Thomas Jameson v. William E. Paddock and Elias Woods, 14 Vt. 491

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 consider the execution regular, as such a construction would 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.

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 bad 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.