Dameron v. Williams , 7 Mo. 138 ( 1841 )

Opinion of the Court by

Tompkins, Judge,

Williams brought his action of trespass against Dameron, and had a judgment agaiust him, to reverse which Dameron prosecutes this writ of error.

The declaration is in these terms, viz: “ For that the said Joseph Dameron on, &c., at &c., with force and arms, (he the said Joseph Dameron being the plaintiff in two executions then and there in the hands of the acting constable of Marion township, in said county of Monroe, which said executions were against one David Duncan, and then and there directed James Porter, the said Porter then and there being the acting constable of Marion township aforesaid, to levy on two horses, three cows, &c., of the goods and chattels of the said plaintiff, to satisfy two certain executions in the hands of said Porter, at that time as constable as afore-sajc¡) ja favor 0f sai¿ Dameron, and against one David Duncan ; and the plaintiff avers that the said constable, in pursuance of the direction of the said defendant Dameron, did levy on and seize the said property of the said plaintiff, and kept and detained the said -property from the said plaintiff for a long space of time, &c., and then and there carried away the same to the use of the said defendant, &c.”

Trespass ei mpnis ^wiü the ^plaintiff tíon’nfor£<the act of the of-vied on plaintiff’s property by the direction of the the'latter not being present nor ^any aidingtho'of fieor.

To this declaration Dameron ple.ads not guilty, and issue was joined.

The evidence is, that David Duncan, the person mentioned in the declaration, had by deed conveyed to Williams, the plaintiff in this suit, the property charged in the declaration to have been taken and sold by the constable. This property was conveyed to Williams in trust for one William Arnold, to secure to Arnold the payment of a sum of money due by bond from Duncan to Arnold ; and of which property the residue was to be returned to Duncan, after the debt, &c. was paid to Arnold. Duncan was admitted as a witness to prove that the property taken and sold by the constable was the same which he by his deed had conveyed to Williams, the plaintiff, for the purpose of raising money for the use of Arnold as aforesaid, the sale by the constable, &c.

There was no evidence that Dameron, the defendant, present aiding and assisting the constable in' taking this property into his possession, under the authority of the executions in which he was plaintiff No evidence was offered corinect Dameron with the constable in the taking and carrying away the property. It was not. in evidence that was even present looking on.

The defendants made their objections to the admission of . , , , . „ , Duncan as a witness, and excepted to the opinion of the coart « that behalf.

The defendants moved in arrest of judgment, and for a new trial, assigning for reason, among other things, that the ^nc^nS the court, acting as a jury, was against law and evidence.

a. convey ed certain in trust to se-debtdue him from A. in an action by B. against D. for a. competentTó prove that taken was°the same that he had conveyed to B., as A. ary interest11" in the

It is assigned for error that the court committed error in refusing a new trial. 2d, In admitting the evidence of Dun-CAE.

The declaration is in form a declaration in trespass vi et armis ; all the matter set out in it is such as would entitle a plaintiff to an action for consequential damages only.

■ If Williams, in his fiduciary character, sustained any injury by the taking and selling of this property, it was in consequence of the ■ direction or advice of Dameron to the constable, and not in consequence of any act of Dameron himself: and had the constable, acting under the authority of Dameron’s execution, sold the same property, without having had any communication with Dameron, plaintiff in the execution, he, Williams, might, notwithstanding, have maintained his action on the case against Dameron; for the constable sold the property for the benefit of Dameron, and at his implied request.

The constable, but for the trial of the right of property testified to in the evidence preserved, would have himself been liable to be sued in trespass. It may be asked, if the facts from which the injury results are set out, what does it signify, whether the form of the action be trespass vi et armis, or trespass on the case. If an action of trespass on the case had been brought, the defendant might have given in evidence, under the general issue, any thing that would justify him in taking and selling the property; while in an action for a trespass vi et armis he is, under that issue, restricted to a denial of having taken the property. In an action of trespass vi et armis, it should have been charged that Dameron took the property himself; and such an allegation would have been supported by proof that he, in company with the constable, took it, &c.

The court committed error, also, in admitting Duncan to testify. The interest of Duncan was not, as is contended; equally balanced. True it is, the property taken from this fund goes to satisfy another debt. But he had a residuary interest in the fund conveyed to the plaintiff, Williams, for , , *, , ... the use of Arnold. This fund he would keep in his possession longer than other property not therein included. Because *^en act'on was conceived ; nothing set out in the declaration going to show a trespass, and no evidence of a trespass has been given, and moreover, because the cour( permitted Duncan, the maker of the deed, to be made a w*tness i"01’t^e pl3"' in this suit, its judgment is reversed.

the plain-tiff« ,in a“ ex' ecution issued on a ierfdbyajus-a tice of the to shovThim-self a judgment credit- or, for the purpose of contesting the.validity of a deed, ho must produce the whole transcript of the justices’ docket, that it may appear not only that there was an execution, but a judgment to warrant the execution, and other previous proceedings to warrant the. judgment.

The defendants contended that because the plaintiff had hiraself introduced the executions of Dameron in evidence, it appears that they were judgment creditors, and therefore lh®y had a right, even under this issue, to contest the valid-of the deecLof Duncan to Williams.

An execution I understand to be an authority to the offi» cer, who by it is commanded to execute and sell property. " . i r «/ But if the plaintiff in the execution wishes to show himself judgment creditor, he must produce the whole transcript of the justices’ docket, that it may appear not only that there was an execution, but a judgment to warrant the execution, and other previous proceedings to warrant the .10 judgment.