Second National Bank of Oswego agt. Dunn.

the time the property was replevied, so as to be asserted under section 1709? If, for instance, an execution against the First National Bank had been issued to the sheriff before actual delivery of the malt by him, would it have suspended his obligation to deliver to the bank until he had satisfied the execution against it? Did the issuing of the execution in this action, in favor of the Second National Bank, against the property of John Dunn, with tender of indemnity under section 1419, suspend the obligation of the sheriff to deliver the malt to the First National Bank until that execution should be satisfied?

All claims to the right of present or temporary possession as against Dunn, in existence at the date of the replevy, are concluded by the replevin proceedings until judgment in the action awarding final possession. But as the claim of the plaintiff did not exist as a lien, at that time, is it concluded by those proceedings during the pendency of the replevin suit?

Mr. Wells, in his recent treatise on the Law of Replevin, lays down the rule that when an officer has taken property by virtue of a writ of replevin, for the purpose of delivering it in obedience to the mandate, he is regarded as holding it in the custody of the law; that while acting in obedience to that command the law will not permit any other party to interfere and prevent him from doing what the writ commands him to do; that the proceeding is so far in rem, that the goods cannot be seized upon any process until the court shall have taken action; that if a party finds his goods in the hands of an officer upon a valid writ of replevin, and that they have been taken from the possession of the defendant named in the writ, his remedy is by an application to the court to be permitted to come in and set up his claim to them, and not by an independent proceeding (Wells on Replevin, secs. 256, 257). The rule is otherwise where the sheriff has taken the property from the possession of a party not named in the writ, as in such case he has not acted according to, but rather

Second National Bank of Oswego agt. Dunn.

in defiance of, the command of the writ (Wait's Practice [vol. 1], p. 716). Under the late Code of Procedure, the only way that a third party could assert his claim to goods taken by the sheriff in replevin, was by serving on the sheriff an affidavit of title and right to possession (Code of Procedure, sec. 216; Edgerton agt. Ross, 6 Abb., 189). Under that Code the claim was not limited to one existing at the time of the replevy.

In Hogan agt. Lucas (10 Peters [U. S.], 400) it was held that when the property taken in replevin is placed in the possession of the claimant his custody is the custody of the sheriff, and the property is not withdrawn from the custody of the law but is as far from the reach of other process as it would have been in the hands of the officer. That although the property had been delivered to the claimant it was constructively in the custody of the state court so as to prevent a marshal of the United States from levying upon it.

In Acker agt. White (25 Wend., 614) it was held that property seized under an execution and then delivered upon a writ of replevin to a third person cannot afterward be levied upon under another execution against the defendant in the first execution, although the property be permitted to continue in his possession; that the replevin bond was substituted for the goods and was regarded as an equivalent security to the extent of the value of the goods; that the goods, although in the actual custody of the plaintiff in replevin, were constructively in the custody of the late sheriff who had taken them on the replevin process and were not liable to seizure upon an execution in the hands of the acting sheriff. This case was carefully analyzed and commented on by the court of appeals in Burkle agt. Luce (1 Com., 163, 168).

In Manning agt. Keenan (73 N. Y., 45), where coroners had seized goods under replevin process, and on being served with notice of claim by a third party had been indemnified by the plaintiff in replevin and had delivered the goods to him, it was held that they were bound to make such delivery but

Second National Bank of Oswego agt. Dunn.

were liable in an action for conversion, brought by the third party, upon the theory that the bond of indemnity was intended to protect the coroners against such a liability; that is, the goods being in the custody of the law the bond to the coroners took their place (See, also, Lockwood agt. Perry, 9 Metc., 440; Milliken agt. Edge, 6 Hill, 623; Morris agt. De Witt, 5 Wend., 71; Sanborn agt. Leavitt, 43 N. H., 473; Lowry agt. Hall, 2 W. & S. [Pa.], 131; Maloney agt. Griffin, 15 Ind., 214; Willard agt. Kimball, 10 Allen, 211; Wells on Replevin, secs. 472–480).

My conclusion is that it was the duty of the sheriff to separate and deliver to the First National Bank the 10,000 bushels of malt called for by its requisition; that the Second National Bank has no lien on that malt as it is in the custody of the law, and hence not liable to seizure under execution; that pending the action in replevin the undertaking given in that suit for the return of the malt or payment of its value, together with the right to a judgment for its return or value in case of a successful defense, takes the place of the malt itself so far as either may become the subject of attack by the judgment creditors of Mr. Dunn.

