Kelly v. McCaw

RICE, C. J. In Barker v. Mathews, 1 Denio’s Rep. 335, it was decided, that the plaintiff in an execution, which had been levied upon personal property of the defendant in execution, could not maintain an action on the case against a wrong-doer for fraudulently and wrongfully taking such property out of the possession of the officer, and removing it and converting it to his own use.' The ground of the decision was, that there was no precedent for the action, and that, as the law had already provided well-known and appropriate remedies for all parties in such cases, there was no occasion to devise a new one. The remedy of the plaintiff was against the officer, who was responsible to him for the value of the property levied on. The remedy of the officer was against the wrong-doer, who was responsible to him, at least to the same extent. In Lamb v. Stone, 11 Pick. Rep. 527, it was decided, that an action on the case for the fraud of the defendant in pui’-chasing personal property of the plaintiff’s debtor, and aiding the debtor to abscond, in order to prevent the plaintiff from enforcing payment of his debt by attaching the property, or arresting the body of the debtor, cannot be sustained ; but that the proper remedy in such case is, to attach the property fraudulently conveyed, by the appropriate process. Both these cases admit, that the court will adopt a new remédy, to prevent to prevent a failure of justice, or to enforce [231] the settled principles of law ; and that the plaintiff may maintain an action on the case, whenever he shows that he has sustained damage from the tortious act of the defendant, for which the established forms of law furnish him no remedy. Adams v. Paige, 7 Pick. R. 542 ; Griffin v. Farwell, 20 Vermont Rep. 151. But they both maintain that, where the plaintiff can have adequate redress by any of the forms of actions known and practiced, “ it would be unwise and unsafe to sanction an untried one, the practical operation of which cannot be fully foreseen.” And in our judgment, a complete answer is contained in the opinions of the court in the cases above cited, to every argument which has been, or can be, urged in support of the action brought by the present plaintiff. In one of them, the difference between an action for a conspiracy, and such an action as the present, is pointed out; and the difference disposes of many of the authorities relied on by the appellee. By the seizure of personal chattels in execution, the sheriff becomes liable to the plaintiff for their value, and acquires a special property in them ; so that he may re-seize and sell them, as well when he is out of office, as before, or may maintain an action against any person who takes them. “But the general property, as well as the title, remains in the debtor, until divested by the sale, or by some other legally authorized proceeding or act; clogged, it is true, with the lien created by the levy.” The sheriff cannot deliver the chattels to the plaintiff, nor can he keep them to his own use, although ho pays the plaintiff out of his own proper money ; for the authority by which he acts,is to sell them, and bring the money into court, or pay it to the plaintiff.' — Eldridge v. Spence, 16 Ala. R. 682 ; Wilbraham v. Snow, 2 Saund. R. 47; Clerk v. Withers, 2 Ld. Raymond, 1072 ; 1 Salk. 323 ; Gibbes v. Mitchell, 2 Bay’s Rep. 120 ; 8 Bacon’s Abr. 706 ; Watson on Sheriffs, 191; Atwood v. Pierson, 9 Ala. R. 656; Neale v. Caldwell, 3 Stew. R. 134; Webb v. Bumpass, 9 Porter, 201 ; Bondurant v. Buford, 1 Ala. R. 359 ; Chenault v. Walker, 22 Ala. R. 275 ; Beatty v. Chapline, 2 Harris & Johns. 7 ; Walker v. McDowell, 4 Smedes & Marsh. 118. As the sheriff has the special property in the chattels levied [232] on, and occupies the relation above shown, if he brings trespass or trover against the wrong-doer for taking and removing them, and recovers their value, and obtains satisfaction, the recovery and satisfaction would certainly vest the title to the chattels in the wrong-doer, where their value was less than the sum necessary to satisfy the execution. — Spivey v. Morris, 18 Ala. R. 254 ; Story on Bail. § 94 ; Owners of Steamboat Farmer v. McCraw, 26 Ala. R. 204 ; 9 Bacon’s Abr., Trespass, C. 457 ; Hare v. Fuller, 7 Ala. R. 717. But, as the plaintiff has neither the special nor general property in the chattels levied on, and as he has the rights and the remedy above indicated, to allow him to maintain the present action, would be to give him the aid of the law to speculate upon the defendant’s fraud. For, although he may in this very action recover the full value of the chattels levied on, and may obtain satisfaction, that recovery and satisfaction would not discharge the levy, nor vest any right, or title, or property, in or to those chattels, in the defendant, nor relieve him from liability to the sheriff for. the identical fraud on which the plaintiff’s recovery is rested. To sustain the present action, is to assert as law, that there may be two actions, two recoveries of full damages, and two satisfactions in full, against the same man, for the same matter, cause and thing, in favor of different plaintiffs. The law does not sanction any such violation of justice, even against a person guilty of a fraud. It provides a mode in which the plaintiff may be protected from damage, but does not enable him to convert the fraudulent conduct of the defendant into a source of profit. Its reasoning may seem to be artificial : but still, as it is the reasoning of the law, it must be regarded by the courts as conclusive. Our opinion is, that the facts stated in the second count of the amended complaint do not entitle the paintiff to maintain the present action; and that, as that count does not show any cause of action against the defendant, the demurrer to it should have been sustained. For overruling that demurrer, the judgment is reversed, and the cause remanded.