Ellis v. Howard

| Vt. | Feb 15, 1845

The opinion of the court was delivered by

Williams, Ch. J.

There are several questions made in this case by the counsel for the defendants, but none of them very difficult. The first question is, whether the deposition of Hough-ton should have been admitted. The plaintiff claimed by virtue of a sale from Houghton, and the defendants by virtue of an attachment, which Howard and Dean, as creditors of Houghton, and Leonard, as their officer, caused to be served on the property in question. The interest of Houghton was either balanced, or, if he had any interest, it was in favor of the defendants. This was decided in the case of Seymour v. Beach, 4 Vt. 493" court="Vt." date_filed="1832-01-15" href="https://app.midpage.ai/document/administrator-of-seymour-v-beach-6571441?utm_source=webapp" opinion_id="6571441">4 Vt. 493. The authority of that case has never been questioned; but it has always been recognized.

The next question is, in relation to the attachment of Dean, one of the defendants, after the plaintiff had proved the attachment of Howard, another defendant, both of which were served by Leonard ; but, inasmuch as we learn from the case that there was but one taking, apparently at the same time, by Leonard, at the suit of Howard and at the suit of Dean, it -was, prima facie, a joint trespass in the whole; but either of the defendants was at liberty to disprove any concern on his part in the transaction, or to show that the attachments were made at different times. On this point in the case we think the county court were correct.

The next question, which was raised, was as to the offer to prove the declarations of Houghton, and that he exercised acts of ownership, and what he said as to the ownership of the wagon, and that he offered to sell. The horse was not in controversy in this suit, and, if the wagon was in the possession of Houghton at the time of the attachment, the defendants would have been justified, on the well established principle, that, unless possession accompanies and follows the sale of personal property, it is liable to attachment and execution for the debts of the vendor. That the sayings of Hough-ton were correctly excluded is apparent from the principle, that, when a person is alive, and may be a witness, his declarations are not to be received; and the declaration of the holder of property, as to the character of a sale by him, was excluded in the case of Carpenter v. Hollister, 13 Vt. 552" court="Vt." date_filed="1841-03-15" href="https://app.midpage.ai/document/carpenter-v-hollister-6572525?utm_source=webapp" opinion_id="6572525">13 Vt. 552, and in Hines et al. v. Soule, 14 Vt. 99" court="Vt." date_filed="1842-01-15" href="https://app.midpage.ai/document/hines-v-soule-6572567?utm_source=webapp" opinion_id="6572567">14 Vt. 99; and moreover these declarations related to property not the subject of this suit.

The only remaining question is in relation to the receipt executed by Puffer and Huntington, — whether it should be admitted and received in mitigation of damages. This is the only point on which the court are not all agreed, — one of the members of the court thinking it should have been received in mitigation of damages. It appears that the trespass, of which the plaintiff complains, was committed, on the 26th day of August, 1843, by the defendants’ attaching the property in question. On the 30th day of the same August Ebenezer Huntington and Clark Puffer receipted the property attached to the defendant Leonard, the officer, promising to deliver the property to him on demand. On these attachments judgments were rendered on the 3d of September, 1843, executions were issued and delivered to an officer, and the property was demanded within thirty days, and was not delivered. After the present suit was commenced, and while the same was pending, September 26, 1843, Ellis conveyed by assignment all his estate and all his dues, rights and demands to the said Puffer.

The plaintiff’s right of action against these defendants was complete before this. The defendants have not returned the property to the plaintiff, nor have they relinquished their claim on the same. They still hold the receipt against Puffer and Huntington, and their claim on the officer for the property attached. As it respects the plaintiff, the defendants have taken and withheld the property attached, and still claim to hold the same. As the defendants have manifested no disposition to give up the property attached, or to give up their claim to the same, and still hold the receipt, and have not offered to give up the same to Puffer, they cannot inquire into the sale and assignment from the plaintiff to Puffer, nor can it be made a subject of inquiry in this case, whether Puffer could defend himself against a suit on that receipt. By taking the property on the attachment against Houghton, demanding it on the executions of the receiptor, and still holding the receipt, they cannot be relieved from the consequence of their original trespass, which has not been justified. I

If a confirmation of the views of the majority of the court were wanting, it is found in the decision of the case of Robinson v. Mansfield, 13 Pick. 139, where it was decided, in a case almost identical with this, that the rule of damages, in such a case, is the value 'of the goods at the time of the attachment, inasmuch as the officer held the receipt, and did not give it up before, or at the trial.

The judgment of the county court is affirmed.