Collins v. Smith

16 Vt. 9 | Vt. | 1844

The opinion of the court was delivered by

Bennett, J.

This was an action of trover, in which the plaintiff sought to recover for property, which he, as constable of Colchester, had attached as the property of the defendant in this suit.

Though the attaching creditors took out their execution within the first thirty days from the rendition of their judgment, and delivered it to the deputy sheriff in season to charge the property, yet, as he was not the same officer who served the attachment, the property was not charged in execution without a demand. The case finds that the deputy sheriff never made any demand for the property. The result, then, was that the attachment of Messrs. Lyman & Marsh was dissolved, and the plaintiff ceased to be liable to them for it. The principle is well settled that an officer, who attaches property, gains such a special interest in it, that he can maintain an action for it, so long as he continues either liable to .the attaching creditor for the same, or to the owner for its return upon the dissolution of the attachment, but no longer. But in this case the hay attached was never removed., and the owner, Smith, had sold and made use of the hay, for his own benefit, before Lyman & Marsh had obtained their judgment. Of course the plaintiff could not maintain the action on the ground of his liability over to the owner; — and indeed this very suit is against the owner for his conversion of the property.

But the defendant, at a prior term of'the County Court, suffered a default; and now the plaintiff's counsel insists that this matter, which might have availed the defendant as a defence to the action, cannot be used in mitigation of damages. It is true that it seems to be well settled that in an action for slander, under the plea of the general issue, the defendant cannot give in evidence the truth of the words spoken in mitigation of damages. The law requires such matter, when interposed as a defence to the action, to be put in issue by a special plea, so that the plaintiff may be prepared to defend himself, as well as to prove the speaking of the words. If such matter were allowed to be given in evidence under the general issue, ih mitigation of damages, it would operate as much a surprise up oil the plaintiff, as it would to allow it to come in as a defence to the action.

But, in the case now before us, the matter insisted upon might have been given in evidence on trial, under the general issue, to have defeated the plaintiff's entire right of recovery, as it shows a determination of the plaintiff's special property in the hay. We cannot perceive any sufficient reason why, after default, it should not be allowed in mitigation of damages. The plaintiff has no reason to complain of a surprise. Let the judgment of the County Court be affirmed.