37 Vt. 255 | Vt. | 1864
This is an appeal from the disallowance of a claim by commissioners, and the plaintiff’s declaration is in special assumpsit on a receipt given to him by Eunice Snell, the intestate, for property which he had attached as an officer in a suit between other parties. The property which was attached was duly charged in execution, so far as it was necessary to fix the liability of the officer to the creditor for it, but this is a suit between the officer and receiptor, and not in favor of the creditor against the officer. Before the recovery of judgment in the suit on which the attachment was made, the receiptor died, and administration had been taken out on her estate. There was no proof that any demand for the property was made upon her in her lifetime, or upon her administrator after her decease ; and, upon this ground, the county court decided that this action could not be maintained.
The obligation or duty of the intestate, as expressed in the receipt which she executed to the plaintiff, was to return the attached property “ on demand.” To preserve the lien of the attachment on the property, it is necessary that execution should be issued and delivered to an officer for levy within thirty days from the time when the creditor first becomes entitled by law to take out execution on the judgment; and, to charge a receiptor on his receipt, it is necessary that the property should be demanded of him within the life of that execution by the delivery of which to the officer the creditor’s lien is
Judgment of the county court for the defendant affirmed. .