43 N.H. 473 | N.H. | 1862
It was decided long since in this State, that replevin does not lie at common law against a sheriff, for property taken by him on execution; Kellogg v. Churchill, 2 N. H. 412; Melcher v. Lamprey, 20 N. H. 403; nor for goods taken upon valid mesne process. Smith v. Huntington, 3 N. H. 76.
Before the passage of the Revised Statutes, the common law had been modified in this respect by the legislature; and the Revised Statutes, in the chapter on this subject (ch. 204), provide that “when any goods, or chattels, attached on any writ of mesne process, are claimed by any other person, he may maintain replevin therefor.” It is contended in the argument, that by the statute of 1825 (Laws, Ed. of 1830, 379), it was provided that “when any goods or chattels shall be taken, distrained, or attached upon auy mesne process, which shall be claimed by any third person,” the claimant may replevy the same; that the Revised Statutes are but an abridgement of this statute, not designed to change its operation ; that the present is a case of taking under mesne process, and falls within the terms of the former statute, and is equally embraced within the meaning of the present law. But we are unable to adopt this opinion. The omission of the terms “taken” and “dis-trained,” if they are understood to mean more than the word “attached” (Bell v. Bartlett, 7 N. H. 188), can not have been made without intending to limit the provision to the case of attachments. And we understand the law to be so limited. Et has then no appli
It is said, if the action does not lie, there should be a non-suit; but this objection is without force where a verdict was taken by consent, especially as the form of the judgment will not affect the result.
We may presume that the case was tried upon an avowry, which would, if sustained, entitle the defendant to a judgment for the damages sustained by him, instead of the ancient judgment for a return. 7 N. H. 178. In the assessment of such damages, it seems clear that, in justice, the defendant ought not to recover any greater amount of damages than the plaintiff in the first suit was entitled to hold of the property attached. If he could rightfully hold no part of the property, he can claim nothing; and the officer is entitled to nominal damages, because his right has been infringed, and to nothing more. Generally, the defendant is entitled to the value of the property, provided he shows a right to it; but there is no rule which requires the court to award damages to which the party appears not to be entitled. And the case of an officer is but one instance of many where a party may be entitled to recover as bailee, on the gi-ound of an infringement of his possessory right, where the general property is in a third person, to whom it appears he is no longer accountable, as, for' instance, a party having a lien upon property, which is wrongfully taken from him, may maintain an action of replevin; but if before the assessment of damages, the debtor has paid his debt and retaken possession of the property, so that the bailee is no longer accountable to him, he can recover only nominal damages. Such would be the case of a receiptor for property attached, and many other cases. We think, then, that the evidence that the property belonged to the plaintiff) so that the officer could not be accountable to the plaintiff in the first writ, was proper to be received.
If the damages are not agreed, an auditor may be appointed, as stipulated in the case.