, 4 Johns. Ch. 123; Page v. Webster, 15 Maine, 249, where it was held, (258,) that an indorser of a note is not discharged, by the holder’s releasing property of the maker’s attached on a writ, which was afterwards conveyed, when they became insolvent. Warner v. Beardsley, 8 Wend. 194; 1 Story’s Eq. § 327. Whether the seizure and sale of the plaintiff’s goods, was such an abandonment of the prior seizure of the principal debtor’s property, as to require a new seizure and proceedings for the sale of it, to satisfy the remainder due upon the execution, it is not necessary to decide. It is sufficient for the defence, that the plaintiff was not injured by the measure adopted by the defendant, in enforcing payment from his debtor, who chose to make no effort to save himself from the legitimate consequences resulting from his contract. Plaintiff nonsuit. Shepley, C. J., and Appleton, J., concurred. Rice, J., did not sit.