February, 1842. Austin v. Tilden and er. WINDSOR, tified in taking said sleigh, and the plaintiff could not recovBut the court refused so to charge the jury, and did charge them, that, if they believed, from the testimony, that the plaintiff purchased said sleigh at a regular sheriff's sale, it vested the title in him, and that he had a right to recover, notwithstanding the defendants, at the time of such sale, were the absolute and bona fide owners of it, and had done all the law required in taking possession of it. To which charge the defendants, after verdict and judgment for plaintiff, excepted. for defendants. A sheriff can convey no better title than he himself had to property sold by him. The owner of property can reclaim it, peaceably, even from a sheriff. Spaulding v. Austin, 2 Vt. R. 555. State v. Miller, 12 Do. 437. See, also, 1 Johns. R. 470, 480. 6 Do. 44. Cushman v. Cilley, 12 Vt. R. 495. A. P. Hunton and O. P. Chandler, for plaintiff. I. We think that the character of these sales entitles them to more weight and validity than ordinary sales. They are made by a public officer in a public manner, having the apparent authority and sanction of law. It is an act of government, through its agent, after public notice by such agent, thus inviting innocent purchasers to buy. So public are they, and so free from any presumption of fraud in the purchaser, that no change of possession is held necessary. II. Upon grounds of public policy these sales ought to be established. The common law proceeds upon the principle that sales in market overt should be established for the support and benefit of trade. Much more does public policy require that sheriffs' sales should be established. 2 Kent's Com. 324. This would occasion no essential injury to the real owner of property, for the reason that the sale is so public that he will have sufficient evidence to establish his remedy, and of course he can establish the title to his own property. It can be no injury to the sheriff, for he is liable at all events, and by an indemnity he can always protect himself; also by making the purchaser safe he will receive a better price for the article, with which to respond damages to the WINDSOR, real owner. The adoption of this rule is of great importance as respects the interest both of debtor and creditor, that property thus sold may command its value, which it will not do unless the purchaser is protected in his purchase, and as so large an amount of property is transferred in this manner, this is a matter of no small consideration. Bates v. Carter, 5 Vt. R. 608. Cilley v. Cushman, 12 Vt. R. 497. Heacock v. Walker, 1 Tyler's R. 338. Gates v. Gaines, 10 Vt. R. 351. The opinion of the court was delivered by WILLIAMS, Ch. J.In this case it appears that Tilden, one of the defendants, purchased the property, for which this suit is brought, of the former owner; and that one Putnam,who had it in custody, was notified of the sale, and agreed to keep it for the purchaser. The sale was bona fide, and, while the property was in the possession of the bailee of the purchaser, the defendants took it away, and for this taking the plaintiff, who claims the property, has brought this action. The claim of the plaintiff is under a purchase at a sheriff's sale. Whether such a sale is equivalent to a sale in market overt, is not decided in this case; as it is not necessarily involved in the decision of the question before us. It cannot be denied that the authorities of the courts in Great Britain, and in the state of New York, are against the position that such a sale passes any property to the purchaser, if the judgment debtor had no property in the goods sold. It would be with very great reluctance that I should be induced to adopt a principle not sustained by those authorities. From the case reported in Tyler, it appears that a different opinion has been entertained in this state, sanctioned by a judicial decision, and possibly whenever it becomes necessary to pass directly on the question, it may be decided either way, and the decision sustained by authority. The members of the court now present are not fully agreed on the question, and do not deem it proper to express any opinion upon it. The case of Cilley v. Cushman, 12 Vt. R. 494, is decisive of the case now before us. The sleigh, when sold to the plaintiff, was not in the possession of the judgment debtor, Cook, but was in that of the bailee of one of the present defendants. February, 1842. Austin v. Tilden and 328 WINDSOR, 1842. Earl The plaintiff never took possession of the property purchased. February, No title passed to him, as against the defendant, Tilden, who appears to have been the owner. The plaintiff cannot, therefore, maintain this action, either against the defendant, Tilden, or the other defendant, Taylor, who acted under the direction of Tilden in taking the property in dispute. The judgment of the county court is therefore reversed. 