Bliss v. Stevens

4 Vt. 88

Opinion

Hutchinson, C. J.,

pronounced the opinion of the Court.— It appears by the exceptions, that the plaintiff was unable to produce on trial the original execution, which was delivered to his deputy, Butler, for him to levy upon, and sell, the properly in question; and he offered testimony to show it lost — testimony, which the county court admitted, and adjudged sufficient to show the loss. We have no doubt, nor does there seem to be any question, but that the loss of an execution, wanted for the purposes of this suit, may be proved like the loss of any other paper. And we think the testimony adduced, in this case, if it gained credit with the court, was sufficient to prove the loss. It appears, that the deputy, who had the execution and made the demand of the property, on receiving a discharge from his interest, and being sworn, testified, that he thought he returned the execution to the clerk where the same was made returnable ; that, though he had not looked over his papers with the particular view to find this execution, yet he had looked them over so often of late, that he was sure it was not in his possession. The clerk being sworn testified that he had made full search for it among his papers, and could not find it. The next question is, whether the demand of property was seasonably made,to bind the receiptors. This question is rather subdivided in argument, as will soon be noticed. Upon this part of the case, the testimony was, that the execution was delivered to Amos W. Butler, the plaintiff’s deputy, four or five days before the expiration of thirty days from the rendition of the judgement, with directions for him to demand, and levy .upon the property attached upon the original writ by Allen, another deputy of the plaintiff. Butler, after the expiration of said thirty days, but in the life time of the execution, demanded the property of each of the receiptors, the present defendants. It does not expressly appear, whether he had the receipt, given to Allen ; but he seems to have discovered correctly who signed the receipt, and made the demand upon the right persons; and they made no objection to deliver till the receipt could be produced, but said in general terms, that they were not ready to deliver the property. This must be considered as a waiver of any objection, which they might then have urged, if the receipt was not present. It might also be sufficient ground for the jury to presume, that the receipt was in the hands of Butler, ready to be delivered up on delivery of the property, and that it was so understood by them all at the time. But no such question seems to have been submitted to the jury, or raised on the trial. It will be recollected, that the production of the execution, in this cause, was of no other substantial use, than to rebut the presumption of payment, and to show, that it had not been kept back in the hands of the creditor or his attorney, to the destruction of the plaintiff’s lien upon the property. This last seems fully proved by the oath of the person, who delivered the execution to Butler, having his memory refreshed by a receipt Butler gave for it, at the time of its delivery.

