Van Loan v. Kline — 10 Johns. 129

Majority

p. 131

Van Loan against Kline.

Headnote

An altaeiiment issued by n justice, under the act, (sess. 31. c. 204. s. 31.) at the instance of a bona fide creditor, and in a ease warranted by law, creates a lien upon the goods attached, not only against the acts of the debtor himself, but against a subsequent attachment or execution o£ any other creditor; butthe lieji will be lost if the creditor does not prosecute his suit to judgment and execution with alf due diligence)

THIS was an action of trover. At the trial, the plaintiff proved his property in the goods, and a demand and refusal of them. It was admitted that on the 8th October, 1811, a judgment was entered up and docketed, by virtue of a warrant of attorney, on a bond, against one Eaton, at the suit of T. Croswell; on which judgment aJL fa. was issued, tested the 18th August, 1811, which was delivered to the plaintiff, as sheriff of the county of Green, on the 11th October, 1811. It was proved that the plaintiff on the day he received the execution, went to the house of Eaton, and found the property in question locked up in a room, the key of which was in possession of a constable, who had attacked the goods of 'Eaton, prior to the delivery of the execution to the plaintiff by virtue of an attachment issued pursuant to an act of 1808, (sess. 31. c. 204. s. 21.) by a justice; and that judgment was entered up on the attachment, the 6th October, 1811; and the property was sold by the constable on execution, subsequent to the delivery of the fufa, to the sheriff who forbade the sale by the constable, and claimed the property under the execution held by him. It appeared that the property was sold

p. 132

by the constable as well on the execution issued on the judg-. ment on the attachment, as under other executions in his hands, being more than thirty; and the defendant purchased the property in question under such sale by the constable.

NEWYORK,

May, 1813.

A verdict was taken for the plaintiff for 7 3 dollars and 7 5 cents, subject td the opinion of the court on. a case containing the above facts.

Sedgwick, for the plaintiff.

By the 21st section of the act (sess. 31 c. 204.) for the more speedy recovery of debts to the value of 25 dollars, justices of the peace are authorized to grant an attachment against the property of an absconding or concealed debtor, and the constable is directed to keep the property so attached, to satisfy the judgment which may be rendered in favour of the creditor. This act gives a preference to the particular creditor suing out the attachment, which he could not have had under the general law relative to absent, absconding or concealed debtors; but it does not alter the law in regard to prior executions.

Again, this is a case of conflicting executions, and that held by the plaintiff being first tested, and first delivered to the sheriff, has the legal preference.^[1]

It may be said, perhaps, that the defendant was an innocent and bona fide purchaser, and ought, therefore, to be protected; ku* he was not such a purchaser. He had notice of the prior execution and claim, and purchased at his peril. 1

Foot, contra.

By the 7th section of the act relative to judgments and executions, (sess. 24. c. 105.) an execution binds the goods only from the time of its delivery to the sheriff. The property of the defendant was subject to all legal liens, and this attachment was a legal lien, which could not be taken away by a subsequent execution. Even under the general law as to proceedings against absconding and concealed debtors, was it ever supposed that after the property of the debtor was attached, it could be taken away by an execution subsequently issued ?

True, this is a contest between two creditors; but the defend» ant has, by means of the attachment, gained a legal preference. -

Sedgwick, in reply,

said, there- was a good reason why the execution of a judgment creditor ought to be preferred, because he had established the legality and justice of his demand; but the creditor

p. 133

suing out the attachment had not; he does not even make aEdavit as to the amount or justice of his claim. The act merely enables the constable to take and keep the property safe, as between debtor and creditor. •

The attachment issued under the act of 1808, (sess. 31. c. 204.) and was duly served not only before the execution under which the plaintiff acted, but prior to the judgment on which it issued. The act directs the constable serving the attachment, to take and safely keep the goods, to satisfy such judgment as may be rendered in favour of the creditor, and to remove the goods, on receiving security, that they shall be produced to satisfy any execution which may be issued on such judgment. The service of the attachment seems, then, to place the goods in the custody of the law, or, at least, to create a valid lien which the subsequent execution in another suit cannot remove. If the attachment has not this effect, what is to become of the security which the constable is to take ? and shall the bond be deemed forfeited when the law permits an execution in another case, and without any pretension to priority, to seize and appropriate the goods ? If the service of the attachment be not a. lien, the proceeding is useless, for it may, at any time, be defeated by the debtor, by confession of judgment to another creditor; and it would be the greatest injustice to enforce the forfeiture of the bond when the law permits the property to be seized in the hands of the security. The test of the execution, though prior to the attachment, cannot make that process overreach and defeat the attachment by relation; for a fiction cannot take away a vested right. Nor can the public suffer any inconvenience from the binding effect of the attachment; for the attachment is to be returned to the justice as speedily as a summons, and the justice is then to proceed immediately in the cause» in like manner as if a summons had been personally served on the defendant.

It accordingly appears to us to be the true construction of the act, that the attachment, if issued at the instance of a bona fide creditor, and in a case warranted by law, creates alien upon the goods, not only against the acts of the debtor himself, but against the,subsequent attachment or the subsequent execution of any other creditor. This lien is no doubt temporary, and will expire if the creditor does not prosecute his suit to judgment and execution

p. 134

with all due diligence. In Con~necticut, an attachinent cannot hc~d the property for more than sixty days ~ffer the judgment. Buel v. Metcalf, Kirby, 40.

Judgment for the defendant.