20 Conn. 204 | Conn. | 1850
Ward, the principal defendant, in this case, brought an action against the plaintiff, and caused the goods to be attached, and taken into the custody of the officer. Some two months afterwards, that attachment was abandoned, the endorsement of service erased from the writ, a new attachment and service made, and the writ, with the en* dorsement of the last service, was returned to court. Having obtained judgment in his suit, he caused the goods in question to be taken and disposed of according to law, and the proceeds to bé applied in satisfaction of that judgment.
the plaintiff resists this claim, and insists, that he is entitled to recover the value of the goods, at the time of the conversion, with interest. This claim of the plaintiff would be well founded, had be never, subsequent to the conversion, received any benefit from the property. Such undoubtedly is the general rule in relation to damages in an action of trover. Baldwin v. Porter, 12 Conn. R. 473. Clark v. Whitaker, 19 Conn. R. 330.
But to this general rule there are certain exceptions, " as well established," says Morton, J., "as the rule itself." Pierce v. Benjamin, 14 Pick. 1356. "And both the rule and the exceptions," says Church, J., "proceed upon the same principle, thatthe plaintiff ought to recover as much, and no more damages, than he has actually sustained." Baldwin v. Porter, 12 Conn. R. 484.
Thus, if the property for which the action is brought, has been returned to, and received by the plaintiff, it shall go in mitigation of damages. Greenfield Bank v. Leavitt, 17 Pick. 161. Baldwin v. Porter, and Pierce v. Benjamin. ubi sup.
So, if goods are tortiouslv taken, and a creditor of the owner afterwards ~attaches them, and disposes of them according to law, and applies the proceeds in satisfaction of a judgment against the owner, such proceeding may be shown, not as a justification of the taking, but in mitigation of damages. For it would be palpably unjust for the owner to receive the full value of his goods, in their application to the payment of his debts, and then afterwards recover that value from another, who has derived no substantial benefit from his property. This rule is not only in conformity with justice, but has the sanction of authority. See Pierce v. Benjamin, above cited.
The case under consideration, is not, in principle, distinguishable from those stated. The evidence offered, goes to show, that the plaintiff has been once paid for his goods, by a legal appropriation of them to the payment of a judgment
We are aware, that a different doctrine has been recognized, by the courts in the state of New-York; and the reason assigned is, that a person, who tortiously takes the goods of another, cannot, by any mere act of his own, deprive the owner of full damages in a suit against him. Higgins v. Whitney, 24 Wend. 379. Hanmer v. Wilsey, 17 Wend. 91.
But we are unable to yield our assent to the correctness of that doctrine, as applied to a case like the present, where there has been a legal appropriation of the property. Ward, the defendant in this case, had a legal right to attach the goods in question ; and as they were subsequently legally appropriated to the payment of the plaintiff’s debt, he has, in that way, received the full value of his property.
The defendants admit, that they have committed a trespass, in taking the goods ; and that they are liable to pay the plaintiff all the damages he has sustained thereby, and no more. These are for the original taking, and the detention until the second attachment. Beyond this they have done him no wrong.
He has no more right to complain of the second attachment, than he would, if made by any other creditor, or if there had been no previous taking of the property.
When the goods were attached, the second time, the copy left in service with him showed their situation. It was then, at his option, to regain the possession, either by a writ of re-plevin, or by the payment of the debt upon which they were attached, or suffer them to be applied in satisfaction of that debt. Had he obtained his goods, in either of the former modes, it would hardly be claimed, that he could afterwards recover their value of the defendants. The same result ought to follow, if he suffer them to be applied, in due form of law, to the payment of his debt.
We are therefore of opinion, that the evidence offered was legally admissible, and so advise the superior court.
Decision for defendants.
