
    Heman Lowry vs. Philip Walker.
    Chittenden,
    
      December, 1831.
    Parol evidence is admissible in ¿rower against a third person, to show that an execution was delivered to the officer who served the attachment, within thirty days from the rendition of the judgement.
    Such third person cannotbe permitted to question the regularity of the judgementof a justice of the peace, through want of continuances, or the giving of bonds as the law requires, while the execution is not set aside by regular process.
    When an officer attaches personal property, such as hay, and leaves copies with the town clerk as the statute provides, the attachment gives him sufficient tide and possession to maintain trover against one who has converted the same property.
    The defendant, in such case, is only liable for the property he has actually converted, oi; over which he had some control, when he forbade the officer’s selling i4t.
    This was an action of trover- for 150 tons of hay, 150 shocks-of wheat, and 100 shocks of oats. The defendant pleaded not guilty, and the issue was joined to the country. The plaintiff obtained a verdict for his full damages ; and the case was brought up to this Court on exceptions taken by the defendant on said trial. The material facts, disclosed in the exceptions, were these : The plaintiff, as sheriff of the county of Chittenden, attached the property in question, by virtue of several writs of attachment, some of which were made returnable before a justice of the peace, and one was made returnable before the county court. The property was not moved by the plaintiff, but copies left with the town clerk. These writs were in favor of several creditors, and were all against one Elihu C. Barber. Judgement was rendered in all these suits, and the creditors took out their executions, and delivered them to the plaintiff, to be levied on the property attached. The plaintiff advertised the property lor sale ; and, on the day of sale, the defendant pretended he had bought it of Barber,and forbade the plaintiff from selling it. The defendant’s counsel did not insist upon any title in the defendant by virtue of this sale. It also appeared, that the defendant had taken a part of said property into his possession, and converted it to his own use. But it did not appear that he had any control over, or actual possession of, the remainder. It did not appear, that the defendant had had personal notice of said justice’s suits, nor that any continuances were had to give him notice, nor that any bonds were given before the issuing of the justice’s executions, as required by statute, where the defendant is out of the state ; nor was there any minute made by the plaintiff on said county court execution of the time when the same was delivered to him : but p'arol evidence Was admitted to prove this. The defendant contended, that the plaintiff could not maintain the action for want of actual possession of the property; and that if he could recover at all, it must be only for the property actually converted by the defendant. Upon all the questions raised, the court instructed the jury in favor of the plaintiff, and exceptions were taken by the defendant to all the decisions made on said trial. The jury returned a verdict for the whole claim of the plaintiff. These exceptions were argued at this term.
    
      C. Adams, for the defendant.
    
    1. Leaving a copy at the town clerk’s office does not amount to any taking of the property.
    2. Leaving a copy may create a lien which will bind the property against subsequent sales or attachments, but creates no other right.
    3. Plaintiff had no sufficient interest in the goods attached to enable him to sustain this suit.— Chit. PI. 150 ; 2 Esp. JY. P, 182 ; Wilbraham vs. Snow, 2 Saund. 47.
    4. The forbidding the sale, was not a conversion.— Chit. PI, 157 ; 6 Bac. Ab. 679 ; Isaac vs. Clark, 2 Mod. 245.
    5. The executions were improperly admitted. — Statute, 129 5 Statute, 213.
    
      Bailey and Allen, for the plaintiff.
    
    I. The first question made by defendant is, whether the plaintiff has lost his lien on die property attached at the suit of Emerson and Orvis by neglecting to indorse on the execution the time when he received the same.
    
