SECTION 2.

PROPERTY AND INTERESTS SUBJECT
TO EXECUTION

MACK v. PARKS

SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1857

74 Mass. 517

Action of tort for taking the plaintiff's watch from his person and carrying it away, and converting it to the defendant's use. The question whether the taking was lawful was submitted to the decision of the court upon the following facts:

The defendant was a deputy sheriff and acting in his official capacity at the time of the tort alleged. While the plaintiff and one or two others were in a shop, talking about watches, the defendant came in, and joined in the conversation. In the course of it the plaintiff took the defendant's watch into his hands to compare its weight with that of his own, and then handed both to the defendant. The defendant then (still holding the plaintiff's watch in his hand) told the plaintiff that he had a writ against him and must attach his watch, and asked him to take it off, it being connected to his person by a silk band which passed about his neck. The plaintiff refused to take it off; upon which the defendant severed the band at the place where it was sewed together, and took the watch; and afterward, before the beginning of this suit, tendered to the plaintiff the value of the silk band.18

BIGELOW, J. It seems to be perfectly well settled at common law, that chattels in the actual possession and use of a debtor can not be taken or distrained. It is laid down in Co. Lit. 47a, that "although it be of valuable property, as a horse, etc., yet when a man or woman is riding on him, or an axe in a man's hand cutting of wood and the like, they are for that time privileged and can not be distrained." So "if nets are in the hands of a man, they can not be distrained any more than a horse on which a man is." Hargrave's note 294. S. P. Read v. Burley, Cro. Eliz. 539, 596.19

The arguments of counsel and part of the opinion of the court are omitted.

"Accord: Storey v. Robinson, 6 T. R. 138 (1795). But in State ex rel. Rogers v. Dilliard, 3 Ired. (N. Car.) 102, 38 Am. Dec. 708 (1842) it was said that a horse although ridden by its owner, could be levied on and that it was the duty of the party to surrender the horse to the officer. In Bell v. Douglass, 1 Yerg. (Tenn.) 397 (1830), tools of a mechanic in use were held subject to levy. In Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492 (1860), a levy upon a bag of gold, which the debtor was carrying along the street, was sustained as not tortious. Field, C. J, said: "The coin was contained in a bag, which was held by the plaintiff in his hand, and from its seizure thus situated the plaintiff could not claim any exemption, as he might, perhaps, do in reference to money upon his person. Thus situated it was like a horse held by its bridle, subject to seizure under execution against its owner."

In Moorman v. Quick, 20 Ind. 67 (1863), the sheriff levied on money as it was being counted out to the debtor at a bank in payment of a check.

1920

In the leading case of Simpson v. Hartopp, Willes, 512, which Mr. Justice Buller says (4 T. R. 568) is "of great authority because it was twice argued at the bar, and Lord Chief Justice Willes took infinite pains to trace with accuracy those things which are privileged from distress," it is distinctly adjudged that things in actual use can not be taken or distrained; and the reason given is, that an attempt to distrain such articles would lead to a breach of the peace. In the modern case of Sunbolf v. Alford, 3 M. & W. 253, it is laid down as well settled law, that "goods in the actual possession and use of the debtor can not be distrained"; "a man's clothes can not be taken off his back in execution of a fieri facias.' The main ground on which these and other authorities rest is, that it would tend directly to a collision and breach of the peace, if articles thus situated were allowed to be taken from the hands of a debtor. Gorton v. Falkner, 4 T. R. 565; Storey v. Robinson, 6 T. R. 139; Adames v. Field, 12 Ad. & El. 649, and 4 P. & Dav. 504. Com. Dig. Distress, C. Gilbert on Distresses, 43. There are many articles of personal property, subject to attachment under our laws and usages, which could not have been distrained or taken at common law under the rule as stated in the earliest authorities. Potter v. Hall, 3 Pick. (Mass.) 368. But in the absence of any proof of usage or custom in this state, from which it might be inferred that a different rule of law has ever been adopted, the present case falls within the principles on which the English authorities rest, and must be governed by them.

The watch, at the time it was taken by the defendant, was in the plaintiff's actual possession and use, worn as part of his dress or apparel, and was severed from his person by force. Such an act, if permitted, would tend quite as directly to a breach of the peace as to take from a man the horse on which he was riding, or the axe with which he was felling a tree. It is indeed a more gross violation of the sanctity of the person, and tends to a greater

Held, that there was not such a title in the money in the debtor as would, previous to its delivery to him, enable the sheriff to seize it. Accord: Richards v. Heger, 122 Mo. App. 512, 99 S. W. 802 (1907). See also Courtoy v. Vincent, 15 Beav. 486 (1852); Bindon's Case, Moores (K. B.) 214 (1585) Arguendo.

