Murray v. Eldridge

• Decision Date: 01 January 1830
• Citation: 2 Vt. 388
• Parties: RHODA MURRAY, et al. v. CHARLES M. ELDRIDGE
• Court: Vermont Supreme Court

2 Vt. 388

RHODA MURRAY, et al. v. CHARLES M. ELDRIDGE

Supreme Court of Vermont, Chittenden

January, 1830

[Syllabus Material] [Syllabus Material]

This cause up from the county court to be re-examined upon the following case agreed to by the parties:

" Case against defendant, as constable of Hinesburgh, for neglecting to levy an execution, in favor of plaintiffs, upon property attached by him, at the suit of the plaintiffs. Plea, not guilty. At the trial, it appeared that on the 12th day of July, 1827, the defendant, who was then constable of Hinesburg, attached two horses, the property of Allen and Warren Murray, on a writ in favor of the plaintiffs against them, dated 12th of July, 1827, demanding one hundred dollars in damages, and returnable before Mitchell Hinsdill, justice of the peace, on the third Monday of August, 1827; That afterwards, and before the 30th of July, 1827, the defendant attached the same property, subject to the first attachment in favor of Boynton and Hurlburt, on other writs, which were returnable before the 3d Monday of August, 1827; That, on the 30th day of July, 1827, the plaintiff's writ was returned to the magistrate, who issued it, and the plaintiffs and A. and W. Murray appeared before the magistrate, and entered into an agreement to join issue upon the action and go to trial immediately: of which agreement the magistrate made a memorandum upon the writ; That a trial was then had, and the plaintiffs exhibited their claim, and the defendants an offset, and the plaintiffs recovered $ 84 76 damages, and $ 2 95 costs, for which sums judgment was entered up; That the plaintiffs took out execution on the judgment the same day, and delivered it to the defendant on the 31st day of July, 1827; That the defendant had notice of the before mentioned agreement, and also that the execution delivered to him was issued upon the judgment recovered in the action, on which he had attached the property, That the plaintiffs directed defendant to levy the execution upon the property so attached; That, on the 29th day of September, 1827, the defendant returned the execution to the magistrate wholly unsatisfied, and with a return endorsed thereon, dated August 4th, 1827, setting forth that he had demanded the property attached of Boynton and Hurlburt (the subsequent attaching creditors) who refused to deliver it, and no other property being shown to him or found, & c. It also appeared that the said writs of Boynton and Hurlburt were prosecuted to final judgment and execution, and the same property sold thereon. Upon this evidence the plaintiffs requested the court to charge, that the plaintiffs were entitled to recover; but the court charged the jury, that the agreement between the plaintiffs and A. & W. Murray, to anticipate the return day of the writ and go to trial, under the circumstances of the case, dissolved the attachment, and that consequently, defendant was not liable." Verdict for the defendant.

Affirmed.

Bailey and Marsh, for the plaintiffs.--There is no pretence, that the plaintiffs and A. and W Murray were guilty of any fraud in fact, and, unless the agreement was a fraud in law, the defence cannot be supported. It cannot be considered a fraud in law, unless the interests of subsequent attaching creditors were, or might have been, injuriously affected by it. If, then, the subsequent incumbrances neither were, nor could have been, prejudiced by the agreement, it is valid and the defendant is liable. The process in favour of the subsequent attaching creditors was returnable before the process in favour of the present plaintiffs; but the plaintiffs, by virtue of their attachment, had acquired a priority lien, of which subsequent attachments would not divest them, though first prosecuted to judgment. The executions of the subsequent attaching creditors could not be levied, until the first process was disposed of, and the lien created by it was satisfied; and the rights they acquired, by virtue of their attachments, could not be, in any manner affected, by any subsequent proceedings on the part of the plaintiffs.--It is only where the interests of such incumbrances were, or might have been, injuriously affected, that it has ever been holden, that any agreement between the plaintiff and defendant in the progress of the suit would discharge an attachment. The rights of bail stand on a different ground; and they may sometimes be discharged where an attachment would not. The liability of bail arises from contract, and, as in other contracts, any material alteration in its terms or conditions, any change of the extent of the liability, will operate as a discharge. It is upon this ground, that amendments, the substitution of a different cause of action, by the addition of new counts, increasing the ad damnum & c. have been holden to discharge bail. In the present case, there is no pretence, that the subsequent attaching creditors did sustain any damage, and it is apparent, from the facts of the case, that they could not.--The agreement ought to be considered in law, what it was in fact, an arrangement intended for the benefit of all persons in interest, and really beneficial to all parties, by enabling not only the present plaintiffs, but also the...