| Vt. | Jan 15, 1827
On the last day of the present term,
delivered the following opinion of the Court.
I have had no thought of delivering an opinion in this cause, till within half an hour previous to our coming into court this evening, and of course cannot attempt to present a detailed view of all the points and authorities urged upon the court in argument, but only those points upon which the court consider the merits of the cause must turn.
This is an action of trover, and is presented to the court by a case agreed to by the parties. The question urged as arising upon the priority of the attachment, is not the point upon which the cause turns, as will be seen in the result. Some difficulty might have arisen upon this part of the case, were it not for the after proceedings, stated in the case. It seems, that the defendant first attached the goods in Cardell's store, and took a receipt from Hovey and Ramson for the same, and they were left in the store and offered for sale, as before the attachment. This was on the 18th of March, 1816. The defendant went again, with other writs, on the 23d of said March, to attach the same property, but was prevented, by the locking the store, by Cardell and said receipters. March 25th, 1818, Severance the other constable, went with eight writs against Cardell, and, with the consent of Hovey, Ramson and Cardell, took the same goods, being, as the court understood the case, all the goods in said store, and he took the same receipters, and left the goods in the store, and Cardell or his clerk went on with sales as before.
It is unnecessary for the court now to decide, whether upon these facts Walbridge, the defendant, could maintain his lien on the goods, to the entire amount of his attachment, and could have regained the possession of the goods from the receipters and Cardell, notwithstanding the attachment of Severance; for the attachment by Severance created in him a lien upon the goods, at least to hold subject to the prior attachment of Wal-bridge. Walbridge still had his remedy against the receipters, had they remained good and responsible, and had the suits commenced by his attachment been regularly pursued. But, it seems by the case, that on the 20th of May following, Hovey and Ramson became in failing circumstances, and Severance, with consent of them and Cardell, took possession of the goods, being the same described in the plaintiff’s declaration, and began to take an inventory and put -them into boxes. While he was doing this, the defendant Walbridge came with his teams, and forcibly took away three boxes of the goods, thus put in boxes by Severance, and was prevented by Severance from taking any more. On the 22d of said May, Severance and Walbridge believing that the goods were of sufficient amount to satisfy all the claims of the attaching creditors, made an agreement, by which all the goods
But it appears, that on the 2d day of August, 1816, Cardell confessed judgment on all the demands for which Walbridge had attached the goods, and executions were taken out and delivered to Walbridge, who, in a day or two, went with the posse, and took the goods, and sold them on these executions. Afterwards, at the December term of the court, those suits, in which Wal-bridge had made the service, were discontinued, while the other' creditors, who had employed Severance, obtained their judgments and executions.
The Court entertain no doubt but that the taking of these confessions discharged the original attachments in the suits, and destroyed the lien Walbridge before had in the goods, and left them subject only to the attachments made by Severance.
It further appears in the case, that Walbridge’s sale of the goods was made September 16, 1816 ; that the avails were ap-'" plied to pay the demands for which he had attached, leaving a balance, which he applied in part payment of an execution in his custody, in favour of one Rogers against said Cardell. That Severance died September 21, 1816, and Mallhew Severance was appointed administrator upon his estate, and that the creditors took their executions from the December court, delivered them to an officer regularly and within thirty days, and within the same time caused demand to be made for the goods, of the defendant, and of Rawson and Hovey the receiptors, and of the administrator of Severance, but they were not delivered. By all this, the lien of the creditors, for whom Severance attached, had become perfect upon the goods. And there was a clear right of action in favour of Severance, had he been alive, against Wal-bridge, for the goods, as he had taken and sold them after his original lien had become extinct. Had he only taken them and not afterwards sold them, possibly some doubt might have arisen out of their joint possession, at the store of Moses D. Robinson. But as he forcibly took them with the posse, and afterwards sold them and applied the avails to pay the other debts of Cardell, and all this while Severance was living, we are agreed, that under these circumstances, Severance, after the sale and before his death, had a good cause of'action against the defendant, for thus converting the goods.
But upon the remaining point, whether Hall, the present administrator of Severance, can maintain the action, under all the circumstances that now appear in the case, one of us has entertained some doubt.
It is objected, that the lien of the creditors for whom Sever-anee attached, is lost, by their not presenting their claims before commissioners. There was no claim thus exhibited, nor is it easy to conceive what claim there was to exhibit. He, in his üfe time, had been faithful, and not guilty of any neglect. If he had been, and the claim sounded in tort, and his estate not enriched by it, such claim could not have been supported. Possibly it might, had he been a sheriff, on his official bond; yet that would seem difficult, for there was no cause of complaint against him at his decease. But in answer to all this, it is said, and so the majority of the Court think, that the several creditors, by reason of the attachments made by Severance on their writs, and the letting go of the opposing lien, if there was one, by the confessions, obtained a security for their debts, to the amount of the property taken by the defendant from the store of Moses D. Robinson, that these creditors have been guilty of no neglect to the prejudice of their lien. They have not only pursued their actions to final judgments and executions, but have delivered their executions to a proper officer, and caused a demand to be made for the goods, of the administrator of Severance, who stood in his place, and who would have had the control of the goods, had they not been taken away by the defendant; also a demand upon the receipters, and even upon the defendant himself. The piaintiff, therefore, as administrator of Severance, has a right of . action to recover for these goods, for the benefit of those credit ors. He pursues the action for them. I doubt whether, if he ’s'hónld refuse to let them use his name for this purpose, this Court, as a court of chancery, ought not to compel him so to do. Th^, defendant was very imprudent in taking the goods as he did, unless he first had a full indemnity, which the law authorized hirh to require of the creditors who employed him, before he encountered the risk of taking the goods.
- - Judgment must be entered for the plaintiff, and, according to the agreement stated in the case, the amount of the defendant’s sales, made September 16, 18L6, being $3,169,71, is to be taken as the fair value of the goods. That sum is less than the amount of the claims of these creditors, therefore, interest must be cast upon that sum from that time, and added to the sum, and the amount must be the present judgment.
Judgment for the plaintiff.