Chase v. Bowen , 7 Vt. 431 ( 1835 )

The opinion of the court was delivered by

Williams, Ch. J.

_ The question involved in this case is, as to the legality of the levy of an execution. The levy is an apparent satisfaction, and in order to maintain this action, if must be shown that it was wholly void. In the cas,e of White vs. jFox in Orange county, th.e plaintiff had been evicted and the leyy adjudged void', It is to be regretted that it was ever permitted to question these' levies collaterally, and I have had occasion heretofore to remark, that the strictness which has been required in them', and the manner in which they have been criticised is a departure from principles adopted in similar cases. Returns on executions, according to the English practice, are made in very general words, and all that is required by our statute is, that the execution and return should be recorded. I do not see why a return in a very general form should not have .be.en adjudged valid to pass the land, until the return was set aside by the .court to whom it is to be made. A different rule, however, has prevailed o.n .this subject. The form which was early made., .and is to be found in Judge Chip? man’s reports, has been adjudged to be good. The officer in the case under consideration evidently had reference to that form anti has followed it. In some instances he has stated his doings particularly, where the same thing is expressed more generally in that form. The qualification and character of the appraisers, as well as the manner of their being appointed, are stated in the form mentioned by the words, ■“ good and lawful freeholders, chosen, .appointed and sworn, as the law directs.” The statute (.and a similar statute w;as ip force when that form was adopted) requires -that the appraisers- should be judicious and disinterested freeholders of the vicinity, in the town, &c. This is not stated in this return, unless it is implied in the terms good and lawful. It was undoubtedly considered by the one who made the form, that it was so implied. As this -levy is in .that form, and where the officer attempts .to state his proceedings more particularly, it does not appear that the statute has been departed from, as that form has been sanctioned by repeated judicial decisions, we are disposed' again to decide that the return was good- and effectual to pass the land from the debtor to the creditor, and was a satisfaction of the. execution .and judgment of the plaintiff.

The judgment of the county court is therefore affirmed'.