
    
      Horace Lampson vs. Calvin Fletcher.
    
    ^hen the sheriff has an execution to collect, which issued on a judgment rendered for the amount of a note, negotiated with due notíceío the maker, he is not a trespasser for proceeding to collect the same after the debtor has pro-* cured and shown him a discharge from the nominal plaintiff, the assignor, and forbid his thus proceeding.
    The plaintiff, Lampson, brought his action of trespass against the defendant, Fletcher, before a justice of the peace, and declared against him as follows to wit: “ In a plea of trespass, for that the “ defendant, heretofore, to wit, on the first day of September, 1823, “ with force and arms, at South Hero, aforesaid, took, seized, and “ carried away, a certain two-horse-waggon the property of the “ plaintiff, of the value of sixty dollars ; and other wrongs and injuries then and there did to the plaintiff, against the peace, and “to the damage of the plaintiff seventy dollars ;tO’recover which, 41 with just costs, this suit is brought.”
    This action was carried by appeal to the County Court, and decided upon the following pleadings, in favor of the defendant 5 and was brought by a writ of error to this Court.
    
      . “ And now the defendant in court, by Blodget and Mien his- “ attornies, defends the force and injury when, he. and says “that the plaintiff from having and maintaining his aforesaid ac~ “ tion against him, (the defendant), ought to be barred; because, “ he says, that at the time of the supposed trespass, set forth in “ the plaintiff’s declaration, he was, and for a long time before, “ and ever since has been, the sheriff of said county of Grand- “ Isle, legally authorised to act as such; and that at South Hero, “ in said county of Grand-Isle, on the 31st day of May, A. D. “ 1823, he the defendant, as such sheriff of Grand-Isle county,. “ as aforesaid, received a certain writ of execution, in favor of one “ Gardner Jennison, against the said Horace Lampson, issued on a “judgment rendered by Gideon Hoocie, justice of the peace in “ and for the county of Chittenden, on the said 31st day of May, “ 1823, aforesaid, signed by said justice, and bearing date on the “ same day and year last aforesaid, for the sum of seventeen dollars “ and fifty-two cents damages, two dollars ninety-three cents costs, “ and twenty-five cents for said writ of execution, returnable in “ sixty days from its date, and directed to the sheriff of Grand- “ Isle county, his deputy, or either constable, of South Hero, to “ collect according to law j and that upon said writ of execution “ was a notice in writing, that the same was the property of on®. “ jEthan Austin of Milton, in said county of Chittenden, to “ whom the debt, on which said judgment was obtained, had been “ duly assigned ; and that the said Calvin Fletcher, sheriff as a- “ foresaid, by virtue of said writ of execution, and in order to levy “ the sums contained therein, afterwards, to wit, at South Hero “ aforesaid, on the 26th day of July, 1823, took a waggon as the “property of the said Horace, and having advertised the same “ for sale, as the law directs, afterwards, to wit, at South Hero a- “ foresaid, on the 2d Saturday of Aug. 1823, agreeable to the time “ set forth in his said advertisement, sold the same at public vea* “ due, for the sum of twenty-two dollars and twenty-five cents, in full “ satisfaction of said writ of execution,and officer’s fees thereon., And “ the said Calvin avers that the taking and sale of said waggon, a* “ aforesaid, is the same supposed trespass as set forth in the plain» ' 
      “ tiff’s declaration, and no other; and this “ he is ready to verify : wherefore, he prays “judgment if the plaintiff ought to have and maintain his aforesaid “ action thereof against him the defendant,”
    “By Blodget and Allen, his attornies.”
    “ And now the plaintiff, in reply to the plea of the defendant “ above pleaded, pleads and says, that for any thing contained in “ said plea, he ought not to be barred; because, he says, thatbe- “ fore the delivery of the said writ of execution, mentioned in “ said plea of the said defendant, and before any assignment of “ the said debt, contained in said execution from said Jennison to “ said Austin, the said plaintiff fully paid and satisfied the said “ debt, to wit, the said damages and costs in said execution spe- “ cified ; and the said Jennison thereupon released and discharged the said plaintiff therefrom, and directed the said defendant “ not to levy said execution ; all which, at the time of the levy o,f “ said execution on the said waggon by the said defendant, was well “ known to the defendant; and this the plaintiff is ready to verify $ “ and therefore- prays judgment for his damages and costs,
    “ By Adams and Smft, his attornies.”