1. Leland. WILLIAM EARL v. JOHN H. LELAND, principal debtor, and Where a person was summoned as trustee in a justice's court, in a suit not appealable by the principal debtor, and the trustee was made chargeable and appealed to the county court, the appeal, on motion, was dismissed,— the trustee having no right to an appeal. ASSUMPSIT, on a promissory note, dated July 30, 1840, given for $13.38, by the principal debtor to the plaintiff, in which Aaron P. Leland was summoned as trustee. The suit was brought before a justice of the peace. Judgment was rendered in the justice's court that the trustee was chargeable in the sum of $16.87, and the trustee appealed to the county court. On the entry of the appeal in the county court the plaintiff moved to dismiss the suit on the ground that the action. was not appealable, and thereupon the county court dismis sed the suit and the trustee excepted to the decision. S. Fullam, Jr., and R. Richardson, for trustee. We insist that the trustee had the right to appeal from the decision of the justice. The fifty-seventh section of the trustee act provides that if either party shall appeal from the decision of the justice, the same proceedings shall be had in the county court as though the case had been originally brought there. The fifty-fifth section provides that he shall not be adjudged trustee unless he shall have more than ten dollars in his hands. The sixty-third, sixty-fourth and sixty-fifth sections provide for a trial between the plaintiff and trustee which may be legally had without the consent, and even without the knowledge, of the principal defendant. We believe that from a careful examination of the different sections of the trustee act it will be seen that the trustee is a party within the meaning of the act, and entitled to an appeal; otherwise he may be adjudged trustee contrary to law, and be imprisoned without even the poor privilege of obtaining a discharge by the poor debtor's oath. Sec. 37, Trustee Act. The words 'principal defendant,' so often used in the trustee act, clearly imply that there is another defendant besides the principal.' In Massachusetts, under a statute similar to ours, it has been decided that a trustee may appeal, except, plead in abatement, or sustain a writ of error. Purple v. Clark, 5 Pick. 206. Piper v. Willard, 10 Pick. 34. Richards v. Allen, 8 do. 405. A trustee can plead in abatement. Leach v. Cook, trustee of Wheeler & Swallow, 10 Vt. R. 239. 17 Pick. 166. He may maintain a writ of error for the same cause. 6 N. H. R. 217. The case of Huntington v. Bishop, 5 Vt. R. 186, merely decides that a trustee cannot review nor have a trial by jury. It is not even intimated that he is not a party and the decision rests upon the ground that the act granting a review was made antecedent to the trustee act. Trustees have been permitted, in numerous reported cases in this state, to except to decisions of the county courts, and the right of excepting is as much confined to parties as is the right of appeal. Rev. Stat. 164, §36. II. If we adopt the doctrine contended for, any person may be deprived of an appeal where thousands of dollars are depending and, by a sort of judicial robbery, be deprived of his all, and that, too, where the principal defendant would not dare to sue him for a cent over ten dollars. We insist that the trustee loses nothing by being compelled to litigate the claim of the principal defendant in this form of action, which he would have if sued by the principal defendant. WINDSOR. February, 1842. Earl ບ. Leland. WINDSOR, February, 1842. Earl v. Leland. But it is said the action against the principal defendant was not appealable and could not have been appealed by him. That is true, if the plaintiff had not joined the trustee; but having done so, the action is appealable at all events, as between him and the trustee; for the matter in demand must exceed ten dollars or the trustee suit cannot be sustained. L. Adams, for plaintiff. This was not an appealable action, it being instituted upon a note of an amount not exceeding twenty dollars. See Rev. Stat. 175, §51. Neither the plaintiff nor the principal debtor had the right of appeal, and if this appeal is sustained, it is virtually giving a paramount right to the trustee. But if it is conceded that the plaintiff and principal debtor had the right of appeal in this case, then indeed it settles the doctrine that all trustee actions are appealable without regard to the amount of the claim. It is clear that no appeal could be had in this case by the principal debtor, and will it be said that a part of the suit can be appealed whilst the other part remains with the justice? But if it is contended that the whole action is brought up, then it would subject the principal debtor to an increased taxation of cost in the county court without his assent. We insist that no trustee action brought before a justice of the peace can be appealed by the trustee. The right is not given by the statute. All that is said on the subject is contained in the fifty-seventh section of the trustee act. The trustee has never been regarded as a party to the action. Huntington v. Bishop, 3 Vt. R. 515; do. 5 Vt. R. 186. Baxter & Edmunds v. Vincent, 6 Vt. R. 674. Emerson & Petrie v. Petrie, 9 Vt. R. 275. The finding of the court against the trustee is not a judgment but a mere inquest. Aldis v. Hull, 1 Dan'l Chip. R. 309. The opinion of the court was delivered by ROYCE, J.-This action was commenced before a justice of the peace, and appealed by the trustee to the county court, where it was dismissed as not being legally appealable, |