7 Vt. 138 | Vt. | 1835
The opinion of the court was delivered by
Was the property in its then condition susceptible of attachment ? This question is not disposed of by the statute which permits an officer attaching charcoal to leave a copy in the town clerk’s office, which it is declared shall be effectual to secure the same against subsequent purchases or attachments. That statute only regulates or provides a mode or method of attachment; it creates no new subject matter, for it expressly provides the officer may remove the property. The question still returns, in what condition is property subject to attachment?
It is not law that every thing subject to decay is exempt from attachment, for all things decay. Nor are all those things which, left to themselves, would become useless, exempt; for cattle would starve. Nor are all things which are in progress of manufacture exempt, as in case of distress, for the benefit of trade; for if articles of value could be taken without injury and kept without skill, as shoes cut out, wool carded, or chairs unpainted, they may be attached. Neither are we confined in our attachment simply to the objects of common law distress. That was to compel appearance, ours is to respond judgment. It follows that the property must have value for such a purpose, and be capable of actual possession. But in this case it is obvious, the property was no more
It may safely be asserted, if property is so in the process of manufacture and transition as to be rendered useless or nearly so by having that process arrested, and requiring art, skill and care to finish, and when completed will be a different thing, then it is not subject to attachment. Such is a baker’s dough, the materials in the crucibles in the process of fusion in a glass factory, the burning ware in a potter’s oven, a burning brick kiln, or a burning pit of charcoal. The officer cannot be compelled to attach, as he should have the right of removal, nor is he bound to turn artist, or conduct by himself or agent such process, and be responsible to both parties for its successful result.
But if the officer actually enters upon such a service, and the owners of the property actually submit to it, others must not interfere. Was this case so ? It appears that the plaintiff did no more than to tell the owners to take charge for that night, and he then abandoned it anddid no more. The owners proceeded with their pit, as if nothing had been done, otherwise all would have been lost. The owners did not submit to the attachment, but continued their possession, care and control.
Judgment of county court affirmed.