Skinner v. Stuart — 39 Barb. 206

Majority

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Skinner and others vs. Stuart and others.

Headnote

At common law, when personal tangible property of a debtor has been levied upon, by virtue of an execution or attachment, it is in the custody of the law, whose minister, the sheriff, is the proper person to bring actions to recover the possession or value thereof. The plaintiff cannot sue therefor.

Section 232 of the code does not authorize the plaintiff in an attachment suit to commence an action to take possession of the tangible property levied on, or to take legal proceedings to collect or receive into his possession debts, credits' and effects of the defendant.

The only provision in the code, or in any other statute, which authorizes any proceeding directly by the plaintiff, is contained in section 238 of the code.

And a plaintiff in an attachment suit cannot commence an action under that section, without first executing to the sheriff the undertaking therein mentioned.

The remedies afforded to plaintiffs by the chapter of the code relating to attachments are not merely cumulative. They are the only remedies known to the law in such cases.

A complaint, in an action by attaching creditors, alleging that the defendants have a large amount of personal property, consisting of money, bills, notes and other evidences of debt, &c. deposited with them by, and belonging to, the defendants in the attachment suit, without showing any fraud, collusion or combination obstructing the ordinary processes of the law, or

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alleging that those processes have been exhausted, or even resorted to, or that the lien cannot be enforced without the intervention of the court in the exercise of its equitable powers, does not state a sufficient cause of action to sustain a suit demanding the intervention of the court by the exercise of its equitable or extraordinary powers.

The only remedy, in such a case, is under section 238 of the code; its conditions being first complied with.

THE plaintiffs, and all of the defendants except George H. Stuart and Company and S. B. Chittenden, are attaching creditors of the firm of Shepherd & Moore, non-resident debtors. The attachments were all in the hands of the sheriff of the city and county of Hew York at the time of the commencement of this action, and now remain there. The defendants George H. Stuart & Company had and have in their possession large amounts of money and property levied upon by such attachments, but refused to deliver the same to the sheriff under the attachments. The defendant Chittenden became the assignee or purchaser of all the interests of Shepherd & Moore in said money and property, subsequent. to such attachments. The defendants Peet, Hughes & Peet issued the first attachment, hut as against the other attaching defendants and plaintiffs were not entitled to claim priority, as their action was commenced before their cause of action matured.

The relief demanded is, that the defendants who have the property, and have been directed to deliver it to the sheriff, may be again directed to deliver it to the sheriff, and that the claims of the attachment creditors, which are being adjudicated, may be again adjudicated. The defendants Stuart & Company, Linder & Kinsley, and Butterfield & Jacobus demurred separately, hut all specified the same grounds of demurrer, which are almost a literal copy of the grounds of demurrer named in section 144 of the code. The defendant Jewett, after the general demurrer, alleged specially : 1st. That.the cause of action was vested in the sheriff, in whose name the action should have been brought. 2d. That Shepherd &'Moore and the sheriff should have been made parties

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defendant, and that there was otherwise a defect of parties defendant. 3d. That the sheriff should have beeh made plaintiff, and if not, then the defendants other than Stuart & .Company, Chittenden, and Peet, Hughes & Peet, ought to have been made plaintiffs, unless they refused to join, and that there was otherwise a defect of parties plaintiff. 4th. That there was an improper uniting of causes of dction in respect of the cause of action against Peets & Hughes not being properly connected with that against Stuart & Company. The defendants Peets & Hughes demurred, and insisted 1st. That several causes of action had been improperly joined ; 2d. That there was no cause of action; and 3d. That the sheriff ought to be made defendant.

The court, at special term, overruled the demurrers to the complaint, and the defendants who had demurred thereupon appealed to the general term.

By the Court,

I. At common law, when personal tangible property was levied upon, under an execution, it forthwith vested in the sheriff: the plaintiff in the execution could not meddle with it. If it was converted, or concealed or taken away, none but the sheriff could retake it, or by action recover it or the value of it. The property, when once levied upon, was in the custody of the law, and its minister, the sheriff, was bound to preserve it against all the world for the purpose of satisfying the judgment. To him alone could the plaintiff look for the application of the property to this purpose. The law now allows a provisional remedy in certain cases, to secure the application of property to the satisfaction of an alleged debt, immediately after the commencement of an action, and, of course, before the claim is established. By this provisional remedy a warrant of attachment is issued; if it is tangible personal property, the sheriff shall keep the property seized by him; and all debts, credits, and effects of the defendant he shall collect and receive into his possession. He may take such legal proceedings,

