20 Vt. 261 | Vt. | 1848
The opinion of the court was delivered by
Upon the attachment of hay, and certain other articles of property difficult to remove, the statute allows the officer, as a substitute for taking the possession of it, to leave copies of the process and of his return in the town clerk’s office; and those copies operate as notice of the attachment to all persons. Rev. Stat., chap. 18., sec. 15. The objection in this case is, not that the copies in the town clerk’s office did not give the defendant proper notice of the attachments; but that the copies were variant from the originals, and that in the originals the place, in which the hay was situated, was not sufficiently described, for the purposes of identity.
If the hay had not been returned attached, the plaintiff would of course have no title, whatever the copies might have shown. But the hay was attached; and I am not prepared to say, that the defendant, who has had the statute notice, should be allowed to make an objection to a defect in the officer’s return, which would not have availed the debtor in the original process, and which was clearly the subject of amendment. The defendant suffers no injury by this ■variance; and I am inclined to think, that he cannot object to it. It
In order to give an officer the constructive possession of property, attached by leaving a copy with the town clerk, it is undoubtedly true, that it must be described with reasonable certainty; but such reasonable certaity is all that can be required. The sufficiency of the return, in this respect, can only be determined, by applying it to the actual state of the debtor’s property at the time. If the debtor have no such property as that described, the attachment can have no operation. If he have such property, the question is, whether it has been sufficiently pointed out to enable the debtor, and those with whom he may deal, to be informed that it is attached. The property attached was described in the officer’s returns as “ thirty tons of hay in the barn on the premises,” without the addition of the words “ occupied by the defendant,” which are found in the copies. Now, in the absence of any other description, we think it must and would be understood, that the premises were in the occupancy of the debtor. Property attached is presumed to be in the possession of the debtor, unless it be otherwise described; and from the return of the officer no person would doubt, that the premises occupied by the defendant were intended. No one would imagine, that the officer designed to attach hay in the possession of others, unless he had so described it. There is no pretence that Philips, the debtor, had the quantity of hay described in any other barn, than that from which the defendant purchased; and we think he would be bound, from the description in the officer’s return, to take notice that that hay was attached.
The judgment of the county court is therefore affirmed.
