Douglass v. Douglass

88 U.S. 98

Opinion

Mr. Justice SWAYNE,

having stated the case, delivered the opinion of the court.

The exceptions taken by the defendant are all well taken. The central and controlling question in the ease is the effect of the seizure of the property by the marshal, and its tender to the plaintiff. He sued out the writ. It went into the hands of the marshal by his procurement. He was the actor in causing its issuance and service. The marshal acted for him. He cannot be permitted to play fast and loose with the process he invoked. The marshal’s possession was his possession. As soon as it was taken the efficacy of the bond touching the return of the property was at an end. The bond stipulated for the return of the property and nothing more in relation to it. We cannot interpolate what the contract does not contain. Our duty is to execute it as we find it, and not to make a new one.

The seizure and tender satisfied the judgment of return and the defendant’s obligation.

* Neither could be revived by the plaintiff’s refusal to receive the property. The refusal was of no legal consequence.

If the defendant injured the property, or culpably suffered it to become injured while it was in his possession, a remedy must be sought in some other appropriate proceeding. It cannot be had in a suit on the bond.

If no writ de retorno habendo had issued it would have been the duty of the defendant to seek the plaintiff and deliver the property to him if he would receive it. Had the defendant failed to do this, there would have been a breach of the bond and he would have been liable. The action taken by the plaintiff' obviated the necessity of his doing anything in that way.

The judgment is reversed, and the case remanded with directions to issue a venire de novo, and proceed

In conformity to this opinion.

Carrico v. Taylor, 3 Dana, 33.