Churchill v. Warren

2 N.H. 298

Opinion

Woodbury, J.,

remarked, that, on authority, there seemed to be some doubt concerning the questions presented by this statement. Because the following cases appear to countenance an idea, that a mere seizure of property on execution divests the title of the debtor. 1 Mod. 30.-1 Levinz. 282.—1 Vent. 52.-6 Mod. 293.—Holt 646.—1 Salk. 323.-3 Salk. 159.—4 Mass. Rep. 403.—2 ditto 517.

But the observations in those cases upon this point are mostly obiter dicta ; and seem contradicted by other authorities. 16 East 274.—2 Equi. Cases Ab. 381.—14 Mass. Rep. 475.-4 East 523.-7 Mass. Rep. 506—9 ditto 105.—8 John. 520.—3 Camp. N. P. 347.—1 Brodwick & Bing. 370, Swain vs. Morland.—1 Barn. & Ald. 157, Lear vs. Edmunds.

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On principle, however, there can be no doubt, that the general property in the articles seized remains in the debtor till a sale by the officer, or, in other words, till u execution “ be done” or executed. Com. Di. Pleader 2.—W. 36.— and auths. Supra.—Cro. Ch. 328.

The sheriff, or debtor, acquires, by the mere seizure, only a special interest. Vide Supra.—2 Saund. 47.—5 Mass. Rep. 401.—Dyer 99, a 676.—1 Brown. 41.—Nay. 107.—1 N. H. Rep. 289, Poole vs. Symonds.

Hence it follows, that without a sale, or until a sale of the articles, the judgment is not satisfied. Because a debtor cannot pay a judgment with his property and still retain the title to it. And in Lear vs. Edmunds,(1) it is expressly laid down by Abbott, Ch. J., where goods had been seized on a distress for rent, that “ if the goods have been relinquished “ at the request of the party, then the distress could not 44 operate as a bar’ to an action for the rent.

It seems to be still clearer, that such a seizure and relinquishment of property by agreement of the parties, in an execution against one joint and several debtor, is no bar to a recovery against the other debtor. 2 Shower 394, Dyke vs. Mercer.—Cro. Ch. 75, Whiteacres vs. Hawkinson.

See an able note on the first point bj Mr. Metcalf, in Ayer vs. Aden Yelverton 44.

Judgment on the verdict.

18 John. 367.