49 Vt. 90 | Vt. | 1876
The opinion of the court was delivered by
It is to be inferred from the declaration, that the defendant sued out the writ named therein, for the substantial purpose of collecting a just debt' against the plaintiff, inasmuch as nothing to the contrary is averred or intimated in the declaration. This being so, it was defendant’s lawful right to attach property upon said writ. Property was attached on it, and with due formality, for aught that appears. So far no legal right of the plaintiff was violated.
I. The burden of the address made to the court in behalf of the plaintiff is, that the property named was not attachable. It is a full answer to this claim, that all that was attached was merchandize in a store, and kept for sale as merchandize, whereof to make gain and profit. It is conceded that no article of the property is specifically named in the statute of exemption. Certainly the exemption claimed is not within the spirit and purpose of the statute. Such articles could be regarded as within the operation of the statute only when procured and held to be used for food in the owner’s family. When owned and kept for trade and profit, they are no more exempt, nor is there more or different reason why they should be, than any other kinds of chattels when owned and kept for the same purpose.
II. That they were perishable is no ground for exemption known to the statute or to any other law. The statute makes provision in respect to perishable property when attached. If some such articles might perish before they could be disposed of under the statute, there may seem to be a deficiency in the law in
III. The law does not require the officer to take a receipt for property attached ; nor is his taking one an official act, as was said by Skinner, O. J., 1 Aik. 264. Such has always been the idea of the profession and of the courts. It was not, them, unlawful' for the officer not to take a receipt, nor was it unlawful for the defendant to give the alleged instructions to the officer in that behalf. Whether the officer will or will not take a receipt, is not the exercise of official function, but is determined by him on personal reasons, in view of all that appertains to the subject; and those reasons are not amenable to judicial inquiry as between him and the party whose receipt he declines to take. He is but doing his official duty in taking the property and holding the custody of it by his own hand, until such custody is divested by modes and means provided by the same law that entitles him to take the custody in the first instance. He is not required by any law to let some one become the keeper of it for him, and at his own risk, as it would be, so far as his liability to the parties entitled under the attachment is concerned. In this case, custody of the property was taken from the attaching officer by the means provided by law in that behalf, and by the only means to which it was his legal duty to yield, with reference to the property attached by him, as this was.
IV. It cannot be assumed as matter of law, that the alleged closing of the restaurant, and the excluding of the-plaintiff from it, was an actionable wrong against the plaintiff. Perry v. Carr, 42 Vt. 50. Whether so or not, would depend on the special circumstances, making it reasonably necessary or not, in order to the making of a proper attachment. Nothing is shown in this respect,’ and the presumption is, ómnia reote aeta by the officer.
V. All these things being so, of course the maliciously intending to injure and oppress the plaintiff, &c., where nothing unlawful, and only what was lawful, was done in effectuation of such
Judgment affirmed ;
