Perrin v. McMann

Citations

• 97 Cal. 52
• 31 P. 837
• 1892 Cal. LEXIS 754

Syllabus

<p>Release of Attachment — Rights of Sheriff — Payment of Fees and Expenses — Agency for Plaintiff — Dismissal of Action. —A sheriff is not required to release property levied upon under a writ of attachment until his fees and expenses are paid, and he may retain the propperty until he is paid. He is the agent of the plaintiff in levying the attachment, and the plaintiff cannot relieve himself from liability for the expenses incurred in such agency by a dismissal of the action or a mere direction to release the property; neither can the parties to the action, by an agreement between themselves for its dismissal, deprive the sheriff of his fees, or compel him to look to the solvency or caprice of the plaintiff therefor.</p> <p>Id.—Construction of Statute — Retention of Property Attached — Lien of Sheriff. —The statute of 1871-72 (p. 778), providing that a sheriff who levies an attachment upon property may retain the property until his fees are paid, in effect gives him a lien thereon for their amount, which he may enforce in any suitable mode.</p> <p>Id. — Retention of Property by Outgoing Sheriff — Tender to Incoming Sheriff — Lien for Additional Expenses. — Where property which has been attached by a sheriff has not been released before the expiration of his term of office, he retains its custody, and it is incumbent upon a party wishing to procure its release to seek the outgoing sheriff and procure the release from him. A tender of the amount due to the outgoing sheriff’s successor in office is unavailing to affect the former’s right to retain the property, and the party making the tender cannot complain of the additional expenses incurred in leaving the property in the custody of the outgoing sheriff after the expiration of his term of office, and before a release is sought from him.</p>