Green v. Barker

| Conn. | Jul 15, 1841

Sherman, J.

The object of a replevin bond, given by one not party to the suit, who claims to be the owner of the property attached, is, to place the attaching creditor in as good a condition as he would have been, if his officer had continued in possession of the property. It is a security substituted for that which is taken away by the replevin. This is its only object. The plaintiff’s officer holds the property by virtue of the attachment, for no purpose but to apply it upon the execution, inpayment of the judgment which may be recovered, and the costs arising on the levy of the execution. The condition of the bond, as prescribed by the statute, is, “ to redeliver the goods and chattels so that they may be forthcoming to be taken hy an execution that may be granted in the suit on which they were attached, and on failure thereof, to pay the debt or damage that may be recovered in such suit.” Any event which divests the attaching officer of the power of holding them upon the attachment, equally divests the plaintiff of the right to claim them, by virtue of the bond. If, therefore, the action in which they are attached, is withdrawn or discontinued, the bond thereby becomes inoperative.

In the declaration and in the plea of the defendants, it is alleged, that Norman Graves died before the rendition judgrnent in the several causes in which this property was attached. By that event, the lien of the plaintiff would have ceased, if the property had remained in the possession of the constable. Upon the death of Graves, the whole of his personal estate became vested in his administrator, under a special trust, to be appropriated, after payment of funeral and other expenses, and the debts due the state, to all the creditors in equal proportion, and the surplus, if any, to the relatives of the deceased. Conventional liens, such as mortgages, pawns &c. are not affected, by the death of the debtor; but all liens by attachment are immediately dissolved. The administrator, after ascertaining the amount of the property, may exercise his discretion as to representing the estate insolvent. If he so represents it, the statute enacts, that a judgment creditor shall receive his average or proportion with the other creditors. That is ascertained by the court of probate. If there be no representation of insolvency, execution may issue against the goods or estate of the deceased in the hands of the administrator. He has it all; and the creditors and others interested are secured, by the bonds which he has given for the faithful discharge of his trust. If he fails to pay, upon demand made on an execution issued against the estate in his hands, or to turn out such estate to the officer; execution may be had against him de bonis propriis, on due process, unless he shews sufficient cause against it. Therefore, if the estate is insolvent, the property cannot be sold to pay the attaching creditor, because such appropriation would defeat the average; and if the estate is not insolvent, the lien by attachment is unnecessary, because ample security is provided by the bonds of the administrator.

Such being the law of this state, as expounded by long cotemporaneous usage, there can be no claim upon this bond, by the present plaintiff. The lien by virtue of the attachments, was dissolved, by the death of Norman Graves. Had the leather, then, been in the hands of the constable, it would at once have become the property of the administrator, and must have been delivered to him, if justly attached, as the property of the deceased debtor. By the replevin, the con. stable was absolved from all accountability to the administrator, because the property was taken from him, by legal -coercion. The plaintiff, therefore, could not claim the property for any purpose, after the deafti of Norman Graves.

But it is said, that the replevin suit has been withdrawn, and judgment thereupon actually rendered for the return of the property. That this judgment was before the debtor’s death, is to be presumed, as it could not be lawfully rendered afterwards; nor is there any issuable averment that it was after his death. Such a judgment rendered before the debt- or’s death, becomes inoperative, by the happening of that event. The goods are to be forthcoming to be taken on execution. On failure of redelivery pursuant to the judgment, the plaintiff in replevin is only to pay the debt or damages, and costs. The amount to be paid may not equal the hundredth part of the value of the goods. The judgment de retorno habendo cannot be enforced until after judgment in the suit in which the property was attached; for until then, the duty which it imposes is unknown, and, consequently, its performance is impossible. The judgment is conditional. If the property is redelivered to the officer, so as to be forthcoming on the execution, it is a compliance. But if, in any event, execution upon which the property can be taken, never issues; as in case of non-suit, discontinuance, payment, the debt- or’s death, or judgment in his favour; the judgment de retorno becomes inoperative, and by its own conditions, does not require the redelivery of the property. Had the plaintiff in this case sought relief by the more appropriate remedy of a scire-facias on that judgment, against the present defendants, the death of Graves before any judgment was rendered in the suits against him, as it dissolved the attachments, might be pleaded in bar of a recovery.

It is not necessary to decide other points in the case, as they cannot vary the conclusion to which we have arrived.

We advise that judgment be rendered for the defendants.

In this opinion the other Judges concurred, except Church, J., who was not present.

Judgment for the defendants.