
    Huntington vs. Cobleigh and Miner vs. same.
    Caledonia,
    
      March, 1833
    
    TJuder the statute passed in 1823 directing the mode of attaching real estate 3t is sufficient for the officer to leave a certified copy of the attachment &c. with the Town Clerk, and direct him to record the substantial partand pa^" him the fees' therefor.
    Such attachment, when the substance is not actuull}* recorded is good, and creates a lien against any one who has notice of such attachment frofii tli’a Town Clerk, and has seen the copy on file.'
    A variance in the copy left with the Town Clerk from the original in a trifling and unimportant particular, does no't destroy the effect of the attach-iaént.‘
    This was an action which was tried by the County Court,- and came into this Court upon the following- Bill of exceptions'.
    Ejectment for part of No. 5 in the 5th Range 1st Divi-sión in Burke. — Isaac Fiske original proprietor.
    Plea General issue, both plaintiff and defendant clairri title under Samuel Dallibee;
    The plaintiff to support the issue on his part read in evidence to thetJury his writ of attachment against said Dal-fibee, dated' February 1,1827, and made returnable to Caledonia County Court, at their April Term then next lobe holden, and purporting to have been served on t-ho' 3d of said February, by attaching the land in question. The plaintiff also gave in evidence a copy of said writ with the officers return thereon, which copy was left in the town Clerk’s office in said Burke on the 3d day of February aforesaid by the officer serving said writ. The plaintiff also gave evidence to the Jury, tending to shew that the said officer at the time of leaving- said copy in said town Clerk’s office requested said town Clerk to record the substance of said writ, with the officers return thereon as the law dl rects, and the officer then paid said town Clerk twenty cents for recording the same. And the said town Clerk filed said copy for record; and had no book sep'erate from bis book to record deeds, wherein to record the substance of said writ- and; officer’s return and no such book was pro-yided until January 1829: When the book was provided? the said town Clerk recorded the substance of said writ and officer’s return therein, said record bearing date February 3, 1827, and was made from this copy of said writ, left in said office, and filed for record as aforesaid. A copy of this record, also a copy of the record of the judgment in favor, of the plaintiff, and against the said Dallibee recovered in- said action ; also the original execution- which issued on said-judgement, and officers return-thereon'; showing- that the same execution was levied on the lands in question; also copies of thd récords in-the County Court Clerks office in said County, and in the town Clerks office in said Burke, were given in evidence to the Jury ou-tlie part of the plaintiff. The defendant objected to ail; dnd every part of the aforesaid-evidence ; but the Court ' overruled said objections, and admitted said evidence. The plaintiff also gave in evidence, a copy of adeed of tfie lands in question, executed by the said Dallibee to the defendant'!!! this action, dated February 23, 1828, duly acknowledged, and recorded before the day of said execution. The defendant also gave in evidence the-original deed of which the above is a copy. It also appeared in ' evidence, that the said Cobleigh when he purchased said lands, and took said’-deed of the said Dallibee, and for some time before had full" knowledge, that said lands had been attached as aforesaid by the plaintiff; and that said action was then pending — the said Cobleigh having seen the copy of said attachment, and filing in the town Clerk’s office in-said Burke, and having been informed by said town Clerk that said lands were incumbered with’ said attachment but is the said Cobleigh relying on the promise of the said Dalli-bee to clear off said incumbrance ventured to purchase, and take said deed; Under- the direction of the Court in view of the aforesaid evidence, the Jury returned a Verdict for the plaintiff. The defendant excepts to the admission of said evidence, and the exceptions are allowed by the Court-.
    The other case of Miner vs. Cobleigh, it: appears was the same as the preceeding, with the exception that the copy of the writ left with the town Clerk upon which the same lands were attached and a portion set off on the execution issued upon the judgement .thereon rendered was defective in omitting a part of the usual declaration on Book. To wit: “ Render to said Miner the sum of dol- “ lars which he, the said Miner says is justly due. ”
    
      Argument for Plaintiff. — The attachment and levy of the defendant is regular unless defeated for want of a book kept in the town Clerk’s office for the purpose of recording the substantial parts of. writs of attachment.
    If the attachment be good against Dallibee, it is good against the defendant, his grantee to the estate, with alj its incumbrances. No act of the debtor (the grantee) and a third person can change or defeat the plaintiffs lien on the land.
    The case resolves itself into this question. Did the plaintiff gain a lien by virtue of his attachment of the land ?
    Th.is question depends upon the construction to be given to .the 26 Sec. of the Statute of 1797, and the Statute of 1823, in addition thereto. These several Statutes have Sheen substantially complied with. Every thing required by the Statute of ’97 has been done. So far as that Statute extends the attachment is regular. The cause then rests upon the construction of the Statute of 1823. That Statute is an addition to the Statute of 1797. It is merely directory, not changing or dispersing with any thing required by the former Statute, nor does i.t say unless the requisitions of the last ac-t .be complied with, the attachment shall be void, or that the writ shall abate. It but imposes an additional duty upon town Clerks and Officers serving writs. Upon passing it goes into effect immediately without any special promulgation. Time enters into all human transactions. It required time to promulgate the law, and time for towns to preserve books for such records.
    
