Hart v. Hyde

5 Vt. 328 | Vt. | 1833

The opinion of the Court was delivered by

Phelps, J.

It is insisted that no act of the defendant appears in the case, which amounts in law to a trespass.— But we are all agreed, that the act of the Sheriff, in assur ruing the custody and control of the property, was clearly a trespass 5 and, if done by direction of the defendant, was a trespass in him. There was a literal talcing of the property — a seizure on the attachment, as also on the execution, and the placing it under the control of a third person to the exclusion of the plaintiff.

To constitute a trespass, it is not necessary that there should be actual force exerted upon the property. It. is enough, if by menace, threat, or exercise of legal process, the owner is excluded from the possession and control of it. If no possession is taken by an officer on an attachment., perhaps the mere return of an attachment would not subject the officer to this action ; but if the possession and control are assumed, to the exclusion of lije owner, the action lies.

If an officer seize property on execution, and sell it, the. trespass is complete, whether the purchaser, remove it or not 3 provided he assumes the control and disposition of it. It is such an unlawful interference with the -property of another as constitutes an immediate injury 3 and. the party injured is not bound to litigate the question with the purchaser. • -

It is further insisted, that the plaintiff cannot recover : in this case, for want of possession in, him at the time of tha„ trespass. '

The ownership of chattels draws after it-the legql or constructive possession, and this is sufficient for the purposes of this action. If indeed the owner had parted with the right of possession, for a specific period, he cannot maintain trespass for an act done during that period : but if he have the right of resuming the possession at pleasure the action lies. Hence it is not necessary that the plaintiff have actual possession 3 it is sufficient if he have the right of possession. See Putnam vs. Wiley, 8 John. R. 432 ; also 2 Pick. Mass. R. 1215 3 do. 255 ; 5 do. 177; 7 Conn. R. 232.

Mere delivering to an agent to keep, with the right of resuming the possession, ad libitem, wiii not defeat the action, see Thorp vs. Burling, 11 John. R. 285.

The reason of the distinction is this, trespass is an injury to the possession, and the immediate injury is to him who has the right of possession. If Lewis in this case had the right of possession, the right of action would be in him; but as he had no such right, he sustains no injury, but the right of action is in the plaintiff.

Another point in the case is, whether the stove in question was subject to attachment; if so the defendant is justified by his process. But it has already been decided.—Crocker vs. Spencer, 2 D. Chipmans R. 68, that the article is protected by the Statute, from attachment, as a necessary article of household furniture.

We are not disposed to question the propriety of tliis decision. The reasons in favor of it, are perhaps stronger now than they were when it was made. Since the general introduction of this article, as one of common use, many dwellings, and especially those occupied by the poorer class, are constructed with a view to the exclusive use of it, and would be uninhabitable without it. Perhaps there is no article found in the dwellings of the poor which might not be as easily dispensed with. It is an article of permanent necessity; and the temporary suspension of the use of it, in this instance, does not render it unnecessary. There is scarcely any protected article, which is always in actual use; and if we were^to hold such articles attachable, because not actually in use at the moment, the protection would be of little service. The humane purpose of the Statute would not be answered. It. is said that the plaintiff had discontinued house-keeping; but the fair presumption is that this was temporary and with a view to resume it.

Judgement for the plaintiff, according to the agreement.