Brooks v. Farr

51 Vt. 396 | Vt. | 1878

The opinion of the court was delivered by

Redfield, J.

The case shows that defendant, as constable, had attached five cows as the property of Rockwood on a writ of attachment in favor of Harriet Stowell against C. M. Rockwood and others; that he had perfected his lien by leaving an attested copy of the process in the town clerk’s office, and that before the twenty days expired he took actual possession of the cows, and sold them regularly on the writ; that plaintiff, being aware of the defendant’s attachment before the cows were actually removed, as an authorized person, attached one of said cows, described in his return as “ one small, light-red cow,” by leaving a copy of his writ and attachment in the town clerk’s office.

It appeared that Rockwood owned, and had on his place, seven instead of six cows, as defendant supposed at the time of his attachment. The defendant knew that this “ light-red cow ” was owned by Rockwood and on the place, and was one of the five cows he described, or intended to describe, in his return ; but his return shows merely that he “ attached five cows,” without any specific description.

The writ upon which the defendant as an authorized person, attached one “ light-red cow,” is directed “ to any sheriff or constable in the State or to George Brooks.” The plaintiff was not otherwise authorized to serve the writ.

I. Before the statute of 1869, No. 41, the form of special authorization in justice and in County Court writs was unlike. In a justice writ the magistrate signing the writ indorsed upon the writ the words, “ I authorize A. B. to serve this writ. C. F., Justice of the Peace.” In a County Court writ the authority signing the same inserted in the body of the writ the name of the person authorized and the adjudication of the statute cause. The statute of 1869 simply made either mode of authorization legal. In Culver v. Balch, 23 Vt. 618, it was decided that a direction “ to A. B., an indifferent person,” was sufficient; and there is an intimation by Kellogg, J., that if the words, “ an indifferent person,” had been omitted, possibly the authorization might be good, and the case of Miller v. Hayes, Brayt. 21, is referred to. In Dolbear v. Hancock, 19 Vt. 388, the writ was directed to “ E. K. Gladding, Constable,” and served by him. In that case as in this, there was an entire omission of the statute cause and the statute qualification of the person authorized, and the court held that the service was void.

Where authority or jurisdiction is given to a person sub modo, it is usually necessary that the conditions and circumstances giving special jurisdiction and authority should affirmatively appear ; otherwise in case of one having general jurisdiction and authority. In case of authority to issue process against the body of a debtor under specified conditions, it has always been held that these conditions must affirmatively appear as a prerequisite to the exercise of authority. It would seem more consistent with analogy that it should appear that the person authorized by directing the process to him, was “ an indifferent person,” such as the statute specifically requires.

II. The defendant had attached five cows, and given a list of the property attached in his return, and had done all that the statute required. He was not required to give a particular description of each animal, so that a subsequent attaching officer could not possibly err. It would be impossible to describe each particular animal, in the attachment of cattle, sheep, colts, and pigs, in language, that would make identity certain. The case finds that defendant saw and knew the five cows that he attached, and seasonably removed them. Had the defendant attached one hundred sheep, could the plaintiff, if a regular officer, have wrested them from the defendant’s lien and legal control by giving in his return a more perfect description ? Or if he find the number one in excess of the defendant’s list, can the plaintiff take his election and choice out of the whole number, in defiance of the defendant’s rights ? We think the plaintiff’s rights, if any, were subordinate to the defendant’s attachment; and that, when the plaintiff ascertained there was one cow. in excess of the five attached by defendant, he should .have made his attachment subject to the defendant’s ; and, at the proper time, called upon the defendant to select the five cows by him attached. We regard the defendant’s attachment as good ; and that the plaintiff, if his authorization should be held good, got no right by his attachment to the “ small light-red cow,” as against the defendant.

Judgment reversed, and cause remanded.