      Argument for Defendant. — The objection is to the service, .that the officer as appears by his return did not cause the substantial parts of said writ, together with his return thereon endorsed to be recorded in the town Clerk’s office ^10 t0^n where the land lies which is required by law. Compd. Stat. of Vt. p. 108. To create a lien it must be express contract, usage of trade, or where th.ere is .some legal relation b.etween the parties. 2 Saund. p. & E. 145" p( 037j X Edit. 1 B. & A. 582.
    And if the lien exists in the present case, it is by the operation of law and the act of the plaintiff without any concurrence or consent on the part of the defendant, or of third persons. Therefore the plaintiff must show ,tha.t ho h.as performed all acts incumbent on him by law in order to create the lien ; and in this view the acts of the Sheriff are his acts, and the service of the writ, in other words creating the lien, is a Statute regulation. Compd. Stat. of Vt. p. 64, 65, 108.
    Being such, the question is a matter of strict right. 1 Cowp. 29. 1 Burr 377. 4 Burr 2244. 1 Vt. Pvep. Townsend vs. Athens, p. 285. 2 Peters Conn. Rept. 153.
    And if the plaintiff does not comply with the requisitions of the Statute, he should take nothing against the defendant who has ; for if the law piay be relaxed so far as to lay aside that which the legislature saw fit to make the subject of one full enactment, and treaf it as surplusage or nugatory, it is for the Court to assume legislative, rather than judicial power. And if they may dispense with the law in one particular, they may in another — therefore if it is not necessary to comply with the Jaw of 1823, requiring the Officer to cause the substantial parts of the writ together with the return thereon to be recorded — by the same ¿node of reasoning the law of 1796 — Sec. 26 Comp. .Stat. of Vt, p. 65, which points out the mode of service prior to 1823, may also be disregarded, and have the praying out of the writ operate ,to create a lien, or even further, let the reason be total neglect of any judicial proceeding whatever reserving to the creditor, the naked declaration that he intended to pray out a writ, and attach said real estate. The cases are parallel, and whatjwould be-the law in the one would be in .the other. The lien, if created at all, is by compliance with the .Statutes above referred to. Was this done prior to the defendants perfecting his title ? No— for at that stage of the proceeding, defendant took by deed from Samuel Dallibee, duly authenticated and recorded, and acquired thereby a perfect title to the premises — provided plaintiff had not a vested lien prior — ‘and if he had not no subsequent act of his, could operate against the vested right of defendant. To shew that in liens by attachment a strait forward course is to be pursued. See Hall Admr. of Severance against Walbridge, 2d Aikens Rep. 215, .and Murray, et al. vs. TLld/ridge. 2 Vt. Rep. 388-
    The former was where a lien had been created by attachment, which in the opinion of Court was absolved by a subsequent confession of judgment. The latter was where there was a similar lien which the Court adjudged was lost by the parties agreeing to, and having the trial forthwith. If therefore the doing of these acts which are apparently prejudicial to no one, but seem to be beneficial rather than otherwise to all interested, operate to discharge a lien. We may well ask, shall any thing short of tfre particularity of the Statute regulations acquire it ?
    But if the Court should be of opinion that after the deed to defendant, plaintiff might proceed to perfect his lien by causing the substantial parts of the writ &c. to be recorded, another question arises, whether even that be done. Indeed whatever record was made, was from the copy lodged at said town Clerk’s office by virtue of the act of 1797, and not otherwise. The wording of th.e act of 1823 is “.the officer shall cause the substantial parts of the writ, ” •naming those parts, “ together with his return thereon endorsed to be recorded ” — and necessarily this being apart of the service it is incumbent on him to set forth that fact in his return.
    If he has simply left a copy, has he caused the recording to be done in the contemplation of the law ? Can he in truth, if he has done no more, certify that he has ? And if he does so make his return is it not false ? Most assuredly it is for the law of 1797, required the copy to be left, and the recording is over and above.
    As it regards a record from a copy of a writ, the Court in the case of Stevens vs. Brown, 3 Vt. Rep. 420, decided that the record of a copy of a deed, is no record in contemplation of law, — if so, wherein do the cases differ. In ¿either case when spread upon the record, it js a copy of a copy. Nor is it like an execution, for the law of J 823, to * “ which we refer applies exclusively to Mesne Process; whereas .the law contemplated by the Court in Orleans County relative to the record of an execution applied sole- ■ J 1 1 ly to executions.
    The defendant purchased, knowing that there was no record of said writ, ,and officers return, in the town Clerk’s office of Burke, and gave a full and valuable consideration for the premises ; believing that the dealings between the plaintiff and Dallibee, would be adjusted, as it was under^ stood he had both the terms and means of settling with plaintiff’s Attorney, so that there could be neither legal nor moral claim upon the defendant in this transaction. But on the other hand the defendant has both these to enti? tie him to recove.r.
   The opinion of the Court was delivered by

Williams J.

