Dow v. Smith, 7 Vt. 465

Dow v. Smith

7 Vt. 465 | Vt. | 1835

The opinion of the court was delivered by

Collamer, J.

The first question in this case relates to the form of action ; should it be trespass or case. It is insisted that the exemption of property from execution is like the exemption of the person from arrest; for a breach of which last privilege it has been bolden that trespass will not be sustained.

For taking property, exempt from execution, trespass has ever been the form of action in this state, as the following cases will show.—Crocker vs. Spencer, 2 D. Chip. 68.—Leavitt vs. Metcalf 2 Vt. Rep. 342, Kilburn vs. Deming, 2 Vt. Rep. 404.—Spooner vs. Fletcher, 3 Vt. Rep. 133.—Try vs. Canfield, 4 Vt. Rep. 9.—Haskill vs. Andros, 4 Vt. Rep. 609.—Hart vs. Hyde, 5 Vt. Rep. 328.—Leavitt vs. Holbrook, 5 Vt. Rep. 405. After no long and uniform a usuage, sanctioned by the court and the profession, we should be slow to adopt a new course not necessary to the rights of the parties, Nor is this difference in the form action *470as t0 an a*tachment of exempted property and an arrest of a privileged person without a distinction in principle. Exemption of a person from arrest is a mere personal privilege which may be insisted on or not, at the time, as the person is always present; and unless the person insists upon his privilege it is considered waived. The law of arrest therefore continues in force even as to such person. In relation to the attachment of property it does not depend on any such condition and could not, with propriety, as the owner is not presumed to be present to insist on the exemption. It is as if there was no law for such an attachment, or levy.

The next question relates to this animal being called a cow, within this statute which exempts a man’s last cow from execution. This exemption is charitable and in the cause of humanity and ought to receive a liberal practical construction. The charge was that a heifer with calf where the owner had no other cow is within the exception. This only permits the poor man to call and consider this his cow when he has no other more clearly entitled to the appellation. This will involve no such practical difficulties as to uncertainty, where there are other cows, as have been suggested, in argument.

The next question is, bad the plaintiff another cow. The lined back cow had by a bill of sale, absolute on the face of it, been sold to Knights. The consideration of that sale was the signing a note for the plaintiff, a part of which he had paid. This would render it a mortgage of the cow to Knights instead of an absolute sale; but still, as between the plaintiff and - Knights it was the cow of Knights, who had the right of immediate possession—Gifford vs. Ford, 5 Vt. Rep. 532. It is now insisted that the sale, whether absolute or conditional between the parties, inasmuch as the cow was left in the plaintiff’s possession was void as to creditors and so, as to them, the plaintiff was the owner of the lined back cow. It is, however, not true that this sale is, properly speaking, void as to creditors; it is only voidable by creditors attaching or purchasing ; and this must by attaching the same property. In the case Spaulding vs. Austin, 2 Vt. Rep. 555, it was decided that the non-delivery of part of the property sold only rendered the sale void as to creditors attaching that part, not as to other property, even in the same sale. The plaintiff must have been in fact owner of the other cow. If a man owns two cows and he sells one for six cents, and delivers possession of it fraudulently in fact to injure creditors, this is a good sale as against him. Now can he never after hold one cow exempt from execution, nor have this *471either on the ground that the sale was void as to creditors? Creditors can only say a sale is void as to them when they treated it as void, and attached the same property. The cow thus sold is not the vendor’s cow; it is the property of the vendee, subject to the attachment of creditors. It must be avoided by creditors attaching it or it stands good to all purposes. This is the same whether it be fraudulent in law or in fact.

Judgment affirmed.