20 Vt. 373 | Vt. | 1848
In the county court this case was decided upon the question, whether the levy was sufficient to connect it with the lien created by the attachment. In regard to that question, there certainly has been a very general opinion prevalent among the profession in consonance with the decision of the court below. Intimations to that effect will be found in some of the opinions of this court, but no decision has certainly gone that length within our present recollection.
But two other subordinate questions have been presented during the argument in this court, which it seems necessary to consider.
1. Was the attachment of Raymond, made on the 23d of November, prior in point of time to the plaintiff's levy, which was completed on the 19th of the same month, except the return of the process into the office of the clerk of the court, from which it issued, and causing it there to be recorded ? This may be necessary to perfect the levy, and, for the purpose of connecting the lien with the levy, may be required to be executed within the five months. But as a levy is not a single act, but consists of a succession of acts, it must, for purposes of notice and of creating a lien, be referred to some single point of time. Why it should be referred to the last moment of time, more than the first, it is not easy to perceive. In such cases attachments and levies are more commonly dated from that act. which creates the notice, which is the leaving the copy in the office of the town clerk. At this point of time the levy was complete, for all purposes of notice, although not perhaps so far completed as to pass the title to the land, and so not perhaps within the statute requiring the levy to be made in five months. But the passing the title is not the point. Raymond’s attachment had no such effect, of course. We think, then, to say that Raymond’s attachment, which at most was a mere caveat, shall supersede the plaintiff’s; prior levy, which was complete for all purposes of notice, would require a degree of refinement, which, to common minds, would savor not a little of absurdity, when, by the express terms of the statute,— Rev. St. 245, § 50, — leaving the copy of the execution created a lien for five months.
2. It is necessary to consider whether Hutchinson’s lien was lost by the commitment. To us it seems almost self-evident, that it was
By the common law the body, when once arrested, is a full satisfaction of the debt. It is the same by our law, unless the body is discharged, with a promise to pay the debt on the part of the debtor; Foster v. Collamer, 10 Vt. 466; or unless the release is by operation of law. And at all events, the body, while held in confinement, is esteemed a temporary satisfaction of the debt. It does not operate as a release of collateral remedies, which are so far perfected as not to depend upon any proceedings under the execution for their support. If the receiptor is fixed in his liability for property, the plaintiff may commit the debtor, and still pursue the receipt man; so, too, he may pursue bail for costs, for appeal, or review, and still hold the body of his debtor. But was it ever supposed that the creditor could commit his debtor, return his execution, and then take an alias execution and charge property attached upon the writ, or take other property ? Clearly not, until he releases the body. And when he releases the body, if it were not for the statute, he would have no farther remedy ; and with that, he can only have the remedy which the statute gives, — and this, we think, is clearly nothing more than a neto and independent remedy, against goods and estate which he shall thereafter seize, — not such as he may have before created alien upon. All former liens, not perfected upon goods or lands, are abandoned and lost by the commitment of the body. We see no objection to the levy being held good, as an independent levy, and bad as connecting the title with the lien, — which it is not necessary here to decide.
Judgment reversed and case remanded.
