The opinion of the court was delivered by
As in this case, the defendants, after pleading the general issue, have given notice that they shall justify the
The plaintiffs are then entitled to have the whole merits of their case considered. The main and important question in the case involves the inquiry whether the property sold on the execution is to be treated as personal estate, or as a part of the realty. If as a part of the realty, it would pass under the mortgage. Since the recent case of Hill v. Wentworth,
The case also finds, that the plaintiffs themselves, treated this machinery as personal property, at the time they took possession of the mortgaged property under the foreclosure.
This case is obviously within the principles of the case of Hill v. Wentworth. When there is no controversy about the facts, the
As the officer had the right to levy on the machinery, he must have the right to remove it froih the building, exercising all reasonable care in so doing, and if some small injury was done unintentionally in so doing, the officer should not, for such cause, be made a trespasser, ab initio. ■ He was in the exercise of a legal right, and if he used reasonable care, he exercised the right in a legal manner. The jury were, in fact, charged that the officer must nоt act willfully, rashly, maliciously or wantonly.
The court below, in effect, assumed in their charge, that if the officer continued in the possession of the building, keeping the property levied upon in it, and persisted in holding the auction in the shop, against the will of Fullam, he became a trespasser, ab initio.
Of this, the plaintiffs can not complain.
The case shows that the defendants gave evidence tending to show that Fullam did not forbid their selling the property in the mill and shop, and that he employed a man to bid on the machinery, and that he himself was in the mill a part of the time, and waived all objections to the officers selling the proрerty in the mill. If Fullam waived all objections to the officers selling in the mill, he can not now complain of that. The jury have found the sale was made in the mill by the consent of Fullam, and that the nuts, wrenches and screws were taken or lost by the bidders, without the knowledge of the defendants.
Upon such a state of facts, the defendants can not be made liable for the acts of the bidders, and this was not even claimed on the argument.
It is claimed that at all events, it was the duty of the officer to have replaced the platform and the partition. Rut when the machinery was removed, the use of the platform and of the partition was superseded, and if it had been the duty of the оfficer to have replaced and repaired them, the omission to do it, would have been but a non feasance, and the officer could not by such neglect, have been made a trespasser, ab initio.
We have more difficulty in relation to the manner in which the court put the case to the jury, relative tо the bands or belts. The case is not put to them upon the ground that it was necessary to cut the thongs with which the bands were laced or fastened together.
It could not have so been, for the case says the evidence went to show that they could have been easily taken out without сutting.
With reference to the value of the thongs, the case should have been put to the'jury upon the ground that they found just what the defendants’ testimony tended to prove, and nothing more, and that was “ that the thongs were considerably worn and of small value." The court were not warranted upon such evidence to put the case to the jury upon thе hypothesis that they should find the thongs, to be old, worn out and nearly worthless. The court should have charged the jury as to what the law would have been, had the jury found the thongs to have been “ considerably worn and of small value.” Would the court, upon such a finding, apply the maxim de minimis non curat lex? While on the one hand, we should be unwilling to hold out inducements to uselеss and vindictive litigation we should on the other, be slow to violate and
If a person has a right to vote at an election, and he is refusеd this right, he may have his action, even though the person, for whom he proposed to vote, should chance to be elected. Ashley v. White, Lord Ray 938. So if a sheriff neglect to return an execution, the creditor may have his action for nominal damages; although no damage appeared to have resulted from the neglect. Kidder v. Barker,
In Ashley v. White, 2 Lord Ray, it is said by Lord Holt, “ that every injury to a right imports a damage in the nature of it, though there be no pecuniary loss.” See also, Barker v. Green, 2 Bingham 317. The case of Williams v. Moyston, 4 M. & W. 145, is not in conflict with Clifton v. Hooper. In that case the distinction beetwen mesne and final process is well taken. In the case of mesne рrocess, no right of the creditor is violated by an escape, unless he is delayed in his suit thereby, or has sustained actual damage. The creditor, it is said in that case, simply had the right to have the sheriff keen the prisoner ready to be removed at any time the plaintiff might elect, by habeas corpus, into the supеrior court, there to be charged with a declaration, or to be declared against as in the custody of the sheriff. The right of the plaintiff was correlative to the duty of the sheriff, and unless the plaintiff was delayed in his suit by reason of the escape, no right
In regard to the validity of the attachment, it may be remarked, the officer in his return has named all the articles attached specifically, as the property of Crossett & Robinson, and described them as being in the shop upon the premises occupied by Crossett & Robinson. We are to assume in this case the officer did not go near the mill or shop where the proрerty was, as no question was submitted to the jury on this point. But the machinery was potentially within the power and control of the officer, and this is a case where a valid attachment could be made against every body, by leaving a copy of the process with the town clerk, without any removal of the рroperty. It would have been a useless ceremony for the officer to go to the shop, as much so as to require him to go upon land before he attaches it, and his lien by such a service is as perfect as if he had removed the property. The officer not only had potentially the property, subject to his control, but had, by leaving his copy with the town clerk, given timely and unequivocal notice of his attachment, and he could assert his control over it to the exclusion of the debtors and all other persons. See Lyon v. Rood,
It is claimed that no valid lien was created by the attachment, but all that is necessary is, that the officer’s return should have so much precision as may be necessary to give identity to the property attached. The fact that the property was attached as the property of Crossett & Robinson is no part of its description, and the attachment would be valid to hold all Crossett’s interest in it, be the the same more or less. The fact that it was stated in the officer’s return, to be in the shop occupied by Crossett & Robinson, although in fact occupied by Crossett alone, can have no conclu
The service of the writ was sufficient notice to both defendants to appear, though the whole property attached, in fact, belongеd to one of them, and if the description of the property in the return was too defective to create a lien upon it, still I should apprehend the service might bind the party as a notice. Though the case, in the main, is right, yet on the one point named, for the reasons we have assigned, we feel constrained to say there was error, and though we regret the opening of this case to a fresh litigation, yet we should much more regret the violation of what we regard as well settled principles of law.
The result must be a reversal of the judgment of the county court, and the cause is remanded.