      1. This objection to the plaintiff’s recovery is founded on the 10th section of the act directing the mode of levying and serving executions, (Comp. Lenas, p. 213,) which prescribes that, “every sheriff, constable, or other officer,to whom any execution shall be delivered, upon the receipt of the same, shall, without fee, endorse upon the back thereof, the day of the month and year, when he received the same. And, if two or more executions shall be delivered against the same person, that which was first delivered shall be first satisfied.” It is observable that this act relates wholly to the service of executions, and contains no reference whatever to attachments. The latter clause of the section is a key to the object of the whole. The design of the section is to secure a priority of service to the execution first delivered, and the first clause is introduced for no other purpose than to ensure the execution of the latter. It is merely intended to provide a method of establishing the priority of right between different executions. It is directory to the officer, and the statute has annexed no forfeiture to' its non-observance. — See Bealls vs. Guernsey, 8 Johns. Rep. 41, where this point is expressly decided.
    2. The files and papers made a part of the case, show, that the judgement in favor of Emerson and Orvis was not rendered until after the commencement of plaintiff’s action, and the entry thereof in court; and the cause must be tried upon the facts as they were either at the time of the service of the writ, or of joining issue, and the defendant certainly cannot under this plea avail himself of a defence which arose after the pleadings were closed. Had the cause been tried at the term when issue was taken on the plea, no such question could have arisen, because the thirty days had not then expired. The right of the plaintiff at the time of the conversion was perfect, nor had it been defeated, if at all, at the time the issue was taken ; and as the defendant claims no right, he cannot now question that of the officer. As against a wrong doer, it is enough if the plaintiff has scintilla juris, and this he has by reason of his responsibility to the principal debtor, even if the lien would have been lost as against a bona fide purchaser. < — Gibbs vs. Chase, 10 Mass. Rep. 125 ; Whittier vs. Smith et al. 11 Mass. Rep. 211. Indeed, original plaintiffs need not have taken out execution at all.— White vs. Bagley, 7 Pick. 288 ; Cooper vs. Mowry et al. 16 Mass, Rep. 5; Jenny vs. Rod-man, 16 Mass. Rep. 464; Burrows vs. Stoddard, 3 Conn. Rep. 431.
    
      II. Can the officer maintain trover without having removed goods? The statute (Comp. Latos, p. 107) provides, that an attachment by leaving a copy, Sic., “ shall be as effectual to hold said property, against all subsequent sales, attachments, or éxe-cutions, as if said property had been actually removed, and taken into the possession of such officer.” These general words seem intended to put the attachment on the same footing as those made in the ordinary mode by removing the property. The act describes the property as !< subject to waste by removal,” and was doubtless intended for the benefit of the debtor, and not for the convenience of the officer. It could not have been to abridge the right oi the officer to control the property so attached ; and if not, it cannot be supposed the legislature meant to change the mode of enforcing that right. Suppose property so attached is eloigned by one, without right; must the officer be left to his remedy, by special action on the case, against the tortfeasor,who, perhaps, may be wholly irresponsible? and may he not rather, as in other cases, enforce his lien by a re-caption of the property ? The officer must have the right to convert his constructive possession into an actual one at any time ; and all the act has done is to change the indicia of his possession. In ordinary circumstances, a change of the legal possession of personal property is evidenced by its removal, and a removal is necessary only for the purpose of giving greater notoriety to the transaction. In this case the act has provided a different mode of giving notoriety to the attachment. But providing a new mode of establishing a right does not take away that right. If by the attachment the officer acquires a right of reducing the property into his possession, he may maintain trover against any one who interferes with that right. — Merrill vs. Sawyer and Bryant, 8 Pick. 397 ; 2 PhiL Ev. 118 ; 1 Chtt. PL 151-2 ; Fowler vs. Down, 1 B. h P. 45; 6 Bac. Ab. 682.
    III. Upon the question, as to the sufficiency of the evidence to show a conversion of the whole property,we cite, Gibbs vs. Chase, 10 Mats. Rep. 125; Bristol vs. Burt, 7 Johns. Rep. 254 ; Baldwin vs. Cole, 6 Mod. 212; 6 Bac.Abr. 679; Richardson vs. Atkinson, 1 Strange, 576 ; 3 Starhie’s Ev. 1493 ; 2 Esp. JV.P. 191.
    IV. A further question is, whether the lien is lost, as to those attachments where judgements were taken without a continuance or bail lor review. It is sufficient to observe on this point, that the case does not show (nor was such the fact) that Barber was of the state, at the time the writs were served; and this the ' court will not presume. But were this otherwise, the defendant in this action, being a tortjeasor, could take no advantage of the neglect of plaintiffs in this action. The executions were regular in point of form, and the officer was bound to execute them, by levying them on the property he had attached. He could not know, nor would he have a right to inquire, whether notice was proved to the court; and in an action against him by the original plaintiffs for neglecting to levy the executions, he could not show a want of notice to ajudgement debtor as a defence,-f 6 Bac. Air. 166.J Being, therefore, bound to levy upon the property, he may maintain an action against any one who, without right, prevents him from discharging that duty.
   Hutchinson, C. J.,

