Prescott v. Starkey

Tyler, J. It appeared on the trial in the court below that the defendants Crosby & Adams were proprietors of the Brooks House in Brattleboro, at which the plaintiff, who is an oculist and optician, was a guest; that the defendants brought a suit against the plaintiff upon a claim that was not for the purchase price of the property replevied, and that the defendant Starkey, as a deputy sheriff, served the writ by attaching a trunk containing the personal wearing apparel of the plaintiff and his wife and a certain hand instrument that was used by him in his business in testing eyesight and fitting his patrons with eye-glasses, all of which property he claimed, and his evidence tended to show, was exempt from attachment. Demand was made for a return of the property upon the ground that it was exempt from attachment, and upon the defendant’s refusal to return it this action of replevin was brought. The testimony which is referred to does not change the case stated in the exceptions. Upon the evidence of the plaintiff the court held, pro jorma, that the action could not be maintained, directed a verdict for the defendants, and entered judgment thereon, and the case comes here upon the exceptions. The case must be disposed of in this court upon the ground that the property was exempt from attachment, and in accordance with the provisions of V. S. 1470, which reads: “When goods of the value of more than twenty dollars are unlawfully taken or unlawfully detained from the owner or person entitled to the possession thereof, or [120] when goods or chattels of such value, which are attached on mesne process or taken in execution, are claimed by a person other than the defendant in the suit, or debtor in the execution, such owner or other person may cause them to be replevied.” The right to maintain replevin for goods did not exist at common law but is conferred by statute; therefore it must be exercised under the restrictions which the statute imposes. The words, “other than the defendant in the suit, or debtor in the execution,” employed in V. S. 1470, seem to exclude the plaintiff in this suit from the use of this form of action. Collamer, J., said in Dow v. Smith, 7 Vt. 469, “For taking property exempt from execution, trespass has ever been the form of action in this State.” See Eddy v. Davis, 35 Vt. 247; Sprague v. Clark, 41 Vt. 6. Even if the right existed at common law, as is insisted by some of the authorities, that right is restricted by the words above quoted. The legislatures in several of the states have passed acts enabling the debtor to replevy exempt property when taken upon mesne process or execution, and in this State it may be casus omissus * for it is reasonable that the debtor should be permitted to replevy household furniture, or provisions necessary for upholding life, or tools necessary to carry on his trade, when seized by his creditors; but it is the duty of the court to construe the statute as we find it, and for the legislature to amend the statute if considered unjust. Judgment affirmed.