Hemenway v. Smith et al.

(The rule should be the same as it would have been if the counsel had been called to prove the consultation. )

We do not see that it is possible for the plaintiff to recover upon his present declaration for the four hundred and sixteen dollars and eighty-seven cents, which, by the terms of the assignment of the contract A, the defendants were to pay the plaintiff upon the decease of Betsey Gould. The consideration for this promise grows out of the assignment of that contract to these defendants by Hemenway. The contract is executory, and the plaintiff's claim, in this particular, if he has any, must be for damages for the non-performance of the contract by the defendants, and, by a special action on the contract. Nothing like money, as to this item of claim, has been had and received by the defendants, to the use of the plaintiff; nor lent and advanced by the plaintiff for the defendants. As to the items of sixty dollars and of twenty-five dollars, which the plaintiff paid to Davis, and which the defendants had bound themselves to pay, by the provisions in the assignment of the lease from Hemenway to them, we see no reason why the money counts are not adapted to so much of the plaintiff's claim, if he has one that can be established, and, as the case must, at all events, be opened, we are not disposed to express any opinion on this part of the case. The objection to these items seems to be that the plaintiff was not responsible to Davis for them, he having assented to the assignment. of the lease by Hemenway to the defendants, when the same was made; and that the annual annuity to be paid the widow was not apportionable.

Judgment reversed and the cause remanded to the county court.

Sleeper v. Pollard.

BOYDEN S. Sleeper v. THOMAS POLLARD.

Change of possession. Attachment.

The defendant bought of W. a bay of hay in a barn on a farm which W. occupied and carried on by his hired man, and removed a part of it, and requested W.'s hired man to take care of the remainder for him, which the hired man, with the knowledge of W., agreed to do. The rest of the barn was occupied with other hay and property of W. Held, that there was not a sufficient change of possession of that part of the bay of hay that remained to protect it from attachment by W.'s creditors.

TRESPASS for a quantity of hay. Plea, the general issue; trial by jury, January Term, 1856,-UNDERWOOD, J., presiding.

The plaintiff, as deputy sheriff, attached the hay in question as the property of William Woodman upon a writ against him in fafavor of George Sleeper. The hay was in a barn on the Dwight farm, so called, in Vershire, which Woodman carried on during the year of the attachment by one Kelley, who lived on the farm at the time of the attachment, and worked on it by the month. Woodman cut the hay on the farm, and 'put part of it in a bay upon some old hay cut on the farm the year previous, which he had bought of Dwight. Kelley remained on the farm, as Woodman's hired man, after the hay was cut, and gathered in the other crops, such as potatoes, corn and apples, Woodman himself having gone to New York just before the attachment.

It appeared that on the 17th of August, 1854, Woodman sold said bay of hay to the defendant Pollard, and gave him a bill of sale of it, and that the defendant paid, at the time, $8 per ton, the weight being estimated by measurement; and the testimony tended to show that Pollard drew away a part of the hay before the attachment, and a part after; and that when Woodman sold the hay he told the defendant it might remain in the barn until he was ready to draw it away; and that, in the presence of Woodman, the defendant requested Kelley to take care of it for him, and that Kelley said he would. It appeared that, after the sale, and after the attachment, Woodman had other hay and other property, a horse, cart, plow, and other crops, as before stated, and a yoke of oxen and a lot of mining tools, on the farm and in and about the barn.

The defendant requested the court to charge the jury that if they

Sleeper v. Pollard.

found that Kelley, at the time of the sale, agreed with the defendant to take care of the hay for him until he should draw it away, and that this was known to Woodman, that there was such a change of possession that the hay was not liable to attachment by Woodman's creditors, and that the defendant was entitled to recover. But the court declined so to charge, and decided that the evidence did not show such a change of possession as would protect the hay from attachment, and instructed the jury that the plaintiff was entitled to recover for that part of the hay, and that only, which was removed by the defendant after the attachment. To this charge of the court, and to their refusal to charge as requested, the defendant excepted. Verdict for the plaintiff.

Peck & Colby for the defendant.

A. M. Dickey for the plaintiff.

BY THE COURT, Redfield, CH. J. It does not appear to us that there was any such change of possession, in the present case, as the law requires to protect the property from attachment.

It was in the barn of the debtor, or one in his possession, or that of his hired man, which is his possession in law; and it remained there until the attachment, nothing being done to indicate a change of ownership, except to request the hired man to take care of it for the purchaser, he still continuing in the employ of the debtor. This, certainly, could not be regarded as a visible, substantial change of possession.

