16 Vt. 393 | Vt. | 1844
The opinion of the court was delivered by
The defendant justified taking the property in question, as deputed to serve an execution in favor of Merrifield & Co. against one Cobb. It became necessary for him to show a regular process, and his deputation. In order to justify under the authority of the writ of execution, it was necessary to show that he pursued the steps pointed out by the law. The first execution, on which he took the property, was legal and unobjectionable; but he did not sell the same by virtue of that execution ; and as he conducted with the property taken in a manner different from what the law directs, he was a trespasser al) initio, and cannot protect himself under that execution. The neglect of an impounder to proceed with a distress according to the requisitions of the statute made a man a trespasser previous to the statute of Geo. II. 7 Vt. 367. Pierce v. Benjamin, 14 Pick. 356.
This question, however, is not important in this case, as the seizure and sale on the second execution was a trespass on the property of the plaintiff, if the execution was irregular and void. That it was irregular and void has been so often decided, that it