Pierson vs. Hovey and Hibbard

Pierson vs. Hovey and Hibbard. Chittenden, August, 1791. if an execution be levied on personal proper*?, and by the officer making the levy delivered to a third person, for safe keeping, on a receipt containing an engagement to re deliver the property to the officer, the officer does not thereby part with his lien on the property, but may take it into his possession at any time. And if the property thus receipted be eloigned by the debtor or ipiurned into iiis possession, and on demand made by the officer having the execution, be refuse to turn out property, to satisfy the execution, the officer may lawfully commit the body of the debtor to prison on such execution. THIS was an action on a Sheriff’s bond for liberty of the prison, and assigned to the plaintiff, the creditor. Plea — Duress of imprisonment and traverse. The substance of the evidence was, that the plaintiff had recovered a judgment against Hovey, for £l7 — took out execution and delivered it to Grant, Constable of Charlotte, who took Hovey’s cat-tie, posted and delivered them on receipt to Strong, who left them in Hovey’s custody. The cattle were not brought to the post, but were eloigned by Hovey. The plaintiff had the execution returned without being satisfied, and took an alias which he delivered to Rich, then Constable of Charlotte. Rich made a demand of Hovey who refused to turnout any property; whereupon Rich took Hovey’s body, and committed him to gaol in Rutland, according to the precept of the writ, on which this bond was given, &c. It was insisted by the defendant’s counsel, that this imprisonment was illegal; that property having been once taken in execution, that execution was as to Hovey discharged. [MAJORITY — Chipman, Ch. J.,] Chipman, Ch. J., gave the following in charge to the Jury: The property was not in fact, taken out of Hovey’s custody, but was left in his hands, (although receipted by a third person) and was by him eloigned. Had the property in fact remained in the hands of the officer, it might have had a different consideration. Had that proved insufficient, a second levy might have been made, either with the same execution, or an alias. I do not apprehend, if an officer take property on an execution, which proves insufficient, or the property of another, he is precluded from levying on the body; or, by direction of the creditor, on land for the remainder. On a ca. sa. in case an escape or rescue be returned, a new capías may be taken out; for, “ an insufficient return is as none.”— The officer had taken the cattle, so far as to have a lien upon them, for the satisfaction of the execution. On receipt, I do not consider that the officer wholly parts with that lien, and trusts to the receipt only. The property is delivered out of his actual custody, for the convenience of the defendant. The officer is therefore less secure of tire property, but his lien still continues. He may take it without the leave of the person receipting. As the property is out of the actual custody of the officer, to eloign it would not, in strictness, be a rescue; but to some purposes,, as in the present case, might have the same effect, to render the execution ineffectual. Verdict for the defendant.