STEAM STONE-CUTTER CO.

v.

SEARS.

313

void; but if they made it to prevent failure and expecting to prevent failure, it would appear to be good. The insolvency had come gradually, and not by any sudden loss which would arrest attention at once. The actual condition was as good as it had been for some time. They must have known that it was perilous, but do not appear to have lost courage, or then to have expected failure. The evidence does not satisfactorily show that they were placing money and securities where they would be kept from the effect of failure, but rather does show that at that time they were using their assets to prevent failure. Therefore, it is not found that this note was pledged with a view to prevent its application in the manner prescribed by that chapter, nor with a view. to a preference of this creditor to any other. Let there be a decree dismissing the bill of complaint, with costs.

STEAM STONE-OUTTER SAME SAME

00. v.

SEARS

and others.

v.

YOUNG

and others. and others. and others.

J:

v.

BATCHELDER

SAME V. WINSOR SAVINGS BANK SAME V. JONES SAME V. DUFF

and others. and others. and others.

:March 27, 1885.)

SAME V. MCCARTY

(Circuit Court, D. Vermont.

VENDOR AND O:S WRIT OF bEQUESTRATION-NoTICE TO SUBSEQUENT PURCHASERS-HEV. S'f. VT. §§ 874, 875.

Attachment on a writ of sequestration, by leaving a copy of the writ with a description of the estate attached in the town clerk's office, pursuant to Rev. Laws Vt. § 874, held valid against subsequent purchasers without actual notice, without the entry in a hook kept for that purpose by the town clerk of the names of the parties, date of the writ, nature of the action, sum demanded. and officer'S return, as required by section 875; distinguishing Burclta7'd v. F'air Haven, 48 Vt. 327.

In Equity. Aldace F. Walker, for orator. William Batchelder, for defendants. WHEELER, J. These cases each involve title to distinct parcels of land under the same writ of sequestration and levy of execution that were in qnestion in Steam Stune-cutter Co. v. Jones, 21 Elatch£. 138;

314
8. C. 18 FED.

REP.

FEbERAL REPORTER.

REP. 567; and Steam Stone·cutter Co. v. Sears, 9 FED. 8. The only question made now is whether the attachment on the writ of sequestration, by leaving a copy of the writ with a de. scription of the estate attached in the town clerk's office, pursuant to section 874, Rev. Laws Vt., was valid against subsequent purchasers without actual notice, without the entry in a book for that purpose by the town clerk of the names of the parties, date of the writ, na· ture of the action, sum demanded, and officer's return, as required by section 875, Rev. Laws Vt. It is claimed that this question was not decided in either of the former cases. It is understood, however. that the situation of these defendauts in this respect is not different from that of the defendant Sears in Steam Stone-cutter Co. v. Sears, and that of George, Chase, and Ray in Steam Stone-clltter Co. v. Jones. They all claimed title under Jones, Lamson & Co., in whose deed from the,attachment debtor of the whole on record the attachment was expressly mentioned and warranted against. Burchard v. Fai1'lIaven, 48 Vt. 327, now much relied upon, was before the court in Steam Stone-cutter Co. v. Jones, and its effect upon the titles of those subsequent purchasers fully considered. In Burchard v. Fair lIave..n the town clerk's office was bare of the copy of the writ and return of the officer left, as well as of any entry of the attachment in a book, and the town clerk, whose duty it was to receive and keep that copy as well as to make the entry, and for whose fault the suit was brought, repudiated the claim that there ever had been such a copy there. It was for his fault in not receiving and keeping the copy as a part of the records of his office, and not for not making the entry of the attachment in a book only, that the plaintiff recovered. It was not decided there, that leaving a copy of an attachment with a description of the estate attached. did not create a lien, without the entry of the attachment in the book to be kept for that purpose, but only that, without either, the title of a subsequent purchaser without notice of the attempted attachment would not be defeated by it. The entry in the book was not only not made, but there was nothing by which to make it, and a denial that there had ever been anything from which it could be made. Here, the copy and description of the estate were always on file after they were left for record, and have since been entered in the proper book. It has always been held in Vermont that when instruments of title to land, required by law to be recorded, are left for record in the proper office, the record, when made, will relate back to the time of the leaving for record. Bigelow v. Topliff, 25 Vt. 273; Essex Co. R. Co. v. Lunenburgh, 49 Vt. 143. The. delay in making the entry in this case made the attachment more difficult to find, but did not remove it or vacate it. If these defendants were misled in any way to their damage by the delay, they have the responsibility of the town to look to for redress. The orator appears to be entitled to a decree in these cases similar to that made in Steam Stone-cutter Co. v. Jones.

ABRAHAM

D. WBSTBBB UHIOB TBL. 00.

816

Let a decree be entered, removing the cloud upon the orator's title created by the conveyances subsequent to the attachment, and for an injunction against setting up the same against the title created by the attachment and levy, with costs, in each case.

ABRAHAM and others v.

WESTERN UNION TEL.

Co.

(Oircuit Oourt, D. Oregon.

TELEGRAPH

April 8,1885.)

A person engaged in the business of telegraphy, or the transmission of messages for hire by means of electricity, is a public servant, and responsible to the party injured for any loss arising from his negligence in transmitting or delivering sllch a message; but he is not liable as an insurer-of said message against errors consequent upon causes beyond his control

OF-LIABILITY FOR NEGLIGENCE.

Action to Recover Damages. M. W. Fecheimer, for plaintiff. Rujus 11Jallo1'y, for defendant. DEADY, J. This action is brought by the plaintiffs, citizens of Oregon, against the defendant, a corporation formed under the laws of New York, and doing business in the state of Oregon, to recover clamages to the amount of $1,854, caused by the alleged negligence of the defendant in sending and receiving a message for the plaintiffs between Glendale and Roseburg, Oregon. It is alleged in the amended complaint that on October 30, 1883, the plaintiff Walter Wheeler sent a message over defendant's telegraph line from Glendale to Roseburg, to his partners and co-plaintiffs, by the firm name of Abraham, Wheeler & Co., in these words: "GLENDALE, OR" Oct. 30, 1883. "To Abraham, Wheeler & Co., Roseburg, 0,'.: "Don't sell any wheat; hold a few days. [Signed] " WALTER WHEELER." That the price demanded for transmitting said message was prepaid by the sender, in consideration of which the defendant undertook to deliver the same as written and addressed; that the defendant transmitted said message so negligently and unskillfully that the same was delivered to said Abraham, Wheeler & Co., at Roseburg, with the word "aU" substituted for "any" in the original, in consequence of which the plaintiffs immediately sold 9,000 bushels of wheat, the same being a portion of a greater quantity they then had on hand, at 97 t cents per bushel, that being the market price at Roseburg therefor; but that thereafter, and on November 1, 1883, wheat was worth at that place $1.23t cents per bushel; and that it was the intention of said Wheeler in sending said message to have the plaintiffs hold said wheat for a time, and thereby receive the advance thereon,