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either in his own name or in the name of the defendant, as may he necessary for that purpose. (§ 233 of the Code.) This section certainly does not authorize the plaintiff in the action in which the attachment is issued, to commence an action to take possession of the tangible property levied upon, or'to take legal proceedings to collect or receive into his possession debts, credits and effects of the defendant. He is under precisely the same disability in that respect, in which a plaintiff in an execution was placed before ,the legislature gave the right to this provisional remedy. He can no more meddle with or claim possession of the property under it, than he could at any time under an execution. The property is, in the same manner, in the custody of the law; and he can only look to the sheriff, who is responsible to him for its application to any judgment which he may recover. The only provision in the code, or in any statute, which admits of any proceeding directly by the plaintiff, is contained in § 238; which says that the actions authorized in the chapter to be brought by the sheriff, may be prosecuted by the plaintiff or under his direction, upon the delivery by him to the sheriff of an undertaking executed by two sufficient sureties, &c. So that by complying with the conditions of this section the plaintiff may, undoubtedly, prosecute in his own name, any action which the sheriff could have prosecuted; that is, if there are debts, credits and effects, he may in his own name take such legal proceedings as may be necessary to collect and receive them into his possession. If it is a promissory note belonging to the defendant, he may sue the parties liable on the note, in his own name, or he may sue any debtor of the defendant, or any person who, like the defendant Stuart in this action, has money, bills, notes or other evidences of debt or other property belonging to the defendant in the attachment. But certainly he cannot do this, under the provisions of the code, without complying with the conditions which it prescribes. It is nowhere alleged in the complaint that the plaintiff executed an undertaking to the sheriff; and

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as he has no such right at common law, he must strictly comply with the terms upon which the statute gives him this new right. As I have already shown, he has no more this right at common law, or by any previous statute, than he had to commence such a suit to collect and receive into his posession debts, credits and effects of the defendant under an execution, before the provisional remedy was authorized by law.

II. But even if he did comply with the conditions prescribed by the code, could an action of this kind be maintained ? This is an action requiring the equitable interposition of the court, seeking its extraordinary instead of its ordinary remedies. The complaint sets forth that the defendants Stuart & Company have a large amount of personal property, consisting of money, bills, notes and other evidences of debt and property deposited with them by and belonging to Shepherd and Moore, the defendants in the attachment suit. It shows no fraud, collusion or combination obstructing the ordinary processes of the law; it does not show that these processes have been exhausted. Indeed, it does not show that they have ever been resorted to; .for they could not have been resorted to without first bringing a common law action. There is nothing stated in the complaint, as is erroneously supposed by the court below, to show that the lien cannot be enforced without the intervention of the court in the exercise of its equitable powers. If the defendants Stewart & Company withhold the statement required of them by the code, a summary method is provided by which they can be compelled to • furnish that statement; and if they 'refuse to deliver the property to the sheriff, the remedy afforded by an ordinary action will be ample for the plaintiffs, if they think proper tó resort to it, by first complying with the conditions which the code prescribes.

It is, in my opinion, a great mistake to say that the remedies afforded by the chapter of the code relating to attachments are merely cumulative. They are the only remedies

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known to the law in such cases. When a lien was obtained on personal property under a judgment, previous to the enactment of the code, no one but the sheriff could have enforced the lien by virtue of the execution. As I have shown, when the property was levied upon it vested in him, and he was responsible to the plaintiff for the faithful performance of his duties. The sheriff alone could sue for its recovery when converted, concealed or taken away. Where, indeed, the execution was returned unsatisfied, the plaintiff was entitled to his creditor’s bill; or when an execution was issued and the enforcement of the execution was obstructed by fraud, collusion or combination, the extraordinary aid of a court of equity would be afforded to remove the obstruction. But this case does not fall within either of these classes of equitable remedies. Heither will the pretense of settling priorities among the attaching creditors warrant the court in assuming extraordinary jurisdiction. If the sheriff sued had received possession ot the property, he would satisfy the attaching creditors in the order of their priority. If any attaching creditor commences an action under section 238 of the code, and, as in this case, prays to have the property delivered to the sheriff, that officer will do precisely the same as if the action. was prosecuted in his own name.

[New York General Term,

February 2, 1863.

Sutherland, Ingraham and Clerke, Justices.]

The complaint cannot be sustained.: 1st. Because the plaintiffs have not complied with the conditions of the section of the code (§ 238) which authorizes the plaintiff to commence an action; and. 2d. If they did comply with it, the complaint does not state a sufficient cause to sustain an action of this nature.

There'should be judgment for the defendants on the demurrer, with costs.