Ferry v. Murata

26 Haw. 699, 1923 Haw. LEXIS 85

• Court: Hawaii Supreme Court
• Decided: January 4, 1923
• Docket: No. 1426
• Status: Published

Opinion

OPINION OF THE COURT BY

PERRY, J.

The plaintiff brought an action of assumpsit in the sum of $121.90 against the defendant, the theory of the declaration being that at a sale held by the sheriff under an execution issued in a judicial proceeding wherein The Bank of Bishop & Co. was the plaintiff and the Olaa Mutual Supply Co., Ltd., was the defendant the present plaintiff purchased certain books of account belonging to the execution defendant and also the accounts shown by said books to be due to the execution defendant from the present defendant. From the written decision filed by the magistrate it would appear, indirectly, that prior to judgment an attachment had been issued in the case of Bishop & Co. v. the Olaa Mutual Supply Co., Ltd. No copy, however, of the attachment or of the execution is made a part of the record on appeal nor is it made to appear from the record what acts the sheriff did by way of levying upon the books or the debts thereby evidenced. The return of the sheriff showing his acts under the execution and at the sale is not a part of the record.

Assuming, however, all that can otherwise be assumed in favor of tbe present plaintiff, tbe appeal from tbe judgment rendered by tbe magistrate in favor of tbe defendant cannot be sustained, for tbe reasons hereinafter stated.

Tbe claim of tbe Olaa Mutual Supply Co., Ltd., against Murata for tbe debt due by bim for goods sold and delivered to bim by tbe supply company was a cbose in action. It is well settled that at common law cboses in action were not subject to seizure and sale under execution and that this common law rule still prevails except where it lias been changed by statute. 1 Freeman on Executions, 3d Ed. Sec. 112; 6 C. J. 325; 11 A. & E. Ency. L. 623; 6 Ency. U. S. Reports 89; Van Ness v. Hyatt, 13 Pet. 294, 300. This rule of tbe common law of England is law in Hawaii (R. L., Sec. 1) unless it falls within one of tbe exceptions enumerated in that section. We know of no reason for regarding it as within one of tbe exceptions.

There is no statute in Hawaii modifying tbe rule of tbe common law. Tbe chapter on attachments (R. L., Cb. 156) contains a provision that “personal property, capable of manual delivery, shall be attached by taking tbe same into custody” and also provides a method for tbe levy of attachment upon stock in a corporation. It is silent as to any levy upon personal property not capable of manual delivery, such as tbe cbose in action now under consideration. Chapter 139, which deals, among other things, with executions generally, does indeed say in a form of execution contained in section 2447 that- tbe sheriff is commanded to levy upon “personal property” of tbe defendant but other provisions in tbe chapter indicate that not all kinds of personal property may be levied upon by execution. Section 2456 provides that “every levy by an officer, in pursuance of a writ of execution issued by any court or judge, shall be made by taking tbe property levied upon into bis possession, care and guardianship, and, in his option, by removal of tbe same to some place of security.” This language is not applicable to such a cbose in action as that now pursued by tbe plaintiff.

Plaintiff in person. Fred Patterson for defendant.

Tbe appeal, wbicb raises tbe points of law above considered and none other, cannot be sustained.-