The opinion of the court was delivered by
The questions in this case arise upon the issue joined upon the second plea, and upon the demurrer to the third plea.
We think it is obvious, that the third plea is bad. So far as the real estate went, which was set off upon the execution, the judgment was satisfied ; but an attachment of real or personal estate on mesne process cannot operate even as a qua satisfaction of the judgment, which may be recovered, and the plaintiff is not bound to follow the same property with his execution. The defendant became absolutely liable for the costs occasioned by the review, to the extent of his recognizance; and to charge him no execution need have issued against the principal debtor, nor any effort have been made to collect it of him. It must follow from these principles, that the plea is no good answer to the action.
On the trial of the issue of fact upon the plea of payment it appeared, that Smith had a lien by the attachment of real estate, as a security for the satisfaction of the judgment against Edmunds, and also collateral and independent remedies against the Fullertons and
The plaintiff, after final judgment against Edmunds, had an election, as to fifty dollars, to go against the defendant upon his recognizance for the review, or to charge the personal property in execution, which had been attached, and, if not exposed to sale on the execution, to go against the officer; and in that event the officer would have his remedy on his receipt against the Fullertons. The defendant being liable absolutely, it was not necessary, to continue bis liability, that the property should have been charged in execution at all. This was only necessary, to give the plaintiff a remedy against the officer; and whether the property had been charged in execution within the thirty days from final judgment does not appear from the ease itself. But suppose such was the case, I apprehend the result must be the same. The remedies of the plaintiff, as well as the liabilities of the officer and of the defendant upon his recognizance, were distinct and independent. It has never been held, that I am aware, that an attaching creditor can maintain a special action on the case against the receiptor of property attached, for a non-delivery of the property on the execution to the sheriff; and I apprehend, no such action can be sustained.
This case is not like that of Allen v. Ogden et al., 12 Vt. 9. There Blood, who bought in the judgment against Ogden and the jail bond against Ogden and Catlin, was-a co-contraetor with Ogden on the note; and the payment of the judgment by Blood was but the payment of his own debt. If Blood had been permitted to sustain the action by force of the assignment, treating the claim as unpaid, Catlin, upon the payment of the demand, would have had his remedy against Blood; and to save this circuity of action, the court treated the payment of the judgment by Blood as a satisfaction, though in form a purchase. In the case before us I apprehend the
"We think, then, the contract'between the present plaintiff and the receiptors is one, which they had a right to make, and that the purchasing in of the judgment by them does not operate, under the circumstances, as a payment of the judgment against Edmunds; and if not a payment, then the receiptors may have the same remedy against the defendant, in the name of the plaintiff, as the plaintiff could himself have had, if he had remained the owner of the claim. This is only carrying out the right in Smith to elect which he would pursue.
The result is, the judgment of the county court is affirmed.