29 Vt. 78 | Vt. | 1856
The opinion of the court was delivered by
I. The first inquiry is, whether the use
II. The officer being thus made a trespasser from the beginning is liable in trespass or trover. It is true that, if he has subsequently applied the property in payment of the debt, this will go in mitigation of damages. But if he did not so apply it before the final judgment against him, there would be no safety in
But nothing of that kind is liable to occur until the debt is extinguished by payment, through the actual application of the property. But it is said to allow this action of replevin to he maintained is to deprive the officer altogether of his lien, and that is true. There does not seem to be any special hardship in that, even under the circumstances. The use of the property in the way of labor is as much or as really an abuse of the process as to destroy it or to sell it without authority. And as it is not a mere mistake or accident, but an intentional abuse, and one which in equity ought to render the officer a trespasser ab initio, we do not see what occasion he has for complaint. For it shows clearly that the officer took the property for a different purpose from that of the law. This is so upon the view that he puts the property to his own private use. 'And what his bailee does is the same as if he did it himself.
It is admitted, and the cases all show that replevin is the usual remedy where one becomes a trespasser ab initio for not proceeding regularly with a distress. And under our statute as at present existing it would seem that replevin will lie wherever trespass or trover will lie. And none of the cases read seem to conflict with this view. The case in the 7 N. H. is where the plaintiff did not except to the rule of damages. The only question discussed in the court of error was whether the officer was a trespasser ab initio. The court were divided, and Judge Green, who was of opinion that the officer was not liable in trespass, said if he was liable in that form of action, he was liable, for the value of the property, which was sound I think. But the court had no occasion to decide the question, Dame v. Fales, 3 N. H. 70.
The case of Harvey v. Pocock, 11 M. and W. 740, is where the
Judgment reversed and case remanded.