Scott v. Crane

Swift, J. This was an action against the defendant for estate, which as constable he had taken on an attachment in favour of the plaintiff against one Smith. The defendant (now plaintiff in error) in the court below contended, that the writ was served on the body of Smith in Derby by a constable there, and then the body released, and the same writ delivered to him in Oxford, where he attached the property in question ; that the writ having been duly served in Derby could not be taken back ; and that the service in Oxford was void. In all suits, it is the object of the law in favour of the liberty of the citizen, that the body of a debtor shall never be [259] taken and imprisoned, where sufficient estate can be found ; and in all cases where estate can be found, the creditor shall have a right to attach it, in preference to the body, for the purpose of more effectually securing his debt. It has, therefore, been the immemorial usage for officers, when they have arrested the body, if before the writ is returned they discover estate, to release the body, and take the estate ; and this reasonable practice has been sanctioned by judicial decisions. In the present case, as the estate discovered was not in the precincts of the officer who attached, it became necessary that the writ should be delivered to a different officer after the body was released ; but this can make no distinction in point of principle ; for the reason and the object of the law are the same in both cases. It is further contended, that the demand of the estate should have been made in Oxford, within the official precincts of the defendant. Whenever an officer has attached estate, and holds it to respond the judgment, it is necessary that a demand should be made of him upon the execution. No place is prescribed by law at which such demand must be made. It may be at his place of abode, or wherever he may be. If the demand should be made of him at a place where the property is not, and he offers to deliver it to the officer at the place where it is, it will be the duty of the officer to repair to such place to receive it ; but if he refuse to deliver it at any place, this refusal will subject him to an action, whether the estate were at the place where demanded, or not. In this case, if the defendant, on the demand in New-Haven, had informed the officer that the estate was in Oxford, where he would deliver it, then it would have been the duty of the officer to go there to receive it. So if he had had the estate in New-Haven, and delivered it on the demand, it would have been good. But as the defendant refused to deliver the estate anywhere, it was unnecessary to repair to his place of abode. He had a reasonable opportunity to perform his duty ; and having neglected and refused to do it, he has rendered himself liable. As to the question of proving the acts done by Hawley, said to be the agent of the plaintiff, it is clear that the doings or concessions of an agent when acting for the principal are binding on the principal ; but to let in the proof of them, it [260] is necessary that the agency should be first proved. The defendant having offered no proof of the agency, it was proper for the court to refuse evidence of the acts done by him. I am, therefore, of opinion, that there is no error in the judgment complained of. In this opinion the other Judges severally concurred. Judgment affirmed.