Beattie v. Robin

The opinion of the Court was pronounced by Paddock, J. Two questions are presented for the considera? tion of the court 5 the one, whether the copies of the record of the [184] County Court were rightfully admitted; the other, whether it appears from the bill of exceptions that there was a sufficient change of possession of the hay, from Chamberlin to Beattie, to enable him to recover. The counsel for the plaintiff contends, that the attachment upon mesne process was illegal, as well as the levy of the execution,owing to the imperfect returns of the officer of his doings. The court do not discover any particular defect in the return on the writ, nor is it very material, for if the return was too vague to hold the property, or so defective as to have caused the writ to abate, yet, if it was sufficient to call the defendant into court or lay the foundation for a good judgment if he did not appear, it is sufficient; for it appears the same property remained where it was, when attached, until execution was levied upon it; and if it be true that the service was void as an attachment, Beattie was not aggrieved. The hay not being removed by the officer, Beattie might have disposed oi it with safety: if the return was sufficient to hold the hay, then the plaintiff’s objection fails him. The return of the officer on the'execution is less formal, yet sufficient in substance. He states, that on the 5th day of January, 1824, he levied the execution on a quantity of unthreshed oats, and a quantity of hay; that he advertised the same on the town post, to be sold on the 19th of the same month ; at which time he attended, and by request of the parties, adjourned the vendue until the 1.0th of February, when he offered the hay for sale ; he states to whom it was sold, the price it brought by the ton, the quantity sold, and that the purchasers were the highest bidders. Then follows an endorsement and receipt on the execution, of twice the amount of the property sold, signed by the creditors.— The officer might have returned where the sale was holden, and the amount of charges deducted from the avails of the property, and shewn the balance left due on the execution; but it is not absolutely necessary that the return should shew the place of sale ; it is sufficient that there was a time and place appointed in the advertisement; and when the contrary is not made to appear, it will be presumed the advertisement was legal, especially when we see that both debtor and creditor attended, and requested an adjournment. The .statute requires, that the “monies arising upon such sale, shall be applied to the payment of the charges, and the satisfaction of the execution.” Though the officer did not make the application in the usual form, or return any items of charges for the sale, yet the creditor endorsed much more than the avails of the whole sale, and it must be supposed that the sum endorsed includ [185] ed the avails of the hay-.' There can be little doubt that the copies of the record were properly admitted to go in evidence to the jury. S. Cushman, for plaintiff. <&eo. B. Shaw and J. Mattocks, for defendant. As to the other points made in the case, the material facts are, that Chamberlin rented a farm of the JVelsons, in April, 1823— that in the summer of the same year, he let a portion of the growing grass to Beattie, to cut and make into hay, giving the said Beattie one half for his labor — that when Beattie had deposited nearly the whole of it in Chamberlin’s barn, he purchased Chamberlin’s half, but suffered it to r emain in ChumberUn’sbzrn, as before, until the 20th of September, when Robin, a constable, attached it upon a writ at the suit of Walter Stuart, as the property of Cham-berlin, and afterwards sold the same on execution. The bam continued in the occupation of Chamberlin from the time the hay was first put into it, until after the attachment and subsequent sale, and Beattie had no right or privilege in it, saving what he gained (if any) in the purchase of the hay ; excepting, an inference might be drawn, that the other half of the hay, belonging to Beat-tie, might have remained there. The Court can have no doubt, that there was no sufficient change, or color of change, of possession in this case, to entitle Beattie to recover against an attaching creditor of Chamberlin. And to say that a purchase, without being followed by a visible change of possession, would protect the purchaser from the attaching creditors of the vendor, would be a manifest departure from all the decisions in the state for a series of years. —1 Aikens, 116, Durkee vs. Mahoney. — Id. 158, Boardman vs. Keeler. — Id. 162, Mott vs. McNeal. — 2 Aikens, 64, Weeks vs. Weed, and cases there cited. The judgment of the county court is affirmed.