for negligence he must not only show the negligence, but Q1ustalso show that damage resulted to him from such negligence; .and taking this petition in all its parts it does not show that the lOBS of the debt of the plaintiff was the result of the. negligence of the defendant. To do this it must be shown that if the case had been properly taken to the supreme eourt, that that court would have reversed the decision of the district court, and this does not appear either from. the allegations of the petition, or. as & conclusion of law, from the facts therein stated. The demurrer must therefore be sustained.
ADLER, GOLDMAN & CO. v. ROTH, Defendant, and SHA.PLEIGH & Co., In'tervenors.
. (OirlJuit Oourt, E. D. Arkansas. - - , 1881.)
1. ATTACIWENT-LEVY-PERSONAL PROPERTY.
constitute and preserve an attachment of personal property capable of manual delivery, the officer must take the property into custody and continue in the actual possession of it, by himself, or by an· agent appointed by him for that purpose. 2.
Where writs of attachment issue from a federal and state coun against the sarne defendant, the one under which the property is tirst actually taken into custody has priority, without regard to the date of the respective writs, and a United States marshal and sheri1I can. not make a joint or partnership levy, nor can one of these officers make a levy to the prior levy of the other.
Oaldwell Bradshaw, for intervenors. Oohn et Oohn and Eben W. Kimball, for Adler, Goldman & Co. N. et J. Erb, for E. Roth. CA.LDWELL, D. J. On the twenty-sixth of November, 1880, Adler, Goldman & Co. sued out of this court a writ of attachment against the property of E. Roth, and placed the Bame in the marshal's hands for service. On the same day Shapleigh & Co. sued out alike writ against the same defendant, before a justice of the peace, and placed it in the hands of a deputy sheriff for service. The plaintiffs in the last writ petition·for
an order:requiring the marshal to release 12 wagons and 18 barrels of salt from the levy of the writ in his hands, and turn the same over to the custody of the deputy sheriff, upon the ground that the latter officer executed the first attachment on the same. The petition is contested by the other attaching creditors and the defendant in the writs. The writs of attachment in the hands of the marshal and deputy sheriff respectively have been introduced in evidence. The returns on both writs show on their face a valid levy. From the face of the returns it appears the marshal levied on the property at 5 o'clock P. M., and that the deputy sheriff levied on the same property at 6: 30 o'clock P. M. of the same day. Each officer testifies to the correctness of his return, and the deputy sheriff testifies that he made his levy nearly aJ;l hour before the arrival of the train which brought the deput.y marshal to the town where the property was found. In the view taken of the case it is not necessary to determine which one of these officers is right in his recollection as to the time he cast a furtive glanM after night on the property. It turns out that neither of them kn13w what constituted a valid leyyof a writ of attachment on personal property, and neither of them made an effectual levy on the night in question, whether the property be regarded as capable of manual delivery or otherwise. The deputy sheriff testifies that the property was on an unenclosed lot in the rear of the storehouse of the defendant in the attachment; that it was dark at the time he went where the property was found; that no one was in the storehouse or about the premises; that the storehouse was locked and the key in the possession of the deputy marshal, but not the deputy who aftel'wards levied the writ on the wagons and salt; that by the light of a burning match he ascertained the maker's name on the wagons and went away, and afterwards indorsed his return upon the writ. He did not take the property into his custody, or remove it, or put it in the custody of anyone, or procure a receiptor for it. He did not even have the agreement of the debtor that it might remain where it was without interference. He did absolutely nothing but go
ADLER V. BOTH.