20In Hardistey and Barney, Comb. 356 (1695), it is said, per Holt, C. J.: "Upon a fieri facias the sheriff may take any thing but wearing clothes; nay, if the party hath two gowns, he may take one of them." In Cooke v. Gibbs, 3 Mass. 193 (1807), it is said, per Parsons, C. J., “a fieri facias at common law is issued against the goods and chattels of the debtor without any exception; but if the sheriff were to strip the debtor's wearing apparel from his body, he would be a trespasser, for such apparel when worn, is not liable to the execution." In Bumpus v. Maynard, 38 Barb. (N. Y.) 626 (1861), it was held that the sheriff was not liable for failure to seize on execution the necessary wearing apparel of the judgment debtor who was in bed at the time of levy.

By statute in many jurisdictions wearing apparel is exempt from execution. Bowne v. Witt, 19 Wend. (N. Y.) 475 (1838); Frazier v. Barnum, 19 N. J. Eq. 316, 97 Am. Dec. 666 (1868). Jewelry may be so classed but debtors will not be permitted to invest large sums in articles of personal adornment and by wearing them, defraud their creditors. In re Gemmel, 155 Fed. 551 (1907); In re Evans & Co., 158 Fed. 153 (1907); In re Leech, 171 Fed. 622 (1909).

aggravation of the feelings of the debtor. Nor would it be practicable to place any limit to the exercise of such a right. If allowed. at all, it must extend to every article of value usually worn or carried about the person; if an officer can sever a silken cord, he may likewise break a metalic chain; if he can seize and take a watch, so he may wrest a breastpin or earring from the person, or thrust his hand into the pocket and carry off money; he may, in short, resort to any act of force necessary to enable him to attach property in the personal custody of the debtor. It is obvious that such a doctrine would lead to consequences most dangerous to the good order and peace of society.

It is no answer to this action, that the defendant tendered to the plaintiff the value of the cord by which the watch was attached to the person, or that the watch itself, detached from the person, was subject to attachment.21 The wrong consists in having taken an article from the person of the plaintiff, which was at the time by law exempted from attachment. The mode in which it was done is wholly immaterial. He is liable for the value of the watch, being a trespasser ab initio. "No lawful thing, founded on a wrongful act, can be supported." Luttin v. Benin, 11 Mod. 50; Ilsley v. Nichols, 12 Pick. (Mass.) 270. The watch, although liable to attachment if it had been taken by the defendant when not connected with the person of the plaintiff, was wrongfully seized and can not now be held under attachment.

Judgment for the plaintiff.22

"In Deposit Nat. Bank v. Wickham, 44 How. Pr. (N. Y.) 421 (1873), the defendant, the judgment debtor, while under supplementary proceedings, in which he was restrained from disposing of his property, handed his watch to his attorney as a fee for services to be rendered; for this he was adjudged guilty of contempt and directed to be imprisoned. In Frazier v. Barnum, 19 N. J. Eq. 316, 97 Am. Dec. 666 (1868), in proceedings in equity for the examination of the judgment debtor it was disclosed that the defendant was in possession of jewelry worth $300. The chancellor said: "The rings and jewelry are not wearing apparel, and must be given up to the complainant to satisfy his debt. Being articles generally worn on the person, it may be out of the power of the sheriff to levy on, or take possession of them, but a receiver will be appointed in this cause, and an order made to deliver them to him."