The remaining question is,whether the execution was so pursued and the demands so made, as to keep good the plaintiff’s lien upon the property ? Did the attaching creditor, then, cause the property attached to be taken on his execution within thirty days from the rendition of his judgement ? It seems he delivered out his execution within said thirty days ; but he did not diliver it to the same deputy sheriff, who served his writ of attachment, but to another deputy of the same sheriff. Had he delivered it to Allen, who made the attachment, the property was riot in his actual custody, to be levied upon in fact, momentarily. It was out in the hands of the receiptors. It seems not to be denied, that, bad it been delivered to Allen, and had the property then remained in his actual possession, it might have been considered as levied, forthwith, upon the property. This is evidently correct; for no ceremony of taking, or seizing, the property, already under his control, could be necessary. He might advertise it for sale as soon as he received the execution, and that without seeing it, or passing any other ceremony. But it is said, that this principle has only been extended to the cases where the property’ was in the actual custody of the officer, or his immediate servants, and not to cases, where the property had been receipted, and gone back to the possession of the original debtor, as in this case. Probably this distinction has not been much observed in practice, and surely cannot stand upon any practical principle. When the sheriff attaches property, he keeps it in his own way. The cred-'tor ^as no contI'°l ovei' 't. He has a right, at all times, to supPose °®cer t0 actual keeper. And, upon that supposition, he gives his execution to the officer, for him to levy it forthwith, or consider it as levied, and proceed and sell according to law. This is all the creditor can do, unless he becomes an officer himself, which cannot be : and, when he has done this, which is all he can do, he has caused the property, in a legal sense, to be taken in execution. In other words, he has perfected his lien. And the attaching officer, thus receiving the execution, must, at his peril have the property where he can levy upon, and sell it. It is no excuse for him to say, he has delivered it out on a receipt, and it has gone back into the possession of the debtor. That is a matter for him and the receiptors to settle, as they can agree, or as the law will settle it between them. The officer’s remedy is upon his receipt, like the present action. But it is urged, that the officer loses all remedy upon his receipt, unless he demands the property of the receiptors within thirty days from the judgement. Tf the officer’s rights are so limited, it must be by construction merely; for the statute contains no such limitation. When the creditor’s lien is gone, the officer can have no remedy against the debtor himself, or those jointly holden with him. Also, e converso, when the creditor has so pursued as to preserve his lien, the officer should have a remedy upon his receiptors, unless he has for feited it by some gross neglect, prejudicial to the receiptors. But the creditor’s lien is as well preserved by delivering the execution to the same attaching officer, or by a demand on him, the last hour of the thirty days, as at any previous time. In many such cases, it may be impossible for the officer after he is rendered liable to the creditor, to make a demand of the receiptors within that hour, or even on the same day. It is, therefore, a necessary construction ofisuch a receipt, in connection with the provisions of the statute,that the officer,being rendered permanently liable to the creditor,may demand the property of the receiptors at any time in the life of the execution,so as to levy upon, and sell it under the authority of the execution. This was decided in the case of Strong vs. Hoyt, reported in 2d Tyler, ¶. 208. There, Strong, as constable, attached personal property of one Starr. It was receipted to him by Hoyt. After judgement, and within thirty days* the creditor perfected his lien, by causing a demand to be made of Strong, who could not deliver the property to the officer, having the execution,because it was gone to his receiptor. Strong bad to pay the debt, and, about six months after the rendition of the judgement he demanded the property of Hoyt, and brought his action. Upon proving the creditor’s lien on him to have been kept good, and also proving the property to have been actually converted before the judgement was rendered, he recovered of Hoyt, and collected his money. By some mistake, there is printed, at the end of that report, á motion in arrest, and the decision of the Court upon it; but the records of the case, and the recollection of all who yet live, and who were present during that trial, will show, that no such motion was ever made in that case. It must have been made for some other case, and wrongly placed where it is. So in the case of Enos vs. Brown, 1 D. Chip. Rep. 280. Burk, a deputy of Enos, served a writ and attached the property of Daniel Brown. Israel P. Brown receipted the property. The suit was prosecuted to judgement and execution. Within the thirty days, the execution was delivered to Burk. He made no demand of the receiptors till after the thirty days expired, but made it in the life of the execution. This was holdeii sufficient, and Enos, the sheriff, recovered. And this last case was decided on a writ erro?-, and probably upon good consideration. The result both of principle and authority supports the decision of the county court, in the case before us, if the execution had been delivered to Allen, the deputy, who made the. attachment, instead of being delivered to the other deputy, Butler. The statute of this state, regulating the office and duty of sheriff, makes the sheriff liable to the creditor for all damages, arising from the act or neglect any of his deputies; and expressly enacts, that the acts of the deputy shall be considered as the acts of the sheriff Under this statute, the most proper mode of declaring is, to say nothing about a deputy sheriff but allege that the writ or execution was delivered to the sheriff, and that he did the act, or was guilty of the neglect, complained of. So, in an action upon such a receipt, as is here in suit, the sheriff might allege, that he served the writ, and attached the property and took the receipt; and that the execution was delivered to him, and he made demand of the receiptors. And proving all done by and with his deputy, supports his allegations. In contemplation of law, upon the iacts before us, Moses Bliss made the attachment, and took the receipt from these defendants, anti the execution was delivered to Moses Bliss within thirty days from the rendition of the judgement. He, at a con-venienttime in the life of the execution, demanded the property ^ie defendants, the receiptors ; and they neglected or refused to deliver it, so that he might levy the execution upon it. Upon this state of facts, he has recovered a judgement against these defendants, in the county court.

That judgement is found correct, and is affirmed.