Pond v. Baker

55 Vt. 400 | Vt. | 1883

The opinion of the court was delivered by

Veazey, J.

This is an action of trespass with a count in trover to recover for farm stock and other personal property. The plaintiff claimed to have attached the property as deputy sheriff on a writ of attachment in favor of one Wilkins against one Campbell, and that after his said attachment the defendants in this suit took and disposed of the property, and this suit is brought for the damages. The plaintiff’s right depends on the validity of said attachment. To show that he offered in evidence a certified copy of the writ and return thereon,— Wilkins v. Campbell. The defendant objected to the admission of the return, and the court excluded it. The plaintiff then offered certain other evidence which the court excluded, and ordered a verdict for the defendants. • The bill of exceptions does not show that any exception was taken to the exclusion of any of this evidence ; but the case has been argued as though there were such an exception ; and the question argued has been as to the sufficiency of the return to constitute an attachment lien. The defendants claim that the return does not show that the property described therein was attached as the property of the defendant Campbell; also that it does not describe the property sufficiently to create an attachment; also that the alleged attachment created no lien because the return does not show that the copies left with the lessee in whose hands the property was found, and the copy left at the town clerk’s office, had the return endorsed thereon as provided by statute. Independeut of statutory.regulation, the law requires an officer to give as nearly as he reasonably can in his return, or in the schedule or inventory annexed thereto, a specific description of the articles attached, their quantity, size and number, and any other circumstances proper to ascertain their identity. Drake on Attachments, s. 208, and cases cited. In case of attachment by copy left at the town clerk’s office the property must be described with reasonable certainty, — no more is required. It must be sufficiently pointed out to enable -the debtor, and those with whom he may deal, to be informed that it is attached. Bucklin v. Crampton, 20 Vt. 261. Reasonable intendments are made in favor of officers’ returns. The presumption of law is in favor of the legality of returns. Drake v. Mooney, 31 Vt. 619. A valid lien is created by attachment by copy in town clerk’s office when the return is sufficiently precise to show the identity of property attached. Fullam v. Strauss, 30 Vt. 443. The above indicates that a fairly liberal rule has been adopted in Yermont, in the construction of officers’ returns; but will the return in question stand the test indicated, so far as pertains to the description ? We put the inquiry, not to be here answered, as there is another fatal defect, but in order that silence may not be construed as an approval of such looseness in returns. There is in fact grave doubt whether the return in this respect is sufficient as to all the property to create an attachment.

As to the other defect: the statute provides that personal property held by a lessee may be attached as the property of the lessor, and a valid lien created by delivering to the lessee a true and attested copy of the process, “ with the return of the officer thereon, describing such property.” Gen. Sts. c. 33, s. 32, R. L. 1190. And as to such property as may be attached by copy in town-clerk’s office, there is the same requirement as to the endorsement of the return.- R. L. s. 876. All that this return shows is that a list of the property attached was endorsed. This fails to comply with the requirement of the statute in a material respect. If the copy does not have the return endorsed on it, there is nothing to show an attachment. The return is the substance of the document. These statutes provide a method of attachment without taking possession, and without substantial compliance there is no attachment.

It is suggested that under the rule of reasonable intendment in favor of returns, it might be presumed that the return was endorsed on the copies delivered to the lessee and town clerk, and that that was what the officer meant by the státement that a list of the property was endorsed thereon. If the fact had been according to the presumption suggested, then the plaintiff presumably would have got leave to amend the return according to the fact. If in fact there was no return on the copies, then there was no attachment ; therefore to presume there was a return might be the imposition of rights as of an attachment when there was none. It would in effect be to give the plaintiff a recovery against the defendants as trespassers, when they never were trespassers. There would be this dangerous use of a presumption without necessity, as an amendment would doubtless have been allowed upon a showing that there was an attachment in fact.

We think the writ and return does not show title in the plaintiff by an attachment lien; and we assume that it was on this ground that the return was excluded. The rule is that where an officer is a party either claiming or justifying under his own official acts, his return must be received as evidence. Drake, s. 210. But the same qnestion would be raised by excluding it for insufficiency, as by admitting it, and then holding it insufficient.

This would affirm the judgment below ; but on motion of the plaintiff the judgment is pro forma reversed and the cause remanded, in order to give an opportunity to have the return amended if there is ground for it.