ment to enlarge the time of payment, and pay-compromise, to the indorsee of the note he gave ment accordingly. Pike v. Mott, 5 Vt. 108. on the purchase, although the note bore a no81. An averment that on, &c., in consider- tice that it was given for a patent right;-that, ation that the plaintiff "had then and there" assuming that he might have successfully dedelivered to the defendant a certain horse of fended a suit by the indorsee, he was under no the plaintiff in exchange for a certain horse of legal obligation to attempt it. James v. Hodsthe defendant, he, the defendant, "then and den, 47 Vt. 127. there" promised that the latter horse was sound, 88. If the plaintiff has performed labor on &c., was held to be an averment that the war- his own material under a contract to furnish ranty was given at the time of the exchange, a specific article or a perfected work, in estiand not afterwards, and so there was a suffi- mating his damages for a breach, the value cient consideration for the promise. Wightman of the material not gone to the use of the dev. Carlisle, 14 Vt. 296, contradicting Bloss v. fendant must be taken into account: Allen v. Kittridge, 5 Vt. 28. Thrall, 36 Vt. 711. Curtis v. Smith, 48 Vt. 116. 82. Parties. The ultimate grantee of land 89. Judgment. In assumpsit, the statute incumbered by a mortgage and an intermediate (G. S. c. 30, s. 78) does not warrant separate grantor with warranty, while a bill of foreclos-judgments against several defendants. Machine ure was pending against them, called upon the Co. v. Morris, 39 Vt. 393. mortgagor, whose debt it was, to pay the mortgage debt, and he promised to do so; but he failing, they jointly paid the debt. Held, that they could maintain a joint action of indebitatus assumpsit against him for money paid to his use. McIntyre v. Ward, 18 Vt. 434. See Whipple v. Briggs, 28 Vt. 65. 83. A bank, by mistake, surrendered to the defendant a note before that time discounted for him, and which others had signed with him as his sureties. Held, that indebitatus assumpsit lay against him alone for the amount due upon the note. Vt. State Bank v. Stoddard, 1 D. Chip. 157. ATTACHMENT. I. OF PERSONAL PROPERTY. 84. Non-joinder. In an action of assumpsit upon the common counts, the non-joinder of a proper defendant must be pleaded in abatement, or the objection is waived, although no specification was filed or furnished. The rule in II. book account actions does not apply here. III. Mellendy v. N. E. Protective Union, 36 Vt. 31. Hardy v. Cheney, 42 Vt. 417. 85. Damages. Indebitatus assumpsit is an equitable action, in which the plaintiff should recover no more than the defendant ought in equity to pay. Wheeler v. Shed, 1 D. Chip. 208. 2. What is not attachable. ment. 4. Rights and liabilities of attaching officer. 5. Rights and liabilities of creditor as to debtor. 6. Requisites for preserving lien. 7. Discharge of attachment lien. 8. Bailment to receiptor. 9. Sale on attachment. OF REAL Estate. DEFENSE BY SUBSEQUENT ATTACHING CRE DITOR. IV. ATTACHMENT AIDED IN CHANCERY. I. OF PERSONAL PROPERTY. 1. What is attachable. 1. Generally. "Goods, chattels and estate." -(Statute form of process.) 86. The orator and the defendant were two of four joint executors who had given a joint bond for faithful administration. The other two ultimately became insolvent. The orator, 2. Bank bills, or money, can be attached or by decree in chancery, had been compelled to taken in execution, under the general provision pay for the default of one of the insolvent ex- in relation to goods and chattels, if they can be ecutors before his insolvency, without fault of so taken without committing an assault and the orator. Held, that the defendant was liable violating the personal security of the debtor. to him for one-half of the sum so paid and for Lovejoy v. Lee, 35 Vt. 430. Prentiss v. Bliss, one-half of all the expenses incurred in defend- 4 Vt. 513. ing the suit in chancery-such defense having 3. Intoxicating liquor is subject to attachbeen reasonable, hopeful and prudent. Marsh ment, and may be sold on execution for a lawv. Harrington, 18 Vt. 150. 23 Vt. 593. 37 Vt. ful purpose. Nutt v. Wheeler, 30 Vt. 436. 541. 