Lyman v. Dow

25 Vt. 405 | Vt. | 1853

The opinion of the court was delivered by

Bennett, J.

Both parties claim to have attached the property, and have made return accordingly, and the dispute between them, which had the priority, was a serious one. The contract between them to settle this dispute, by a division of the property, was made upon good consideration, and is binding upon them, however it might be upon the creditors who had attached. Unless they consented to this division, they might doubtless call the officers to an account for the property attached; but under the attachment, the officers were the only persons who had gained a special legal right in the property attached; and the agreement between the officers, that each should have a moiety of the goods in question, must bind them, and they cannot, after this, raise the question of priority. They in fact, by-their own agreement, became tenants in common in regard to their special property in the goods, as between themselves. Though all the goods were to be receipted to the plaintiff, yet he was to. deliver one half of them to the defendant.

It seems, that each set of creditors took the necessary measures to charge the goods in execution, and as the defendant seized and sold the whole of the goods on his executions, the action of trover, under the decisions in this State, will well lie, (though it be conceded that the officers are to be regarded as tenants in common after this agreement,) and that it is not essential for the plaintiff to show that he, in fact, made the first attachment in order to sustain this action.

The judgment of the County Court is affirmed.