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Marshall v. Town.

Foster, 7 Wend. 301. Belk v. Broadbent 3 Term. 185. Chitty on Plea. 187, 136.

But if that sale was illegal, and if the attachment was dissolved by it, the difficulty in sustaining this action is not removed. The attachment of Pecks & Co., was placed on this corn, as the property of Mr. Briggs, on the 9th day of December, 1852, the second day after the sale by Mr. Briggs to the plaintiff, and long before the sale of the personal property on mesne process. That suit, it appears, is still pending in Chittenden county ; and also that they are in fact the creditors of Mr. Briggs. If a lien on that property has been created by that attachment, and if that property was then subject to be taken as the property of Mr. Briggs, it is obvious, that this action cannot be sustained, for the officer has still a special property in the corn, and a subsisting right to its exclusive possession. The sale of the property, by Mr. Briggs, passed a valid title to the plaintiff as against himself, but not as to his creditors. If the property had remained in the possession of Mr. Briggs, a visible and substantial change of its possession would have been necessary to protect it from being attached as his property ; but as the property was in the hands of a third person, notice of the sale, and of his right to the property, was necessary to have been given by the plaintiff to the officer having its custody and possession. Such notice would be equivalent to a change of possession. Barney v. Brown, 2 Vt. 374. Potter v. Washburn, 13 Vt. 558. On this subject the court charged the jury, that it was necessary for the plaintiff to give notice to the defendant that he had become the owner of the property, and that if no notice was given until after the attachment of Pecks & Co., that attachment would hold the property as against the plaintiff. The jury returned a verdiet for the defendant, thus in effect finding that no such notice was given before that attachment was made. There was no other issue involved in the case, upon which that verdict could have been rendered, but the fact, that the sale from Mr. Briggs to the plaintiff was fraudulent in fact; and that, with greater certainty, would subject the property to be taken as the property of Mr. Briggs. There has been no point of time, therefore, from the day when this property was first attached, on the 7th of October, 1852, to the present time, in which the officer has not had not only the right of property but the right of possession to this corn as against the plaintiff,

Thayer et al. v. Kelley and Tr.

But if notice had been given to the defendant, we think, the difficulties are not removed so as to enable the plaintiff to sustain this action. It is distinctly stated in the case, that about the 30th of November, 1852, the officer who made the attachment, removed the corn from the premises of Mr. Briggs, and placed it in the corn-barn of the defendant. On that occasion the defendant informed the officer that he would not assume any responsibility whatever of its custody, or for its safe keeping; and that the officer then informed him that he asked for no such assurances. Under those circumstances, it cannot be said that the defendant stood as the bailee of the officer, or even as his servant. It may be said with greater propriety, that the officer still had the custody of this property; and for that purpose also, by the license and permission of the owner, the possession of the building in which it was placed. The notice of the sale of this property, for the purpose of effecting a change of its possession, and placing it in a situation in which it could not be taken as the property of Mr. Briggs, should have been given, not to the defendant, but to the officer having its custody and possession. For the want of such notice, there was no change of its possession, either actual or constructive, and the property remained subject to be attached as the property of Mr. Briggs. In every point of view, therefore, in which we have been able to look at this case, we are unable to see any ground, on which this action can be sustained.

The judgment of the county court must be affirmed.

THAYER & WILLIAMS v. DANIEL KELLEY, JR.; Smith, ElDRIDGE & LEE, Trustees ; HODGES & Robinson, Claimants.

Assignment of future earnings for future advances.

A person in the actual employment of another, from whom he is receiving wages at

a stipulated rate, may make a valid assignment of his future earnings; although the employment is for no definite period, and may be terminated at any time by either party.

Thayer et al. r. Kelley and Tr.

Such an assignment may be made for the purpose of obtaining future advances as

well as to secure a present indebtedness.

TRUSTEE PROCESS. The plaintiff's writ was served on the 28th of September, 1854. The persons summoned as trustees were the trustees of the holders of the first mortgage bonds of the Vermont Central Railroad Company, and the principal defendant had for two years previous to that time labored for them at a given price per day, but without any agreement as to time, they having the right to discharge him, and he the right to leave at any time. The trustees were then owing him seventy-five dollars, and he still continued in their employment, and at the time of disclosing, they were owing him one hundred and twenty-one dollars.

In February, 1854, the principal defendant executed and delivered to the claimants a written assignment, of which the following is a copy.