87. In general assumpsit to recover the consideration paid on the fraudulent sale of a patent right, the plaintiff was allowed to recover 2. What is not attachable. 4. Generally-perishable property. The what he had paid in good faith, by way of law impliedly forbids the attachment of property which is peculiarly perishable in its nature, lessee cannot be attached as the property of the whenever it is manifest that the purposes of the lessor, except in the manner provided by the attachment cannot be effected before it will statute (G. S. c. 33, ss. 31, 32). It cannot be decay and become worthless-as, fresh meat taken from the lessee's possesion. Brigham v. during a portion of the year, fresh fish, green Avery, 48 Vt. 602. fruits and the like. Royce, J., in Wallace v. Barker, 8 Vt. 443; but held, that fresh beef in December was subject to be taken on execution. Leavitt v. Holbrook, 5 Vt. 405. 12. Trust property. Trust property is not subject to be taken on attachment, or execution, for the debt of the trustee; and this rule applies to property in the hands of an exe5. Where a log coal pit about half burned cutor, both real and personal, whether coming and incapable of being removed, requiring care directly from the testator, or from the collecand skill to save the property and render it of tion of debts, or other assets of the estate. any value, was attached by an officer who suf- Williams v. Fullerton, 20 Vt. 346. 38 Vt. fered it to remain in the debtor's hands, and he 639. disposed of the coal made;-Held, that the officer could not claim the coal by his attach ment. Wilds v. Blanchard, 7 Vt. 138. 13. tion. Statutory exemptions. ConstrucIt is established by the whole current of decisions in this State on the subject, that the 6. Where part of a charcoal pit was burned statutes exempting certain property from atand the work completed, and the residue had tachment are remedial in their character, and so far progressed as to have been entirely ought to receive a liberal construction in favor burned to coal, though some labor and skill of the debtor. Peck, J., in Mundell v. Hamwere still necessary in order to separate and mond, 40 Vt. 644. The exemption is charitpreserve it properly;-Held (consistent with able and in the cause of humanity, and ought Wilds v. Blanchard), that if the sheriff saw fit to receive a liberal practical construction. Colto attach and take possession of the coal and lamer, J., in Dow v. Smith, 7 Vt. 470. Hasrun the risk of being able to keep it safely, he kins v. Burnett, 41 Vt. 702. Webster v. Orne, had a right to do so. Hale v. Huntley, 21 Vt. 45 Vt. 40. 147. 14. Instances. Thus, a cooking stove is exempt from attachment, as an article of household furniture 64 necessary for upholding life." Crocker v. Spencer, 2 D. Chip. 68. Hart v. Hyde, 5 Vt. 328. 7. Money collected. Money collected by an officer on an execution cannot be attached while in his hands, as the property of the creditor in the execution. The officer stands as debtor to such creditor, not for the identical 15. So is a brass time piece, or clockpieces of money, but for the sum. Conant v. the word "necessary" extending to things of Bicknell, N. Chip. 66. 1 D. Chip. 50. Prentiss convenience and comfort which are suitable to v. Bliss, 4 Vt. 513. the situation. Leavitt v. Metcalf, 2 Vt. 342. 16. So, one cow being exempt, the butter 8. Where an officer had attached personal property and sold it on the attachment, and made from the cow is exempt. Ib. such attachment had been dissolved;-Held, 17. And the only cow is exempt, though that the proceeds of such sale could not be the debtor reside in Canada, the cow having taken upon an another writ returning as at- strayed into this State and been here attached. tached "the amount of the money made" Haskill v. Andros, 4 Vt. 609. upon such sale, which then stood to the general 18. A two-year-old heifer, forward with credit of such officer in bank; but that the calf, the owner having no other cow, is a cow officer stood as debtor of the defendant for such within the intent and scope of the statute. Dow proceeds, and the same could be attached only v. Smith, 7 Vt. 465. So, though the heifer be by trustee process. Adams v. Lane, 38 Vt. not with calf. Freeman v. Carpenter, 10 Vt. 19. Under the statute exempting one yoke of oxen or steers, as the debtor may select ;"Held, that a pair of steer calves, less than a year old, were exempt. Mundell v. Hammond, 40 Vt. 641. 