41 Vt. 670 | Vt. | 1869
The opinion of the court was delivered by
The questions involved arise upon the report of a referee.
The first question that naturally arises is, whether the mare, that was the subject of the controversy between the parties, became the property of Wood as the result of the sale to him by Francis, as against the creditors of Francis. The referee finds that Francis made the sale to keep the mare from being attached; but he also-finds that Wood purchased the mare without any knowledge of the object of Francis, and in good faith. The law is perfectly well settled in this state, that to render a sale of property void as to creditors, both the vendor and vendee must participate in the intent to delay the creditors of the vendor, at least to the extent of the vendee’s having knowledge of such intent on the part of the vendor. This being so, we think, upon the facts reported, the mare became the property of Wood, both as against Wood and his creditors, Wood being in the possession of her.
Wood being the owner of the mare, had the legal right to protect his property against any person that had no legal authority to take her from him. Leach, the plaintiff, had an execution against Francis, on which he was seeking to attach the mare ; he was not a public officer, but was specially authorized to serve said execution; he had no authority except that conferred by such deputation; he was entitled to no respect, consideration or obedience by reason of his being in any public position; he could claim nothing in this respect until he made his authority known, or until it was known to those with whom he was dealing. In attempting to take possession of the mare, when Wood informed him that the beast was his property and manifested a disposition to defend it, if he would avail himself of the immunities that attach to public officers in the execution of process, he should at once have made known his authority, and that he was acting under it; until he did this, Wood had the right to treat him as a mere trespasser, and to protect his property against him. See
' In respect to Francis tbe case is different. He knew that tbe plaintiff was acting under authority; be knew be bad no right, even under Wood, to resist tbe plaintiff in taking tbe property; he knew that tbe plaintiff bad the execution and was authorized to serve it. Wood can justify himself for tbe acts of Francis, though done by bis directions, on tbe ground of ignorance of tbe plaintiff’s authority; but Francis, knowing of tbe plaintiff’s authority, can not justify under Wood on tbe same ground. As it appears that in tbe affray tbe plaintiff sustained some slight injury at tbe hands of Francis, he is entitled to a judgment against him therefor.
The result is, tbe judgment in this case is reversed, and judgment entered for tbe plaintiff against Francis for tbe sum reported by tbe referee and costs, and judgment in favor of Wood against tbe plaintiff for bis costs.
In Francis v. Leach and Clemons, beard at the same time and upon tbe same report as to facts, it appears that during tbe affray in tbe barn tbe mare escaped. Wood afterward got on to her and rode off. Leach directed Clemons to take bold of Francis and hold him while -he went after Wood and tbe mare ; this Clemons did. We can see no reason or excuse for this act. It does not appear that Francis interfered with Leach’s going after tbe mare, or attempted to, or threatened to. Why be should have thought it necessary to imprison Francis while be went after tbe mare I do not see. His execution did not run against Francis’s body. This act was a trespass, and having been done by Clemons by Leach’s directions, both are liable for it.
In this case tbe judgment of tbe county court is reversed, and judgment for tbe plaintiff for tbe amount reported by tbe referee and costs.
