State v. Buchanan

17 Vt. 573 | Vt. | 1845

The opinion of the court was delivered by

Redfield, J.

The question how far an officer, about to make an attachment of personal property upon process against one having in fact no attachable interest in the same, may lawfully be resisted by the real owner of the property has been settled in this state by repeated decisions; State v. Downer et al., 8 Vt. 424; State v. Miller, 12 Vt. 37; and the same doctrine distinctly recognized in the case of Merritt v. Miller, 13 Vt. 416. From tÉese cases it being fully determined that such resistance against the attachment is unlawful, it must follow that a recapture of the property, after an attachment, would be equally unlawful, inasmuch as the recapture would necessarily include resistance to the officer, if done for'cibly, as much as the greater includes the less in mathematics.

2. It is impossible to make any sound distinction between a specially appointed officer and a known public officer, as to the right to make or to continue an attachment, — inasmuch as the statute, in terms, puts their powers, in this respect, upon the same foundation. It enacts, “ that the person so authorized shall have all the power of the sheriff, in the service and return of such process.” And if any such distinction could be maintained, there is manifestly nó ground for it in the present case, as both officers were thus specially appointed ; — they would of course be equal to each other, and, being by statute both equal to the sheriff, would have the same right to make, or continue, the attachment. It having been decided that the statute against impeding civil officers only extends to public officers will not affect this question, as it rests upon the construction of the words of the statute.

3. The remaining ground of defence, offered at the trial, consisted in a collateral impeachment of the processes in the hands of Whitehill. They were tegular in form, and a full justification, to the extent of the authority apparent upon their face, until set aside by some proceeding brought to operate directly them. This is a universal principle in regard to processes, judgments, and all proceedings in courts of justice ; they are not allowed to be attacked in this collateral manner. If this could be done, a simple trial for assault and battery would branch out into an indefinite number of collateral issues, which would render such trials almost interminable.

Judgment that the respondents take nothing upon their exceptions, and that each pay a fine of ten dollars and costs of prosecution.