Lowry v. Cady

The opinion of the Court iva's delivered by, Williams, J.

Both of these actions are brought by the plaintiff, late sheriff of the county of Chittenden, on receipts for prop'erty taken on a writ of attachment in favor of Safford Stevens against Thaddeus Tuttle. From the pleadings it appears that both stand on the same foundation; and a determination, of one, must also determine the other.

On examination, we find nothing which requires us to disturb the judgement of the county court. The attachment was sufficiently proved. An attachment of personal peroperty is the taking such property into the legal custody of the officer making the same, by virtue of, and in pursuance of the directions contained in, a writ of attachment. In an action between other parties than the sheriff and his receipters, the writ of attachment, with the official return of the officer, is sufficient evidence of this fact. It has been denied that this is evidence in an action by the officer making return. — Merrill vs. Savage, 8 Pickering, 397. We are, however, inclined to the opinion that it is sufficient evidence of the fact of the attachment in any suit. The defendants have contended that this is the appropriate and only evidence of that fact, and that, for the want of that evidence, the plaintiff should ha've been nonsuited. If the court had coincided with them in opinion on •this point,-there would be no reason for sending this case to another trial. The original attachment was lost. The secondary -proof, which is admissible in such a case, and was admitted in this case, was amply sufficient to prove the attachment, if that kind of proof, alone, was competent for that purpose.

But we are of opinion that the attachment itself, that is, the taking into the custody of the officer, may, in an action between him and his bailees or receipters, be proved by other evidence .thanthe attachment; and that the receipt itself, when one is taken, is the appropriate and proper evidence for that purpose. Á receipt for property taken on an attachment is considered so far conclusive between the parties thereto, that the persons executing the samé are not permitted to deny the attachment in a suit brought against them on the receipt. — Lyman vs. Lyman et al. 11 Mass. 317 ; Spencer vs. Williams, 2 Vt. Rep. 209 .

The wtjt and after proceedings are not essential to entitle an of- *506 ’ ficer to a judgement on such receipt, unless they are mad.e so by the declaration of the plaintiff, as they .were in this ease.

Bailey & Marsh, for plaintiff. Mams, for defendants.

The objection taken to the admission of the docket minutes has been abandoned by the defendants. The'Court would remark, however, that it is improper to rely on evidence of this kind. An exemplified copy of the judgement is the legal and proper evidence to prove the same. Neither the records themselves, nor minutes, should ever be received, when copies can be obtained, unless there is some strong reason for dispensing with the usual and appropriate evidence. In this case, as the judgement was not recorded, the court were justified in receiving other evidence of the same than an exemplified copy of the record.

The only remaining question is, whether the attachment was dissolved by the amendment of the declaration. It does not appear by the case here presented, that the amended declaration was for any cause of action different from the original declaration, nor that it varied from it in any essential particular. If the defendant relied on any such variance, he should have pointed out in the case in what the amended declaration differed from the original. This is not shewn here, and we cannot, therefore, say, that the county court made an erroneous decision on this point. This renders it unnecessary for us to inquire, whether any amendments would vacate an attachment as between the parties to the suit, or between them and the officer making the attachment, or between the officer and his receiptors, where there areno other attaching creditors, who are interested in the question ; or what amendments or alterations of the original writ would discharge the property taken thereon.

The judgement of the county court is affirmed.