Harvey v. Lane

[565] By the Court, Nelson, J. There is no valid objection to the taking of a receipt by a constable, for the delivery to him at a future day of property seized under an attachment. The statute, 2 R. S. 231, § 31, requires that the constable shall attach, take into his custody and safely keep the goods; but it would be very inconvenient, and often impracticable, for him personally to take the custody of property thus seized, and from necessity he must sometimes trust it to others. When he does so, it is still in his custody by intendment of law, and he is responsible for it in like manner and to the same extent as though he had it in his actual possession. There is nothing in the statute inhibiting the use of a receiptor, and convenience, and in many instances necessity, require that the practice should be sustained. The removal of the goods may be prevented by any person executing a bond with sufficient surety that they shall be forthcoming at a future day, 2 R. S. 231, § 32; but if such bond be not given, the constable must see that due care be taken of the property. The defence under the distress for rent failed, for the defect of the affidavit of the amount of rent due ; it was not taken before a proper officer, 9 Wendell, 340. But the justice erred in rejecting the evidence that the property was taken from the reciptor by virtue of a paramount title. Such defence would have been available to the officer, and why should it not be to the receiptor, the possession of the goods,-in judgment, of law being in the officer. To decide otherwise, in order to do justice, we must or should hold, that the party having the paramount title had no right to enforce it. The rights of the receiptor and of the constable in this aspect are identical; those of the former are at least as perfect as those of the latter. The principle upon which this de-fence rests is sound, and would have received the sanction of the court, had it not already been adjudged in the case of Edson v. Weston, 7 Cowen, 278, which is directly in point. It would be an’ extraordinary rule of law that would require the receiptor to defend the property against all the world (including the rightful owner) except the constable, when the latter had no title to it; and it would be equally strange to hold the constable accountable to the plaintiff in the execution or [566] attachment, when the rightful owner had taken the property, and the process under which the officer had taken it would not hold it. It may well be doubted whether the recepitor is responsible to the officer, to the same extent that the latter is to the plaintiff'in the process. 7 Cowen, 278. 1 id. 234. Judgment reversed.