Sanborn v. Hamilton

The opinion of the court was delivered by Williams, Ch. J. The principles, which must govern the decision of this case, have been so fully established in repeated cases, that it is only necessary to refer to them, in order to determine this case. In the case of Dow v. Smith, 7 Vt. 465, it was decided, that for taking property in execution, which, by statute, is exempt, trespass is the proper action. In the case of Johnson v. Rice, 14 Vt. 391, it was determined, that, in an action of trespass against an officer, for taking property on an execution not against the plaintiff, but twelve days notice is necessary. The distinction, which has been attempted to be taken between that case and this, is more subtle than sound. The officer, in both cases, was acting without the authority of his process, and [594] was not justified thereby, and is therefore to be'considered as though he had no such process. He is not sued in his official capacity, and, indeed, could not be. His “misconduct” was not in his “ office,” but because he departed from his duty, and acted, as it were, without any process, and became a trespasser thereby. The plea in abatement was properly overruled. The other question, presented in this case, was also decided in Dow v. Smith. The only question, which could be raised on this point, was, whether the plaintiff was the owner of any other cow, but the one, for the taking of which this action was brought; and this was submitted to the jury. If the sale of the other cows was fraudulent, they were liable to be taken by the creditors of the plaintiff and by this defendant. This point was decided in the case last mentioned ; and it appears too obvious, to require any farther elucidation. It is not necessary to examine the case of Preston v. Crofut, 1 Conn. 527, in note, any farther than to remark, that, in this state, it has been always considered, that an innocent purchaser from a fraudulent grantee, without any knowledge of the fraud, acquired á valid title by his purchase ; that the dissenting opinion of Smith, L, in that case, has been Considered as the correct law on that subject; and that the case of Preston v. Crofut, has been disregarded. The case before us does not require an examination of that case. We are satisfied with the directions given to the jury in the county court, and their judgment is affirmed.