Harris v. Eldred

42 Vt. 39 | Vt. | 1869

The opinion of the court was delivered by

Steele, J.

The plaintiff in this action of trover seeks to remover, as part of his damages for the conversion, the expenses of a legal proceeding he took out in New York, for the recovery of the property converted. By means of this process he succeeded in obtaining the property. He was at liberty to pursue the party for the value of the property without attempting farther to regain the possession of it after it had been refused. Instead of this he resorted, first, to process of law to obtain his oxen, and now resorts to another process of law in part to recover the expenses of the first. Whether he is entitled to costs in the first proceeding must depend upon the laws which govern that proceeding. It does not alter the case that the proceeding was in another state. If he chose to have recourse to a process in which the law allowed him no costs, he cannot indirectly recover what the law refuses by now resorting to a supplementary proceeding. Just what the nature of that proceeding was does not appear, nor is it material. It was either civil or criminal. If civil, his right to costs must depend on the law which governs the process, and if it was criminal process which he made instrumental to serve his purposes, it is still more clear that the defendant is only liable for costs on account of it to the state, unless there is some special statute to the contrary ; and if there was such a statute, it would not have been necessary to make the claim in this suit. There was no contract relation between the parties, by which there was an express or implied promise of indemnity, such as exists in those cases in which a party recovers his expenses for advice of counsel and delay and trouble in prosecuting some suit at law. The claim of the plaintiff is no more equitable than would be a similar claim to recover his actual disbursements in this suit now before us, occasioned, as it was, by the wrongful conversion of the defendant. He can recover for no counsel fees or other disbursements about his suit, unless he recovers them in the suit itself as taxable costs.

Judgment reversed and cause remanded. The plaintiff electing to take a judgment for nominal damages and costs, such a judgment was rendered, instead of remanding the cause for a new trial.