Opinion
(June Term, 1846.)
1. In a proceeding by attachment, when an interplea has been filed the only issue submitted to the jury is as to the title to the property levied on. The jury have no right to assess the value of the property or damages for its detention or destruction.
2. After property is levied on under an attachment, it is, until replevied, in the hands of the officer, in custody of the law. When the issue as to the title is found in favor of the plaintiff in the interplea, the court, on motion, will make an order on the officer for its delivery, a disobedience of which on his part would be punishable as a contempt.
3. If the officer has voluntarily parted with the property, or by his negligence suffered it to be destroyed or injured, he is answerable in damages to the owner.
APPEAL from ANSON Fall Term, 1845; Caldwell, J.
Winston for plaintiff.
No counsel for defendant.
The plaintiff sued out an attachment against the defendant, which was levied upon a carriage. Upon the return of the levy Thomas Waddill interpleaded and claimed the carriage as his property. (234) Upon executing the inquiry, evidence was given to the jury that since the institution of the proceedings in the case the article in dispute had been destroyed by the plaintiff, and the jury were directed by the court, if they found the fact to be so, to give Waddill a verdict for its value, which they did. Judgment being rendered accordingly, the plaintiff appealed.
In the direction given to the jury by his Honor there was error. The only question submitted to the jury was as to the title to the carriage — their only inquiry whether it belonged to Waddill, for if it did not belong to him, his claim to interplead was falsified, and the plaintiff was entitled as against him to a judgment for his costs in contesting it. The argument which has been submitted to us may be very satisfactory to show that the attachment law needs amendment in this particular, but it has failed to convince us that we have the power to apply the remedy. The proceedings are under the attachment law of this State. Rev. Stat., ch. 6, sec. 7, points out the mode of proceedings when property levied on is claimed by a third person, the inquiry that is to be submitted to the jury and the judgment that is to be pronounced by the court. It directs that the claimant may come in and "interplead and shall file his petition in writing, setting forth the particular property claimed and by what right or title he claims the same, and the court shall order a jury to be impaneled to inquire in whom the title is of such article or property as may be so levied on, and the finding of such jury shall be conclusive as to the parties then in court, and the court shall adjudge accordingly." Thomas Waddill by his interplea avers that the title to the carriage was in him, and upon this point, and this alone, the plaintiff in the attachment takes issue with him. It is the (235) only question that was, or, under the act, could be submitted to the jury. Whatever else they found by their verdict was entirely immaterial. The object of the act, it is said, was to prevent a multiplicity of suits, and that denying to the jury the right at once to assess damages for the destruction of the property is to counteract this intention. If such was the object of the Legislature, they have not pointed out how it is to be done, further than by settling the question as to the title between the parties to the record. The only judgment the court is authorized to pronounce is upon the title and the costs incurred in bringing the interplea. A rightful verdict is the answer of a jury given to the court concerning the matters of fact committed to their trial and examination. Whatever they find beyond this is impertinent and immaterial and to be rejected. After property is levied on under an attachment, until replevied, it is in the hands of the officer — in custody of the law; and when the jury have by their verdict said it is the property of the plaintiff in the interplea, the court, on motion, will make an order upon the officer for its delivery. A disobedience on his part would be a contempt, and punishable by the court as such. If he had voluntarily parted with it or by his negligence, suffered it to be destroyed or injured, he is answerable in damages to the owner.
The presiding judge erred in directing the jury to inquire into the value of the carriage and the judgment for the damages assessed by the jury reversed; and the Court, proceeding to give such judgment as the Superior Court ought to have given, doth adjudge that the carriage claimed by Thomas Waddill is the proper goods and chattels of the said Waddill, and that he recover his costs expended in his behalf in the Superior and county courts, from the plaintiff McLean. The appellant McLean is entitled to his costs in this Court.
PER CURIAM. Judgment accordingly.
Cited: Cameron v. Brig Marcellus, 48 N.C. 85; Grambling v. Dickey, 118 N.C. 989; Dawson v. Thigpen, 137 N.C. 468; Forbis v. Lumber Co., 165 N.C. 407. (236)