Rice v. Chase

9 N.H. 178 | Superior Court of New Hampshire | 1838

Parker, O. J.

It appears in this case that the goods and chattels mentioned in the plaintiff’s declaration were exempted by law from attachment and execution.

There may be cases where the taking of property exempted by law, would furnish no ground for an action of trespass ; and perhaps where a license to attach and a subsequent attachment in pursuance of that license, would not only justify the officer in attaching the goods, but also in selling them afterwards, notwithstanding the debtor might attempt to countermand the permission to attach after it was executed, and to regain the possession of the goods.

But in this case, there is not only no evidence of any permission or license to the creditor or officer to make the attachment and take the goods, but there is no evidence of any declaration to any third person that he was willing that any such act should be done, or that the creditor should have the goods, or any other conversation upon the subject, before the attachment was made.

At the time of the taking by the defendant, therefore, it was clearly an act of trespass ; and the question is, whether the subsequent declarations of the plaintiff, made to a third person, and offered to be proved in the case, can be given in evidence to change the character of this act from a trespass to a justifiable taking, or operate as a waiver of the right, then vested in the plaintiff, to maintain an action for such taking.

The answer is plain. A mere loose declaration,ma de to a third person, without any consideration paid by the creditor or officer, and without any knowledge on their part at the time that such a declaration had been made, cannot be construed to deprive the plaintiff of a right of action which had previously accrued to him for the trespass. 5 N. H. R. 452, Tufts vs. Hayes.

But in this case it was further offered to be proved, that the creditor having received knowledge of this declaration, his agent acted upon it, and caused the goods to be sold.

There are two answers to this. In the first place, the declaration of the plaintiff does not purport to be a license upon which the creditor or the defendant was to act; and doubtless was not so intended, but was designed to exhibit a feeling of independence on the part of the plaintiff, and as a mere assertion of his ability to sustain himself, notwithstanding Wood had seized and might sell his property. And, secondly, it was made without any consideration, and long before the subsequent sale of the property, or any act done in consequence of such declaration, this action was commenced ; which might well be regarded as a revocation of any license given without consideration, and not then acted on, even if any such had existed.

Judgment on the verdict.