to the place where the property wail and look upon it by the, light of a burning match, and, then go away, leavingii in the open lot where he found it, and where it was afterwards found and levied upon by the marshal. The Code provides that the officer shall execute the order of a;ttachment "upon: personal property, capable of manual delivery, by taking it into his custody and holding it, subject to the order of the court. Upon other personal property by delivering a copy of the order, with 'a notice specifying the property attached to the person holding the same." Section 899, Gantt's 'Dig. These provisions only formulate the previously well-settled ru1es or law on this subject. The "custody and holding" l'equired in the case of property captJ,ble of manual delivery is actual and real, not ideal or constructive. ,The officer's indorsement on the writ that he has levied ,oli tpe property and taken it into his custody amou,nts to nothing if he has not in fact done so. ,. He must obtain the power and control over it, and take it out of the power,and control of the debtor. The object of a writ of attachment is to take the property out of the debtor's possession and transfer it into the custody of the law for the security of the plaintiff. Hollister v. Goodale, 8 Conn. 832. The authorities are, uniform that to constitute and preserve an attachment of personal property, oapable of manual delivery, the officer must take the property into custody, and continue in the actual possession of it by himself or an agent appointed by him for that purpose. If to do this it is necessary to remove the property, then it must be removed. Where the debtor is divested of his possession and control, and the officer or his agent is in the. actual custody of the property, it may remain in the place where it is found. But.if a removal is necessary in order to retain possession, it is the duty of . the officer to remove it; and the fact that the removal will be attended with some inconvenience does not furnish an excuse for a neglect to retain possession. Chadbume v. Sumner, 16 N. H. 129; Miller v. Camp, 14 Conn, 219; Gower v. Stevens, 19 Me. 92;, Lane v. Jackson, 5 Mass. 157; Gale v. Ward, 14: Mass. 35G; Odinrne v. Colley, 2 N. H. 66; Huntington v. v.5,no.10-57
Blairdell, Id. 317; Butterfield v. Olemence, 10 Cush. 269; Orou!jorv. NeweU, 23 Iowa, 453. The wagons and salt in question were capable of manual delivery. They were the property of the defendant in the writs, on: his premises, and in his possession. The deputy sheriff did nothing whatever to divest or ohange this possession,or prevent the attachment of the property by any other officer. In the first instance the levy m'ade by the marshal was no than that made by the deputy sheriff,but afterwards, and:before the deputy sheriff had taken or attempted to take the actual custody of the property, the marshal perfe(lted his levy by taking actual possession, and now has the property in his custody. It is needless to inquire whether the writ from this or the magistrate's court was first issued. The'rule is well settled that, in 'case of such writs issuing from a federal and state' court against the same defendant" the writ under which the property is first actually taken into custody has priority, without regard to the date of the respective writs. The usual statutory provision' that an execution or writ of attachment shall be a lien upon or bind the property of the defendant in the writ from the time it comes to the hands of the officer, has no operation in such cases. In the case at bar neither the marshal nor the deputy sheriff had the least priority of right .until one had acquired it by a prior valid levy. The possession under such a levy is notice of the attachment, and prevents a second attachment, and all conflict of jurisdiction. Nor can the marshal of this court and a sheriff make a joint or partnership levy on the r3ame property, nor can one of these officers make a levy sub. ject to the prior levy of the other. They act under authority of different governments, and each must make his return and account to the court of which he is an officer. Any effort to mingle their powers and authority would lead to confusion, and tend' to bring about conflicts between the courts of the two governments and their officers. To avoid these results the rule is inflexible that property cannot be the subject of levy under writs issuing from a federal and state court at the same time. The first actual seizure,
INRE AH LEE.
whethAr under the' federal or state authority, withdraws the proptlrty frOlu the reach of the process of the other. Hagan v. Lewis, 10 Pet. 400; Brown v. Clark, 4 How. 4 ; Pulliam v. Ofioorne, 11 How. 471; Taylor v. Oaryl, 20 How. 583; Foz T. Hempjield R. 00. 2 Abb. U. S. 151; Jo!msofl,V. Billhop, 1 Woolw. 324; S. C. 8 Bank Reg. 533. Petition dismissed.
(District Court, D. Oregon. April 19, 1880.)
The national courts have jurisdiction to relieve any person from imprisonment under color of the authority of a state, without due process' of law, contrary to the amendment. S. DUE PROCESS OF LAw. A person imprisoned under a valid law, although there is error in the proceeding resulting in the commitment, is not imprisoned with· out due process of law, contrary to the fourteenth amendment. 8. DE F A.CTO OFFICER. A person in office by color of right is an officer de facto, and hil acts as such are valid and binding as to third persons; and an unconstitutional act is sufficient to give such color to an appointment to office thereunder.
" SAME. The constitution of Oregon authorizes the legislature, when the population of the state equals 200,000, to provide by election for separate judges of the supreme and circuit courts. On October 17, 1878, the legislature passed an act providing for the electIOn of such judges at the general election in June, 1880, and also that the governor should appoint such judges in the meantime, which was done. Held, that admitting such act was unconstitutional, because the population of the state was less than 200,000, and that the appointments by the governor were therefore invalid, and also because the constitution only authorized the selection of such judges by election, still the persons so appointed under the act, and performing the duties of the judges of said courts, were judges defacto, and a person imprisoned under a judgment given in one of them, convicting him of a crime, is not thereby deprived of his liberty without due process of law, contrary to the fourteenth amendment.