Wilkinson v. Wait, 44 Vt. 508

Wilkinson v. Wait

44 Vt. 508 | Vt. | 1872

*513The opinion of the court was delivered by

Peck, J.

The jury have found that the pair of oxen in question were the only oxen the plaintiff owned, unless the oxen in Lincoln’s possession at the time the defendant attached the oxen in question, were also the property of the plaintiff within the meaning of the statute exempting one pair of oxen from attachment. The jury having also found-that the oxen in Lincoln’s possession were there under a contract of sale for $240 by plaintiff to Lincoln, with a stipulation that they were to remain the plaintiff’s property till “ paid for,” the court was right in holding that the pair of oxen attached by the defendant, which were the absolute property of the plaintiff and in his possession, were exempt from attachment, notwithstanding the plaintiff’s interest as such conditional vendor in the oxen sold to Lincoln.

The oxen in question being exempt from attachment by our State law, the property in them did not pass to the asignee of the plaintiff in bankruptcy, nor the title of the plaintiff become impaired or affected by the bankrupt act, but is saved from its operation by express provision to that effect. From this it follows that the assignee had no right to take the oxen ; and the defendant - was not bound to deliver them to the assignee, and cannot protect himself from this action, nor mitigate the damages, by showing such delivery even under protest, on demand of the assignee; It is claimed on the part of the defense that the United States district court had jurisdiction of the question as to the exemption of this property from attachment, and consequently from the oper-' ation of the bankrupt law, and that the plaintiff’s only remedy is by application to the district court, at least except for .nominal damages for taking and detaining the oxen up to the time the as-signee took them from defendant. It is not necessary to pass upon • the question of jurisdiction of that court, because, the existence of jurisdiction of that court over The question, unexercised, does not oust this court of jurisdiction when the question arises collaterally, as in this case, by Way of defence to an action in which this court has jurisdiction of the parties and the subject matter. The district court has rendered no judgment nor made any order touching the question involved in this case. The injunction issued *514against tbe defendant by that court, while be had the plaintiff’s property under attachment, forbidding the sale of any of the plaintiff’s property by him, was manifestly for the purpose of first determining whether the lien of the attaching creditor was paramount to the right of the general creditors to a pro rata distributive share of the property attached. That in no way interferes with the right and remedy of the plaintiff as against the defendant, which rest on ground entirely distinct from that of the relative rights of the creditors of the plaintiff as between themselves under the bankrupt law. We have no occasion to express any opinion as to what the effect would have been upon the liability of the defendant, had it appeared that the assignee took the oxen from the defendant under a special order of the district court; for no such order was made, nor does it appear that any proceedings have been had in that court which can be construed as an adoption or sanction by that court of the act of the assignee in taking the oxen. It appears that the assignee sold the oxen, but that he still holds in his hands the funds arising from the sale. The proposition of the defendant’s counsel, that the assignee of his own motion, without any order of court, had a right to take the property, and compel the plaintiff to abandon his remedy against the defendant, and follow him, the assignee, into the district court, is untenable. Before the defendant delivered the property to the assignee, he had become liable to the plaintiff for the taking of the property, and for refusing to deliver it when demanded, and nothing that transpired afterwards either defeats the action or mitigates the damages below the value of the oxen at the time of the conversion and interest.

Judgment affirmed.