Ralston v. Strong

Chipman Ch. J. delivered the opinion of the Court. After a full consideration of this case, the Court find little difficulty in making a decision. Whether the plea in bar be sufficient, depends on the question, whether the writ of replevin was legally directed, to the Constable, or, whether a Constable is authorised, by law, to serve such writ of replevin. By the 24th Section of the Judiciary Act, it is, among other things, provided, that every original writ issued in the ordinary mode, (for this section includes ordinary process only) shall be directed to the Sheriff, his, deputy, or á Constable of the town, where the service is to be made, and, as before provided, shall be executed by the officer to whom it is directed. It may be directed to the Sheriff or his deputy ; for they both, in fact, exercise but one office; without a direction to a Constable : in which case, the officer alone to whom the writ is direct — 291 — ed, can execute it — for, by the 2d Section of the Act regulating-the office and duty of Sheriffs, it is declared that the Sheriff shall have full power, within his own County to serve and execute all lawful writs, to him directed, issuing from lawful authority. This is but a declaration of the common law. The Sheriff is a common law officer: without the statute, he would have had power, by virtue of his office, to execute all lawful process to him directed, and no other. But, at common law, the Constable has no power to serve civil process. The power of the Constable to serve civil process, depends on the 9th Section of the Act last mentioned.— “ That all Constables shall, within their respective towns, have the same powers, as are given to the Sheriffs, Szc.” By this Section a Constable within his own town is empowered to serve all lawful writs, process and precepts, directed to him, and issuing from lawful authority. But it is necessary that the writ or process be directed to the Constable, otherwise he has, by the Act, no authority to serve it. The question then is, whether such writ of replevin may lawfully be directed to a Constable to execute: For, if by law it cannot be directed to him, he can have no authority to execute it. This depends on the 46th Section of the Judiciary Act, of which the plaintiff’s counsel have given the true construction. T.he provision therein contained is a special provision made by the Legislature, to remedy an inconvenience arising out of our attachment law. Property taken on attachment is frequently of a perishable nature, and its value to the owner may depend on its present use, or immediate sale ; to keep it locked up, to wait the event of a lawsuit, frequently long and tedious, could be of no advantage to the plaintiff, but might endanger his security, and occasion a dead loss to the defendant. This provision enables the defendant, in the mode prescribed, to substitute, in lieu of the property attached, good and sufficient security to the plaintiff. The provision is “ That any person authorised to issue attachments, may, on application of such defendant or defendants (whose goods are attached) issue a writ of replevin, in the form prescribed by law, directed to the Sheriff of the County, or his deputy, in which service is to be made. And the Sheriff or his deputy, to whom such writ of replevin is directed, shall, before he serve the same, require the plaintiff or plaintiffs in such replevin, to execute a bond to the plaintiff or plaintiffs in the — 292 — oriSInal Processj with sufficient surety or sureties, in the sum, to the value of which attachment was directed to be made, which sum it shall be the duty of the authority issuing such replevin truly to in sert.” Then follows the condition of the bond, which is, in substance, that the plaintiff in replevin, shall return the goods replevied, so that they may be taken on an execution which may be issued on a judgment recovered in the original suit; or, otherwise, satisfy such judgment, within sixty days from the rendition of the same. And the writ of replevin and the bond, are to be returned to the Clerk of the Court to which the writ of attachment was made returnable, to be by him kept on file. If there be a breach of the condition, the plaintiff in the original action is to have his remedy on the bond; and the officer serving the replevin is made responsible for the sufficiency of the principal and sureties. It is a settled rule, that where a remedy is given, or a mode o f proceeding directed by statute, in a new case, the direction of the statute must be strictly pursued. It is not permitted to vary from it on the ground of convenience. This would be, to be wiser than the law. But, in this case, there are strong reasons for adhering strictly to the rule. The Legislature did not intend to lessen the security of the plaintiff at whose suit goods are attached, by providing for the writ of replevin; and as in the process of replevin his interest is' concerned, and yet he is not to be consulted, the law has taken special care to intrust the service of the replevin to an officer of public confidence, and known responsibility; and who, from his situation, may well be supposed to be the best judge of the sufficiency of the surety or sureties, that may be offered ; and feel more deeply his own liability, and be of greater ability to respond, in case the principal and sureties in the bond should prove insufficient. The result is, that the writ of replevin in this case, was illegally directed to the Constable, and he had no legal authority to serve it; and the taking of the property from the Sheriff, the present defendant, by colour of the writ of replevin, was an unauthorized act, and ought to have been resisted. It was a tortious act in the Constable, of which the defendant can no