    “ And the said Calvin Fletcher, as to the said replication of “ the said Horace Lampson, to the aforesaid plea of him the said “ Fletcher, says, that the said Lampson oughtnot to have and-main- “ tain his aforesaid action thereof against-him, because, he says, that “ the aforesaid judgment mentioned in the plea of the said Calvin “ above pleaded, on which said execution issued, was rendered “ in an action upon, a promissory note given by the said Horace “ to the said Gardner Jennison, dated November 1, A. D. 1821,. “payable on the 1st day of January, 1823, in good merchantable “ grain to be delivered at the said Lampson’s dwelling house in “ South Hero, which said note the said Gardner, afterwards, to “ wit, at Milton, in the county of Chittenden, on the same 1st “ day of November, 1821, aforesaid, for a valuable consideration, “ to wit, seventeen dollars, paid by Ethan Austin of Milton, in “ the county of Chittenden, to the said Gardner, sold, assigned, “transferred, and delivered over, to the said Ethan, saidpromis- “ sory note, and did then and there endorse the said note with his “ own proper hand and name; which said note, from the- time of 
      fi gald transfer and assignment, became, and “ ever since has been, the property of said “Ethan; of which said assignment and transfer, as aforesaid, “ the said Horace Lampson, on the' 1st day of January, 1823 “ aforesaid, and long before any discharge of said note to him “ from the said Gardner, was informed by said Ethan, and had t‘ legal notice thereof: and this he is ready to verify 5 without “ this, that before any assignment of the said debt, contained in “ said execution from said Jennison to said Ethan> the plaintiff “ fully paid and satisfied the said debt, to wit, the said damages “ and costs in said execution specified; the said Jennison there- “ upon released and discharged the plaintiff therefrom, and thereupon directed the said defendant not to levy the said execution. “ All which, at the time of the levy of said execution on the said “ waggon by the defendant, was well known to the defendant 1 “ wherefore, he prays judgment, if the said Horace ought to have “ and maintain his aforesaid action thereof against him,
    “ By Blodget and Mien, his attornies.’*
    “ And now the plaintiff, in answer to the rejoinder of the defend- “ ant, surrejoins and says, That for any thing contained in his said “rejoinder, he ought not to be barred from having and maintain- “ ing his said action, because, he says, at the time of tire execu- “ tion of fire said promissory note by the said plaintiff to said ‘‘ Jennison, as is set forth in said rejoinder, the said Jennison was “justly indebted to the said plaintiff in a sum of money greater than “ the amount of the said note, to wit, the sum of seventeen dol- “ lars and fifty cents ; and afterwards, and before the rendition “ of said judgment in favor of said Jennison against said plaintiff “as aforesaid, to wit, on tire 24th day of May, 1823, the said “ plaintiff recovered final judgment by the consideration of Wallis “ Mott, Esq. one of the justices of the peace for the county of “ Grand Isle, to wit, at said South Hero, for the aforesaid seven- “ teen dollars and fifty cents, as damages, and for two dollars and “ fifty cents costs of suit 5 and afterwards, to wit, on the 15th day “of June 1823, the said judgment in favor of said plaintiff, being “ unpaid, he the said plaintiff and said Jennison, by mutual .con- “ sent and agreement, offset the aforesaid judgment; and the said Jennison thereupon discharged and released the said plaintiff from «the said judgment so obtained by said Je«-* “ nison, as aforesaid; of which the said de“fendant afterwards, to wit, at South Hero aforesaid, on the 17th “ day of June, 1823 aforesaid, and at the time of the delivery of ®‘the said execution to him as aforesaid, had due notice; and the “ said Jennison thereupon directed the said defendant not to pro- “ ceed to levy said exeeution on the property or body of said “ plaintiff; but to return the same without further proceedings: “ all which the said plaintiff is ready to verify, and therefore prays “ judgment for his damages and costs as above,
    “By Adams and Swift his attornies.”
    To, the foregoing surrejoinder there was a demurrer and join-der in demurrer. The judgment of the County Court was in favor of the defendant. And the plaintiff, in his writ of error, assigned the following for error :
    “ 1. The plea, rejoinder, & demurrer, of the said Calvin Fletch--uer, and the matters therein contained, are not sufficient in-law “ for him the said Calvin to have and maintain his aforesaid judg- “ ment against the said Lampson for his costs aforesaid.
    “2. General Error.
    “ 3. The County Court, in the cause aforesaid, decided that “ the said Jennison, plaintiff in the execution aforesaid, in consid- “ eration of a debt against him, in favor of the said Horace, de- “ fendant in said execution, which existed between them prior to “ the transfer of said note fx'om said Jennison to said Austin, on “which said judgment and execution was obtained, could notdis- “ charge said execution; and that the said Jennison’s discharge, as “ aforesaid, in consideration aforesaid, was not sufficient in law to “ discharge the said Horace from said execution, or the damages “ and costs therein contained; and
    “ 4. in substance, that the action of tresspass would not lie a- “ gainst the defendant, sheriff as aforesaid, for proceeding with the “ execution after it was discharged by said Jennison, plaintiff in “ said execution.
    
