Weeks v. Martin

The opinion of the court was delivered by Royce, J. The plaintiff delivered his execution against Fletcher to a proper officer more than fifteen days, and less than thirty days, after judgment was recovered ; and the question is, whether this was in season to charge the defendant for the escape of Fletcher, which bad already happened. If the plaintiff was only bound to use reasonable diligence in attempting to collect his judgment of the debtor, it should doubtless be considered that the execution was seasonably placed in the officer’s hands. But, if his remedy against this defendant depended upon a compliance with the I6th section of the statute relating to county jails;, and the confinement and discharge of prisoners, the execution was not delivered out in time. It is contended for the plaintiff that the case is not affected by that section of the act, inasmuch as Fletcher was not a prisoner in jail, when the judgment was obtained; that, having previously escaped and fled from the country, he could neither be committed on execution, nor discharged by the jailer. We- think, however, that the section referred to must still be considered as applicable to the case. This is required in just analogy to other statutory provisions, which prescribe to a judgment creditor the means of preserving securities acquired under his original process. I shall only instance the case of personal property attached at the commencement of a suit, and afterwards wasted or eloigned before the recovery of judgment. Such a state of facts is never allowed to excuse or qualify the duties required of tbe creditor. If be would perfect his cause of action against the attaching officer, he must do all that would be requisite, preparatory to a levy on the property within thirty days after judgment. In the language of the statute, he is to “ take the property in execution ” within the thirty days, — as in this case he is to procure a commitment of the debtor within fifteen days. Both may be alike impossible to be literally accomplished, and yet the creditor is bound to act as if both were practicable. The reason is, that these limitations of time, being fixed with special, if not 240 exclusive reference to some collateral and contingent liability of a third person, impose conditions to be strictly performed, in order to render such liability complete and absolute. Hence we conclude, that, as the execution against Fletcher was not delivered to an officer in season to have had a commitment within fifteen days after judgment was obtained, the suspended liability of the defendant for the previous escape of Fletcher never became fixed. And the judgment below must therefore be affirmed.