Smith v. Orser

Leonard, J.

The warrant of attachment requires the .•sheriff to attach and safely keep all the property of the defendants therein, or so much as may be necessary to satisfy the demand of the plaintiff, with costs. (Code, § 231.) t, The sheriff is further required to keep the property seized by him, to answer any judgment which may be obtained in the action. (Id. § 232.) The section just cited also requires the sheriff to proceed in the manner directed in cases of attachment against absent debtors. The provisions of the revised statutes on this subject are thereby incorporated into the code.

To render a seizure under process effectual it must be accompanied by possession. The sheriff must not only seize, hut he must take the property attached into his custody. In case of neglect to perform his duty in this respect, the sheriff is subjected to personal responsibility.

It is pretty clear from these provisions of the law that upon an attachment against one or more members of a firm, the sheriff must proceed to serve it upon the interest of the defendants in the attachment in property owned by them jointly with others, in the same manner that he is required to do under an execution.

The sheriff is not responsible for such acts as the law requires him to perform. He could'not execute the commands of the process, either in the case of an execution or an attachment, without taking the manual possession of the property which he is required to seize. ( Waddell v. Cook, 2 Hill, 47, and the note to that case.) This principle was decided by this court in the case of Goll v. Hinton, (8 Abb. Pr. R. 120,) and is still the law in this district, so far as I can ascertain. The opinion in Goll v. Hinton was delivered at general term in this district, by the same learned justice before whom this action was tried at the circuit, a few months after that trial. Ho doubt he felt himself controlled, at the circuit, by the cases of Stoutenburgh v. Vanderburgh, and Sears v. Gearn, (reported in 7 How. Pr. Rep. 229, 389.) Those cases are referred to in Goll v. Hinton, and are there expressly overruled.

We are referred to two cases subsequently decided in this district, which, it is supposed, have departed from the rule held by this court in Goll v. Hinton, but it will be found on examination that the cases cited, to which I will now refer, have no bearing upon the points here involved. The cases so cited are Abels v. Westervelt, (15 Abb. Pr. R. 230,) and Askham v. Hunt et al., manuscript decision, March, 1863, decided in this district, but not reported. In Abels v. Westervelt it was held, on a motion between two parties claiming to be creditors of a firm, consisting of two members, in respect to the application of a fund held by the sheriff, being the proceeds of partnership property sold by him under execution, that the creditor by execution was entitled to the fund, although only one member of the firm had been served with the process by which the action was commenced, giving the execution creditor a preference over the creditor who had caused the property out of which the fund arose to be seized, on an attachment against one member only of the firm, prior to the issuing of the execution. It was so held because the fund, which was insufficient to satisfy the execution, was not raised by virtue of the attachment, inasmuch as the interest of one member only had been seized on the warrant, and that interest only could be sold in the attachment suit, while on the execution, which ran against all the property of the defendants, the whole interest of both defendants was sold. The attachment was a proceeding in rem, and reached only the separate interest of one member of the firm, whatever that might be; while the judgment authorized the sale of the whole interest of both defendants on execution. The equitable doctrine of the application of partnership property to the payment of partnership debts, in jn’cfierence to the separate obligations of the individual members, was referred to as analogous to, and as supporting the rule there applied.

In Askham v. Hunt the same equitable rule was recognized, but it was considered that no case was made for its application; and that Miss Chapman, the partner who was alleged to have disposed of the partnership estate for the benefit of her separate creditors, not having been served with the process by which the original action was commenced wherein the judgment was recovered upon which, after the return of an execution of the limited nature authorized in such cases, unsatisfied, the creditor’s bill then before the court had been instituted, could not be assailed in respect to her title to the property in question, or her right to dispose of it as she thought proper; particularly as no fraud was alleged in the transfer to her of the interest of her partner in the property of the partnership; and that the plaintiff, Ask-ham, not having exhausted his remedy at law, had no standing to invoke the equitable cognizance of the court for the purpose of impeaching her title to the property alleged to have formerly belonged to the partnership of which she had been a member.

The principle which underlies this action, viz. whether the sheriff, on an attachment against some of the members of a partnership only, may seize and take into his custody, in the' same manner as on an execution, the property of the partnership, consisting also of other members against whom the warrant did not run, was not involved in either of the cases so cited by the learned counsel for these plaintiffs; and of course they can not be considered as impairing the prior authority of Goll v. Hinton.

In the case now before the court, no question can properly be raised concerning the priority of partnership creditors, in the order of payment, over the creditors of the several members of the plaintiff’s firm. (Phillips v. Cook, 24 Wend. 389.) All the members of the plaintiff’s firm, part of whom are the defendants in an attachment under which the property in question was seized by the defendant, as sheriff, claim to maintain this action against the sheriff as a wrongdoer, on the ground that he has seized and taken into his custody under the said attachment, which directed him to attach and keep the property of two only of the three members of which the partnership consisted, certain personal property which beonged to the plaintiffs collectively, as a partnership. Clearly nothing in the two cases which have just been examined has any bearing as authority upon the subject of this action. There is no issue here as to the rights of the creditors of the firm, but only as to the rights of the members to recover for an alleged wrongful taking of their property.

We have already seen that the sheriff was in the lawful pursuit of his duty when he took the property in question into his custody. The judge erred at the trial, in directing the jury that the sheriff had no right, under the attachments, to take or hold the possession of the property.

There are two causes of action specified in the complaint; the first is for detaining the plaintiffs’ property; the second for wrongfully and negligently injuring it while in His possession, as sheriff. I see no difficulty in the joinder of the two counts. The two causes of action arise out of the same transaction, I think. If they do not, the defendant should have demurred, and by omitting to do so has waived the question.

Whether the count for detaining personal property can be maintained by these plaintiffs, two of them being defendants in certain of the warrants of attachment under which the defendant justifies his taking and detention of the property, is not so clear.

The plaintiffs demand a recovery of the property, and the defendant by his answer demands its return. It appears that the plaintiffs took the property under the provisional remedy for the claim and delivery of personal property. It is an action in the nature of replevin. The policy of the law forbids that property should be taken from its custody by any of the parties against whom the process in another action is to take effect. The court determines the right to its custody, in the action wherein its custody is held. The code requires the plaintiffs to swear that it has not been taken on execution or attachment against them. (§ 207, subd. 4.) Literally speaking, the attachments were not against the plaintiffs; but they were against some of the plaintiffs, and as the law required the sheriff to take the property into his custody on-the. attachments, the spirit of the section of the code above referred to must be considered to forbid the use of this remedy for the claim and delivery of property in such a case. The verdict is peculiar in such actions. (Code, § 261.) The jury are required to assess the value of the property, and when the verdict is for the defendant, that he is entitled to a return of it, if by his answer he has claimed its return. In my opinion, the cause of action mentioned in the first count can not be maintained.

[New York General Term, November 7, 1864.

The partners who are not debtors in the attachment must seek their remedy in equity. (Phillips v. Cook, 24 Wend. 389.)

Several questions were raised at the trial, as to the admission of evidence, but it is not necessary to examine them, as there must be a new trial for the reasons before given.

There should be a new trial, with costs to abide the event.