ORLEANS COUNTY.

MARCH TERM, 1842.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

THOMAS JAMESON V. WILLIAM E. PADDOCK and ELIAS WOODS.

Where a debtor, in an appealed suit, tendered a judgment by confession, in pursuance of the act in addition to the justice act, passed in 1821, for more than fifty three dollars damages;-Held, that the execution, issued upon such judgment, should have been made returnable in one hundred and twenty days.

When such execution issued returnable in sixty days, it was held to be irregular, and the lien on the property attached upon the writ was lost.

If a sheriff declare on a receipt for property attached, setting forth the recovery of a judgment and the issuing of an irregular execution thereon, and a demand of the property only for the purpose of levying such execution upon the property, such declaration is bad on demurrer.

ASSUMPSIT, by the plaintiff, as late sheriff of Orleans county, against the defendants upon their written receipt for a quantity of sole leather. The facts, as alleged in the declaration, were as follows. On the 29th of July, 1836, Jonathan P. Blaisdell, a deputy of the plaintiff, attached the leather in question on a writ in favor of John Dean against Jonathan Houghton, and the defendants received the property from said Blaisdell and executed their receipt therefor, in which

they promised to re-deliver said leather on demand. The writ was returnable before a justice of the peace, and a judgment was rendered by said justice for the plaintiff, Dean, to recover of the defendant, Houghton, $90.28 damages and his cost. Houghton appealed, and twelve days before the term of the county court, to which the appeal was taken, tendered a confession of judgment, agreeably to the statute of 1821, which confession was accepted and a judgment rendered thereon, by the justice, for $93.95 damages, and for the cost of such confession. Upon that judgment the justice issued execution for said damages and costs, returnable within sixty days. The execution was seasonably delivered to a legal officer, by whom the leather, receipted for, was duly and seasonably demanded, that said execution might be levied thereon, &c.

The county court, upon demurrer, adjudged the declaration insufficient, and the plaintiff excepted.

J. Cooper, for defendants.

The questions arising in this case must depend upon the construction of the statute, passed November 15, 1821, sections 3 to 6, pp. 139, 140. The third section of this statute is directory, and if not it does not follow that an execution returnable in sixty days is void.

The court will presume in favor of the proceeding, and sustain it, unless it is absolutely void.

The following cases may be referred to as a partial construction of the statute. Hatch, ex parte, 2 Aikens' R. 28. Tichout v. Cilley, 3 Vt. R. 415. Gage v. Brown, 11 Vt. R. 195.

J. A. Paddock, for defendants.

The right of the party to tender a confession, in a case like the present, and the authority of the justice to receive it, and to render judgment thereon, are derived from the provisions of the statute of 1821; and any exercise of power not granted renders the whole proceeding irregular and void.

In order to hold property attached, bail on mesne process, and receiptors of property, the plaintiff must follow strictly all the provisions of the statute applicable to his case.

By the third section of the same act it is enacted, that whenever a judgment is rendered for a larger sum than

$53.00, in pursuance of the provisions of this act, the execution shall be made returnable within one hundred and 'twenty days.' The execution, in this case, is made returnable in sixty days. It is, therefore, insisted, if the court should be of opinion that the judgment is not void, that the execution is clearly so, and the defendants are not holden in consequence of any proceedings under it.

The opinion of the court was delivered by

WILLIAMS, Ch. J.-The objection to the declaration, relied on in the argument, is that the execution therein described was irregular in not being made returnable in one hundred and twenty days. The statute of 1821, in amendment of the justice act, provided that whenever an execution issued in pursuance of the provisions of that act, for a larger sum than fifty-three dollars, it should be made returnable within one hundred and twenty days. The same statute provided that the debtor, who had appealed from a judgment rendered by a justice of the peace, might, twelve days before the sitting of the court, tender a confession which should have the effect of an affirmance.