pronounced the opinion of the Court.— The first question raised upon the record is,'whether it was competent for the plaintiff,whose duty it was,on receiving the execution, to enter thereon theday,month and year,when the same was delivered to him, to prove the same by parol testimony ? There seems to be no difficulty in this question, in the present case, for the plaintiff’s lien upon the property was established by his service of the attachment. This lien must remain in the officer for the benefit of each •creditor, so long as such creditor pursues his lien, created by the attachment. When the lien of the creditor is off, the sheriff holds for the benefit of the debtor. The defendant, in this case, does not even contend that he has made out such a purchase from Barber, the original debtor, as to stand in his right, and hold where Barber might hold. He stands a stranger to title, and has no right-to call in question what might be litigated by the creditor and debtor. The plaintiff is liable to one or the other, and, as between these parties, it is unimportant whether the execution were delivered to the officer within thirty days from the rendition •of the judgement, or at a later period. This first exception of the defendant is overruled.

The same reasoning will dispose of the question in regard to the regularity of the several executions issued from the justice courts. If the creditors lost their lien by not pursuing with regularity, that results in the revived right of the debtor, and the plaintiff would ■be liable to him. This objection cannot avail the defendant. Even Barber himself ought not to be permitted to treat these executions as irregular and void, before instituting some process to •set-them aside. If the court never had jurisdiction, the execution would be void of course ; but, when the action is once regularly before a court of competent jurisdiction, so gross an irregularity as to render tbe after proceedings void, is not to be presumed merely from a defect in the record, to show a notice proved, or actual appearance of the defendant. On a writ of audita querela, or motion to set aside the execution, the fact of notice may be enquired into. If either of these prevail, the. creditor may set out anew, and pursue his claim with regularity.

C. Adams, for defendant.

Bailey & Marsh, and H. Allen, for plaintiff.

'The defendant further objects, that the plaintiff has no sufficient title or possession to recover in this action, because he never moved the property from the custody of Barber. The Court, however, consider, that the leaving the copies with the town clerk, according to the provisions of the statute, has the same effect to create a lien, or a right of action, as an actual removal of the property would have had. The attaching officer has the legal custody, after leaving the copies, of such property as this, during the pendency of the suit, and he alone can maintain an action for it, for the benefit of the attaching creditor.

With regard to the extent of the plaintiff’s claim, the instructions given to the jury were as follows, to wit ?■“ That if-the defendant in-termeddled with the property, by taking a part of it, or forbidding the sale by the officer, it was a conversion of the whole; and, in that case, he would be responsible to the amount of all the-claims, provided the same did not .exceed the value of the property, alleged to be converted by the defendant.” We think the instructions upon this point» incorrect, unless the proof had gone further, and shown, that the defendant had, in some way, some control over the property, such as standing upon timber, in one case cited ; or having soldiers around him to aid him in keeping the property, as in another case cited. Tbe defendant is only liable for what he was proved to have actually converted, or to have taken some ■control over, more than merely to forbid the officer to sell.

For this incorrectness in the charge, a new trial is granted.  