Pierson v. Hovey

Chipman, Ch. J., gave the following in charge to the Jury: The property was not in fact, taken out of Hovey’s custody, but was left in his hands, (although receipted by a third person) and was by him eloigned. Had the property in fact remained in the hands of the officer, it might have had a different consideration. Had that proved insufficient, a second levy might have been made, either with the same execution, or an alias. I do not apprehend, if an officer take property on an execution, which proves insufficient, or the property of another, he is precluded from levying on the body; or, by direction of the creditor, on land for the remainder. On a ca. sa. in case an escape or rescue be returned, a new capí [52] as may be taken out; for, “ an insufficient return is as none.”— The officer had taken the cattle, so far as to have a lien upon them, for the satisfaction of the execution. On receipt, I do not consider that the officer wholly parts with that lien, and trusts to the receipt only. The property is delivered out of his actual custody, for the convenience of the defendant. The officer is therefore less secure of tire property, but his lien still continues. He may take it without the leave of the person receipting. As the property is out of the actual custody of the officer, to eloign it would not, in strictness, be a rescue; but to some purposes,, as in the present case, might have the same effect, to render the execution ineffectual. Verdict for the defendant.