The case seems to us, in principle, and in many of its leading facts, very similar to that of Beattie v. Robin, 2 Vt. 181, and Judd v. Langdon, 5 Vt. 231.

Judgment affirmed.

McK Ormsby v. Morris.

ROBERT MCK ORMSBY v. LEWIS R. MORRIS.

Jurisdiction. Pleading.

The county court has jurisdiction of an action on the case against an officer for not keeping property attached by him so as to be levied on, though the judgment obtained be for less than one hundred dollars, if the damages demanded and actually recovered, including interest to the time of trial, exceeds that sum.

In such an action it should appear from the declaration that the property was charged by execution within thirty days from the rendition of the judgment, and a declaration is insufficient, on demurrer, if it only appears from it that the judgment was rendered at a term of the court commencing March 23d, and that execution issued dated March 29th, and that it was in the officer's hands on the 26th of April following;-it not appearing at what time the court adjourned, and there being no intendment from the date only of the execution that it issued at the earliest period that it might.

ACTION ON THE CASE. The declaration set forth the issuing of a writ in the plaintiff's favor against one Levi Gilman; and the attachment by the defendant, as a constable, of certain specified property thereon; the recovery of a judgment in the county court in the plaintiff's favor, in the suit commenced by said writ, and then proceeded as follows," and from the decision of the county court last aforesaid, said Gilman, by his exceptions, carried and removed said suit to the supreme court of the state, to be held at Chelsea, in said Orange county, on the 15th Tuesday after the 4th Tuesday of December, 1851, to wit, on the 23d day of March, 1852, when, by the consideration of the supreme court, the plaintiff's judgment was affirmed to him, with additional damages and costs to the plaintiff aforesaid, for the sum of sixty-nine dollars and nine cents damages or debt, and sixteen dollars and thirty-two cents costs, in all, as by the records of said court remaining will appear; and the plaintiff prayed out his writ of execution on said judgment, dated the 29th day of March, 1852, returnable in sixty days, and directed to any sheriff or constable in the state, all in the form prescribed by law; and the plaintiff says that the said goods of the said Gilman, so attached as aforesaid, were duly demanded of the said defendant by the plaintiff, to wit, on the 20th day of April, 1852, at Brookfield aforesaid; and the plaintiff further also says that he delivered the said writ of execution to Chas. C. P. Baldwin, a legal deputy of the sheriff of said county of Orange, who, by virtue thereof, afterwards, to wit, on the 26th day of April, 1852, at Brookfield afore

McK Ormsby v. Morris.

said, made demand of the goods of said Gilman, by the defendant so attached as aforesaid, but the said Morris did not retain and keep the said goods for the space of thirty days after said execution was issued, to the end that the plaintiff might take them in execution to satisfy the same, but released and discharged said goods from attachment," &c., &c., "to the damage of the plaintiff two hundred dollars."

The defendant moved to dismiss the suit for want of jurisdiction of the county court. The motion was overruled, and the defendant then demurred to the declaration. The county court, January Term, 1856, overruled the demurrer, and rendered judgment for the plaintiff. Exceptions by the defendant.

R. McK Ormsby for the defendant.

The county court had no jurisdiction of the action in this case. The only damage claimed in the declaration is the amount of the judgment, and the costs, which are less than one hundred dollars. Maxfield v. Scott, 17 Vt. 634.

The declaration is defective. To charge the defendant, as an officer, with care of property attached, there should be allegation that execution was issued in thirty days from the rendition of judgment, and placed in his hands, or in the hands of some proper officer, and demand made of him in that time; 12 Vt. 599.

C. B. Leslie for the plaintiff.

The defendant has put in a general demurrer. The declaration is in accordance with the precedents; Swift's Dig. 452; Anthon's Precedents 304, No. 49.

The declaration expressly alleges a demand of the property attached, by the officer holding the execution, of the defendant; and sets forth the time, which is within the time required by law. The declaration charges as follows," and the plaintiff further also says that he delivered said writ of execution to Charles C. P. Baldwin, a legal deputy of the sheriff of said county of Orange, who, by virtue thereof, afterwards, to wit, on the 26th day of April, 1852, at Bradford aforesaid, made demand of the goods of the said Gilman, by the defendant so attached as aforesaid, but said Morris did not retain and keep said goods, &c., but released and discharged