Allen v. Carty

19 Vt. 65 | Vt. | 1846

The opinion of the court was delivered by

Hall, J.

Several objections are made to the verdict in this case.

It is urged in the first place, that the plaintiff was not entitled to recover, because the property was not demanded of the receiptors within thirty days from the time of rendering the judgment. Upon this point it is only necessary to say, that the liability of the receiptors, in this respect, depends upon the liability of the officer, to whom the receipt was given. If it turns out in this case, that the creditor’s remedy on the sheriff, for the property attached, had become fixed by a timely demand on him, no objection is seen to the sufficiency of the demand on the receiptors.

It is next insisted, that the property was not taken in execution, or, in other words, was not demanded of the attaching officer, within the thirty days required by law. The statute provides, that property attached one mesne process shall be holden to respond the judgment thirty days from the time of rendering it; and that the day, on which the plaintiff shall first by law, without leave of court, be entitled to execution, shall be deemed the time of rendering such judgment, for the purpose of holding the property attached. It is also provided by statute, that no execution shall issue on any judgment of the county or supreme court, until twenty four hours after the rising of the court, unless by special permission of the court. Rev. Stat. c. 28, §§ 19, 20, 41. Without inquiring into the time when the twenty four hours is to commence running, it is sufficient, in this case, to say, that as the day succeeding the day of the rising of the court was Sunday, no execution could have issued on that day upon any mode of reckoning, and that consequently Monday, the eighth day of January, must be deemed to have been the day on which the plaintiff could first, by law, be entitled to his execution. The execution appears to have been issued on that day, and here arises the principal question on this part of the case. If the day on which the execution issued is reckoned as one of the thirty days, then the property was not charged in execution by a demand on the sheriff in time, and, the lien of the creditor is gone. If, on the other hand, the day of issuing the execution is excluded from the computation, the. demand on the sheriff was in due time, and the lien is preserved.

The attention of the court has been called by counsel to numerous authorities on this point, both in England and this country; and although they are not by any means uniform, yet their general current seems to tend to establish the rule, that where the computation of time is to be made from the happening of an event, or the doing of an act, the day of the event, or act, is to be included in the computation ; but if the time is to be reckoned from a certain day, or from a certain date, the day from which the time commences running is to be excluded from the computation. Under this rule we are disposed to exclude the day of the issuing of the execution from the computation, as we think the language of the statute is most naturally construed as fixing upon the day of the issuing of the execution as the time from which the computation is to be made. This is also in conformity to what is understood to be the law in reference to the computation of the sixty days, within which an execution may be served. The sixty days have been uniformly reckoned to be exclusive of the day of the date; and a common sense view of the subject would seem to be, that the officer should have thirty of those sixty days, in which to charge in execution property attached. No error is therefore found in the ruling of the court in this respect.

It is next insisted, that Ferris was an incompetent witness to prove a demand of the property, on the execution, of the attaching .officer, because of his interest in the event of this suit. It is said, if fie had neglected to make the demand proved by him, he would be liable to the creditor for his default, and that by testifying to the demand he discharged himself from such liability.

It seems to be conceded, that when the effect of the testimony of a witness would be to discharge him from a direct and immediate' liability to one of the parties to the suit, he is incompetent; but in yegard to what facts should constitute \such liability, there appears to be considerable discrepancy in the cases ; and perhaps some of the cases in this state have gone the full length of the English au» thorities, in excluding the witness. To show that the witness was incompetent in this case, Yeuren v. Smalley, 3 Vt. 251, and Dennison v. Hibbard, 5 Vt. 496, are relied upon. In both those cases the witnesses were excluded, because, if the facts to which they were brought to testify were true, they would be discharged from a liability to the plaintiffs, which liability, if their testimony was false, appeared to be fixed and immediate.

It must be conceded, that these cases bear a strong analogy, in principle, to that now before the court;' but in one respect, at least, they differ from it. In those cases the liability of the witness was direct to the party in the suit; in this, the liability, if it exist, is to the sheriff, who is liable to the party. Hutchinson v. Parkhurst, 1 Aik. 258. Ordway v. Bacon, 14 Vt. 378. In the case of Clark v. Lucas, 1 C. & P. 156, which was an action against a sheriff for negligently executing a writ, it was held, that an assistant, employed by the sheriff’s officer to execute the writ, was a competent witness for the sheriff, and that the liability of the witness to the sheriff’s officer was too remote an interest to exclude him. And the rule seems to be, that the liability, in order to exclude a witness, must be direct and immediate to the party, and that, where the witness is only liable to a third person, who is liable to the party, such circuity of interest is no legal ground of exclusion. Clark v. Lucas, 1 C. & P. 156. Briggs v. Crick, 5 Esp. 99. 1 Greenl. Ev. 463, 468. In this case, the witness not being liable directly to the party, but at most to the sheriff, his interest is deemed too remote to exclude him. Whether the sheriff himself would have been incompetent, it is unnecessary to decide.

