[333]*333
By the Court,
Smith, J.
This is an appeal from a judgment of the circuit court of Jefferson county. The action was in replevin, or in the nature of replevin brought by the respondents against the appellant for the recovery of two horses, or a span of horses, alleged to have been taken on execution issued out of the district court of the United States upon a judgment rendered therein against the respondents, by the appellant, as deputy marshal, the respondents claiming the same as exempt from levy and sale under the exemption law of the State.
The first question presented by the pleadings in this case, is one which has, to a small extent, become the subject of judicial examination. It is well that it may now be settled for the future guide of executive officers, as well of the State courts, as of the district court of the United States; for it is very desirable that the executive officer of both courts have a rule of action in the premises upon which .they may rely as authoritative.
It is claimed in the answer of the appellant that the horses taken and held by him, were seized by virtue of an execution issued out of the district court of the United States, and hence were in the custody of the law. But how could they be in the custody of the law, unless the deputy marshal had a lawful right to take them into his custody ? The idea that an unlawful custody of property can be the custody of the law is simply absurd, not to say preposterous. How it can be imagined that a deputy marshal or any other executive officer of the district court of the United States can illegally seize the property of a citizen, property outside of, and beyond the purview of his writ, and yet claim to hold it in the custody of the law by virtue of such illegal seizure, is beyond comprehension. It may be asked, who shall decide whether his custody is lawful or not ? The answer is suggested by the statement [334]*334of the proposition, viz : any judicial tribunal competent to try the right or title to property, the claim to which may be disputed. If a constable having an execution issued by a justice of the peace upon a judgment in favor of A against B should seize the property of C to satisfy the same, would any one claim that he had C’s property in “ the custody of the law ?” The custody of the constable of property taken by virtue of legal process within the purview of his authority, is as much the custody of the law as that of a marshal of the U. S., or sheriff of the county. It is just such custody of the property seized, as is warranted by his writ. There is no such thing as an illegal custody of the law.
It would be easy to define, were it necessary, what is meant in the books and in legal parlance as “the custody of the law.” But until recently, I have never heard it claimed, that a deputy marshal or sheriff, armed with an execution against one particular person, could make a foray into a neighborhood or communical town and indiscriminately seize upon the property of the inhabitants, and justify his seizure and retention of the same by virtue of the cant phrase that they were “ in the custody of the law,” that he had the right to seize them, because they were going into “ the custody of the law,” that Ms custody is “ the custody of the law.” When property is lawfully taken, by virtue of legal process, it is in the custody of the law, and not otherwise. But it is monstrous to assume that the executive officer of any court can unlawfully seize property with or without process, no matter which, and then a claim can be set up that the custody which he may acquire, whether legal or not, is the custody of law, and hence sacred in his keeping, and to which he may arbitrarily apply the maxim, “noli me tangere.” That day has gone by. The writ in possession of the officer, by which he assumes to act, necessarily prescribes and defines his authority in the premises, from whatsoever court the same may have [335]*335been issued. Hence the custody of the law must necessarily be that, and that only which the officer had a right to assume over the specific property by virtue of the prescribed mandate contained in his writ It cannot be permitted, nor is it in conformity with any recognized principle of law or administrative jurisprudence, that a marshal or deputy marshal of the United States, armed with an execution or attachment against the goods and chatties of an individual citizen named therein, may ransack the whole State, seize upon the property of any other citizen, not named in his writ, dictated by malice, whim or caprice, or urged on by the [grasping or unscrupulous avarice of the judgment or attaching creditor, and having succeeded in acquiring his possession, claim that that possession of the property so acquired “ is the custody of the law.” It is obvious that such possession can be no legal custody, but that the same is tortious, and that the person aggrieved thereby is entitled to the same remedy in the law as for any other tortious act, and is at liberty to choose his forum the same as in other actions of tort; and we know of no principle of law, or of jurisprudence, or of judicial comity, which could require the party aggrieved by such tortious act to repair for his remedy to the court from which the process issued, and whose process had been transcended and abused.
