Personal property capable of manual delivery, shall be attached by taking it into custody. (Prac. Act, sec. 125, sudivision 2.)
Nothing is more important in sustaining the officer's special property in articles attached, than his continued possession of them, actual or constructive. (Drake on Attachment, 271, sec. 270.)
The case of Mitchu v. The Planter's Bank, 4 How. Miss., is just in point.
The respondent is perfectly willing to rely not only upon the principle set forth in this decision, but as being the law. Mr. Justice Trotter, in deciding this case justly remarks:
" If the lien created by the law in this case be merely a security, and confers no jus in rem, it may be lost by any agreement or act of the judgment-creditor, which would discharge the liability of a surety under a contract. It would be repugnant to every principle of sound policy, and open the broadest avenues to fraud and injustice, to hold that the lien in favor of judgment or other creditors, may be enforced at the mere option of the party, or keep off other creditors equally meritorious, without any step to preserve it."
JUDGES: Terry, J., delivered the opinion of the Court. Murray, C. J., concurring.
OPINION
TERRY, Judge
Under our statutes, a levy on personal property capable of manual delivery must be made, by taking the property into custody. If the execution-creditor permits property levied on to remain in the hands of the debtor, his levy cannot operate to defeat subsequent executions.
The property in question was allowed to remain with defendant in execution for more than three months after the levy; to permit such a course would open the door to fraud.
Judgment affirmed, with costs.