21 Vt. 147 | Vt. | 1849
The opinion of the court was delivered by
1. The first question presented by this case is in relation to the plaintiff’s interest in the coal at the time of the tak*
2. Was the coal in such condition, at the time of the taking by the defendants, as not to be subject to attachment by the plaintiff’s creditors 1 It is claimed by the plaintiff, that the coal in this case was in such condition, as to be within the doctrine of the case of Wilds v. Blanchard, 7 Vt. 138, and so not liable to attachment. It is to be remarked, that the exemption, which was sustained in that case, is not an exemption by statute, but one in contravention of the general laws of the state, and, of course, is not to be extended beyond the necessity, which dictated and justified the decision, >vhich was made in that case. In that case the coal pits were only ¡about half burned, and entirely incapable of removal by the officer, and in such condition, as to require the constant and active care and attention of some person, skilled in the business, for several days, in order to render the property of any value. The court, in that case did not decide, that, if the officer had chosen to take upon himself the burden of the completion of the coal, he had not the right to do so, but decided merely, that he was not bound to do so, and, inasmuch as in that case he did not do so, but suffered the same to remain in the owner’s hands, who went on and completed the same without apy direction from the officer, and then disposed of it, that the officer could not claim the coal by virtue of his attachment.
Ip this case the facts are widely different. A part of the coal was entirely finished and completed, so as not to require any farther attention, or labor, and the residue had so far progressed, as to have
3. The property being subject to attachment by the defendants, the only remaining question relates to that portion of the property, which was suffered to be consumed for want of proper care and attention by the officer. It appears from the report of the referee, that this was occasioned by a delay, produced by a negotiation between the defendants and Chapman & Son, who claimed the coal, which negotiation was with the knowledge of the plaintiff. We are hardly satisfied by this statement, that the plaintiff should be made responsible for the consequences of the delay, as it is not stated to' have been at his request; neither are we entirely satisfied, that the-consent given by the plaintiff, for a sale of the property on the fifth', of March instead of the tenth, as advertised, was intended to be any thing more than a mere substitution of one day for another, for the1 sale, reserving all the rights which the plaintiff would have had, if the sale had proceeded agreeably to the advertisement of the officer. But, on this part of the case, we think the plaintiff is not entitled' to re'* cover, because his claim is merely for the nonfeasance of the officer,
On the whole, we see no error in the judgment of the county court and the same is affirmed.