Sterling v. Welcome

By the Court, Nelson, Ch. J. The case of Van Loan v. Kline, 10 Johns. R. 129, is in point to show that the bond given by a defendant in an attachment conditioned that the goods and chattels seized, shall be produced to satisfy the execution thereafter to be issued, does not operate to discharge them from the lien under it, but that notwithstanding the bond they continue in the custody of the law. The attachment in Van 240 Loan v. Kline, was issued under the act of 1808, but the provision in respect to the bond is' the same as that now in force, 2 R. S. 231, § 32. The exposition of the provision given by the case referred to, is full and satisfactory, and need not be repeated. The lien continues until a fter judgment and execution regularly obtained with the view to secure the application of the property to the discharge of the debt; it ceases on the execution being issued, as then the property is held by other process. But it is insisted by the counsel for the defendant, and I think correctly, that though the property be in the custody of the law under the attachment, and so continues down to the time when the execution actually is, or may be issued, still it cannot be said to be held under the process of execution until a levy by virtue thereof be regularly made. This undoubtedly must be so, unless we say that the seizure under the attachment shall enure to the benefit of the execution ; and this we cannot say consistently with the security of the judgment creditor, unless We go further and hold that the bond shall also enure in like manner, or if the property has been taken into the custody of the attaching officer, that he may continue to keep it until the day of sale,, although he may not be the person to whom the execution is delivered ; for should we say that a levy under the execution is not essential to hold the property, it need not be removed or disturbed until the day of sale, and that might be indefinitely postponed. -The better construction, I think is, that a levy must be made in the usual way as if no connexion existed between the process of attachment and the process of execution, and then the responsibilities under each process will be properly distributed both in respect to officers and sureties. This seems to be the view of the court of Massachusetts under the attachment law of that state, which as regards this question is essentially like ours, 9 Mass. R. 257; 7 id. 505; 15 id. 225; 16 id. 296; 4 id. 498; 16 Pick. 556. If, as $ am inclined to think, a levy be necessary, then it is clear that this action cannot be maintained, because a levy under the execution held by the plaintiff could not be made beyond the jurisdiction of the justice who issued that process. This conclu 241 sion is not subject to the imputation that it violates the rule which forbids a levy upon property already in the custody of the law, because the lien of the attachment ceases on the issuing of the execution and the elapsing of a reasonable time thereafter to make a levy. 10 Johns. R. 131, and the cases above cited. New trial denied.