Murray v. Eldridge

2 Vt. 388 | Vt. | 1830

J)urjng ple term, the following opinion of the Court was de-i;vered by

Hutchinson, J.

The plaintiffs delivered a writ of attachment, to the defendant for him to serve as constable of the town of Hinesburgh. By virtue of this writ he attached certain property. Afterwards a writ was delivered to him in favor of Boynton and Hurlburt, against the same debtor, by virtue of which he attached the same property; subject to the attachment he had before made in favor of the plaintiffs. The plaintiffs, by an agreement with their debtor entered on the files of the justice, had their trial and obtained jugement at an earlier day than that set in their writ for trial. The defendant having sold the property to satisfy the after attachment of Boynton and Hurlburt, the question is now presented, whether the plaintiffs lost their lien upon said property, by taking judgement before the return day of their writ, so that the creditors, who attached afterwards, can hold the same. The Court consider, that the lien of the plaintiffs was lost by their taking such judgement. It is true, so far as the arguments of the plaintiffs’ counsel should have weight in any case, they apply as favorably in this as in any other. Nothing appears that the plaintiffs’ judgement, rendered by agreement on the 30th day of July, was any larger than would have been a judgement that might have been rendered on the return day of the plaintiffs’ writ. Still the question returns, did the plaintiffs preserve their lien by obtaining a judgement in their action regularly commenced ? When Boyn-ton and Hurlburt procured their writ to be served by the defendant, by attaching said property, they established their right, not only to the surplus of said property, after the plaintiffs’ lien should be satisfied, but to the whole of said property, if the lien of the plaintiffs should not be perfected. The moment, therefore, in which the plaintiffs’ action was discontinued, or they obtained ajudgement by confession, or in any other way not in the regular prosecution] of said action, the lien of Boynton and Hurlburt to the whole of said property was perfected. The property ceased to be holden by the plaintiffs’ attachment. When the parties appeared before the justice and agreed to have a trial on the 30th of July, they may have had a trial about the same matters described in said writ, but it was not a trial in said action. The writ still stood a writreturnable the third Monday of August, and the judgement was rendered on the 30th of July preceding. If any agreement of the parties to vary the time of holding the court, could have been valid, the most plausible course would have to have agreed to the amendment of the writ, altering the return day. We give no intimation that even this would have been valid. As the case stands, it is fairly within the case cited from Ailcens’ Reports, where taking a confession of judgements, and forthwith levying executions upon the property attached, was adjudged to discharge the lien created by the attachment, as against other attaching creditors of the same debtor. There is, therefore, no error, and

Bailey and Marsh, for plaintiffs. C. Adams, for defendant.

The judgement of the county courtis affirmed.