As it was only by the provisions of that statute that the debtor could tender the confession set forth in the declaration, we have no doubt the execution issued in pursuance of the provisions of the statute of 1821, and being for a larger sum than fifty-three dollars, should have been returnable in one hundred and twenty days. Nor does the seventh section authorize the issuing of an execution as from a judgment rendered by the county court. Executions issuing from the county court are returnable either in sixty days, or to the next term, and this provision is not applicable to any judgment rendered by a justice of the peace. A justice of the peace can only issue an execution returnable in sixty or one hundred and twenty days, and any execution issued by him for a longer or shorter period, must be treated as irregular. And though it may be true that an execution, regular upon its face, and which a justice could issue, may be a protection to the officer, yet if issued contrary to the requirements of the law, it is irregular as respects the creditor therein, and may be set aside or treated as irregular.

We cannot hold this statute as merely directory, and

ORLEANS,

March, 1842. Jameson

v.

Paddock and
Woods.

ORLEANS, consider the execution regular, as such a construction would March, render the statute itself inoperative and of no effect. We consider, therefore, that the execution issued irregularly, and that the lien on the property attached was lost.

1842.

Hopkinson

v.

Sears.

If this declaration had merely counted on the receipt of the property by the defendants and their refusal to deliver it, the declaration might have been good, as the sheriff was under obligation to return the property to the debtor if the right of the creditor was gone, and, on such a declaration, the defendants could have shown, in defence, that the property had been restored to the debtor, and the creditor had lost all claim thereto. In this declaration, however, the plaintiff avers that he demanded the property that it might be levied on to satisfy the execution mentioned in the declaration. For that purpose he was not entitled to receive it, nor were the defendants under obligation either to restore the property, or pay cost, as the claim on the sheriff and on them was lost by the creditor omitting to take out a regular execution. The title set up in the declaration, to the property attached, for the purpose of levying the execution thereon, wholly failed, and the plaintiff does not set forth a claim for any other purpose. The declaration is, therefore, insufficient, and the judgment of the county court is affirmed.

RUSSELL G. HOPKINSON v. SILAS SEARS.

If an execution, in the process of collection, in the hands of an officer, after a levy upon personal property, but before sale, be superseded by the order of a judge, under the statute providing for new trials, in cases where judgment is rendered by default before justices, and the supersedeas be made known to the sheriff, and he still compel the party to pay the money, he acts without authority, and the money may be recovered of the sheriff in an action for money had and received.

If the supersedeas be shown to the sheriff, it is a sufficient service thereof, and it will take effect, at least, from that time.

ASSUMPSIT, for money had and received, for money paid out, and for money lent.

Plea, non-assumpsit, and trial by jury.

On the trial in the county court the following facts appeared. The defendant was a deputy sheriff, and had in his hands for collection an execution in favor of William Stevens against the plaintiff, on which the plaintiff had turned out certain articles of property. The plaintiff preferred to the county court his petition to set aside the judgment on which said execution issued, and for a new trial; procured the judge's supersedeas of said execution, and caused said petition and supersedeas to be served on said Stevens on the 23d day of April, 1840. On the 27th day of April, 1840, the defendant called on the plaintiff with said execution to procure for sale the property which had been turned out thereon. The plaintiff informed him of said petition and supersedeas, and showed them to him, and the return thereon, and insisted that the defendant should proceed no further with the execution. The defendant insisted he had received no legal notice of such proceeding. The plaintiff then offered to pay him the amount of the execution if the defendant would agree to repay him the amount in case the judgment was finally reversed. This the defendant declined, but insisted on his pay on the execution. The plaintiff then paid the defendant the amount of the execution and fees as stated therein, the defendant only promising he would give the plaintiff notice whenever the money was demanded by Stevens and before paying it to Stevens.

Afterwards the said petition of the plaintiff was entered in the county court, and the prayer thereof granted, and the original action was entered in court, and said Stevens thereupon became nonsuit. After the termination of said cause, the plaintiff, in July, 1840, called on the defendant and told him how it had terminated, and then demanded of the defendant the money so paid by him on said execution, which money still remained with the defendant. The defendant declined paying the same, insisting he was not bound so to do, and the money still remains with him.

The court charged the jury that upon the facts proved the plaintiff was entitled to recover the amount of said execution, to which charge, after a verdict and judgment for the plaintiffs, the defendant excepted.

ORLEANS,
March,

1842.

Hopkinson

v.

Sears.