20. The statute exempting from attachment two horses [or one horse], "kept and used for team work," does not require that they be kept and used exclusively for team work. Webster v. Orne, 45 Vt. 40. 10. Property leased. Property held by a tenant under a subsisting lease cannot be specifically attached as the property of the lessor; and a sale of it on execution will convey no title to the purchaser, although sold with a reservation of the right of the lessee to retain 21. Articles appropriate for use as household possession during his term. Smith v. Niles, furniture cannot be legally presumed to be 20 Vt. 315. 26 Vt. 236. 36 Vt. 433. household furniture, and so exempt from at11. Personal property in possession of a tachment, from the mere fact that the owner away. had boxed them up and was about to move 29. Moulds used in the manufacture of The fact that they were so used, or in- paper, also a portable machine called a billy tended to be used, is matter of affirmative and jenny used for spinning and manufacturproof. Bourne v. Merritt, 22 Vt. 429. ing cloth, capable of being worked by hand, or 22. A person who had been a hotel keeper by water power, costing about $100;-Held, owned, and had used in the hotel, 5 carpets, 5 not to be tools. Kilburn v. Demming, 2 Vt. dozen knives, 5 dozen forks, 7 large fluid lamps, 404. 20 small fluid lamps, 2 fluid cans, 5 pails, 12 30. Same, as to a printing press and types. tumblers, 18 goblets, and certain other articles Spooner v. Fletcher, 3 Vt. 133. of household furniture, the whole valued at 31. Same, as to a machine for shaving and $100 and being all the property that he owned. splitting leather, operated by hand, steam, or Although he was the head of a family, these water power, costing $250 and weighing six to articles were not in actual use by him for house- nine hundred pounds. Henry v. Sheldon, 35 keeping, but they were used by his permission Vt. 427. by his successor in the hotel where he boarded, 32. A wooden boot, hung up at the door of and he was negotiating for the sale of them. a boot and shoemaker's shop as a sign of the Held, that they could not be held by trustee owner's trade, is not exempt from attachment process, being exempt from attachment. Clark for his debts. Wallace v. Barker, 8 Vt. 440. v. Averill, 31 Vt. 512. 33. A barber's chair and foot-rest, used by 23. A piano forte, though in use in the fam- a barber in his business, are exempt from atily, is not exempt from attachment and execu-tachment, as being "such suitable tools" tion as an “article of household furniture neces-as are "necessary for upholding life.” Allen sary for upholding life." Dunlap v. Edgerton, v. Thompson, 45 Vt. 472. 30 Vt. 224. 34. Where property exempt from attach 24. A horse and saddle, belonging to a ment has been voluntarily sold by the debtor, member of a cavalry company, were held not the debt due therefor or the proceeds of such exempt from attachment under the statute ex-sale are subject to trustee process and attachempting the "uniform, arms, ammunition and ment. Edson v. Trask, 22 Vt. 18. Scott v. accoutrements" of a militiaman. Fry v. Can-Brigham, 27 Vt. 561. Keyes v. Rines, 37 Vt. field, 4 Vt. 9. 263. (Altered by Stat. 1865, No. 14.) 25. The exemption from attachment and 35. But where property not subject to atexecution of such military arms and accoutre-tachment is converted into a mere right of acments as the debtor "is required by law to fur- tion by a proceeding wholly in invitum, such nish," is of a temporary character, and continues right of action and the money collected are also only so long as the debtor remains under this exempt from attachment, the same as the propobligation. Owen v. Gray, 19 Vt. 543. erty itself. Stebbins v. Peeler, 29 Vt. 289. Keyes v. Rines, 37 Vt. 260. 