26 Vt. 401 | Vt. | 1854
The opinion of the court was delivered by
The execution, in this case, according to the views expressed, in the reported cases upon the subject, referred to in argument, may probably be regarded as having issued prematurely, and so far irregularly. The cases referred to did not absolutely require a decision to this extent, in order to their determination. But the case of Jones v. Spear, 21 Vt. 426, is put upon this ground. And it is no doubt true, that strictly speaking, the party would not be entitled to an execution, till the day following the final determination of the whole case. Whether the court might not allow it to issue, under some circumstances, at an earlier day, after the judgment was perfected, and no exceptions taken, as to the principal debtor, it is not needful to consider now. This execution does not appear to have so issued.
But if the party was allowed to have it set aside upon motion,
And instead of the party being in danger of suffering injustice, by the execution not being set aside, it would seem, that the other party may be exposed to such consequences, if that is done, at this late day. In this very case, this court held the trustee not liable for this property, because it had been taken out of his hands, by this very execution, and this, notwithstanding the question of its validity was fully discussed before the court, and among other reasons, upon the ground that it had been too long acquiesced in by the petitioner, to be now regarded as inoperative. If it should now be set aside, it would exhibit this absurd anomaly, that, although it might be a justification to the officer and the party, for the acts done under it, it would probably expose the party, to be compelled to refund the money collected upon it, and at the same time not be able to obtain it of the trustee, who has been discharged, on grounds before stated. We should certainly be unwilling to impose such injustice upon the parties, by such inconsistent decisions in the same case, even if there were doubt about the perfect soundness of the former determination. But we have no doubt of its soundness, and should unhesitatingly make it now, if the matter were entirely res integra.
What has been said of Hapgood’s liability, to pay this debt twice rests in mere possiblity, when if he does, he will have ample remedy probably at law, and certainly in equity. And arguments ab inconvenienti are unsatisfactory always, and where they rest in mere possibility or conjecture, and when, if they are allowed, the certain and immediate result is, injury to others, are of no significance. Under such circumstances it will be time for the party to complain when the injury occurs. Ordinarily- courts of law refuse to set aside executions, when that, and that only, has been done, which is required to be done now, although done prematurely.
Judgment affirmed.