Keyser v. Waterbury

By the Court, Hand, J. By the statute, all proceedings on the judgment are suspended by an appeal, (2 R. S. 259, § 192,) and on a certificate that an appeal has been duly made being presented to the constable holding the execution, he shall forthwith release the goods and chattels of the appellant, or his body if he has been taken; and if in jail he is thereupon to be released. (Id. § 193.) The attachment requires the officer to take the goods and chattels of the defendant “ and safely to keep the same, in order to satisfy any judgment that may be recovered on such attachment.” (2 R. S. 230, § 30.) But the officer shall not remove the goods, &c. if a bond is given that the goods shall be produced to satisfy any execution to be issued within six months. (Id. § 32.) If taken, the officer is to safely keep such part of the goods as shall be sufficient to satisfjr the demand of the plaintiff. In Seymour v. Dascomb, (12 Wend. 584,) it was held that a constable who has received the amount of an execution from the party appealing, may, on the appeal being perfected, pay it back. In Wilson v. Williams, (18 Id. 581,) it was held that the officer was bound to release the property on the presentation of a certificate that a writ of certiorari had been brought, the same as on an appeal. But Nelson, O. J. would not then say how it would be if taken on an attachment. That he considered a casus omissus in the statute. But I do not see why the rule should not be the same where goods are held on an attachment, as when held on an execution. In both cases the property is taken and held as security for the demand. It would seem that, even in an attachment suit, if the plaintiff levy his execution before the appeal, the property must be released from the execution by the express provisions of the statute ; and there is no good reason why it should be discharged from that, and held on the attachment. Indeed it may be doubted whether the attachment is not wholly functus officio as soon as an execution in the same suit is levied on the [652] same property. The appellant gives a bond with sureties, which is Supposed to make the appellee safe. This part of the case is clearly with the plaintiff. But the statute in relation to the action of replevin declares that, “ no replevin shall lie at the suit of the defendant in any execution or attachment to recover goods or chattels seized by virtue thereof, unless such goods and chattels are exempted by law from such execution or attachment,” &c. (2 R. S. 522, § 5.) And it has been held that replevin will not lie for property taken on an execution from the debtor’s possession. (Judd v. Fox, 9 Cowen, 259.) “ Seized,” in that section means taken, not possessed ; though if it did, perhaps that would not aid the plaintiff. It is well settled that, as between the execution debtor and the sheriff, replevin will not lie for property in the custody of the law. (Dunham v. Wyckoff, 3 Wend. 280. Clark v. Skinner, 20 John. 467. Hall v. Tuttle, 2 Wend. 475.) As the property was in the possession of the defendant as the mere agent or depositary of the officer, it is none the less in the custody of the law. (Hayner v. Lucas, 10 Pet. Rep. 400.) There must be judgment for the defendant, with leave to amend on payment of costs. Judgment for defendant.