It is deemed unnecessary to make any further remarks upon this branch of the case. We proceed now to examine the more difficult questions involved. From what we have already observed, it is apparent that the respondents had the right to bring their suit in the circuit court of Jefferson county ; in other words, that there was no such custody of the law of the property in question as required them to litigate their claim thereto in the district court of the United States, but that they were at liberty to do so in any court having jurisdiction of the parties and the subject matter.
This last branch of the case has reference to and depends [336]*336upon the proper construction to be given to our statutes of exemption.
After the evidence on both sides had been closed, the counsel for the defendant below asked the judge to charge the jury among other things, as follows:
“That the statute exempting a span of horses to the judgment debtors, does not go so far as to exempt a team which is partnership property from seizure and sale on execution against the firmand the said judge declined to so charge the jury, to which the said defendant, by his counsel, excepted.
I am free to admit, that on the examination at first, I was by some means misled as to the precise facts of this case, and have anxiously reviewed the facts, as set out in the record, together with the instructions of the court below, given thereon or demanded and refused. But, on the whole, I do not see that the legal state of the case is changed.
The first instruction asked, and above quoted, seems to be the principal cause of error alleged by the appellant.
The instruction asked for seems to be based upon the hypothesis that a team of horses which belongs to two men in partnership is not exempt from execution against the firm. Is this sound doctrine ? Section 6 of chapter 102 of the revised statutes of Wisconsin, 1849, exempts to the judgment debtor a span of horses from seizure and sale on execution.
Free access — add to your briefcase to read the full text and ask questions with AI
[333]*333
By the Court,
Smith, J.
This is an appeal from a judgment of the circuit court of Jefferson county. The action was in replevin, or in the nature of replevin brought by the respondents against the appellant for the recovery of two horses, or a span of horses, alleged to have been taken on execution issued out of the district court of the United States upon a judgment rendered therein against the respondents, by the appellant, as deputy marshal, the respondents claiming the same as exempt from levy and sale under the exemption law of the State.
The first question presented by the pleadings in this case, is one which has, to a small extent, become the subject of judicial examination. It is well that it may now be settled for the future guide of executive officers, as well of the State courts, as of the district court of the United States; for it is very desirable that the executive officer of both courts have a rule of action in the premises upon which .they may rely as authoritative.
It is claimed in the answer of the appellant that the horses taken and held by him, were seized by virtue of an execution issued out of the district court of the United States, and hence were in the custody of the law. But how could they be in the custody of the law, unless the deputy marshal had a lawful right to take them into his custody ? The idea that an unlawful custody of property can be the custody of the law is simply absurd, not to say preposterous. How it can be imagined that a deputy marshal or any other executive officer of the district court of the United States can illegally seize the property of a citizen, property outside of, and beyond the purview of his writ, and yet claim to hold it in the custody of the law by virtue of such illegal seizure, is beyond comprehension. It may be asked, who shall decide whether his custody is lawful or not ? The answer is suggested by the statement [334]*334of the proposition, viz : any judicial tribunal competent to try the right or title to property, the claim to which may be disputed. If a constable having an execution issued by a justice of the peace upon a judgment in favor of A against B should seize the property of C to satisfy the same, would any one claim that he had C’s property in “ the custody of the law ?” The custody of the constable of property taken by virtue of legal process within the purview of his authority, is as much the custody of the law as that of a marshal of the U. S., or sheriff of the county. It is just such custody of the property seized, as is warranted by his writ. There is no such thing as an illegal custody of the law.
