Rogers v. Town of Fairfield

36 Vt. 641 | Vt. | 1864

PierpOint, J.

This is an action against the defendant for the neglect of the constable of the town in not attaching property upon the writ of the plaintiff against one Patrick Rogers, as directed by the plaintiff.

It appears that the plaintiff delivered a writ in his favor, against Patrick Rogers, to the constable of Fairfield, and directed him to attach thereon certain hay and grain in the straw, belonging to said Patrick. The said constable attempted to attach such property by leaving a copy of said writ in the town clerk’s office of the town of Fairfield, where the property was situated, with a return thereon that he had attached on said writ “ all the hay and grain in the town of Fairfield.” The case shows that he made no other attachment of this property. This clearly was not an attachment of the property, and created no lien whatever upon it. This principle was expressly decided in Paul v. Burton et al., 32 Vt. 148, where the officer’s return in the copy left in the town clerk’s office, was in precisely the same form as that in this case. The doctrine established there must govern this.

But it is said the plaintiff cannot recover in this suit, for the reason that if the officer had made an attachment of the property, the lien created thereby, would have been postponed to the lien created by the subsequent attachment made by Soule, in consequence of the plaintiff’s taking a judgment in his suit, by confession, without Soule’s consent.

What might have been the result if the constable had made an attachment, it is impossible now to determine. A confession might have been taken or it might not. We think it is not competent for the constable, or the town now to say that if the attachment had been made, the plaintiff by taking a confession would have released it, — therefore he has sustained no damage by its not being made.

But again if the attachment had been made, the plaintiff would thereby have been placed in a position where he could have questioned the validity of Soule’s attachment, and we are induced to think could have resisted it successfully, upon the ground that a subsequent attachment to be valid, must be made by the same officer who had made the prior one, and who is legally regarded as having the possession and control of the property^ the same as though he had taken it into his actual possession, and that the same rule applies in this respect, when property is attached by leaving a copy in the town clerk’s office, as where the officer takes the actual possession of it. But in consequence of the neglect of the constable to do his duty, the plaintiff conld not raise the question. Soule’s attachment was the first attachment, and of course lie held the property as against the plaintiff, and when the plaintiff was sued by Soule for taking and selling the property on his execution he had no defence.

The defendant offered to show that for the purpose of defrauding the creditors of Patrick Rogers, the plaintiff took a confession of judgment, for a larger amount than was actually due from Patrick to the plaintiff.

The court rejected the evidence and we think properly. The judgment is conclusive and binding between the parties, and can be enforced between them, and we think cannot be impeached in this collateral manner,

Judgment reversed and case remanded.