22So, also, property taken from the person of a prisoner upon his arrest, whether upon criminal or civil process, is not subject to levy. Robinson v. Howard, 61 Mass. 257 (1851); Morris v. Penniman, 80 Mass. 220, 74 Am. Dec. 675 (1859); Davies v. Gallagher, 17 Phila. (Pa.) 229 (1883); Commercial Exchange Bank v. McLeod, 65 Iowa 665, 19 N. W. 329, 22 N. W. 919, 54 Am. Rep. 36 (1885); Dahms v. Sears, 13 Ore. 47, II Pac. 891 (1885); Richardson v. Anderson, 4 White & Wilson's Civil Cases Court of Appeals (Tex.), § 286, 18 S. W. 195 (1892); Connolly v. Thurber Whyland Co., 92 Ga. 651, 18 S. E. 1004 (1893); Holker v. Hennessey, 141 Mo. 527, 42 S. W. 1090, 39 L. R. A. 165, 64 Am. St. 524 (1897); Hill v. Hatch, 99 Tenn. 39, 41 S. W. 349, 63 Am. St. 822 (1897); Hubbard v. Garner, 115 Mich. 406, 73 N. W. 390, 69 Am. St. 580 (1897). Contra: Ex parte Hurn, 92 Ala. 102, 9 So. 515, 13 L. R. A. 120, 25 Am. St. 23 (1890); Closson v. Morrison, 47 N. H. 482, 93 Am. Dec. 459 (1867), in the absence of bad faith; Reifsnyder v. Lee, 44 Iowa 101, 24 Am. Rep. 733 (1876); Byrne v. Byrne, 89 Wis. 659, 62 N. W. 413 (1895), where the action against the prisoner was by the person who suffered the loss of the property.

"The general rule of law is that all chattels, the property of the debtor,

TURNER V. FENDALL

661

TURNER v. FENDALL

SUPREME COURT OF THE UNITED STATES, 1801

I Cr. (U. S.) 117

Error to the Circuit Court of the District of Columbia. The plaintiff in error and defendant below had been sergeants of the town of Alexandria and had returned on a writ of fieri facias, issued on a judgment rendered by the Court of Hustings in favor of Philip Richard Fendall, that he had made the debt, but had levied thereon a writ of fieri facias on a judgment against Young and Fendall trading as Robert Young & Co. Before the next succeeding term the Hustings Court was abolished and its powers transferred to the circuit court. Fendall moved for and obtained judgment against Turner for failure to pay him the amount levied on his writ. Turner brought error.2

23

MARSHALL, C. J.: Two questions have been made at the bar. (1) Can an execution be levied on money? (2) Can it be levied on money in the hands of the officer?

The principle that an execution can not be levied on money has been argued to be maintainable under the authority of adjudged cases, and under the letter and meaning of the act of the Virginia legislature on the subject of executions. Yet no such case has been adduced. Lord Mansfield, in the case cited from Douglas 219, said "he believed there were old cases where it had been held that the sheriff could not take money in execution even though he found it in the defendant's scrutoir, and that a quaint reason was given for it, viz., that money could not be sold," and it is believed that there may be such cases, but certainly there are cases in which the contrary doctrine has been held. In 2 Shower 166, it is laid down expressly that money may be taken on a levari facias, and no difference in this respect is perceived between the two sorts of execution. In Dalton's Sheriff 145, it is also stated in terms that money may be taken in execution on a fieri facias. The court can perceive may be taken in execution, and whenever an officer has it in his power to satisfy an execution in his hands, it is his duty to do so, and if he omits to perform his duty he must be accountable to those who may be injured by the omission." Per Marshall, C. J., in Turner v. Fendall, 1 Cranch. 117 (1801). See also Fleetwood's Case, 8 Coke 340 (1610); Francis and Nash, Temp. Hard. 53 (1733); Henson v. Edwards, 10 Ired. (N. Car.) 43 (1849); Stief v. Hart, 1 N. Y. 20, 4 How Pr. (N. Y.) 223 (1847); Knox v. Hunt, 18 Mo. 243 (1853). In Oystead v. Shed, 12 Mass. 505 (1815), it was held that private papers and account books were not goods and chattels that could be sold on execution. So also manuscripts. Dart v. Woodhouse, 40 Mich. 399, 29 Am. Rep. 544 (1879). Contra: Washington Bank v. Fidelity Abstract Co., 15 Wash. 487 (1896) and see Banker v. Caldwell, 3 Minn. (Gil. 46) 94 (1859). As to intoxicating liquors see Hines v. Stahal, 79 Kans. 88, 99 Pac. 273, 131 Am. St. 280 20 L. R. A., N. S., 1118 (1908) and note.

