Bond v. Wilder

The opinion of the court was delivered by Williams, Ch. J. The defendant justified taking the property in question, as deputed to serve an execution in favor of Merrifield & Co. against one Cobb. It became necessary for him to show a regular process, and his deputation. In order to justify under the authority of the writ of execution, it was necessary to show that he pursued the steps pointed out by the law. The first execution, on which he took the property, was legal and unobjectionable; but he did not sell the same by virtue of that execution ; and as he conducted with the property taken in a manner different from what the law directs, he was a trespasser al) initio, and cannot protect himself under that execution. The neglect of an impounder to proceed with a distress according to the requisitions of the statute made a man a trespasser previous to the statute of Geo. II. 7 Vt. 367. Pierce v. Benjamin, 14 Pick. 356. This question, however, is not important in this case, as the seizure and sale on the second execution was a trespass on the property of the plaintiff, if the execution was irregular and void. That it was irregular and void has been so often decided, that it 397 would be improper for the court now to investigate the question at all. In Hatch, ex parte, 2 Aik. 28, in Tichout v. Cilley, 3 Vt. 415, and in Jameson v. Paddock, 14 Vt. 491, it has been determined that an execution, like that under which this defendant attempts to justify, returnable in 60 instead of 120 days, is irregular and void, and not authorized by any statute of this state. Whether it would have been better that it had been decided otherwise is not now a subject of inquiry ; and we can say, as it was said in the case of Edmunds v. Povey et al., 1 Vern. 188, “After long debate, the Lord Keeper told them he wondered the counsel laid their shoulders to a point that had been so long settled, and received as the constant course in chancery. It is true there have been strong arguments used against the unreasonableness of this practice, and there might be likewise strong reasons brought for the maintaining of it, and it was at first a case very disputable, but, being once settled, as it was in the case of Marsh v. Lee, he would not now suffer that point to be stirred.” ' The judgment of the county court is affirmed.