26. Such farming tools as are used by hand and are convenient or useful, and are procured 36. Where the plaintiff sued for the taking by one for his personal use, unless extravagant, of his only cow upon an attachment;-Held, and such mechanical tools of like character and that this was none the less his only cow, and so use which are indispensable for the repairing of exempt from attachment, because he had befarming implements, are such "suitable" tools fore disposed of all his other cows by a sale "necessary for upholding life” as are by statute exempt from attachment and execution. Garrett v. Patchin, 29 Vt. 248. which was fraudulent as to his creditors, providing such sale was not merely colorable but operated as an actual transfer of the property. 27. A shovel, spade, dungfork, three pitch- The creditors might attach the other cows, in forks, a scythe and snath, a potato hook, hog case of such fraudulent sale. Sanborn v. Hamhook, common axe, broad axe, adz, hatchet and ilton, 18 Vt. 590. Dow v. Smith, 7 Vt. 465. five augers, all worth $10.30, and belonging to 37. The plaintiff owned two cows, one of one whose principal occupation or trade was which the defendant attached. The plaintiff shoemaking, but who carried on farming to claimed that the cow attached was his only some extent, and lived rather isolated and did cow, claiming and supposing that the other behis own mending or “tinkering" of sleds, ox-longed to his deceased wife's estate. In tresyokes, &c., were held to be so exempt. Ib. pass for the cow attached, it appeared on trial 28. The word tools, as used in the statute that the other belonged also to the plaintiff. of exemptions from attachment, is construed Held, that if the plaintiff had, at the time of as applying to simple instruments, ordinarily the attachment, an election which cow he would used in manual labor, and not as embracing retain as the "one cow" exempt from attachmachinery, or an article usually denominated a ment under the statute, he had waived the right machine. Kilburn v. Demming, 2 Vt. 404. to elect, and could not recover. Sumner v. Spooner v. Fletcher, 8 Vt. 137. Henry v. Shel-Brown, 34 Vt. 194. don, 35 Vt. 427. 38. Debtor's selection. Under G. S. c. 47, s. 13, exempting from attachment "one wagon and the plaintiff declared it attached, yoke of oxen or steers, as the debtor may but did nothing more, and went in pursuit of select," where either one or both yoke are at- other property about the premises, and in an tached in his absence, he may make his selec-hour or so returned and found the defendant in tion upon his return. Haskins v. Bennett, 41 possession of the wagon, who had in the mean Vt. 698. time purchased it of the debtor on a bona fide 39. The plaintiff sold and delivered to L a debt, not knowing of the doings of the plaintiff. yoke of oxen upon credit, the oxen to remain Held, that here was no such attachment as enthe plaintiff's property until paid for. He also titled the plaintiff to hold the wagon against owned and had in his possession another yoke. the defendant. Fitch v. Rogers, 7 Vt. 403. Under the statute exempting from attachment 44. Property of a debtor was in the pos "one yoke of oxen";-Held, that it was the session of a third person who held it as a securlatter yoke that was exempt, notwithstanding ity for a debt due him, and notice was given the plaintiff's interest, as conditional vendor, him by an officer having a writ in his hands in the other yoke, and although L had paid nothing towards the purchase. Wilkinson v. Wait, 44 Vt. 508. against the debtor for service that he attached the same, and he returned it as attached upon the writ, but took no possession. Held, that this was not such an attachment as entitled the officer to maintain an action for a subsequent attachment and removal of the property. Blake v. Hatch, 25 Vt. 555. 