Hutchinson v. Lull , 17 Vt. 133 ( 1844 )

The opinion of the court was delivered by

Rovce, J.

The witness Ingraham was rendered competent, by the discharges produced at the trial. Ordway v. Bacon, 14 Vt. 378. And it is not perceived that any valid objection existed to the witness Leland. The officer saw fit to respeot the claim of this witness to the property, and declined to attach it as the property of John H. Leland. The witness was therefore as free from all legal interest in the present controversy, as if no such attachment had ever been thought of.

The remaining question is, whether the officer was under a legal obligation, upon being tendered a sufficient indemnity, to proceed and attach the property as belonging to John H. Leland. That it may become the duty of an officer to levy upon or attach property in cases of doubtful ownership, is implied, if not expressly declared in the 3d and 10th sections of the act relating to the levy of executions. The former section directs the officer to levy on the goods and chattels of the debtor, “or such as shall be shown him by the creditor.” And it is provided in the latter section, that, in cases of reasonable doubt as to the ownership of the property, or its liability to be taken, the officer may require an indemnity; and if that is not furnished in reasonable time, he may refuse to proceed, and may release the property; implying, that if the indemnity is furnished he ought to proceed. But the law cannot design to countenance the execution of process against one person, upon property actually, and exclusively belonging to another. It is no less the. object of the law to protect persons in general in the enjoyment of their property, than to subject that of a debtor to the process of his creditors. These statutory provisions are, therefore, only applicable to cases of honest doubt as to the true ownership. And even then, the credi- ' tor must have been able, upon the facts existing at the time, to defend the execution of the process, or he can have no remedy against the officer for refusing to execute it. In such a case the officer will refuse to act at his peril, but he cannot legally be required to commit a trespass. Now the charge requested of the judge would have involved an admission that John H. Leland had no attachable interest in the property, and yet have subjected the officer to damages for refusing to attach it as his. We think the judge would have manifestly erred in acceding to the request.

Judgment affirmed.