1 Vt. 168 | Vt. | 1828
delivered the opinion of the court. The
court are equally disposed to protect the bona fide assignee of a note in his right of action, if any such right exists upon tire note, and the rights of the signer of the note to make any defence that exists before he has notice of the assignment; but we think each must attend to his rights in proper season, and not by letting the proper season go by neglected, so pursue his rights afterwards as unnecessarily to embarrass the rights of the other party, and more especially the rights of a public officer. In this case, when the note was .sued, the defendant, Lampson, ought to have made his defence, whether it were an offset or discharge from Jennison, before judgment against him. The suit was then under the care of Austin, the assignee, and he would have had opportunity to meet this defence and show it unjust, if he could. But Lampson, instead of thus preferring his defence where Austin could know and meet it, takes his judgment in his action against Jennison, of which action Austin was probably ignorant, if not, he had no right to appear in it; and while Austin's execution is in the hands of the sheriff, he procures a discharge from Jennison, by offsetting judgments, and.shows this discharge to the sheriff, and forbids his proceeding with the execution, while Austin, whose ownership was known to Lampson long before his suit upon the note, asserts his right to control the execution and directs the sheriff to proceed. He follows the direction oí Austin, levies upon a waggon of Lampson, for which he brought his action of trespass.
Under these circumstances,the sheriff did right in obeying Austin. Lampson had neglected his defence till the note had passed into a judgment, which warranted the execution,which was prima facie a good authority to take the waggon. Lampson had no right to stop the course of this execution by a discharge merely from Jennison,who, as Lampson knew, had conveyed the note to Austin. If he would stop the progress of the execution in this stage of it, he must resort to his audita querela in which the merits of his claim maybe tried, and his bonds to prosecute will keep good and safe the rights of Austin while ^the matter is in litigation.
In the course taken by Lampson, Fletcher must either obey or disobey a regular and legal execution at the peril of deciding correctly a dispute between Austin and Lampson about the defence which Lampson had, but did hot make, to the note assigned to Austin. If he decided this point wrong and obeyed the process, Lampson treats him as a trespasser. If he decided the same point wrong and disobeyed tire process, Austin has his action in the name of Jennison for such neglect.
It will not do_ to sanction a course which necessarily places a sheriff in such a dilemma. When a discharge is shown to a sheriff from the person who is the owner of the debt, and the sheriff knows him to be the owner, and has no doubt about the fairness of the discharge, if the sheriff should proceed with the execution regardless of such discharge, he would probably be considered a trespasser. But he must not be so considered in the present case. He was not obliged to take the responsibility of disobeying both the directions of Austin, who gave him the execution, and the precept of the execution itself. See 2 Con. R. 700, Luddington vs. Peck. The judgment, therefore, of the County Court, which was in favor of the sheriff, is affirmed with additional cost.