It would be easy to define, were it necessary, what is meant in the books and in legal parlance as “the custody of the law.” But until recently, I have never heard it claimed, that a deputy marshal or sheriff, armed with an execution against one particular person, could make a foray into a neighborhood or communical town and indiscriminately seize upon the property of the inhabitants, and justify his seizure and retention of the same by virtue of the cant phrase that they were “ in the custody of the law,” that he had the right to seize them, because they were going into “ the custody of the law,” that Ms custody is “ the custody of the law.” When property is lawfully taken, by virtue of legal process, it is in the custody of the law, and not otherwise. But it is monstrous to assume that the executive officer of any court can unlawfully seize property with or without process, no matter which, and then a claim can be set up that the custody which he may acquire, whether legal or not, is the custody of law, and hence sacred in his keeping, and to which he may arbitrarily apply the maxim, “noli me tangere.” That day has gone by. The writ in possession of the officer, by which he assumes to act, necessarily prescribes and defines his authority in the premises, from whatsoever court the same may have [335]*335been issued. Hence the custody of the law must necessarily be that, and that only which the officer had a right to assume over the specific property by virtue of the prescribed mandate contained in his writ It cannot be permitted, nor is it in conformity with any recognized principle of law or administrative jurisprudence, that a marshal or deputy marshal of the United States, armed with an execution or attachment against the goods and chatties of an individual citizen named therein, may ransack the whole State, seize upon the property of any other citizen, not named in his writ, dictated by malice, whim or caprice, or urged on by the [grasping or unscrupulous avarice of the judgment or attaching creditor, and having succeeded in acquiring his possession, claim that that possession of the property so acquired “ is the custody of the law.” It is obvious that such possession can be no legal custody, but that the same is tortious, and that the person aggrieved thereby is entitled to the same remedy in the law as for any other tortious act, and is at liberty to choose his forum the same as in other actions of tort; and we know of no principle of law, or of jurisprudence, or of judicial comity, which could require the party aggrieved by such tortious act to repair for his remedy to the court from which the process issued, and whose process had been transcended and abused.
It is deemed unnecessary to make any further remarks upon this branch of the case. We proceed now to examine the more difficult questions involved. From what we have already observed, it is apparent that the respondents had the right to bring their suit in the circuit court of Jefferson county ; in other words, that there was no such custody of the law of the property in question as required them to litigate their claim thereto in the district court of the United States, but that they were at liberty to do so in any court having jurisdiction of the parties and the subject matter.
This last branch of the case has reference to and depends [336]*336upon the proper construction to be given to our statutes of exemption.
After the evidence on both sides had been closed, the counsel for the defendant below asked the judge to charge the jury among other things, as follows:
“That the statute exempting a span of horses to the judgment debtors, does not go so far as to exempt a team which is partnership property from seizure and sale on execution against the firmand the said judge declined to so charge the jury, to which the said defendant, by his counsel, excepted.
I am free to admit, that on the examination at first, I was by some means misled as to the precise facts of this case, and have anxiously reviewed the facts, as set out in the record, together with the instructions of the court below, given thereon or demanded and refused. But, on the whole, I do not see that the legal state of the case is changed.
The first instruction asked, and above quoted, seems to be the principal cause of error alleged by the appellant.
The instruction asked for seems to be based upon the hypothesis that a team of horses which belongs to two men in partnership is not exempt from execution against the firm. Is this sound doctrine ? Section 6 of chapter 102 of the revised statutes of Wisconsin, 1849, exempts to the judgment debtor a span of horses from seizure and sale on execution. If one of these partners had owned both the horses, would they not have been clearly exempt? Can the fact, therefore, that each one of the partners, or joint debtors in the execution, owned a moiety in each of the horses render such moiety liable to execution ? If the whole would be exempt in either, can the moieties be liable in both ? Does not the greater include the less in this as in other cases ?
We do not think it necessary that the judgment debtors should designate, point out, select or choose such articles of [337]*337personal property as are by statute specifically exempted. The officer is presumed to know the statute, and must obey it or not, at his peril.
There are other questions raised in the argument of this case, to discuss which at length would be interesting and instructive. But we think we have gone far enough to dispose of the merits of this appeal.
We perceive no substantial error in the record. The exemption laws are remedial and beneficent acts of legislation, and we are disposed to give them a liberal interpretation and to administer them in the benign spirit in which they were enacted. (See Maxwell vs. Reed, decided this last term.)
The judgment of the court below must therefore be affirmed with costs.