The Hawaiian gazette., 1875-03-17
HAWAIIANGAZETTE
AN INDEPENDENT JOURNAL,
DEVOTED 10 HAWAIIAN PROGRESS
supreme Court OF the Hawaiian
IslaRdS-Hn Equity.
ETERErT AND RAWLINS "a B0LLES

l tUrLlAp-c EcG-Darf ION. 1872, 70 snow
eSaSe why the execution in the above entS
tied cause Issued February "a, should no
I be fully satisfied.
Il appears that On the Sth Gsy Of Feb-1
sry, CsrriShee process was issued frou
the Supreme Court In the suit Of BiShop 4
( Go. rs, Everett. one Of the above plaintiffs
B. +. Bolles defendant ahoye), garniShee
sad the answer Of the Marshal sets up that
the defendant Bolles retained the sum q
/ $3.50, Is sad SaruiShee. 70 ABIDE the ludg.
raent O. the Court, snd be submits whether
such retertlor Is NOT sufficient satisfaction
Of the execution, insSmUch as no levy was
nsie by him in the first suit. and the gar
rlShee served with process Of punishment,
WAS bound By the statute to retain the
amount N his hands az time Of service to
next the Judgment CT Bishop & CO. VS.,
Everett.
The facts IN regard TO the service Of the
execution are as follows;
The Marshal received the execution az
$50 ?. n. On Tuesday, Feb, "a. 1875, and
On the same day he went to the defendant
Bodies Rad the execution TO hun and de-
manded the amount Of the Judgment, IN
forming him that he. the Marshal. should
keep under his supervision the property Of
the sid Bolles until the said Judgment
should Dc satisfied. On the 9th February
plaintiff 5 counsel said to defendant, Mr.
Psrke need not collect that Judgment till
Tuesday which day would be the 9Th Of
Feb. On the SJh the garnishee process
wss served On the defendant. Ii seems
thst the consent Of Everett and Rawhns'
counsel TO defer collection Of the Judgment
sgsIuSr Boles was made under the belief
that BoIles' property was secured BY the
MarShsl under the writ Of execution.
Ii 8 complete legal levy was made BY
the Marshal. and the execution satisfied in
full, there Is no doubt that the gsruiShee.
Bollss, would have TO be discharged. for
there would then be no goods or effects
Of Everett and Rswhns IN bis hands. nor
would Boles be any longer g indebted to
them srd the garnishee should not be COM
peeled TO pay his debts twice. 1t Is also
clearly settled that the property or money
N the 015clal possession Of the Marshal. If
he had collected the judgment, would be
exempt from gsrnishnent, SIS being IN the
custody Of the law.
1t Is therefore necessary to decide wheth-
e. IN fact the Marshal did make legal
levy before the SJh February.
Section l022 Of the Civil Code reads as
follows: - Every levy BY 81 officer, II pur-
SCarcs Of writ Of execution issued BY
any court. or Justice, shall be made By tax
rng the property levied upon into his pos /
Session care and gusrJilanShip, and IN his |
op1Oa, By removal Of the sane TO some
pLses q security The officer shall make !
81 inventory Of the property levied upon. /
1t Is an essential Ingredient Of levy |
thzF the property levied upon be taken into /
the possession, care or guardianship Of the 4
oGcer. He must have the property IN his
power sn6 control In this case, the pro-
7erty Of the defendant WIS not taken into
the Possession, care or guardianship Of the
1ECer- The Marshal I'D not designate auv
II the goods OF merchandise Of the defend
Int as taken into his possession. He id
lot leave keeper n charge, nor make an
inventory, or eTsrclse aHy set Of possession
= guardianship over the property. In fact.
3olss' Possession Of his goods remained
complete, and he was free to sell all the
Merchandise In his store. without hinfrance
% Tar as snything the Marshal had said
-Gscted hin, for the Marshal. not having
pecl1ed any goods as taken to satisfy the
IecUElou- could not Afterwards say that
NJ Of the goods sold BY Bolles were those
e had levied upon Iregard the words Of
he statute requiring al inventory TO be
1ads Of the property levied upou. as mau-
slto-y, snd sc essential TO every lew OF !
ers0ual property. The reason Of this re-
u-enent l. Obvious: at should be known !
Q others who nay take posteri0r e1ecu- {
ions. O. who nay deal with the debtor. ;
That property Is Affected By the lien and
hat Is not
Barnes vs. Ellington, ? Wash, C. C. R. !
s
1t Is true that By oE code a Judgment Is I
ben On the movable property Of the de-
9nlA1t II execution but Il Is OulF such {
'o11 the ti1zs Of Lsrys and 4 10 levy be +
-ade the judgment Is 10 hen The Mar {
al INST take possession Of the goods n I
zch . uA11er as 10 apPrizs evsry BODY CT '
le tact. though the removal Of the goods I
some placs Of security Is OPTIONAL with !
n.
No ley then having been made bT the :
[arshal. the dsbt OF BoIIes to Everett and /
-awEns vas SUI existing and not paid at l
e tine Of the ss-7ice Of the earuishee I
,1cess On BcIlzs-
he question reuaT1s, whether 4 Tuf-- 2
sut dsbt0r can be held az ezruishee Of q /
-1Eue1t ers1EGr. The zzth0riries Cffilt.sTer a
l this poIzf- In l[assaeh1sests 4 Ia
3su hsld that q judgment debtor can not I
. hid as gz-nishee- 2 Mass 81: 4 Mass.
-Qs and Judge Stury adopted this principle =
Fra1kl1 ~ Ward Mason Is6. and II 4
< been hid Z Ser Jersey and Arggzzusa.s. 1
Drake q AtSaehne1t s64I. Is nv L
-rhcrIty that the Courts of C0uuecticuf. L
Delaware, Mississsvri azd I
dana (Those reports re Do Tot possessl :
Ia the e1utFaTT d1ctrlne- h
In eager Vs. Watson II Com Iss- The o
LOVING lzzgzAgs L zzed- a I1fzuent 4
1t Is 63I-iii.s5ssi and certai1 and n orriii- :,
y eases. E-tis opportunity OF zecesz--ttT =
HANS for coutrUTersE respecting IL Il II
suce- Character CT au1z1L- The uoIicT d
Cur kI-z h1s ever required that al The r
gPerEF q debtor not exempted b. Lz= ,
III ezEcuE0u- Should Be subiee1 70 the L
q ms c-s1itG-s- The Lazrzzzz Il
o- Gzr-shes Ssztzts CSes-- $50 CFyI Z