Lowry v. Walker

Hutchinson, C. J., pronounced the opinion of the Court.— The first question raised upon the record is,'whether it was competent for the plaintiff,whose duty it was,on receiving the execution, to enter thereon theday,month and year,when the same was delivered to him, to prove the same by parol testimony ? There seems to be no difficulty in this question, in the present case, for the plaintiff’s lien upon the property was established by his service of the attachment. This lien must remain in the officer for the benefit of each •creditor, so long as such creditor pursues his lien, created by the attachment. When the lien of the creditor is off, the sheriff holds for the benefit of the debtor. The defendant, in this case, does not even contend that he has made out such a purchase from Barber, the original debtor, as to stand in his right, and hold where Barber might hold. He stands a stranger to title, and has no right-to call in question what might be litigated by the creditor and debtor. The plaintiff is liable to one or the other, and, as between these parties, it is unimportant whether the execution were delivered to the officer within thirty days from the rendition •of the judgement, or at a later period. This first exception of the defendant is overruled. The same reasoning will dispose of the question in regard to the regularity of the several executions issued from the justice courts. If the creditors lost their lien by not pursuing with regularity, that results in the revived right of the debtor, and the plaintiff would ■be liable to him. This objection cannot avail the defendant. Even Barber himself ought not to be permitted to treat these executions as irregular and void, before instituting some process to •set-them aside. If the court never had jurisdiction, the execution [81] would be void of course ; but, when the action is once regularly before a court of competent jurisdiction, so gross an irregularity as to render tbe after proceedings void, is not to be presumed merely from a defect in the record, to show a notice proved, or actual appearance of the defendant. On a writ of audita querela, or motion to set aside the execution, the fact of notice may be enquired into. If either of these prevail, the. creditor may set out anew, and pursue his claim with regularity. C. Adams, for defendant. Bailey & Marsh, and H. Allen, for plaintiff. 'The defendant further objects, that the plaintiff has no sufficient title or possession to recover in this action, because he never moved the property from the custody of Barber. The Court, however, consider, that the leaving the copies with the town clerk, according to the provisions of the statute, has the same effect to create a lien, or a right of action, as an actual removal of the property would have had. The attaching officer has the legal custody, after leaving the copies, of such property as this, during the pendency of the suit, and he alone can maintain an action for it, for the benefit of the attaching creditor. With regard to the extent of the plaintiff’s claim, the instructions given to the jury were as follows, to wit ?■“ That if-the defendant in-termeddled with the property, by taking a part of it, or forbidding the sale by the officer, it was a conversion of the whole; and, in that case, he would be responsible to the amount of all the-claims, provided the same did not .exceed the value of the property, alleged to be converted by the defendant.” We think the instructions upon this point» incorrect, unless the proof had gone further, and shown, that the defendant had, in some way, some control over the property, such as standing upon timber, in one case cited ; or having soldiers around him to aid him in keeping the property, as in another case cited. Tbe defendant is only liable for what he was proved to have actually converted, or to have taken some ■control over, more than merely to forbid the officer to sell. For this incorrectness in the charge, a new trial is granted.