44 Vt. 84 | Vt. | 1871
The opinion of the court was delivered by
This is a bill in equity for injunction to restrain the defendant from prosecuting certain suits at law.
The substantial averments in the orator’s supplemental bill are these: That the orator attached the defendant’s personal property in an action of assumpsit; that such property was sold by the sheriff, before judgment on the writ, under the statute, for the sum of 1342.19; that other suits were pending between the same parties, and all were referred, under .a rule of the court, to referees; that on the report of the referees, judgment was rendered in favor of the orator, in the assumpsit suit, for the sum of $1349.99 ; and that the sum of $342.19, for which the property sold, was deducted by the referees in making up the report; and that final judgment was rendered in favor of the orator for a sum less the amount received on sale.of such personal property ; and that the defendant has instituted a suit, in trover, against the purchasers of such personal property, to recover the value of the same, claiming that tho orator did not take out execution and charge such personal property on execution within thirty days after final judgment.
The evidence is conflicting, but a majority of the court find the fact proved that the $342.19 was deducted in making up the re
Although the defendants in these trover suits would seem to have a good defence at law, for the law has been settled in this state that the sale of personal property attached on the writ vests the title in the vendee, though the plaintiff never recover judgment in the suit, Abbott v. Kimball et al., 19 Vt., R., 551; and the officer is accountable only for the money, which he holds in substitution for the property ; yet the defendant might institute a suit for the money, and thereby vex and harass the orator ; and by instituting these actions in trover, he has shown a disposition to do so. The court think it a proper case for the interposition of a court of equity by injunction.
The decree of the court of chancery is therefore reversed, and the cause remanded, with directions to enter a decree for the orator perpetually enjoining and restraining the defendant from further prosecuting the suit mentioned in the orator’s bill, in his favor against Seth jileacham and H. W. Bedell, or any other action at law, or in equity, to recover the property, or payment for the same, or the avails of the sale thereof, sold on the writ as set forth in the orator’s bill; and that the orator recover his costs.
