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LIVINGSTON V. SMITH, 30 U. S. 90 (1831)
U.S. Supreme Court
Livingston v. Smith, 30 U.S. 5 Pet. 90 90 (1831)
Livingston v. Smith
30 U.S. (5 Pet.) 90
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 attached.
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
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 ended, &c.
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, pleaded
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. Livingston.
To the first plea to the first cognizance, the defendant, Smith, demurred, and showed for cause
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.
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