
    
      [Special Term,
    
    March, 1870.]
    Irwin, Assignee of Elsner, v. H. Kessler.
    A composition between debtor and creditor releases the sheriff holding property by attachment.
    
      Judges Caldwell and Tilden, for plaintiff.
    
      Stallo § Kittredge, contra. ■
   Storer, J.

The defendant, when sheriff of Hamilton . county, was ordered, by a process from this court, to attach the property of Joseph Eisner. After the attachment was issued, Eisner assigned all his interest to Irwin. Some composition was then made between Eisner and the creditor in attachment, and Kessler was ordered to surrender the property. Now, it is claimed, because he did not surrender, and the assignee was not able to get possession, Kessler is liable. This suit is brought by the assignee of the debtor. The sheriff levied on the property, which was in a mill. It was appraised, and he placed a proper person there to take care of it; but about the time the order was given by the creditor in attachment to surrender it up, a justice of the peace issued his process, and a constable took possession without the knowledge and against the will of the sheriff, and proceeded to sell.

It was not the duty of the sheriff to interfere in a case of that kind, and his right to hold the property had ceased. It was a virtual release of the sheriff whenever this composition was made. The constable had sold the property and paid the money over; and the action should have been brought against him.

Judgment for the defendant.  