The plaintiff claims title by the levy of an execution in his favor, against one Samuel Dallibee, and the defendants title is a deed from Dallibee dated 13 February, 1828.— The attachment on which the judgment in favor of the-plaintiff was rendered on which the execution issued was served prior to the date of the deed. The question is, whether that attachment was served, so as .to create any lien on the land in question; and this depends on the conr struction of the law regulating attachment; more particularly the Statute passed in 1823, in relation to attaching real estate. The doings of the officer in serving the writ of attachment as well as the knowledge that the defendant had of the proceedings, .appear from the case as allowed by the Judges who sat at the trial.

Previous to passing the Statute of 1823, nothing more was required of the officer serving a writ of attachment, to create a lien on the estate than .to leave a copy of the writ with a description of the land attached with the town Clerk and with the defendant in the writ. There was no taking possession as there is when personal property is attached— leaving the copy with the town Clerk, was the attachment which created the lien, and wha.t gave notice to all of the incumbrance thereby created.

This ¿ct is unrepealed, and the same ceremony must stijl be performed in attaching real estate.

But from some inconveniences suffered, possibly those Suggested in the argument, as that the'cópy frequently was l-ost (though it was the duty of the town Clerk to keep it,) the Statute of 1823, was passed. The object of this Statute was more effectually, to give notice of the incumbrance created by the attachment, and more effectually to preserve the evidence of the same. The officer was required to' cause to be recorded in the town'Clerk’s office, in a-book to be kept for that purpose, the substantial' part of the writ and the officer’s return' thereon. This Statute was directory to the officer; prescribed no consequences as attaching to his neglect in this particular, and without his doing it, so far the parties are concerned, the service would be good to hold them' to appear'; and to' give jurisdiction to the Court over them.

It is obvious that the officer cannot control the town Clerk ; he has neither the physical nor the legal power to compel him to procure a book to be kept for the purpose, nor to record what is requisite, at any time that he may wish. The Clerk might bé’ engaged, and it might be several days before he would be able in the regular course of his business to make the necessary record. It is therefore sufficient for the officer to do as hé did in this case ; leave a true and attested copy with the town Clerk, and direct him to record the substantial part of the writ as pointed out by the Statute, and pay him' his fee therefore. As the original is not to be recorded, but only the substance of the' same, and as- the. copy is to be authenticated by the certificate of the officer, the Clerk may safely record what is necessary to be done from that copy, and it would be liable to none of the objections which are raised against recording from a copy unauthenticated by the certificate of any one who is authorised to certify the samo.

It may then be enquired what is to be the effect, if the town Clerk neglects his duty in this particular. Since the Statute of 1823, the record of these attachments are to be made in a book kept for the purpose. To this book persons are to resort, who wish to obtain information whether any land has been attached, and if a creditor or person de-sireous of purchasing finds no such record on enquiry, he may safely attach or purchase, unless he has other notice that an attachment has been made. Under the former-lari’ he was compelled to take notice of ah attachment when a copy had been left. Rut- under this Statute he has no constructive notice, unless the substance is recorded — but he may still be affected by actual notice of an attachment.

Messrs. Fletcher & Mattocks-, for Plaintiff

Messrs. Cahoon & Faddsch; for Defendant.

Inasmuch, however, as the attachment is valid when the officer has left the copy and given* the necessary direction, although the substance is not recorded — as between the parties to the suit, and as the object of the latter Statute is solely for notice and to perpetuate the evidence thereof, a- purchaser or attaching creditor who has actual notice of any such prior attachment, must be postponed and take the estate on the lien subject to the first attachment.

Having this view of the nature of an attachment, and the service thereof, and the object of the Statute ; as it is found that the' defendant had notice of the attachment of the plaintiff, being informed thereof by the town Clerk, and having seen the copy of the attachment and the filing thereof in- the town Clerk’s office, previous to taking his deed, and as there is no other objection to the attachment or service thereof the title of the defendant is subsequent to that of the plaintiff, and the plaintiff must recover!

In the case of Miner vs. the same defendant, the tithe on both sides is similar to the one which we have been' considering, except there is a trifling omission in the copy left with the town Clerk on comparing it with'the original.

With respect' to this! the general rule is, that if the copy is so wholly defective that the original, if like it, would be altogether'void, and cofild not be made' good' by amendment — it is no notice of á regular attachment. Those who are to be effected by it mhy consider the'original as similar to'the copy, aiid need not enquire any further, but may-treat it as void. This was decided' in’ the case of Herring vs. Harmon in Orleans County March'Term 1832.. In the present case tire variance was trifling and immaterial", and the original writ, if like the copy! would not' have been liable to any serious objection. A lien was thereibrfe' created in favor of this plaintiff also by tiré attachment and the result will be the same in both cases!

The judgment of the County Courfiir both cases must be. affirmed! — Judge Royce dissenting^—  