Fletcher v. Pratt

| Vt. | Feb 15, 1832

Hutchinson, C. J.,

pronounced the opinion of the Court.— Some of these defendants were the original owners of the bricks in question ; and there seems to be no controversy but that the defendants used them, or some part of them, as their own, so as to be a conversion, if the plaintiff had any good title to them. The plaintiff claims to have attached them on a writ of attachment in favor of one Job Richmond, and against James and Josiah Pratt, two of these defendants. The plaintiff did not move the bricks,but left a copy of the writ at the town clerk’s office, as he might by statute, in stead of moving them. The only points litigated before this Court relate to the evidence by which the plaintiff may show, that his lien upon the property, created by the attachment, is preserved. The execution produced by the plaintiff has no minute upon it of the true time when it was received by him or his deputy ; and the plaintiff offered to prove by a witness and the receipt given for the execution, that it was delivered out within thirty days from the rendition of the judgement. This was objected to, and rejected. It seems that the county court considered it necessary for the plaintiff, in making out title under bis own act, or acts, to show liis acts by such testimony as the law made it his duty to furnish. That is, he must show his attachment, creating the lien, by his return upon the writ; and the continuance of his lien, by his entry of the true day, month and year, when he received the execution. I- recollect this was my view at the county court. But the subject has been under consideration in qne or two cases in Chittenden county, and we deem it settled, that, if the creditor preserves his lien upon the property as against the attaching officer, by giving out his execution within the thirty days, that establishes the lien upon the same property in favor of the officer. And, upon due reflection, we think, the same evidence, which would avail the creditor, as against the sheriff, ought to avail the sheriff as against any persons who may have converted the same property. The evidence offered in this case, the testimony of the witness who took the receipt for the execution, and the receipt itself, would have been admissible for the creditor, and, we think, bught to have been admitted in the trial of this cause, to show title in plaintiff. The application of the plaintiff for permission to make the entry of the time when the execution was received, nunc pro tunc, was rightly refused. It was too late for him to furnish evidence for himself of a transaction so long past.

The judgement of the county court is reversed, and a new trial is granted.