Insufficient and defective pleading.
A sheriff, having a writ of foreign attachment issued according
to the laws of New Jersey, proceeded to levy the same on the
property of the defendant in the attachment. After the attachment
was issued, the plaintiff took the promissory notes of the
defendant for his debt payable at a future time, but no notice of
this adjustment of the claim of the plaintiff was given to the
sheriff, nor was the suit on which the attachment issued
discontinued. The defendant brought replevin for the property
attached, the sheriff having refused to redeliver it. Held
that the sheriff was not responsible for levying the attachment for
the debt so satisfied or for refusing to redeliver the property
A previous attachment issued under the law of New Jersey of
property as the right of another could not divest the interest of
the actual owner of the property in the same so as to prevent the
sheriff's attaching the same property under a writ of attachment
issued for a debt of the same actual owner.
John R. Livingston instituted an action of replevin against
Moses Smith, the defendant in error,
"for that he, Moses Smith, on 2 November, 1826, at the Township
of Newark in the County of Essex and State of New Jersey, took the
goods and chattels of the plaintiff in the replevin, . . . to-wit,
the steamboat Sandusky,
her engines, &c.,"
and unjustly detains them, &c.
To the declaration the defendant, Smith, pleaded property in
Robert Montgomery Livingston, at the time of the taking, and also
made cognizance or avowry as follows:
First. That the goods and chattels mentioned in the declaration
were taken by him on 4 November, 1826, as sheriff of the County of
Essex, under a writ of attachment issued out of the court of common
pleas of the county, at the suit of James W. Higgins against John
R. Livingston, and that the goods were detained by him until they
were replevied by the plaintiff in this suit on 13 November, 1826,
before the return of the writ.
Second. That as sheriff, he took the same goods and chattels on
2 November, 1826, under a like writ of attachment
Page 30 U. S. 91
at the suit of James W. Higgins against Robert M. Livingston, in
whose possession they then were.
To the first cognizance the plaintiff, John R. Livingston,
pleaded that after the taking of the goods and before the
commencement of this suit on 29 November, 1826, on accounting with
Higgins, he was found indebted to him in the sum of eight hundred
and ninety-six dollars, the debt for which the attachment had
issued, and on 1 April, 1827, he tendered to Higgins the said sum
of money, which he received in full satisfaction of the same, and
upon the return of the attachment there were no further proceedings
thereon by Higgins or by any other person, and by means thereof,
according to the practice of the court, the writ of attachment was
The second plea stated that before the commencement of this suit
and before the return of the attachment on 29 November, 1826, he,
John R. Livingston, delivered to Higgins, the plaintiff in the
attachment, two promissory notes for the whole amount of the debt
due to him, payable at three and four months, which were paid by
him according to the tenor thereof.
The third plea set forth that before the appointment of any
auditors under the attachment, on 9 January, 1828, the plaintiff,
Higgins, voluntarily discontinued the same of record.
Fourth plea. That the goods, at the time they are supposed to be
attached as the property of John R. Livingston at the suit of
Higgins, and until they were replevied, were in the possession of
the defendant as sheriff under an attachment against Robert M.
Livingston at the suit of the same Higgins.
To the second cognizance the plaintiff, John R. Livingston,
First. That the property, when attached, was not in the
possession of the said Robert M. Livingston, as is alleged by the
said second cognizance.
Second. That the property, when attached, was in John R.
Livingston, and traverses the property being in Robert M.
To the first plea to the first cognizance, the defendant, Smith,
demurred, and showed for cause
Page 30 U. S. 92
First. That the tender to and acceptance by Higgins of the money
in satisfaction of the debt after the commencement of the action of
replevin and before the attachment was discontinued. Second, that
the plea is argumentative.
To the second plea to the first cognizance, the defendant,
Smith, also demurred, and showed for cause first that the notes
stated in the plea were to be in satisfaction of the debt; yet it
is not shown by the plea that the notes were paid off before the
commencement of the suit. Second, that it does not appear by the
plea that the plaintiff was entitled to a return or redelivery of
the goods. Third, that the matters in the plea are immaterial.
To the third plea to the first cognizance, the defendant
demurred and showed for cause first, because it appeared that when
the replevin was sued out, the attachment was in full force, and
second that the matters set forth therein do not maintain the
count. To the fourth plea there was a general demurrer.
To the first plea to the second cognizance the defendant
demurred and showed for cause that the matters are unintelligible,
uncertain, insufficient, irrelative and informal, and he put in a
general demurrer. The plaintiff joined in each demurrer.