“In consideration of one dollar paid, to my full satisfaction, by “Hodges & Robinson, of Northfield, Vt., and also of my previous “indebtedness to them, and to secure them therefor, and also for

any general balance of account, I hereby assign and transfer to “them or their order, all that is now due me, and what may be for " the space of twelve months due me from the trustees of the first “ mortgage bonds of the Vermont Central Railroad Company, or “the corporation thereof, on account of services for either, and I “ hereby order the same paid to the said Hodges & Robinson, “ without further direction, and their receipt shall and is hereby "made a full discharge of and for the same. Northfield, February “10, 1854.”

On the 17th of June, 1854, the principal defendant was indebted to the claimants in the sum of $86.71, for which he gave them his pote, and he subsequently received advances from them which amounted, including the note, at the time of the service of the trustee process, to $196.56. The trustees had notice of the assignment on the day of its date, and in pursuance of it made payments to the claimants, on account of their indebtedness to the principal defendant; but no copy of the assignment was recorded in the county clerk's office.

Upon the foregoing facts, the county court, March Term, 1855,POLAND, J., presiding,--adjudged that the trustees were charge

Thayer et al. v. Kelley and Tr.

able, and that the claimants were not entitled to the funds, &c. Exceptions by the claimants.

F. V. Randall, for the plaintiffs, cited 10 Vt. 251; 23 Vt. 531; 15 Vt. 252; 21 Vt. 426; 7 Met. 335; 1 Gray 105; Laws of 1852, p. 14.

H. Carpenter, for the claimants, cited 23 Vt. 546; 4 Cush. 214; 7 Met. 335; 2 Met. 335; 3 Met. 297; 10 Mass. 319; 12 Mass. 206; 8 Cush. 151; 18 Vt. 277.

The opinion of the court was delivered by

ISHAM, J. It is admitted that the trustees were indebted to the principal debtor, in the sum of seventy-five dollars, at the time of the service of this writ, and in a larger sum at the time of their disclosure. But it is insisted that they are not chargeable, as trustees, in this case, as the debt had been assigned to the claimants before the service of this process, of which the trustees had notice, and in pursuance of which they had made several payments.

The assignment of this claim was made on the 10th of February, 1854. It is not expressly stated that there was an indebtedness, from the principal debtor to the claimants, at the time that assignment was made. But the assignment purports to have been made to secure them on a previous indebtedness, as well as for subsequent advances. The inference is not unreasonable, that the note of $86.71, which was given by the debtor to the claimants on the 17th of June, 1854, was for an indebtedness, in part at least, at that time; but if not, the effect will be the same, if it was made to obtain future advances. Neither does it appear that there was an indebtedness, at the time of the assignment, from the trustees to the principal debtor. There is nothing stated in the case showing that such an indebtedness existed. The case must be considered, therefore, as if there was no existing claim due from the trustees to the debtor at that time. The question then arises, whether that assignment gave to the claimants such a right to the money as it fell due from the trustees to the principal debtor, for his subsequent earnings, as will enable them to hold it, against an attachment by this trustee process. In the case of Mahill v. Quinn and trustees,

Cram v. Watson.

1 Gray 105, it was held that an assignment could not be made of future earnings, when they constituted a mere possibility coupled with no interest.Such a state of things, it was held, existed, when the person making the assignment was under no subsisting engagement under which wages were to be earned, and when it depended altogether upon a future engagement whether anything would ever become due. But when the debtor is in the actual employment of another, and is receiving wages under a subsisting engagement, an assignment by him of his future earnings may be made, not only for the security and payment of a present indebtedness, but for such advances as he may find it necessary to obtain. This principle is fully established by the cases to which we were referred. Weed v. Jewett, 2 Met. 608 ; Brackett v. Blake, 7 Met. 335; Emery v. Lawrence, 8 Cush, 151; 2 Selden 187.

The debtor in this case, at the time of his assignment to the claimants, was in the actual employment of the trustees, under a subsisting contract, at a given price per day, and had in that manner labored for them for some two or three years previous ;-and though he had the right to leave their employment, and they had the right to discharge him, yet so long as that relation existed between them, we think, the authorities are satisfactory in holding that the claimants were entitled to receive, under that assignment, his accruing wages, in payment of the advances which they had made.

The judgment of the county court must be reversed, and the trustees discharged.



A person contracting to purchase a good article will, if he accept one which is depre

ciated, with knowledge of its condition, but without objecting to it on that account, be holden to pay the price originally stipulated.

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