Kirk v. Morris

¶1Goods or chattels taken in attachment, in this State, may be replevied by the defendant, “or, in Ms absence, by a stranger.” — Code, § 2536. Who is a “stranger ”, within the meaning of this section of the Code? In determining this question, we will briefly notice the previous legislation on the subject.

¶2Prior to the adoption of Aiken’s Digest, the replevin bond in attachment cases was a mere bail bond, required to be payable to the sheriff, and to be assigned by him to the plaintiff; and in suits for the recovery of sums exceeding the jurisdiction of justices of the peace, even in the case of an absconding debtor, it was required to be executed by the defendant, his agent, attorney, or factor. — Adkins v. Allen, 1 Stew. 130; Sartin v. Weir, 3 Stew. & Port. 121; Cummins v. Gray, 4 Stew. & Port. 397; Sewell v. Franklin, 2 Port. 493. By section 11, page 40, of Aiken’s Digest, which was adopted in 1833, it was declared, that the prop*229erty should remain in the custody of the officer, “unless the defendant, his or her agent or attorney, or some other person, replevy the same by giving bond ”, &c. — Kinney v. Mallory, 3 Ala. 626. In the section of the Code above cited, the word “stranger ” was substituted for the words “or some other person”, as found in Aiken’s Digest. Both were intended, however, to mean the same thing, namely, a person not a party to the suit, who acts for the benefit of the defendant in attachment. This right was doubtless given to a stranger, to remedy the inconvenience and hardship which might result to the defendant, from a levy upon his goods in his absence, when he could have no opportunity of replevying them himself.

¶3* What are the rights of a defendant, as to his property taken in attachment, when it has been replevied by a stranger ? It has been the settled law of this State, for a period of more than thirty years, that the levy of an attachment creates a lien in favor of the attaching creditor, which can not be divested by the replevying of the property; and that when attached, it is in the custody of the law, to abide the judgment in the particular case. — McRae & Augustin v. McLean, 3 Porter, 138; Pond v. Griffin, 1 Ala. 678; Rives & Owen v. Wilborne, 6 Ala. 48. The law, as thus declared, was not changed by the adoption of the Code; on the contrary, sections 2539 and 2470 evidently contemplated such to be the law. It is well settled, also, that by the replevying of the property, the defendant, pending the suit, has the right of possession, though his custody is, for the time, • the custody of the sheriff. “ The two interests may well exist together : the one respects the right, the other the possession, of the property.” — McRae & Augustin v. McLean, supra.

¶4In providing for a replevy by a stranger, it was not the intention of the legislature to restrict or impair the defendant’s right as to the possession of the property, when replevied; otherwise there would be the anomaly in the law of a remedial statute perpetrating injury and oppression upon those whom it was intended to benefit. The term “replevy” means, “to redeliver goods which have been distrained, to the original possessor of them, on his giving *230pledges”, &c. — 2 Bouvier’s Law Dic. 450. And when words are used in a statute which have a fixed and definite meaning at common law, the inference is, that they were intended to be used in their common-law sense. — Ex parte Vincent, 26 Ala. 145.

¶5When property attached has been replevied by a stranger, the defendant has the right to demand of the stranger the possession of it; and on such demand being made, it is the duty of the stranger, either to restore the property to the defendant, or to return it to the sheriff. In the latter event, the defendant may exercise the right of replevying it himself; and in neither event will the right of possession, given by the law to the defendant, be abridged or impaired. No valid*objection can exist, in such case, to the return of the property to the sheriff, by the stranger, in the discharge of his bond, should he elect to' pursue that course; and it is believed to be sanctioned by authority.— McRae & Augustin v. McLean, supra. The stranger, as to the possession of the property after he has replevied it, stands as a bailee for the defendant, without reward; he is a depositary who is to keep the property with the ordinary care applicable to the case under the circumstances, and who cannot make use of the property without the consent of the defendant, expressly given or reasonably implied; and who is bound, as before stated, to restore it to the defendant, or return it to the sheriff, upon demand. — 2 Kent, 561.

¶6On the demand of the defendant, if the property be not restored to him, or returned to the sheriff, what would be the defendant’s remedy? Whether it would be in a court. of law, or in a court of equity ; or whether the jurisdiction of the two courts, in such case, would be concurrent, we need not decide, as these questions are not legitimately presented in this case. We may remark, however, that a stranger, who has replevied property taken in attachment, ceases to be a stranger to the suit, from the time the replevin bond is executed, and the property is delivered to him. By the act of replevying, he introduces himself to the suit, and becomes, though not a technical party, yet a party to the proceedings; and being in the possession of property which is in the custody of the law, is he not within the *231legitimate reach of proper action, in regard tp the- -prop- * erty, by the court in which the suit is pending ? A replevin bond, when given by a stranger, is subject to sucínsules as would govern it if made by the defendant in attachment’” himself. — Kinney v. Mallory, supra;also, Braley v. Clark, 22 Ala. 361.

¶72. When more persons than-one, not parties to the suit, make application to replevy, the law prescribes no rule by Avhich the officer shall be governed in deciding as to who among them may exercise the right. From the character of the particular duty to be performed, this must necessarily be left very greatly to the discretion of the officer, as is the case in the performance of many ministerial duties by officers, involving as to themselves responsibility and the risk of pecuniary loss. A contrary rule might lead to contests and litigation, producing delays, and defeating the beneficial purpose intended to be accomplished. In every such case, let whoever may succeed in replevying the property, the duties and responsibilities cast upon him by the law in regard to it are the same: The officer, however, in the exercise of the discretion vested in him, should not abuse it. He should remember that the object of the law, in permitting the property to be replevied, is not to give profit or advantage to any one; at the expense of the defendant; but that it is to relieve the property from the actual custody of the officer, and restore it to the defendant, and thereby to save the expenses, and secure to the plaintiff a return of the property, or the payment of the debt, in the event of a recovery.

¶83. It follows, from the views we have expressed, that the complainant in the case before us acquired no interest or estate whatever in the property attached, by his offer to replevy it for the benefit of the defendant, although his offer was refused by the sheriff; and that consequently, he is entitled to maintain no suit in equity, in respect of the property, or of the right to its possession.- — Dursley v. Berkeley, 6 Vesey, 252; Allan v. Allan, 15 Vesey, 135.

¶9The person entitled to replevy, under section 2536 of the Code, though a stranger, might enforce the right, if refused him, for the benefit of the defendant, in a court of law. *232In the latter court, (unless the rule be changed by statute, as it is to a certain extent in this State, by section 2129 of the Code,) suits must be instituted in the name of the person having the legal title. But a court of chancery requires the real party in interest to bring the suit, except in certain cases where the complainant represents the rights of those for whom the suit is brought, both legally and equitably, as in the case of executors, or of trustees, &c. — Sedgwick v. Cleveland, 7 Paige, 287; Oakey v. Bend, 3 Edw. Ch R. 482; also, Stone v. Hale, 17 Ala. 557.

¶10La this case, the complainant has no interest in the subject-matter of the suit, or right to the thing demanded, and no proper title to institute the suit; therefore, the bill was properly dismissed by the chancellor for the want of equity. Story’s Eq. Pleadings, §§ 728, 301, 260, 261.

¶11The view we have taken of the case renders it unnecessary to examine the other questions presented and argued, both at the bar, and upon the briefs of counsel.

¶12Let the decree of the chancellor be affirmed.