Clark v. Harrington

4 Vt. 69 | Vt. | 1832

Hutchinson, C. J.,

pronounced the opinion of the Court. — - This is an action of trespass, to which the defendant pleaded the general issue, and gave notice, in writing, according to the provis-statuteJ that he should give evidence, under said plea, that the plaintiff heretofore brought an action of trespass, for the same cause of action, and on trial the defendants recovered judgement for their cost. The issue was joined to the court, and they found, and placed upon .the record, a special statement of facts, upon which said county court decided in favor of said defendants. To which the plaintiff excepted, and brought the case up to this Court. The only question presented is, whether the facts found by the county court furnish a good bar to this action. For, admitting the defence correctly presented by a special notice under the general issue, yet the facts must be such as would prove a good plea in bar of a former recovery. Such plea, if made, must set forth the former action and decision therein, and aver, that the subject matter of the said two actions was one and the same : and that the merits of the said first action were adjudicated and decided. And, if such a plea is traversed by a plea of nul tiel record, the record only is necessary to prove the plea. But the plaintiff may new assign, and show, that he relies upon a different trespass from that which the defendant justifies, or he may traverse the allegation of the cause of action being the same in each suit. In either case, parol testimony is necessary, and clearly admissible on the issue, which brings in controversy the question of the identity of the two causes of action. Such was clearly the character and object of the parol testimony, which the county court must have heard in order to have found the facts, which they have put into this case. How far, then, would these facts prove a good plea in bar, if such had been specially pleaded ? It is clear, that both actions were brought for the taking of the same boards. And the defendant contends that both were for the same taking. The facts were, that the defendants attached the property in question on the 15th of April,by virtue of a writ,'that was not against the plaintiff, but did not remove the same from the place where they found it. The plaintiff brought her action for it on the 17th of said April, the court to be on the 27th of the same month. After the commencement of the action, and before the day of trial, the defendants carried away the property. And for this carrying away, the present action was brought; and the plaintiff failed in the first action, because it was brought before there was any actual carrying away of the property. The question raised in this-action could not have arisen in the first, unless upon the ground, that the carrying away ol the property, after the commencement of the action, should be considered to have relation back to the first attachment, and be treated as if then done. This would berT difficult, unless there was an actual taking possession at the first attachment, or leaving a copy with the town clerk, which was not done in this case. For aught that appears, the officer may have done what he returned as an attaching of this property, and might so return, if about to follow it up with immediate removal, and it might be no such meddling as to be a trespass upon the plaintiff, till actual removal ; as the writ was not against the plaintiff. The defendants might even have been liable to an action of trespass for breaking and entering the plaintiff’s close, and yet not been liable to an action of trespass for any thing they did to this personal property. Now, if any such thing could have existed, and yet the defendants not liable in said first action, such a state of things should now be presumed, after a decision of the first suit in favor of the defendants, upon the plea of not guilty. That very decision carries with it the fact, that no trespass was committed, when the action was commenced. This decision would be correct, if the officer, in serving his writ upon Tracy, merely made an ideal attachment of this property of the plaintiff, and never in any sense got it into his custody till after he was sued. And such we must now presume was the case : for otherwise,it is very improbable, that the plaintiff would have failed in her first action. The facts, presented, show, that this suit is brought for that unequivocal trespass, which clearly entitles the plaintiff to recover the value of the property taken. This suit, then, must not be barred, by reason of the defendants having recovered in the other action wdiich __ was commenced before this carrying away of which the plaintiff’ now complains. The defence set up in this case is so technical, and savours so little of equity, that it ought not to prevail until made out in the most conclusive manner. And the act of carrying away of the property now complained of may be viewed as distinct from the first attachment. Suppose the dejfendants had let the property remain as it was till after the trial in the plaintiff’s first suit, and the plaintiff failed to recover for want of proof that the defendants had intermeddled to her injury, and, when that trial was over, the defendants carried off the property, could it be suspected, that the plaintiff was left without remedy for'this last taking ? Or, if the plaintiff had recovered nominal damages for the first taking, and that only, because the property yet remained in the possession and under the control of the plaintiff, could the defendants, after that, carry away the property ,and the plaintiff be left without remedy ? The actual carrying away must literally a continuance of the first taking, or so unjust eonse-sequences must not follow.

Harrington, for defendant., Brown, for plaintiff.

A suggestion has been made, that the present action is brought for some swine, not included in the first suit, but attached and taken with the other property. This does not vary the case, as it respects the bar of the action; and the plaintiff’s counsel seem not to urge it at all.

The judgement of the county court is reversed, and judgement is rendered for the plaintiff upon, the facts contained in the case. Williams', J., dissenting.