44 Vt. 265 | Vt. | 1872
The opinion of the court was delivered by
The plaintiff, by demurring to the defendant’s pleas in bar, admits that Hendrix was a bankrupt, before and at the time he sued out and delivered his writ to the testator’s deputy, A. S. Sampson, to serve ; and that the insolvency of Hendrix was known to him. He also thus admits that, more than four months afterwards, Hendrix was adjudged a bankrupt, by the distriet court, and paid a dividend to his creditors of fifty cents on the dollar; that his debt, on which the writ issued, was provable under the provisions of the bankrupt law, and that he neglected to prove his debt, and receive a dividend. The only question arising on the pleadings is, whether these admitted facts are a full answer to the default of the testator’s deputy, in failing to attach the property of Hendrix on the plaintiff’s wilt. We think they are not. Under the statute it was the duty of the testator’s deputy to execute the process, by attaching the property of Hendrix. The plaintiff had the right to have this duty performed, and the defendant cannot excuse its non-performance by averring its discharge might not have availed the plaintiff to satisfy his debt, because the law of the United States, in regard to the property of bankrupts, might have intervened, and taken the property, when attached, from the custody of the state law. The court cannot assume that Hendrix, because it was his duty,' would have volun
The defendant insists that the plaintiff’s declaration is defective, in that it does not allege that the plaintiff tendered or paid the testator’s deputy his fees for serving the writ, and in that the first count does not allege that the property of Hendrix was within the precinct of the deputy, and claims that a bad plea is a sufficient answer to a bad declaration. The declaration alleges that the plaintiff delivered the writ to Sampson, and that Sampson received it. If he received it without objection in regard to the prepayment of his fees, he thereby waived such prepayment, and was bound to serve the writ the same as though his fees had been prepaid. If the deputy refused to make the attachment, on account of the non-prepayment of his fees, the testator’s executor should have brought that fact upon the record by his pleas. The presumption arising from his acceptance of the writ is, that the deputy’s fees were either tendered or paid, or their prepayment waived. The second count in the declaration alleges that the property of Hendrix, which was open to attachment, was at Sheldon,- within the precinct of the deputy. The- first count gives Hendrix’s residence q.s Sheldon, and avers that the plaintiff de
