Dow v. Smith

6 Vt. 519 | Vt. | 1834

The opinion of the court was delivered by

Collamee,, J.'

— It is urged that this execution was not admissible because the return was defective. This hardly raises the question which the parties have agitated, for the execution ought to have been admitted, even had there been no return upon it, and then the defendant might have been left to make out the remainder of bis defence by other testimony. It is no objection to a paper that it does not make an entire case or defence. But as the question must arise in the case, and has been argued and submitted, the court resolve, that part of the statute directing the officer to call at the debtor’s place of abode and there demand the debt in execution, is entirely directory.

The plaintiff insists the performance of this is a condition precedent to the officer’s power to levy, and without it his levy is a trespass. Such a principle is incapable of practical adoption If he cannot take the property, though he finds it, until ■he has first been to the debtor’s abode, it is obvious the property may be then entirely beyond his bailwick. Cannot property be charged in execution, which the officer holds on attachment, until the debtor is first visited ? May an officer holding an attachment take property, when one having final process, execution, cannot ? Is it to be endured that an officer must see a debtor in execution escape from the county, because the officer has not been to the debtor’s house with his execution ? for it is as necessary in the latter as the former case. But perhaps it may be said the officer might in his return state an excuse for not going to the debtor’s abode. This would compel the officer to judge of the excuse at the peril of being held a trespasser if the court should not confirm his judgment, or of never venturing an excuse, and hazard being answerable to the creditor. A dilemma never intended to be visited on the officer by the statute.

The only practicable' course is, to treat officer’s proceedings as good; and if his disregard of this directory statute is without excuse, malicious and productive of injury to the debtor, let redress be had by an action on the case therefor against him. Such has been the practical construction of this statute ever since its adoption. This question was so decided in the case of Eastman vs. Curtis, (4 Vt. Rep. 616.) If this levy is Void and a trespass, so must have been a levy On land.

Royce, J.

— This decision was made by the court below, excluding the execution, entirely on the ground that the general issue only was pleaded, as is apparent by the bill of exceptions. On inspection of the record, however, it now appears there was notice of a justification, agreeably to the statute. I fully concur in the opinion of the court as now expressed.

Judgment reversed.