38 Vt. 640 | Vt. | 1866
The facts upon which the question as to the liability of Herrick as trustee in this case arises are in substance as follows: On the 1st of December, 1862, Herrick, as an indifferent person duly authorized, attached on a writ in his hands in favor of the plaintiffs against the principal defendant, returnable to the Windham county court, at the April Term, 1863, all the goods in a store at Marlborough, then occupied by the principal defendant, and, by the consent in writing of the parties in that writ, he sold at auction o'n the 20th of January, 1863, and at private sale after the making of the attachment and previous to that date, a portion of these goods, and received in money on account of these sales the sum of $1177.00 in the whole. At the auction sale, the principal defendant bid off goods amounting to about $120.00, but, as he neglected to pay for the goods which he bid off, the attaching officer retained these goods “ as collateral security for the bids.” The money received from the sales of the goods was received in various sums and at different times, as the sales were made, and, as it was received from time to time, it was deposited by the attaching officer, with other money of his, to the credit of his private account in the Wind-ham County Bank, at Brattleboro ; and it remained on deposit to his credit in that bank, “mingled with his other money on deposit there,” when the plaintiffs’ writ in this action was served upon him. The plaintiffs’ suit in which the attachment of goods was made was pending on the 21st of March, 1863, and was the subject matter of an award of arbitrators, appointed by the parties, which was made and published on that day, and it is agreed that this award operated as a discontinuance of that suit. On the 25th of March, 1863, the plain
There can be no doubt that the attachments made on the writs in favor of Tyler & Thompson, Frost & Goodhue, Tute Brackett &
The principal question in the case is whether the attachment of the claimants was effectual to create a lien on the particular goods which were attached and sold by Herrick as the attaching ofiicer on the plaintiffs’ writ in their first suit, or upon the proceeds of his sales of those goods. The attachment of the goods, eo nomine, made on the writ in favor of the claimants, was made on the 21st of March, 1863, and on the same day, the plaintiffs’ first suit was discontinued. The attachment of “ the amount of the money made by the sales of the goods which was then on deposit to the credit of Herrick’s account in the Windham County Bank, mingled with his other money then on deposit in that bank,” made on the writ in favor of the claimants, was made on the 23d of March, 1863 — two days after-wards. Although no overt act by the attaching ofiicer is necessary to constitute an attachment of property previously, in his custody. ( Turner v. Austin, 16 Mass. 181,) yet an effectual attachment of goods cannot exist without custody or possession either by the officer •or his servant. Lyon v. Rood, 12 Vt. 233; Burroughs v. Wright et al., 16 Vt. 619; S. C., 19 Vt. 510. There was no effectual attachment of these goods on the claimants’ writ, because they had been sold and converted into money, and had passed out of the officer's possession and control more than two months before the claimants’ writ was issued, and, by the sale, the title of the principal defendant to the goods was transferred to the purchasers, and the ofiicer thereby became accountable not for the goods, hut for the proceeds of the sales. The ofiicer having sold the goods ón the plaintiffs’ writ in their first suit, and received the proceeds of the sales, was required by the statute ( Comp. Stat. p. 246, § 28 ; G-. S. p. 295, § 40.) to hold these proceeds “ subject to all the attachments and executions in his hands, at the time of the sale, against the owner of the prop
The identity of the specific money which was received from the sales of the goods in this case, was in fact lost when the attaching officer mingled the money with his own, and deposited it to his credit in the bank. This deposit, as we understand from the disclosure of the trustee, was a general and not a special deposit, and, by making
It has been decided in this court that a deputy sheriff who has money in his hands which he has collected on an execution may be held as the trustee of the execution creditor. Hurlburt v. Hicks et al., and Trustees, ubi supra; Bullard v. Hicks et al., and Trustees, 17 Vt. 198. It has also been decided that he may be held as a trustee of a debtor for coin, bank bills, or money which have been attached on mesne process and remain in his hands after the settlement of the suit. Lovejoy et al. v. Lee and Trustee, 35 Vt. 430. In this last case, it was said by Peck, J., that “ on the same principle, such officer must be liable as trustee of the execution debtor for a surplus in his hands belonging to such debtor, realized on the sale of the property of such debtor, and which it is his duty to pay over to the debtor.” That principle is applicable to this case. When the attachment in the plaintiffs’ first suit was dissolved, the attaching officer became the debtor of the principal defendant for the amount of the proceeds of the sales of the attached property in his hands ; and as the attempted attachment of these proceeds on the writ in favor of the claimants against the principal defendant was made after the attachment in the plaintiffs’ first suit was dissolved, it created no effectual lien on those proceeds. The plaintiffs are consequently entitled to hold the attaching officer chargeable as the trustee of the principal defendant for the amount of those proceeds which it became the duty of the officer to pay over to the principal defendant when the attachment in the plaintiffs’ first suit was dissolved.
The judgment of the county court, which was, pro forma, that the trustee be discharged with costs, is reversed, and judgment is ren