Wilder v. Stafford

| Vt. | Feb 15, 1858

The opinion of the court was delivered by

Redeield, Ch. J.

The objections to the writ and bond, being strictly of the nature of a dilatory plea, whether in the form of a plea, or by motion to dismiss, must be made at the earliest opportunity, or they are out of time. Wheelock v. Sears, 19 Vt. 559" court="Vt." date_filed="1847-04-15" href="https://app.midpage.ai/document/wheelock-v-sears-6573710?utm_source=webapp" opinion_id="6573710">19 Vt. 559.

If the party making such a motion desires to maintain it out of the ordinary time for such pleas, upon the ground of the rules of the court where made, or the suspension of these rules, there should be something in the record to show that fact. We can not, upon exceptions, and especially against the judgment of the court below, make any such presumption.

II. If it clearly appeared that the plaintiff had parted with his right of possession of the cow for a definite term, he could not maintain replevin, at common law, during the term.

But we are not prepared to give a contract “ to winter a cow for the milk” such a construction. It is consistent enough with such a contract, that it should terminate at the election of either party. In popular language it may import nothing more than keeping the cow in the winter time for the milk, and thus be wholly indefinite as to its continuance. As this exception is merely technical it should not prevail, unless clearly proved.

It is perfectly consistent with the terms of the statute, Comp. Stat, chap. 33 sec. 14, that in case of the bailment of goods for a definite term, where such goods are attached by an officer upon the debt of some third partj, that either the bailor or bailee may replevy the goods from the custody of the officer. We see no good reason why the statute may not, with perfect propriety receive such construction. It is competent for the bailor or bailee, at their’ election often, to maintain an action for injuries to personal property. It rather seems necessary in the case supposed, that both bailor and bailee should have the right to replevy.

III. We think, upon the facts in this case, Wheeler had no attachable interest in the cow. And as the plaintiff rests upon Cushman’s title, which is protected without change of possession, it is the same as if Wheeler had released his title to Cushman, in which case it is obvious no change of possession could be required.

Judgment affirmed.