"The facts arc abridged and only extracts from the opinion of the court printed.

no reason in the nature of things why an execution should not be levied on money.24

But has money not yet paid to the creditor become his property? That is, although his title to the sum levied may be complete, has he the actual legal ownership of the specific pieces of coin which the officer may have received? On principle the court conceives that he has not this ownership. The judgment to be satisfied is for a certain sum, not for the specific pieces which constitute that sum, and the claim of the creditor on the sheriff seems to be of the same nature with his claim under the judgment, and one which may be satisfied in the same manner. No right would exist to pursue the specific pieces received by the officer, although they should even have an earmark; and an action of debt not of detinue, may be brought against him if he fails to pay over the sum received, or converts it to his own use. It seems to the court that a right to specific pieces of money can only be acquired by obtaining the legal or actual possession of them, and until this is done there can be no such absolute ownership as that an execution may be levied on them. A right to a sum of money in the hands of a sheriff can no more be seized than a right to a sum of money in the hands of any other person, and however wise or just it may be to give such a remedy, the law does not appear yet to have given it.25

24Accord: King v. Webb, 2 Show. 166 (1681); Armistead v. Philpot, I Dougl. 231 (1779); Brooks v. Thompson, 1 Root (Conn.) 116 (1790); Handy v. Dobbin, 12 Johns. (N. Y.) 220 (1815); Holmes v. Nuncaster, 12 Johns. (N. Y.) 395 (1815); Summers v. Caldwell, 2 N. & McC. (S. Car.) 341 (1820); Spencer v. Blaisdell, 4 N. H. 198, 17 Am. Dec. 412 (1827); Sheldon v. Root, 33 Mass. (16 Pick.) 567, 28 Am. Dec. 266 (1835); Herron's Appeal, 29 Pa. St. 240 (1857); Klinefelter Bros. v. W'hann, 2 Chest. Co. (Pa.) 376 (1884); Noble v. Kelly, 40 N. Y. 415 (1869); Sullivan v. Tinker, 140 Pa. St. 35, 21 Atl. 247 (1891); Exchange Nat. Bank of Montgomery v. Stewart, 158 Ala. 218, 48 So. 487 (1909). See Pa. Act of June 16, 1836, P. L. 755, §§ 24, 25; New York Code Civ. Proc., § 1410.

25 Accord: Ross v. Clarke, I Dall. (U. S.) 354, I L. ed. 173 (1788); Wilder v. Bailey, 3 Mass. 289 (1807); Knight v. Criddle, 9 East 48 (1807); Dawson v. Holcomb, 1 Ohio 275, 13 Am. Dec. 618 (1824); Dubois v. Dubois, 6 Cow. (N. Y.) 494 (1826); Prentiss v. Bliss, 4 Vt. 513, 24 Am. Dec. 631 (1832); Thompson v. Brown, 34 Mass. (17 Pick.) 462 (1835); Masters v. Stanley, 8 Dowl. 169 (1840); Reddick v. Smith, 4 Ill. (3 Scam.) 451 (1842); Collingridge v. Paxton, 11 C. B. 683 (1851); Clymer v. Willis, 3 Cal. 363, 58 Am. Dec. 414 (1853); Muscott v. Woolworth, 14 How. Pr. (N. Y.) 477 (1857); Sibert v. Humphries, 4 Ind. 481 (1853); Baker v. Kenworthy, 41 N. Y. 215 (1869); State v. Taylor, 56 Mo. 492 (1874); Hardy v. Tilton, 68 Maine 195, 28 Am. Rep. 34 (1878); Smith v. McMillan, 84 N. Car. 593 (1881); Manly v. McCarty, 5 N. J. L. 218 (1882). Contra: Dolby v. Mullins, 3 Humph. (Tenn.) 437, 39 Am. Dec. 180 (1842); New Haven Steam Saw Mill Co. v. Fowler, 28 Conn. 103 (1859); Mann v. Kelsey, 71 Tex. 609, 12 S. W. 43, 10 Am. St. 800 (1888), and compare Harding v. Stevenson, 6 H. & J. (Md.) 264 (1824); Crane v. Freese, 16 N. J. L. 305 (1838).

The principle has been applied to a surplus remaining in the sheriff's hands after satisfaction of a prior execution. Fieldhouse v. Croft, 4 East 510 (1804); Willows v. Ball, 2 B. & P. (N. S.) 376 (1806); Harrison v. Paynter, 6 M. & W. 387 (1840); Wood v. Wood, 4 Ad. & El. (N. S.) 397 (1843). But the weight of authority is contra. Jaquett v. Palmer, 2 Harr. (Del.) 144 (1836); King v. Moore, 6 Ala. 160, 41 Am. Dec. 44 (1844); Langdon v. Lockett, 6 Ala. 727, 41 Am. Dec. 78 (1844); Pierce v. Carleton, 12 Ill.