Stockley v. Wadman — 6 Del. 350

Majority

p. 350

Charles C. Stockley, Sheriff, v. Luther C. Wadman, Constable.

Headnote

An execution binds the goods of the defendant from the time it comes to the hands of the sheriff, hut a writ of foreign attachment only from the taking of them by the officer. An actual taking into his exclusive possession, however, is not necessary ; the making of an inventory with a view to the appraisement of the goods under the latter writ will constitute a taking in law, and being then in the legal custody and possession of a constable so inventorying them under a writ of foreign attachment, it will have preference over executions afterwards coming to the hands of the sheriff on the same day.

This was a case stated, between the sheriff and constable, the parties to it, as to the application of money in the hands of the latter, in which the opinion and judgment of the Court was asked on the following statement of facts:

The constable had levied on certain goods and chattels

p. 351

of Samuel GL Willey, a non-resident, four several executions, issued at the suit of sundry parties against him, b^ 3 o’clock p. m., March 7, 1857, and took into his possession, under the executions, a pair of mules, a wagon, and a horse, before 5 o’clock p. m. On the same day, between 3 and 4 o’clock, three several writs of foreign attachment came to the hands of the constable against the same party, under which he made inventories of the goods and chattels of the defendant at that time. Afterwards, at half-past 6 o’clock on the same day, sundry other writs of foreign attachment, at the suit of other creditors, came to the hands of the constable against the defendant, on which no inventories were made until after half-past'7 o’clock that evening. It was admitted that the constable did not take any of the goods and chattels of the defendant under or by virtue of any of the writs of foreign attachment which came to his hands, unless the making of the inventories under those writs amounted in law to a taking of the same by him, and that he never had them, or any part of them, in his actual possession under any of the said writs of foreign attachment.

On the same day several writs of execution, at the suit of different parties against the same defendant, amounting in the aggregate to over seven hundred dollars, came to the hands of the sheriff, the first at 6 o’clock and the others at half-past 7 o’clock that evening.

nTlie plaintiffs in the writs of foreign attachment after-wards, on the 18th of March, obtained judgments against the defendant, and caused executions to be issued thereon respectively, upon which the constable sold the goods and chattels involved in the question, and after satisfying the executions first above mentioned, there was a balance of $507.48 remaining in his hands, arising from the sale; and the question for the Court was, whether this balance was applicable to the foreign attachments in the hands of the constable, and could be retained, by him for that purpose, or was applicable to the executions in the hands of the sheriff?

said that an execution is a lien upon and binds the goods of the defendant,'from the time it comes to the hands of the sheriff; a writ of foreign attachment only from the taking of them by the officer under it. But an actual taking into his exclusive possession, by the officer, was not necessary under either writ. The making of an inventory of the goods by the officer under the latter writ, with a view to the appraisement of them, as required by the act of Assembly on that súbject, would constitute a taking of them in contemplation# of law, and from that time the goods would be in the legal custody and possession of the constable under the attachment, and he was responsible for the forthcoming of them, to be levied on and sold for the benefit of the plaintiff in the writ, when judgment should be obtained upon it. Rev. Code, 354.

They were therefore of opinion that all of the attachments on which the constable had made his inventories of the goods and chattels in .question, prior to the time of the executions coming to the hands of the sheriff, should have the preference over, such executions, and must be paid before them, out of the proceeds of the sale; but the executions in the hands of the sheriff should have the preference over all the other attachments in the hands of the constable, and should be first satisfied out of the balance, so far as it would go.