Barron v. Smith , 63 Vt. 121 ( 1890 )

The opinion of the court was delivered by

ROWELL, J.

Personal property may be taken on a writ of attachment or on execution, by the officer’s lodging a copy of the process, with his return, in the town clerk’s office in the town where the property is taken. Such lodgment holds the property against subsequent sales and attachments, the same as though it had been actually removed and taken into the officer’s possession. St. of 1884, No. 99.

The notice of the attachment required to be given forthwith b.y the officer .to the defendant, is not necessary to the validity of the attachment; for by the terms of the statute, it is the lodgment in the proper office of a copy of the process, with the officer’s return, that creates the lien and holds the property. The notice is for the benefit of the defendant, that he may have early information of the attachment, and govern himself accordingly in respect of his future dealings with the property.

But in order to hold the property against subsequent attachments, it must be so described in the return that it can be identified with reasonable certainty. Pond v. Baker, 58 Vt. 293.

Copies of the writs that plaintiff served were lodged in the town clerk’s office at practically the same time. The return on one of them describes part of the property attached as, “ 100 fleeces of wool, 100 sheep, two cows, 75 tons of hay, 450 tin sap-tubs, one evaporator, one ox-cart, one mowing-machine, horse-rake, one single-sleigh, one buggy-wagon, one Prescott organ, 40 bobbin logs, situated on defendant’s farm.” The return on the ether contains the same description, except that it omits the word situated before the words, “ On defendant’s farm.” The returns ■are not punctuated as the above quotation is, but are pretty much without punctuation, and especially is there no comma between the words “ logs ” and “ situated ” in the one, nor between “ logs ” -and “on” in the other; wherefore defendant claims that “situated ” relates to the bobbin logs only, and not to any of the other property antecedently named, and that the other return should receive the same construction.

But the matter of punctuation in officers’ returns and other .such like writings, often hurridly made, and by men little versed in that art, cannot justly be expected to afford much aid in construction, and, as a general thing, is entitled to but little consideration.

To adopt the constniction contended for would contravene the rule we have laid down; for it is sufficiently clear that the word “ situated ” in one return relates to all the property antecedently described, and serves to locate it on defendant’s farm. If one return is good, no matter about the other; but the other is like this one in effect, as it must be read with the word situated, or an equivalent word, understood, for such is its fair meaning. This makes both returns good as to all the property thus far mentioned, except possibly the sheep; for specially naming the property and designating it as situated on defendant’s farm, is clearly sufficient to fulfill the rule. Pond v. Baker, 58 Vt. 293, 302.

And we think the returns are sufficient as to the sheep. It does not appear that there were any sheep on Locke’s farm except those at the barn occupied by Fowler, and which Fowler was caring for as servant to Locke. In the circumstances found, the sheep could have been identified with reasonable certainty as the sheep attached.

But the cider stands differently.. One return describes it as “ situated in defendant’s cellar.” The other is to the same effect. There were two houses on the farm about half a mile apart, in one of which Locke lived and in the other, Fowler.

A majority of the court think that the iff earning of the returns is, that the cider was in the cellar of the house in which Locke lived, and that its description was not sufficient to enable the defendant to identify with reasonable certainty the cider hi the cellar of the house where Fowler lived as the cider intended to be attached.

Judgment reversed, and judgment for plaintiff as to all the property replevied except the cider, the casks that contained it, and the hay, with one cent damages, and judgment for the defmdant for the retru/rn of the cider and the casks and hay, with one cent damages.