IV. It is urged that the receipt under which the First National Bank is said to claim the malt, is not a warehouse receipt, but a pledge or an unrecorded chattel mortgage or bill of sale, and hence ineffectual as against judgment creditors. However that may be, it can only be determined when the replevin action is tried. Whether the sheriff was or was not informed of the facts showing title or the want of title in the First National Bank is wholly immaterial. The requisition was both the foundation and boundary of his duty and power. If valid on its face he was bound to execute it, and he had no right to look beyond it or behind it. It was the command of the court, and whether right or wrong he was required to obey it, and protected if he obeyed it.

V. Whether the foregoing conclusions as to the rights of the various parties are correct or not, it is clear that the VOL. LXIII

56

Cole agt. Knickerbocker Life Insurance Company.

sheriff should not be held guilty of any contempt. He has acted in good faith and this excludes his case from the section under which this motion is made.

Misbehavior in office, willful neglect of duty and disobedience to a lawful mandate of the court, all imply bad faith, and not a simple mistake or error of judgment. If a party to an action is injured by a mistake of the sheriff in the discharge of an official duty, he can hold him and his sureties liable in damages, but cannot proceed against him as for a contempt. An inexperienced officer, before he has been in office a month, should not be fined or imprisoned because he did not correctly decide difficult and important questions of law, in relation to which learned counsel differ, and over which the court may well hesitate.

The motion is denied, with ten dollars costs, and the stay of proceedings is vacated.

SUPREME COURT.

JOHN H. COLE, as administrator, &c., of EDWARD T. WARDWELL, deceased, agt. THE KNICKERBOCKER LIFE INSURANCE COMPANY.

Insurance, life-When condition in paid-up policy that the non-payment of interest on outstanding premium note on the day when it became due should void the policy is unwarranted and the plaintiff is not bound by it — Husband and wife-Insurance on life of husband payable to the wife under laws of Massachusetts-Where the wife dies intestate before her husband, it goes to the estate of the husband.

The defendant, in 1866, issued a policy of insurance upon the life of plaintiff's intestate, payable to the wife of the insured. By the laws of Massachusetts, where the insured and his wife resided when the policy was issued, such policy inured to the wife's separate use and benefit, and to the benefit of her children, independent of her husband or his creditors. By the laws of that state, also, the property of a married woman is her own separate estate and may be disposed of by her by will, or if she dies intestate it passes to her legal representatives and

Cole agt. Knickerbocker Life Insurance Company.

is to be disposed of under the statute of distribution of that state. The wife died intestate before her husband and left no children:

Held, that by the laws of Massachusetts the insurance money belonged to the estate of her husband, and the action for its recovery was properly brought by his personal representatives.

The original policy contained a clause whereby there was no forfeiture of the entire policy after the payment of two annual premiums, and it was not voided by failure to pay a premium note. The premiums were all paid for ten years, and at the end of the last payment the assured was entitled to receive a paid-up policy "for the full value acquired under the old one, subject to any note that may have been received on account of premiums." The defendant upon issuing the paid-up policy inserted therein a stipulation that the non-payment of interest on the premium note, which was then outstanding on the day when such interest became due should void the policy:

Held, that this provision was an unwarranted and audacious act on the part of the insurer, and not having been authorized by the terms of the original policy the plaintiff is not bound by the condition there imposed.

Special Term, August, 1882.

Elliott & S. Sidney Smith, attorneys; S. Sidney Smith, counsel for plaintiff.

Johnson, Cantine & Deming, attorneys; Henry W. Johnson, counsel for defendant.

MACOMBER, J.-I refer to my decision for the facts of the case, and do not again recur to them.

The first objection made to a recovery by the plaintiff is that he has no legal title to the policy sued on. It appears that the contract of insurance was between the defendant and Harriet W. Wardwell, who had an insurable interest in the life of her husband, Edward T. Wardwell. Both the insured and the person for whose benefit the policy was taken resided, at the time of the issue of the policy, in the state of Massachusetss. By the laws of Massachusetts, a policy of insurance on the life of any person, made payable to any married woman, or to any person in trust for her or for her benefit, inures to her separate use and benefit, and to the benefit of her children