Felker v. Emerson

17 Vt. 101 | Vt. | 1843

The opinion of the court was delivered by

Hbbard, J.

Had the officer a lien upon this property for his services, after the attachment was dissolved by a settlement of the suit? In making this attachment the officer is the agent and servant of the plaintiff, and, before the attachment is dissolved by a settlement of the suit by the parties, or by a final judgment in favor of the defendant, he has an imperfect lien upon the property. But there are a variety of ways in which the lien may be lost. If the defendant in the suit recover a final judgment in the suit, the attachment is dissolved, and justice would not require that he should be pursued with a false clamor, and lose the use and possession of his property, and then be compelled to pay the officer for his charges in keeping it. If the defendant decease before judgment, the attachment is dissolved, and the property returns to the administrator. If the attachment is pursued to final judgment, the lien then becomes perfected. Before that, it was imperfect.

The case finds that this attachment was dissolved by the adjustment of the suit. And such is the legal effect of an adjustment, or settlement, of a suit. What considerations operated upon the mind of the creditor, to induce him to discontinue the suit, it is not for us to conjecture. There might have been a variety. He might have obtained better security for his debt, by giving farther time of payment, or he might have discovered some informality in the proceedings, or some deficiency in his proof, which he could supply at some future time ; or it might have been something else. It was voluntary on his part. He might have insisted upon his attachment, if he chose; and when he chose to make the adjustment, he might have stipulated for the payment of the expenses of keeping the property, before discharging his lien. This is a statutory inconvenience, to which the debtor is subjected, in having his property taken upon mesne process, and we are not disposed to extend the inconvenience farther than a fair construction of the statute would warrant. The officer is in no danger of being injured. It is not for his security that we are called upon to adopt this principle. He is in the employ of the creditor, and if the creditor voluntarily dissolves the lien created by the attachment, by settling the suit, the officer has the same claim upon him for his charges, that he would have in a case where the lien was lost by a final judgment in favor of the debtor.

Judgment reversed.^*

* The proceedings in this case at a subsequent term of the Supreme Court will be found reported in Vol. 16 of Vt. Reports, page 653.