
    Archibald McKenzie vs. James Noble.
    
      Attachment — Things in the Custody of the Law.
    
    An order was made, by consent, pending a bill in equity for tbe specific delivery of a picture, that the picture be deposited with the Master until the further order of the Court. At the hearing a decree was pronounced for the plaintiff, and the Master was ordered to deliver the picture to him : — Held, that, pending an appeal from .the decz'ee, the picture was not liable, in the hands of the Master, to attachment at law.
    BEFORE GLOVER, J., AT CHARLESTON, SPRING TERM,,1860.
    The report of bis Honor, tbe presiding Judge, is as follows:
    " James Noble filed his bill in tbe Court of Equity against John S. Ryan, praying the specific delivery of a painting; representing, it is alleged, 'St. Jerome resigning tbe Crown.’ Hearing tbe bill, answer, and affidavits in tbe cause, and with the consent of the solicitors for the complainant and the defendant, the Court ordered, July 6th, 1859, that the painting be deposited in the hands of James W. Gray, one of the Masters of said Court, and remain iu his hands until the further order of the Court.’ At the hearing, February Term, 1860, Chancellor Inglis adjudged the right of property in the picture to be in James Noble, and, by a decretal order, directed: 'That the painting which is the subject of this suit, and which, under a former order, is now deposited in the hands of James W. Gray, one of the Masters, to remain until the final order of the Court, be delivered by him to the plaintiff or his solicitors.’ This decree was pronounced February 28th, 1860, and filed February 29th, and on an appeal, it was affirmed by the Court of Appeals.
    “An attachment was issued by the plaintiff in this case against James Noble, who was without the limits of the State, March 3d, 1860, and a copy was served upon James W. Gray, March 4th, 1860, who returns: That he has not in his possession, &c., any moneys, &c., of the, absent defendant, ‘ except a painting said to be St. Jerome resigning the Crown, which he holds in his official capacity, as Master, and which he has been, by an order prior to the attachment, to wit, sixth day of July, 1859, directed to hold subject to the further order of the Court; and by the decree of Chancellor Inglis, confirmed by the Court of Appeals, made after the attachment, to deliver to the defendant or his solicitors. That the said James'Noble is absent, and his solicitors claim the picture under the said decree,’ &c. In connection with this return, it is proper to state, that an error occurs in alleging that the decree of Chancellor Inglis was ' made after the attachment.’ The decree was filed February 29th, and a copy of the attachment was served on James W. Gray, March 4th, while an appeal was pending.
    “At this term, the following order was proposed: 'On motion of Whaley & Rutledge, defendant’s attorneys, it is ordered, that the attachment in the above case be set aside, the property attached being subject to the decree of another Court, and that the plaintiff do pay the costs.’ I refused to pass this order, and, on the grounds stated in his notice, the defendant appeals, and moves to reverse this judgment.
    
      “ The right of property was not sub judies when the copy of the attachment was served upon James W. Gray. Chancellor Inglis had then finally adjudicated the rights of the parties litigant, and an order had been made for the specific delivery of the painting to the defendant, or to his solicitors. Gray’s custody was no longer under the consent order of July, 1859, but under the decretal order of February, 1860, and he was as much the agent of defendant as the solicitors would have been on delivery of the painting to them. It was no longer in the custody of the law, and thereby protected from the legal remedies of Noble’s creditors. {Day vs. Beecher, 1 McMul. 92.) Nor do I apprehend that the question of jurisdiction is involved. The Chancellor’s decree was the final adjudication of the rights of property, and the end of the suit, and the property was then in the Master’s hands for delivery; and his custody, after the decree, was in nowise different than would have been the custody of John S. Ryan, if the painting had not been removed from his keeping by the order of July, 1859.
    
      “ The third ground submits, that the appeal operated as a supersedeas of the decree. Whether it suspended the decree, and to what extent, doubts may be suggested and entertained; but in my apprehension, the right of property in the defendant having been decided in his favor, the notice of appeal would not operate to suspend, and thereby, perhaps, defeat the legal rights of creditors.”
    The defendant appealed, and now renewed before this Court his motion to set aside the attachment, on the grounds:
    1. Because his Honor should have ruled that the picture, while' 'in .the custody of the law, was not 'subject to an attachment.
    2. Becáuse his Honor should have ruled, where a fund or other property was in another Court, that an attachment would not lie.
    . 3. Because his Honor erred in ruling that, while appeal was .pending, the fund or subject-matter was not in the custody -of the law. That the appeal was no supersedeas of the decree.'
    ' 4. Because his Honor erred in ruling that there was no Conflict of jurisdiction arising under the decree and the attachment.
    
      Whaley, for appellant.
    
      James Simons, contra.
   The opinion of the Court was delivered by

Johnstone, J.

That the picture, when it came to the hands of Mr. Gray, should be considered as in the hands of the law, does not, in my opinion, admit of a doubt. He was ordered to receive it in his official capacity. Though the order was passed by consent, that circumstance did not degrade him into a mere agent of the parties. The order was the order of the Court, and not of the parties.

It is not intended by these observations to abolish the well-established distinction between decrees or orders, pronounced by the Court, as its own judgment, upon matters propounded for its adj udication, and orders or decrees passed upon motion of counsel. In the former case, the Court is responsible for the judgment, and it stands upon the samé footing as decrees generally do.

In the latter case, the party taking the decree upon his motion, takes it at his own peril, and being bound to take only such decree as he can abide by, is bound-to uphold the decree; and, if he fail to do so, must lose its benefits.

.■ Birt the order by which the picture was lodged with Mr. Gray did not originate with him, and did not depend upon his consent. It operated, so far as concerned him, in invitum. He was obliged to receive by the mandate of the Court;. and when he received, he held for the Court. The subject-matter was in the hands of the law; and, holding, not as a private person, but as an instrument of the forum, that forum alone could discharge him, or control him in the performance of the functions it imposed on him.

The case of Bowden vs. Schatzell referred to in the argument, stands upon the principles just mentioned; and must control this case, if, at the date of the attachment, the picture still remained in Mr. Gray’s hands, subject to a final decree in the cause.

The decree of Chancellor Inglis was subject to appeal. Whether the appeal, when taken, superseded this decree, as to the parties to the cause, or whether the successful party was at liberty, notwithstanding the appeal, to go on, and execute the decreé, need not be considered or decided here. There is great difficulty, undoubtedly, in the question whether an appeal, ipso facto, operates as a supersedeas; and, if so, whether it so operates in all cases and to an unlimited extent, or whether its operation is limited by the nature of the case, and restricted by its exigencies. But what I mean to say, in this case, is, that Mr. Gray was neither a party to the cause nor to the appeal. He could neither speed nor retard the cause in the Circuit or in the Appeal Court. He was the powerless custodian of property in Court, and so long as its decree remained open to investigation, he must remain liable to the final decree.

It would place the officers of the Court in a condition of intolerable responsibility and peril to hold the contrary doctrine.

It is ordered, that the motion be granted, and that the order, moved for in the Circuit Court, be entered in the attachment case.

O’Neall, C. J., concurred.

Motion granted. 
      
      
         Bail Eq. 361.
     