      Swift, for the plaintiff in error contended, 1. That a court of law ean not protect the assignment of dioses in action, except in those «ases where by law the right of action is assignable. The asignee. in such cases, must depend upon tbe credit •and honesty of the assignor. — Bray. R. 55.
    2. But if the law is otherwise, still a court of law will only protect such assignment against the fraud of the promiser, and will permit him to make any equitable offset.
    3. A sheriff having an execution to serve is bound to obey the directions of the creditor in the execution, as respects the proceedings on the execution, and cannot judge between him and one who pretends to have the equitable interest, although he may not be justified in paying him the money ; otherwise the sheriff would be placed in a hazardous situation.
    4. If a sheriff proceed to levy an execution after the return-day, or a satisfaction, he is a trespasser : he is even bound to discharge from imprisonment after satisfaction, or he becomes a trespasser. — Cro. Jac. 379. — Esp. JY. P. 332-3. — 1 Sw. Dig. 500, 795.-4 Johns. 450.
    
      5. In the plea in bar, in order to a justification, the defendant ought to set forth the proceedings in the levy, to wit, the advert tisement and sale of the property, that the court may judge of the legality of the proceedings ; it is not sufficient for him to state he has proceeded according to law.
    6. An equitable offset of a debt existing before the transfer of a chose in action, although made after notice of a transfer, is no fraud upon the assignee.
    7. A sheriff cannot jusify under the process of an inferior court without a return of such process. — 1 Sw. Dig. 499. — 1 Wilson 17. — 2 Roll, 562. — "2 Strange 1184. — Cro. Car. 259.
    
      Allen, for the defendant in error. In this case three questions are to be considered.
    1. Will tire court protect the equitable interest of an assignee ?
    2. Is the Judgment, obtained by Lampson against Jennison, such a -claim, as can be set off by mutual agreement between them, after notice of the assignment ? and ought not Lampson to have pleaded it in offset to the action brought by Austin in Jenñi- ■ son’s name against him ?
    3. Will an action in this case lie against the sheriff ?
    1. That the court will protect the equitable interest of an as-signee, is now no longer a question. ' The doctrine is supported by abundance of authorities, and recognized by our courts. — See 1 Bane, 283, and the following pages, where all the cases are collected.
    , 2. Subsequent to notice of the assignment, no contract could be made between Jennison and Lampson. Whatever legal defence Lampson had, he must have availed himself of it before a court of justice. To admit that Jennison could make any contract with Lampson, relative to the payment or discharge of the execution,would be to surrender the doctrine, -that the court would protect the assignee against the doings of the assignor. The principle of protection arises out of the fact, that the assignor may be guilty of a fraud ; and the court will see that he shall not profit by it. But allowing him to make .a contract relative to it, or to give a discharge, which upon the face of it shall be binding, puts it out of the power of the court to protect the assignee. It was in the power of Lampson and Jennison to make up such a suit, and obtain such a judgment, as they chose, and according to the doctrine contended for, might affect Austin's interest, without any notice to him, or giving him an opportunity to defend. Austin, the as-signee, if the judgment is to affect his interest, ought to have had the privilege of defending, instead of Jennison; and the want of that opportunity would be a good reason even against the judgment being pleaded in offset to the action of Jennison against Lampson, and a better reason against the validity of a receipt given by Jennison to him. This clearly shows tire propriety of the position, that whatever advantage the defendant means to take by way of defence to a demand assigned, must be had either by contract with the assignees, or by application to a court of justice. It is decided, thati when A assigns a bond to B, and B gets judgment in A’s name, and gives -the execution to an officer, and informs him of his equitable interest, and the officer suffers an escape, — B may recover against him in A’s name, and his release will not protect tire officer. — 1 Bane, 289, s. 21. — 15 Johns. 405.
    3. But no action against the sheriff can be maintained. The officer being commanded by judicial authority to proceed, is not obliged to stop, until he has levied the debt, or is superceded by authority -as high as that by which he was commanded. Taking' into consideration the facts attending this C Grand isle, Jan. 1823. case, the absurdity will be very manifest of / Lampean vS. Fletcher-. making the officer liable for not obeying the direction of Jennison, whether verbal or written. If a receipt or discharge were given by Jennison to Lampson, how was the officer to know that it was genuine ? He could not know but that it was a forgery. He might exercise his judgment, but might be mistaken. He ought not to be made the judge at his peril., If verbal directions were given him by Jennison, he ought not to be bound to obey them. Upon the back of the execution, information was given to the sheriff, that the debt belonged to Ethan Austin, and he was forbid receiving any discharge from Jennison : and unless the officer could make out, that the certificate was incorrect, he would be liable to Austin. — (See 1 Lane 289, where the nominal Plaintiff’s discharge would not protect the officer, as it necessarily follows from the doctrine so well established, that the interest of the as-signee shall be protected.) How is the officer to find out, that tins notice is not correct ? If it is in conformity to the truth, he is bound to regard it. If not, we do not believe it is. a doctrine for him to examine into. If we are correct in this position, no action will, lie against the defendant for not obeying Jennison’s direction. If his discharge was good, Lampson could have staid the execution by writ of audita querela. The right both of the assignee and the maker ofthe note, could then have been tried ; and if the execution had been fairly settled, having regard to the rights of tire as-signee as well as the maker, the court could order the execution staid. — 2 Loug. 674, Tarlton vs. Fisher.
    
