29 Vt. 444 | Vt. | 1856
The opinion of the court was delivered by
This case is somewhat peculiarly situated in regard to some, of the questions involved in it. The suit is brought against the officer and attorney who made the attachment, and who made it in behalf of different creditors, who, in consequence of subsequent litigation, may be entitled to defend upon different grounds.
I. The first question made is in regard to the admissibility of the declarations of Kimball, for the purpose of proving a fraudulent design between him and the plaintiff in the purchase of the property at auction. This purpose or design must have been
II. The question in regard to the estoppel seems to he a very simple one ; but some difficulty arises, perhaps, in its application. But so far as Pierce, Clark & Reed were concerned, the proceeding in chancery, and probably the being made a party upon their own motion and defending the proceeding at law, as subsequent attaching creditors, upon the very notes now in question, would conclude them as to the validity and consideration of the notes. For in the chancery proceeding the principal allegation in the bill upon which the interference of a court of equity is invoked is, that these notes were fictitious, and without consideration. The defendant there, the present plaintiff, is called upon to state, and does state in detail the consideration of the notes, and upon full hearing the hill is dismissed, in general terms, upon its merits. This must certainly he a full estoppel upon them in all subsequent proceedings, as has been often held in this state, and the jury have no right to inquire into it so far as this plaintiff and Pierce, Clark & Reed are concerned, and there is no want of mutuality. But in regard to Reed, Cutler & Co. the estoppel will not operate. But it would seem that only the avails of the horse went to them. It is only, then, to that extent that the defendants could shield themselves under their rights as creditors, as their final disposition of the property shows that they only took that portion of the property for their benefit. This brings us more properly upon the next point in the case.
III. The first part of this point is, that the defendants were bound to show their attachments followed up by judgments, execu
Judgment reversed, and case remanded.