Polley v. Hazard

Munson, J. The receiptor’s obligation, although absolute in its terms, was contingent by operation of law. He was to return the property to save the officer from liability to the attaching creditor or the owner. He can defend by-showing whatever will relieve the officer from this liability. Adams v. Fox, 17 Vt. 365; Roberts v. Carpenter, 53 Vt. 678; Dayton v. Merritt, 33 Conn. 184. The assignment in insolvency related back to the filing of’ the petition, and dissolved the attaching creditor’s lien upon the receipted property, and passed the property to the assignee as against the debtor. V. S. 2098, 2099. So no ground was left upon which the officer could be made accountable to either the creditor or the owner. It is true that a sale of the property before the filing of the petition would have been valid against the assignment, and that the officer demanded this property in such time that if delivered it could have been so sold. But we think the receiptor cannot be held liable upon the mere fact that a sale might have been made. The statute required the officer to advertise the property forthwith, but did not limit him to the fourteen days’ notice. Inasmuch as the law gave him sixty days in which to make sale and return, the law cannot well assume that he would have done it in less time. It is not necessary to consider what holding would be required if it were found that the creditor had directed ¡a speedy sale. The plaintiff is nevertheless entitled to nominal damages, the suit having been brought before the attachment was dissolved. Judgment reversed and judgment for platnttjf for one cent damages and costs.