Ira Day & Co. vs. Charles Roberts, 8 Vt. 413

The opinion of the court was delivered by Phelps, J. This case turns upon the sufficiency of the defendant’s return upon the execution in favor of the plaintiffs against Bolls. If the defendant’s proceedings in relation to that levy be regular and valid, so that a good title was created by the levy, then the action cannot be sustained. The first objection to the levy is, “ that it does not appear, from the defendant’s return, that the appraisers were disinterested.” The return does not say, in terms, that they were so. But the question is, whether it is not implied in the terms used.

Mach nicety has obtained on this subject. I, for one, should have been better satisfied, had greater liberality been indulged in sustaining these levies. But the principle of strict construction was early adopted, and one nicety has furnished a precedent for another, until an unusual particularity has become incorporated into our law on this subject. It would perhaps have been better, had our courts adopted the practice of setting aside defective levies, in a

summary way, with its natural consequence, of holding them not vitiated by defects of form, when attacked in a collateral way.— And it is hoped, that our recent statute on the subject, will work a salutary change in this branch of our law. Notwithstanding all the nicety which has been exhibited on this subject, the form of a return, promulgated by Judge Chipman, at a very early day, has uniformly been held sufficient,' both in our state courts, and in the courts of the United States, from the period'of its promulgation to the present day. — See Seymour’s Adm’r vs. Beach, 4 Vt. R. 493.

In that case, the return was held sufficient, although liable to the precise objection- raised here. The only expression in the return, and in the form of Judge Chipman, descriptive of the qualifications of the appraisers, is the following, viz: “good and lawful freeholders of the vicinity.” Does this import’ disinterested? The term lawful, as here used, has uniformly been understood as importing all the qualifications which the statute requires ; and in this way only, can- such a return be sustained.

The terms have not been understood as importing merely that the appraisers were legal freeholders, but as implying that they were such freeholders as the law requires for this duty, or such as could lawfully discharge it . The qualification of disinterestedness is involved in this

interpretation. Upon this ground has the form of Judge Chipman been legalized, and by the repeated recognitions of its legality, has the term lawful as here used, acquired a definite legal signification, importing, among other things, that they were disinterested. The cases of Dodge vs. Prince, 4 Vt. R. 191, and White vs. Fox, decided in Orange county, March, 1834, are cited as conflicting with this doctrine. In the former case, the precise objection here raised was not started.

The ground of the decision was, that the officer had not adopted the generality of the Chipman form, but had attempted to particularize ; and having attempted to enumerate the several qualifications of the appraisers, it was necessary, upon common principles, that he should enumerate them all. The distinction between the two cases is very broad.

Where the officer returns that the appraisers “were good and lawful freeholders,” the terms imply the particular qualifications; and when he returns that they were “ chosen, appointed and sworn, as the law directs,” the expression imports that if they were appointed by a magistrate, he was a competent magistrate, or one who could judge between the parties. But when he returns that “he applied to A. B., a justice of the peace, who appointed,” &c., there is nothing importing that A. B. could, by law, judge between the parties. And where he proceeds, “who appointed C.

D., a freeholder of the vicinity,” he does not, even by implication, certify that C. D. was disinterested. In White vs. Fox, the return was, “ A, B and C, judicious freeholders.” We held that “judicious” did not mean “disinterested.” The cases are therefore reconcileable, and the propriety of the decisions, which have sanctioned the form of Judge Chipman, is apparent. In the return under consideration, the defendant has used the precise words of the Chipman form. It is true that he has not in all things followed that form, but he has in this particular, and, so far as he has done so, his return must be sustained.

The second objection is, that the return does not describe the appraisers, as freeholders in the town; but the remarks already made will apply to this objection — “good and lawful” import it.— In this respect also, he has adopted the approved form. And in Seymour’s Adm’r vs. Beach, this objection’ was taken and overruled. We are of opinion, that the objections to the return are not sustained, and that the decision of the county court was erroneous. Judgment reversed, and cause remanded.