It is farther insisted in behalf of the defendants, that the rule of damages adopted by the court was incorrect. A portion of the property attached having been withdrawn from the custody of the receiptors by the act of the plaintiff in the attachments, or rather by the act of his creditors, it was very properly considered, that the receiptors were not responsible for the delivery of the property so withdrawn. The defendants then offered evidence to show the actual value of the residue of the property, which remained with the receiptors, and claimed that such value should be the' rule' of damages, without any reference to the value of the whole property, as fixed in the receipt.

It was held, in the case of Parsons v. Strong, 13 Vt. 235, that the value of the whole property, as' stated in the receipt, should bind the officer, as well as the receiptor, so that neither' could prove the value by other evidence; and this decision seems to be in conformity to the common understanding of such contracts, as well as to the object for Which they are made. It is well understood, that these receipts are usually taken and given as security to the officer and creditors, and that no such valuation is often made, as takes place between purchaser and seller. The valuation is, perhaps, generally made v[ith more reference to the amount of the debt, which is to be secured, than to the real value of the property. Hence the property may be greatly over or greatly under rated in the receipt, all parties understanding at the time, that the object of specifying the value is not an appraisal of the property, but to furnish a security for the debt. The contract being thus made and understood, the rule of damages claimed by the defendants would s'eem to be one, that, in practice, would be quite as likely to thwart, as to carry into effect, the original intent of the parties. The receiptor, in conformity to the character of the liability which the officer has been adjudged to be under, (Bridges v. Perry, 14 Vt. 262,) would probably be holden to no more than ordinary care and dilligence, in the preservation of the property; and in case of the attachment of numerous articles of property, it seems highly probable, that the receiptor, in almost all cases, would be able to show a valid excuse for not delivering some small portion of the articles. To hold, in such case, that the value specified in the receipt should be set aside, and the actual value of the residue substituted as the rule of damages, would be a manifest violation of the original intention of the parties, and would, in numerous instances, render the decision in Parsons v. Strong ineffectual and nugatory.

Nor does the rule adopted by the county court in this case seem to be free from objections. Although the property attached might, by the consent of the receiptors, have been valued in the receipt at more than it was worth, yet they may well have calculated upon the actual value, as furnishing them with security to that extent for the liability they incurred by the receipt. By the rule adopted, of deducting only the actual value of the property withdrawn from their possession from the valuation in the receipt, it is manifest that their real security for their remaining liability might be greatly impaired, — the extent of the injury to them depending upon the proportion of the whole property, which was thus withdrawn. If we apply the rule of damages, adopted in this case, to a case of the under valuation of the property in the receipt, it might operate very unjustly to the officer. By way of illustration, let it be supposed, that an attachment is made of the stock on a farm and of hay and grain in the barn, and a receipt taken specifying the whole value to be $500, which we may suppose is the amount of the debt sought to be secured. If the barn and its contents be destroyed by fire, it is manifest that the receiptors might discharge the'mselves from their whole liability, by showing that this property, thus destroyed by the act of God, was of the value of $500, while the stock on the farm, still remaining in the hands of the receiptorsj might be of equal value with the sum specified in the receipt, and abundantly sufficient to secure the debt, for which it was attached. On the whole, as the rule adopted by the county court would be likely to operate unjustly in many if not in most cases, we think it an unsafe one to be generally applied.

In order to carry into effect the original intent of the parties, as far as practicable, we think the value of the property specified in the receipt, and not the actual value, should form the basis of the rule of damages, in cases circumstanced like this, as well as where the receiptor is liable for the whole property. The jury should have been instructed, that, assuming the value of the whole property receipted to be the sum specified in the receipt, they should ascertain the just proportion, at that assumed value, which the property, retained by the receiptors would bear to the property for which they were not liable, and that their verdict should be for such assumed value of the property remaining with the receiptors. In other words, the rule of damages should be, not the actual value of the property for which they remain liable, but the value which the parties had put upon it by their receipt, — such latter value being ascertained on the assumption that the increased or diminished value of the property specified In the receipt had been rateably apportioned by the parties upon the several articles receipted. This rule, which seeks to - charge the receiptors with the portion of the property, for which they remain liable, at the value fixed upon it by their receipt, seems to us the most just that can be adopted.

This rule of damages has not been considered with reference to any other class of contracts than officers’ receipts, which are deemed to stand on a peculiar footing of their own.

The judgment of the court below is set aside and a new trial granted.