40. Where the defendant levied on the plaintiff's three horses, the plaintiff claimed that he owned one (the "Bemis" horse), and that the title to the other two was in A, and whether he had any interest in them or not 45. Where an officer attached goods in a could not be ascertained until he and A had building, locked up the building and took the settled; but the Bemis horse he claimed as his key, this was held a sufficient taking of possesteam and as exempt from execution, and de- sion as against later attachments; and any furclined to make any selection as between the ther securing of the building against entry by three horses for the reason above stated. On the attorney of the creditor was treated as done the day of sale, the plaintiff forbade the sale of for the officer. Newton v. Adams, 4 Vt. 437. the Bemis horse, claiming it as his team. It 46. An officer, who had the exclusive possesturned out on the trial that the plaintiff did sion of a room, had permitted W to store cerown the three horses; but it did not appear but tain property therein. He afterwards attached that he told the truth as to his interest in the that property without removing it, but locked two depending on his settlement with A, nor all the outer doors of the room so as to cut off all that there was any attempt at concealment, or public access to it, leaving unfastened an inner to mislead the defendant. Held, that this was door which led into a room occupied by another a sufficient "selection" of the Bemis horse to party. The officer marked the property as exempt it from the levy. Plimpton v. Sprague," attached," and gave notice of his attachment. 47 Vt. 467. Held, that the attachment was valid as against 41. Team. Under the exemption of horses a subsequent attachment against W. Slate v. used for team work, neither a wagon nor har-Barker, 26 Vt. 647. ness, though used and needed with the team, is exempt. Carty v. Drew, 46 Vt. 346. 3. Requisites and validity of attachment. 47. Joint property. Upon an attachment or execution, the officer may seize and retain an entire chattel or the whole property which the debtor owns in common, or as joint tenant or partner, with others. There is no other 42. Taking possession. To constitute a mode in which the attachment can be made; legal attachment of personal property, the offi- but the officer can sell only the debtor's interest cer must have the custody or control of it, therein. Reed v. Shepardson, 2 Vt. 120. Whiteither by himself or his servants, in such way ney v. Ladd, 10 Vt. 165. 26 Vt. 428. as either to exclude all others from taking the 48. Attachment of body and property. custody of the property, or, at least, to give A writ, issued as an attachment of the estate, timely and unequivocal notice of his own cus- or body of the defendant, with trustee process, tody. Lyon v. Rood, 12 Vt. 233. Burroughs was served by summoning the trustee and atV. Wright, 16 Vt. 619. S. C. 19 Vt. 510. taching the body of the defendant. Held to Adams v. Lane, 38 Vt. 645. See Newton v. be an illegal and unauthorized writ and service, Adams, 4 Vt. 445. Fitch v. Rogers, 7 Vt. 403. both in the plaintiff and officer, and the writ 18 Vt. 457. was quashed. A man may be attached by his 43. The plaintiff, an officer, in the course of body or property, but not by both on the same service of a writ of attachment, went within process. Cleft v. Hosford, 12 Vt. 296. five or ten rods and in full view of a wagon of 49. Mode of service and return. Where the debtor then in the road or field, when the an officer takes possession of personal property creditor's attorney directed him to attach the lattached by valid process, the attachment is to time upon a writ, one copy with full return of service is sufficient. U. S. Bank v. Taylor, 7 Vt. 116. valid, notwithstanding the process, or the ser- against the subsequent attachment. Harding vice, may be so informal as to be abatable. v. Harding, 25 Vt. 487. Newton v. Adams, 4 Vt. 437. 22 Vt. 331. 58. Fraudulent. Where an attaching crediJudd v. Langdon, 5 Vt. 231. tor agreed with the debtor and other attaching 50. Where property is attached from time creditors not to enter his suit in court, and took his writ from the officer without completion of service by copy to the debtor, but afterwards caused the writ, with such imperfect service, to 51. The return of the officer upon a writ of be entered in court and took judgment by deattachment, where personal property was at-fault and issued execution;-Held, that the tached, concluded—“ and delivered him a copy proceedings were so far irregular and frauduof this attachment and a list of the articles lent, that he acquired no lien upon the property so attached by me,"-in the precise words of attached which he could enforce against other the statute. Held, on plea in abatement, to creditors. Bank of Middlebury v. Edgerton, be suficient. Strickland v. Baldwin, 23 Vt. 30 Vt. 182. 