more avail himself, than he could of the tortious act of any other person, who might have rescued the property. — 293 — It has been suggested that it would have been improper to have directed the Sheriffto execute the writ upon himself, but it is not so; there could be no impropriety in this. The writ of replevin is not an adverse suit, it is a mere authoritative order to the officer who took the property on the writ of attachment, to deliver it to the defendant in the original suit, on his complying with the v condition prescribed by the statute; and certainly, a more proper person could not be found to do this, than the officer who took the property on the attachment and has it in his custody. The plea in bar is therefore wholly insufficient. But exceptions have been taken by the defendant’s Counsel to the plaintiff’s declaration. And, it is true, that if the plaintiff’s declaration be insufficient, he is not entitled to-judgment, notwithstanding the plea in bar may be insufficient. The declaration is certainly very inartificially drawn. It contains no averment that the property had been taken on attachment; but instead of that, it is set forth that the Sheriff, the now defendant, had made return that he had attached the goods which he describes : that is, instead of averring the fact, the evidence is set forth by which the fact might be proved. The declaration then proceeds to state, that such proceedings were had in the suit against Gove, that at the September term of the County Court, 1812, he recovered judgment against Gove, omitting the day on which the Court sat, and the day on which final judgment was rendered. — That on the 29th day of September, 1812, he took out execution, and within thirty days after the rendition of the judgment, put it into the hands of Enos, the then Sheriff, to levy and collect. — That on the 27th day of November, 1812, Enos, the Sheriff, made return that he had made diligent search, and could find neither the body nor estate of Gove; and that he had demanded of the said Strong (the now defendant) the property aforesaid, which had been attached on the original writ, and that the same was not delivered to him.— Here again is the same fault — a statement of the evidence, instead of a statement of the fact; or, perhaps still worse; for I think, on this point, that the Sheriff’s return, that he made the demand, could be no evidence against the defendant. But, if we admit the statement made by the Sheriff in his return, that he made a demand, to be equivalent to a direct averment of the fact, it is still insufficient: The time when the demand was made is omitted. It might for — 294 — ought that appears have been on the 29th day of September, on the 27th day of November, or on any day between those two days. It might have been within thirty, or more than sixty daj-s after the rendition of the judgment, for on what clay the judgment was rendered does not appear. Now, it is provided by the statute, that, in all cases, where property has been attached on mesne process, unless the plaintiff take the property attached, in execution, within thirty days after the rendition of the judgment in the action, the property shall be discharged, and no longer holden, any more than though it had never been attached: The plaintiff has lost his lien on the property in whose-soever hands it may be. If the execution be, within the thirty days, delivered to the same officer who served the attachment, and who has the legal custody 'of it, & is supposed to have it in his possession, the delivery of the execution to such officer, is, as to all the purposes of the plaintiff’s right, a taking of the property in execution. But if the execution be delivered to another person, which must be done, if, as in the present case, the person who served the attachment be out of office, the plaintiff must, within the thirty days, causea demand of the property to be made of the person in whose legal custody it is, for the purpose of taking it in execution, or he will loose his lien on the property, and all right and claim against the officer who made the attachment. As, in-this case the execution was not delivered to the same officer who served the attach-merit, but to another officer, it is necessary, in order to render the defendant liable in this action, to shew that a demand was made on him for the property, within the thirty days; but this does not appear. It may or may not have been done — there is nothing in the declaration from which to make the intendment. But it is insisted that these defects in the declaration are cured by the plea in bar. It is true that a plea may, by a direct admission of facts omitted or obscurely expressed, aid the declaration; it may, by intendment, aid that which is defectively set forth, but will not, by intendment, aid an omission of that which is the very gist and point ofthe plaintiff’s action. Thus, in the present case, I think the first defect mentioned, the want of an averment in the declaration that the property was attached on mesne process, is cured by the express admission in the plea, and would perhaps be aided by — 295 — Implication, from the nature of the plea without such express admission ; but the other defects are not cured by any such admission, either express or implied. There is no ground to say, in this case, that the defendant’s plea admits that a demand was ever made on him, to produce the property to be taken in execution, much less that such demand was made in time. This declaration was probably drawn by some Clerk in the office, inexperienced in pleading. It is very wrong to incumber the records with such crude drafts; pleading should be intrusted to men of science only. Let there be Judgment for the defendant for the insufficiency of the declaration.