Page 30 U. S. 96
MR. JUSTICE JOHNSTON delivered the opinion of the Court.
The facts and merits of this case lie in a very narrow
The action is replevin, sued out of the Circuit Court of the
United States for the District of New Jersey. The case presented by
the pleadings is this.
In the year 1827, one Higgins sued out several attachments in
the state court, both against this plaintiff and one R. M.
Livingston. Smith is sheriff of the state and, as such, on 2
November, he arrested a steamboat as the property of R. M.
Livingston, and again on the 4th of the same month, he seized the
same boat as the property of this plaintiff, J. R. Livingston.
J. R. Livingston, being a citizen of New York, brings this suit
in a court of the United States and counts in the ordinary form of
the declaration in replevin. Smith avows and justifies under the
two attachments, and Livingston, in a variety of replications,
seeks to repel this justification:
1. On the plea of payment to the plaintiff in attachment
subsequent to the attachment, but without notice to the sheriff
Smith or any averment of discontinuance other than what may be
gathered from facts stated from which a discontinuance might have
been matter of deduction or inference.
This plea is certainly insufficient in matter and defective in
2. On the plea of an accord made prior to the suit, by which it
was agreed by Higgins to receive certain promissory notes which,
when paid, should be in full satisfaction of the debt, which notes
were duly paid at maturity.
On this plea there has been some difference of opinion, but
besides that it does not aver an agreement to discontinue,
admitting that, as against the plaintiff in the attachment, it
would have been a good defense, the question still recurs can a
sheriff, without notice, be responsible for levying an attachment
on a satisfied debt or for not redelivering the property attached,
without a discontinuance or at least notice of the satisfaction? We
say nothing of the rights or remedies of the defendant in
attachment against the plaintiff; the question here is whether the
sheriff, under such circumstances, is not
Page 30 U. S. 97
warranted by his writ in proceeding to act. How can he undertake
to decide the question of liability between the parties, or what
security has he against the plaintiff should he act erroneously in
not pursuing the exigencies of his writ? No question of property is
here raised between him and the defendant, for the levy and
detention and plea all affirm the property to be in the defendant
This plea therefore makes out no cause of action.
3. On the plea of a discontinuance of record; but this is
obviously and radically insufficient, since the date of the
discontinuance is expressly subsequent to the institution of the
suit. This is admitting that there was no cause of action at the
time of its institution. It does not raise the question whether a
subsequent unlawful act may not make the sheriff a trespasser
nor whether replevin may not be brought for
unlawful detention as well as unlawful taking, since in either case
the cause of action must precede its institution.
4. On the plea that the goods, when attached as the property of
this plaintiff, were in fact in possession of the sheriff under the
attachment against R. M. Livingston, and the levy made thereon two
days previous. But what cause of action does this make out for this
plaintiff? If they were the property of another, he has nothing to
complain of, and if they were his, there was the attachment against
himself to justify the taking. A previous attachment, as the right
of another, could not divest his interest, and the property being
in the hands of the sheriff as his bailee or to his use, could not
divest the sheriff of the right to seize or detain it under a writ
These remarks dispose of the pleas to the first cognizance. To
the second, the plaintiff relies on the pleas,
1. That the property was not at the time of the attachment
levied in the possession of R. M. Livingston.
But this is certainly tendering an immaterial issue, since it
matters not in whose possession the property is found if the taking
be otherwise rightful.
2. That the property was his own at the time it was attached as
the property of R. M. Livingston, and not the property of R. M.
Livingston. And this plea probably presents the only question
intended by the suit, but unfortunately it comes
Page 30 U. S. 98
embarrassed with circumstances which render it impossible to
consider the merits in this suit. Had this plaintiff taken measures
to disembarrass his case of the attachment against himself before
he brought suit, the defendant must have met him upon the question
of property. But this plea does not go to the whole justification,
since, admitting the truth of it, it still leaves property liable
to the attachment against himself.
To this must be added a defect in confining the language of the
traverse to the interest of R. M. Livingston, since the right of
the plaintiff generally, and not as against R. M. Livingston alone,
was necessary to maintain his action.
These views of the subject render it unnecessary to examine the
mere general question made upon the relation in which these two
courts stand to each other, and we only notice it to avoid any
misapprehension that might possibly occur from passing it over
Upon the whole, the majority of the Court is of opinion that the
demurrers were rightly sustained, and the judgment below is
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of New
Jersey and was argued by counsel, on consideration whereof it is
considered, ordered, and adjudged by this Court that the judgment
of the said circuit court in this cause be and the same is hereby
affirmed with costs.