McKOrmsby v. Morris

The opinion of the court was delivered by Redfield, Ch. J. I. By the decision of this court in Bridges v. Perry, 14 Vt. 262, an officer who attaches property on mesne process is, prima faeief liable if he do not produce it on demand, so that it may be levied upon in satisfaction of the execution when obtained. The rule is the same in regard to property attached by leaving a copy in the town clerk’s office. This mode of attachment is intended for the ease of the sheriff, and to enable him to secure the control of the property without the necessity of removing it. It does not excuse him from the exercise of ordinary care in the keeping it from destruction, so that it can be levied upon; Smith v. Church, 27 Vt. 163. If the property is not forthcoming, he is bound to show that it is out of his power to restore it, and that this has happened without any fault on his part. II. The mere fact that the plaintiff, in connection with another, executed a receipt to the officer will not of course release the action. It was evidently not intended to have any such effect, If so it would have been so expressed. And certainly if that had been understood to be the effect of it, no other one would have been required to join in the receipt. But the fact that the plaintiff is now attempting to defend this suit shows conclusively that the suit is not now under his control, or he would release it at once. And if he is now not the party in interest for the plaintiff, it is reasonable, perhaps, to presume such may have been his relation to the suit from its beginning. And especially should the plaintiff be estopped from this defense by the plea that the suit is in his name for the benefit of another, filed in the former suit, and the record of which is made part of this case. We think the testimony on this point had no tendency to show that the plaintiff was attempting to recover a judgment against the defendant for a [421] sum for which he was himself liable to the defendant, and this recovery to enure for his own benefit. The court were therefore not required to submit the question to the jury. Judgment affirmed.