19 Vt. 510 | Vt. | 1847
The opinion of the court was delivered by
Many of the questions involved in this case were decided by this court on the former hearing. 16 Vt. 619.
1. That no lien was created in favor of the Farmers’ & Mechanics’ Co. by the plaintiff’s service of their writ, as stated in that case. We do not think the difference in this case is important. It is true, that Wright could not have served that writ; but the plaintiff might have served them all; and if it was the desire of all concerned to have that writ served prior to Kittredge’s execution, they could have put the processes into the plaintiff’s hands. But the fact, that Wright could not serve this writ, is no reason why the court should attempt to create a lien, loithout attachment. The same reason will apply in all cases, where the officer is the sole party. But it will hardly be expected, in such cases, that a different rule is to apply. Nor is the case different, as to the facts, in any other material point.
2. It is of no consequence, so far as relates to the principle, whether Wright put one writ, or three, upon the property, before Burroughs was permitted to return his process. The only question is, did he make the first attachment, and did he keep the exclusive possession ? These facts are expressly found by the jury. That, then, will effectually exclude all attachments by the plaintiff; — for an attachment cannot exist, without custody, or possession, either by the officer, or by his servant. Wright’s agreement, that Burroughs’ writ should stand in any given order of priority, can have no effect, so long as no attachment was in fact made.
3. There is no pretence of a simultaneous attachment in this case,
If, then, the plaintiff acquired no right to the possession of the property by the service of his writ in favor of the Farmers’ & Mechanics’ Co. against Ramsay, did he acquire any such right, when the executions upon the former attachments came into his hands 1 We think not.
It is not necessary to hold that the creditors in those executions lost their lien. Very likely they did not. It seems Wright so regarded it at the time; for he retained in his hands the amount of those executions, — which I do not see but Burroughs is still entitled to, if he properly charged the property in execution, as perhaps he did, by his demand of Wright. But clearly this gave the plaintiff no right to take the property out of Wright’s hands, and thus defeat the lien upon Kittredge’s execution. That lien could not be transferred to another officer, and, if the property were surrendered, would be gone, and Wright would thus become liable for the value of Kittredge’s legal claim. The plaintiff, then, was clearly a tres» passer in taking the property, unless Wright’s consent, which was revoked before it was acted upon, created a right to possession in the plaintiff
This consent was revocable, we think, — 1, Because it was given without consideration, and the plaintiff made aware that it would be revoked before it was acted upon, and so the plaintiff .was not misled or in any way injured by it. In short, being given without consideration, it would be revocable until acted upon; and if so revoked, as it was in this case, it would be, to all intents, the same as if it had never been, given. 2. It was given by Wright under a mistake as to his own rights, and so clearly revocable, unless so acted upon as to place Burroughs in such a situation, that he would be injured, if the permission were revoked, — which was not the fact in this case.
Burroughs, then, at the time he took the property, having no right to the possession, but that being in Wright, he might well retake it; and his subsequent proceedings, if they had been irregular, would not have made him liable in trespass to the plaintiff, as long as he was not a trespasser in taking the property from the plaintiff, and the plaintiff was' not the general owner and had no right to the
But, as the Farmers’ and Mechanics’ Co. had no lien, and the other liens have been satisfied,' — or offered to be, which is the same thing, — and all the other parties interested have consented to the sale, we do not see what ground of objection there is left. This point was in effect decided in the former case reported.
Judgment affirmed.