12 Vt. 142 | Vt. | 1840
The opinion of the court was delivered by
— When personal property is attached, it is to be kept, by the officer, at the the expense of the debtor. The debtor, if unwilling to incur this expense, must replevy or procure it receipted ; which he is as much bound to do as he is to procure bail, when his body is arrested, if he would avoid prison charges. If the officer afterwards receives an execution, he sells the property and takes his pay for the expense of keeping, out of the money so received, and applies the balance on the execution. Thus the debtor pays for the keeping. If the debtor settles the debt with the creditor, so that no execution comes into the officer’s hands, on which to make sale, he may sustain an action against the debtor for the keeping. This was so decided by this court, in Orange county, in the case of Jackson v. Scribner. Most clearly, if the debtor does pay the officer, he cannot recover his pay again of the creditor. Here, the officer used the property, without injury, sufficiently to pay for the keeping. But, it is said, that he must not so apply this use, as the officer is liable therefor, to the debtor, in trespass. It was decided in the case Lamb v.Day et al, that for such a use,nothing could be recovered by the debtor, in an action of trespass, but the injury to the property. For the use then, the debtor had a claim, in contract, against the plaintiff, and to this the keeping m ust apply. The result, therefore, is this, the plaintiff kept Smith’s mare for him and used her for the keeping.
Judgment affirmed.