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Opinion of the court delivered by

Tompkins Judge.

On motion of the attorney of the appellants the circuit *167court made an order to Benjamin F. McKenney a justice of the peace for the county of St. Louis before whom a suit between the present plaintiffs and the defendants in this cause had been pending to shew cause wThy he refused to low an appeal upon a trial of the right of property attach-edby the constable, on motion of the plaintiffs. The justice failing to show-cause the rule was made absolute, and after-wards, by agreement of both parties, the justice made his return. The circuit court discharged the order and the plaintiffs appealed to this court,

A constable jury to try pí^elty in-tacked. The act concern* mg attach-^03gts requires him property at-° taclied in his son in whoso síuníis^found or the owner «•ive'boud'&o thattho pro-íVjrfiíc-mmgC ■''bide the judgment in tho causo.

*167It appears from the bill of exceptions that the plaintiffs Jesse and Freeman Little commenced á suit against the defendants Seymour and Bool by attachment. The constable levied the attachment on certain property of the defend-, ants. Charles G. Seymour filed a plea of interpleader claiming the attached property as his own, and having withdrawn that plea the justice gave judgment for the plaintiff against James M. Seymour, one of the defendants, for the sum of fifty-nine dollars. The justice issued execution on the judgment against the attached property, the constable returned on his execution that the property attached was claimed by John Burrows and Jared_F°5geU and that a jury of six men had been impannelled by him, who found the property so attached to belong to said Burrows and Folger, and no other goods found. The plaintiffs Jesse and F. Little tty their counsel made application to the justice to grant an appeal to the circuit court from the judgment of the said constable upon the trial of the right of property before him. ‘The justice refused to grant the.appeal. On this case, as above stated in the hill of exceptions, the proceedings above stated were had.

When goods are attached the constable must keep thesp in his custody unless the person in whose hands they are found or the owner thereof will give bond with good and sufficient security in double the amount of property condi-J 1 A -r , tioned that the same shall be forthcoming, when and where the justice shall direct to abide the judgment which shall be rendered in the causes. See sections 3,4 and 5 of the 2nd article of the act concerning attachments p. 85 of the digest *168of 1S35. The constable had clearly-no right to’summon a jury to try the right of property which was attached in this cause, and he is liable on his official bond for suffering the property to pass out of his hands into the possession of Burrows and Folger. The 14th section of the' 7th article of the. ^aw concerning justices courts page 367, of the digest of gives to the constable when lie levies an execution on property claimed by another person than the defendant, P°-wer'to summon a jury to -try the right of property. 'But the property in question was attached, and by the express language of the act above cited was required .to be lieptsub-jech to the judgment of the justice rendered in the cause. The constable'then is liable on his bond for his illicit act in suTering property to pass, out of his hands notwithstan- ■ ding the verdict, and it remains only to he enquired, whether tjie justjce can grant aQ appeal from the judgment of the constable to the circuit court. Tome this isa novel question, While at the bar I was engaged in many such trials before the sheriffs under a similar law and never heard of-.an ap- • x peal from such a judgment, I should rather call it the judgment °f ^le jury. For the statute says the jury shall'be. the judges of the law and the fact. The only consequence of the finding of the jury is, that if they find the-goods and chattels to he the property of the defendant^, the execu-ti°n> the verdict shall, as • against the claimant justify the officer in selling such goods and chattels. The act ;of the ° 0 , . in this case is clearly tortous and even-if it bad ^eSa^ 110 aPPeallies. The proceeding is a creature of statute; that statute gives no appeal. ■ It would have' been worse than useless to give- an appeal. The' practice • keen (ail<^ ^ acn not a^v’-se<^ that .its correctness .was ever doubted) for the.plaintiff in the execution when he thought the property belonged to the defendant to indemnify the of- and order a sale. .In such-case the claimant, might' gue either the constable or the plaintiff in the execution for A damages, or both of them, or the' purchaser of'the goods.— was contended in argument that the constable and his seen-rities might be insolvent and in such' case the plaintiff, might his money.. This would be hardship indeed. But *169this court must n<jt' make an illegal- decision in order, to prevent an injury to the plaintiff: If the property be yet cessible to an' execution, I can see no reason for an appeal from the judgment, as it is called, of' the constable in order to reverse his judgment, for it is as void as a blank piece paper, and I know of no reason why application' might not be made to the justice for another, except perhaps that the law 'considers the property attached to be still in. the hands of the constable for the purpose of satisfying the first execution. On this head see the case of Baily vs. Gentry and wife, 1st volume of Mo. Dec. page 175.

c°n‘ the property ¡ittadied to pass out. of ins hands, in an cooding1,1 ho is clearly Libio bond.lios from Ptko decision of a j ury summon-ud by a right of tlicf claimant •mt in the*o'-ocution. ", cisión oí the jury, m such case, is the of ího'eunsta-ble in selling t10

*169By the 2nd section of the 2nd article of .the act supplementary to an act to provide for the recovery of debts by attachment, approved 6th Feb. 1837, Burro.ws and Fol-gan might have interpleaded in the cause before execution was issued. But in the mode of proceedings by attachment they had no right to require the constable to try the right of property. The judgment of the circuit' court is affirmed. ' '

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