    The plaintiff further contends, that the defendant cannot maintain his defence, because, it does not appear from- the plea in bar, that he advertised for the sale of the property, before he disposed of it; and quotes the case of Pennington vs. Loring, 7 Mass. 388 : but that case does not support him. It appears in that case that the officer made his return — that he advertised and sold within twenty four hours ; — whereas he ought not to have sold short of forty-eight. But in the present case, it does not appear but that the property was advertised a sufficient length of time before sale. The plea does state the advertisement, and says the officer sold the property at public vendue, giving the day of the advertisement and day of sale, between which there is an interval of more than fourteen days.
    The plaintiff says the defendant is a trespasser, because he does not allege in his plea, that he returned his execution; and quotes Sw. Dig. 499. The execution bears date, 31st May 1823,— and the property was taken 26th July following, not leaving a sufficient time to sell in the life of the execution. • It is contended, that if the officer begin his levy in the life of the execution, he may complete it afterwards. — 3 Dane, 80, s. 11. — 6 Mass. 20, Prescott vs. Wright. “If the execution be duly done, it is good, though “ not returned.” — 3 Dane, 91 s. 1, et seq. where a number of cases are cited.
   Hutchinson, J.

delivered the opinion of the court. The

court are equally disposed to protect the bona fide assignee of a note in his right of action, if any such right exists upon tire note, and the rights of the signer of the note to make any defence that exists before he has notice of the assignment; but we think each must attend to his rights in proper season, and not by letting the proper season go by neglected, so pursue his rights afterwards as unnecessarily to embarrass the rights of the other party, and more especially the rights of a public officer. In this case, when the note was .sued, the defendant, Lampson, ought to have made his defence, whether it were an offset or discharge from Jennison, before judgment against him. The suit was then under the care of Austin, the assignee, and he would have had opportunity to meet this defence and show it unjust, if he could. But Lampson, instead of thus preferring his defence where Austin could know and meet it, takes his judgment in his action against Jennison, of which action Austin was probably ignorant, if not, he had no right to appear in it; and while Austin's execution is in the hands of the sheriff, he procures a discharge from Jennison, by offsetting judgments, and.shows this discharge to the sheriff, and forbids his proceeding with the execution, while Austin, whose ownership was known to Lampson long before his suit upon the note, asserts his right to control the execution and directs the sheriff to proceed. He follows the direction oí Austin, levies upon a waggon of Lampson, for which he brought his action of trespass.

Hector Adams, and Swift, for plaintiff in error.

Blodget and Allen, for defendant in error.

Under these circumstances,the sheriff did right in obeying Austin. Lampson had neglected his defence till the note had passed into a judgment, which warranted the execution,which was prima facie a good authority to take the waggon. Lampson had no right to stop the course of this execution by a discharge merely from Jennison,who, as Lampson knew, had conveyed the note to Austin. If he would stop the progress of the execution in this stage of it, he must resort to his audita querela in which the merits of his claim maybe tried, and his bonds to prosecute will keep good and safe the rights of Austin while ^the matter is in litigation.

In the course taken by Lampson, Fletcher must either obey or disobey a regular and legal execution at the peril of deciding correctly a dispute between Austin and Lampson about the defence which Lampson had, but did hot make, to the note assigned to Austin. If he decided this point wrong and obeyed the process, Lampson treats him as a trespasser. If he decided the same point wrong and disobeyed tire process, Austin has his action in the name of Jennison for such neglect.

It will not do_ to sanction a course which necessarily places a sheriff in such a dilemma. When a discharge is shown to a sheriff from the person who is the owner of the debt, and the sheriff knows him to be the owner, and has no doubt about the fairness of the discharge, if the sheriff should proceed with the execution regardless of such discharge, he would probably be considered a trespasser. But he must not be so considered in the present case. He was not obliged to take the responsibility of disobeying both the directions of Austin, who gave him the execution, and the precept of the execution itself. See 2 Con. R. 700, Luddington vs. Peck. The judgment, therefore, of the County Court, which was in favor of the sheriff, is affirmed with additional cost.  