22 F. Cas. 1112 | U.S. Circuit Court for the District of Indiana | 1844
This action is brought on a promissory' note given for goods purchased in New York. The defendants pleaded that under the law of New York, an attachment was issued, upon which goods sufficient to satisfy the debt in controversy were seized and detained, by means whereof the said goods were, and still are, wholly lost to the defendant. To this plea the plaintiffs demurred. It is objected that this plea is bad, because it does not set out the statute of New York, under which the attachment was issued. As the courts of the United States treat the statutes of the respective states as domestic and not as foreign laws, there is no necessity to plead or prove those laws, as laws of a foreign country. If attaching property to the amount of the debt demanded, be an absolute discharge of the debt, this plea is sustainable.
In the case of M’Intosh v. Chew, 1 Blackf. 290, the court say: “We take the law to be, that the plaintiffs, by levying their execution on the lands of the defendant, have elected to take the specific property as a pledge for the satisfaction of their whole debt; and while it is held by them for that purpose, it is, for the time, presumed to be a satisfaction.” In Hoyt v. Hudson, 12 Johns. 207, the court held: “When an officer under an execution, has once levied upon the property of the defendant, sufficient to satisfy the execution, he cannot make a second levy.” In the case of Clerk v. Withers, 2 Ld. Raym. 1072, it was ruled, that when a defendant’s goods are seized on a fieri facias, the defendant is discharged. And in the case of Ladd v. Blount, 4 Mass. 403, it was expressly decided, that when goods sufficient to satisfy an execution are raised on a fieri facias, the debtor is discharged, even if the sheriff waste the goods or misapply the money. In Jenner v. Joliffe, 9 Johns. 384, it was said: “If an officer have an authority to attach a man’s goods, keep them in an unsafe place, or expose them to destruction, he acts contrary to the duty of his office.” And in the same case, 6 Johns. 16, the court say: “If the loss of the timber happened while it was held under the attachment, and without the negligence of the officer, the defendant (at whose instance the attachment was issued) ought not to be responsible for it.” And Mr. Justice Story, in his work on Bailment, says (section 128): “The officer, who has laid the attachment upon goods is considered as having the custody thereof as long as the attachment continues; and if he delivers them over to the bailee or to the debt- or, and a loss ensues, he will be liable to the creditor, and the loss of the property is at his peril.”
The laying of an attachment does not change the title to the property attached. The right of property remains in the defendant, subject to the lien of the attachment. And it is supposed that the effect is the same on the levy of an execution. In both cases,
On motion, leave given to amend the plea.