23 Vt. 508 | Vt. | 1851
The opinion of the court wás delivered by
We think, inYthis case, that the defendant did make a sufficient attachment of the'-lfifty kegs of powder, to hold the receiptman, if he had only made proper return of such attachment on his writ. The receiptman and the defendant are estopped, by the receipt, from denying the attachment of the property, within the precinct of the officer. All, then, that was wanting, to perfect the plaintiff’s security, was a proper return by the defendant. This he omitted to do, and he is therefore liable, upon the most common and obvious principles of law applicable to the subject. In regard to this portion of the case, there is no claim, that the plaintiff’s instructions to the defendant had any tendency to mislead him,— which is the- rule adopted in Strong v. Bradley, in regard to special instructions given to, a deputy sheriff in regard to the collection of an execution, where the suit is against the sheriff for the default of the deputy. In such case the rule is, from policy, more strict, than where the instructions are given to the principal, as in the present case. In such cases all that is required is, that the jury should find, by a balance of evidence, that the instructions given did not in fact
But we are well agreed, that even if the defendant had not in fact made any such attachment as could have been enforced, yet having acted on his. own responsibility, and not being misled by any instructions of the plaintiff, or his attorney, as the case requires the jury to find, and having represented to the plaintiff, that he had made a valid attachment, and thereby induced the plaintiff to rely upon it and forego making any farther attachment, which; he might then have done, the defendant is bound by his representation to the plaintiff’s attorney, and is estopped from showing, that in fact he made no legal attachment. He took upon himself to judge of the sufficiency of the attachment, and after being very strictly cautioned by the plaintiff not to rest upon uncertainties. He ought not therefore to expect now to visit the consequences of his own mistake upon the plaintiff.
The review of the case, by consent of the plaintiff, on nominal bail, if shown in the case, is no more than the court would have ordered. And the creditor is not bound to exact bail for the security of the receiptman, or to resort to bail, already in, for that purpose. At law he may elect his remedy.
The creditor was not bound to take any receipt at his own risk, and much less one, where the very attachment receipted was not re* turned on the writ Judgment affirmed.
