
    John Morse v. William Morse.
    [In CHANCERY.]
    
      Injunction. Qhancery. Sheriff’s Sale. Title. Trover. Execution.
    
    Tho sale of personal property, attached on the writ, vests the title in the vendee, though tho plaintiff never recover judgment in the suit; and the officer is accountable only for the money which he holds in substitution for the property.
    The defendant having had the benefit of tho avails of the sale, by the referee to whom the suit was referred deducting tho amount thereof in making up the report on which judgment was rendered, has no oquitablo right to pursue the plaintiff, or tho vendee, for such property, though tho plaintiff did not charge such property in exocution within thirty days after final judgment.
    
      The vondee, in a trover suit against him for such property, has a defense at law, therefore does not need tho interference of chancory; hut in this case, which is a chancery proceeding by the plaintiff in the attachment suit against tho defendant theroin, praying to have him restrained from further proceeding with said trover suit, and from commencing any other suits to recover the avails of said sale, the court grantod the injunction.
    Bill in ChanobRT. The substantial averments of the bill are stated in tlie opinion of the court. The cause stood for hearing on bill, answer, replication, and proof, at the March term, 1871, when the court, Ross, Chancellor, pro forma dismissed the bill with costs, from which decree the orator appealed.
    
      O. T. Broivn, for the orator.
    
      Henry Heyward, for the defendant.
   The opinion of the court was delivered by

Redefield, J.

This is a bill in equity for injunction to restrain the defendant from prosecuting certain suits at law.

The substantial averments in the orator’s supplemental bill are these: That the orator attached the defendant’s personal property in an action of assumpsit; that such property was sold by the sheriff, before judgment on the writ, under the statute, for the sum of 1342.19; that other suits were pending between the same parties, and all were referred, under .a rule of the court, to referees; that on the report of the referees, judgment was rendered in favor of the orator, in the assumpsit suit, for the sum of $1349.99 ; and that the sum of $342.19, for which the property sold, was deducted by the referees in making up the report; and that final judgment was rendered in favor of the orator for a sum less the amount received on sale.of such personal property ; and that the defendant has instituted a suit, in trover, against the purchasers of such personal property, to recover the value of the same, claiming that tho orator did not take out execution and charge such personal property on execution within thirty days after final judgment.

The evidence is conflicting, but a majority of the court find the fact proved that the $342.19 was deducted in making up the report on which judgment was rendered, in the suit in assumpsit, in favor of the orator against the defendant. The defendant, therefore, having had the benefit of the avails of the sale of the personal property, has no equitable right to pursue the orator, or his vendee, for such property.

Although the defendants in these trover suits would seem to have a good defence at law, for the law has been settled in this state that the sale of personal property attached on the writ vests the title in the vendee, though the plaintiff never recover judgment in the suit, Abbott v. Kimball et al., 19 Vt., R., 551; and the officer is accountable only for the money, which he holds in substitution for the property ; yet the defendant might institute a suit for the money, and thereby vex and harass the orator ; and by instituting these actions in trover, he has shown a disposition to do so. The court think it a proper case for the interposition of a court of equity by injunction.

The decree of the court of chancery is therefore reversed, and the cause remanded, with directions to enter a decree for the orator perpetually enjoining and restraining the defendant from further prosecuting the suit mentioned in the orator’s bill, in his favor against Seth jileacham and H. W. Bedell, or any other action at law, or in equity, to recover the property, or payment for the same, or the avails of the sale thereof, sold on the writ as set forth in the orator’s bill; and that the orator recover his costs.  