484. 59. Property left with debtor. Where 52. Description of property. All that is an officer attaches a chattel and leaves it in the necessary in the way of description of property custody of the debtor, he so far loses his lien attached by copy, in order to create a valid lien, that a second attachment, or purchase of the is, that the officer's return should have so property, bona fide, and not as subject to the much precision as may be necessary to identify attachment, will always prevail against him. the property attached. Fullam v. Stearns, 30 Pomroy v. Kingsley, 1 Tyl. 294. It has ever Vt. 443. since been so held. Briggs v. Mason, 31 Vt. 53. Reasonable certainty in the description 438. of property attached is all that can be required 60. The defendant, a deputy sheriff, formalin an officer's return, and its sufficiency, in ly attached property in the possession of the this respect, can only be determined by apply-legal owner, as the property of another, but ing it to the actual state of the debtor's prop left it with the owner, who insisted on his right erty at the time, as shown by extrinsic evi- but agreed not to dispose of the property nor dence. Bucklin v. Crampton, 20 Vt. 261. put it out of the way. While in this situation, Fletcher v. Cole, 26 Vt. 170. Jewett v. Guyer, the plaintiff, another deputy sheriff, attached 38 Vt. 209. the same property as that of the same debtor, 54. Where property attached was described and removed it, and while in the plaintiff's posin the officer's return as "thirty tons of hay on session the defendant seized it and sold it on the premises;"-Held, that it would be intended the execution following his attachment. Held, as premises in the occupation of the debtor; and in trespass, that the plaintiff was entitled to rethat such return was sufficient in an action of cover the value of the property. Fisher V. trover by the officer against a purchaser from Cobb, 6 Vt. 622. Royce, J., dissenting. the debtor, there being no evidence of other 61. Several attachments by different hay of the debtor to which the description officers. Where personal property has been atcould apply. Bucklin v. Crampton. tached by one officer and is in his legal posses55. Where an officer attaches an article but sion and custody, it cannot be afterwards atmisdescribes it in his return, and the appear- tached by another so as to create a lien upon it, ance and use of the article are such that it may but to this end the second writ must be served have been naturally and in good faith so mis- by the first officer having possession. Burdescribed, such error should not avoid the at- roughs v. Wright, 16 Vt. 619. Nor will an tachment; and a plea stating such facts was agreement between the two officers for the creheld to be a justification. Briggs v. Mason, 31 Vt. 433. ation of such lien, without an actual taking, make it an attachment. S. C. 19 Vt. 510. See Adams v. Lane, 38 Vt. 645. 56. Return of writ. In trespass de bonis, the defendant justified the trespass under a 62. Where personal property has been atwrit of attachment served by him as an officer, tached by an officer, either by taking it into his and averred that this suit was brought before actual possession, or by leaving a copy in the the return day of that. Held, on general de- town clerk's office, no subsequent legal or valid murrer, that the plea was good without aver-attachment can be made of the same property, ring his return of that writ. Briggs v. Mason, except by the same officer, while the first at-citing Andrews v. Chase, 5 Vt. 409. tachment remains in force; and this rule ap 57. Illegal claim. Where the same plies the same between the sheriff and his depuproperty or debt is attached by different credi ties as between other officers. West River Bank tors, and the whole or part of the consideration v. Gorham, 38 Vt. 649; and see Rogers v. of a single demand of the first attaching credi- Fairfield, 36 Vt. 641. tor is illegal, his attachment is wholly void as 63. Copy in town clerk's office. Where per |