24 Vt. 23 | Vt. | 1851
The case involves no question to be considered, except in relation to the hay sued for, though other property was also embraced in the declaration. The plaintiff acquired a special property in the hay, by attaching it in a manner authorized by statute. By the same means he also acquired a sufficient possession to enable him to support trespass or trover for any wrongful taking or conversion of it. Lowrey v. Walker, 4 Vt. 76, S. C. 5 Vt. And the action can as well be sustained against the defendant in the attachment, as against a stranger. The statute does not imply a bailment of property so attached, from the officer to the defendant, in the process. Such defendant can only interfere by express permission of the officer, or to secure the safety and preservation of the property. And hence, we cannot accede to the proposition urged in argument, — that a demand upon the defendant was requisite to perfect the cause of action. He was not connected by any privity of contract with the plaintiff’s right, but must be taken to have acted in open disregard and violation of it.
But the defendant being the general owner, whose right to control and use this property would at once become absolute upon a dissolution of the lien created by the attachment, he could not be ultimately subjected on account of the property, except in the ■event that the lien should be perfected. The property must have been “ taken in execution,” within the meaning of the statute, andj the plaintiff fixed with an absolute liability in favor of the attaching creditors. And in order to effect this after the plaintiff had ■ceased to be sheriff, the creditors weré” bound, not only to place their execution in the hands of a proper officer within thirty days from the recovery of judgment, but to cause the property to be demanded of the plaintiff, within that period, by the officer holding the execution. Enos v. Brown, 1 D. Ch. 280, Bliss v. Stevens, 4 Vt. 88. Ayer v. Jameson, 9 Vt. 363.
"We have only to determine, then, how the case is to be understood and treated, with reference to proof at the trial, of this necessary demand upon the plaintiff. A case brought into this court on exceptions, is heard and decided as if it were pending upon a writ of error. And unless sufficient appears in the bill of exceptions to convince the court that error has been committed, the judgment excepted to, is of course to be affirmed. Error is.
It is stated in the present case, that when the plaintiff had shown his attachment of the hay, — the recovery of judgment by the attaching creditors, — the delivery of their execution to the new sheriff in season to hold the property attached, — and a general return of nulla bona by that officer upon the execution; — the defendant insisted that, “ on this evidence, the plaintiff was not entitled to a judgment for the amount of the judgment of Strong, Doolittle & Co. against Adams —and that in order to perfect the lien by attachment, “the officer having the execution must make demand of the property attached, or of the money, and probably of both.” The case proceeds immediately to say, — “ But the court rendered judgment for the plaintiff, for the amount of the judgment of Strong, Doolittle & Co., and the interestthat amount being less than the value of the hay taken and used by the defendant. Now it is possible that distinct evidence may have been given at the trial, to prove a demand upon the plaintiff. But we think the case, upon the most natural and obvious construction to be given to it, excludes the presumption of any such evidence. It is therefore to be taken, that the right to recover was adjudged to be established, with no other evidence to prove the demand, than such as the return upon the execution ’ may have been supposed to afford. That return imports a general search for the debtor’s property, but furnishes no evidence, as we consider, of the special demand upon the plaintiff, which was indispensable. The judgment below must be reversed, and the cause remanded for' another trial.
