Stewart v. Martin , 16 Vt. 397 ( 1844 )

The opinion of the court was delivered by

Williams, Ch. J.

The first question wh¿mJaA^¶§&]íjtej^ is, whether the writ in favor of Huling againsfcorey should have Keen received in evidence, on account of its not to the form of the statute, “to any sheriff oiKconstable in the statfe;” and we think it should have been. The ^th|j¡"g,&®®ie5l't0 serve a writ does not depend on the direction/N^liis was virtuality decided in the case of Chadwick v. Divol, 12 Vt. 499 and, moreover, so far as this defendants constable, was concerned, the writ was properly directed, — ‘that is, it was directed to either constable of the county of Bennington.

The next question which has been made is, Whether the testimony as to the fraudulent character of the conveyance, Under which the plaintiff claimed, was admissible in this case; and we think it was admissible. If the conveyance was fraudulent) and intended to deceive and injure the creditors of Corey, though it might be good between the parties, yet it was good for nothing as to the creditors. Any of them might attach or levy an execution on the goods, notwithstanding the conveyance; and whatevef title the plaintiff claimed was liable to be defeated by them. .The property in the cattle was not changed by the wrongful act of the defendant in removing them from Arlington to Shaftsbury; they were still liable to attachment as before. It was the duty of the defendant, as constable, or of any other officer, to attach any property of Corey, or any property liable to be taken for his debts, when directed so to do by the creditors ; and no good reason can be given why a creditor might not require this defendant, as well as any other officer, to serve his writ by attaching these goods and chattels, although wrongfully removed from Arlington to Shaftsbury. The act of attaching was lawful, if the cattle were liable to be attached at the suit of Corey’s creditors. We consider, therefore, that the testimony was correctly admitted to reduce the damages, and, as the jury have found the conveyance to the plaintiff fraudulent, she has suffered no .other damages than nominal in consequence of the first taking by the defendant without authority.

The position is abundantly established, by decisions in our own State and elsewhere, that, though an officer, or any other person, may take property wrongfully, yet, if it has been subsequently legally taken and sold oil an execution against the claimant, such sale will reduce the damages, and will take from the consideration of the triers all inquiries as to the value of the property, and confine them to such damages only as were actually sustained by the wrongful taking; Irish v. Cloyes et al. 8 Vt. 38; Clark v. Washburn, 9 Vt. 302; Squire v. Hollenbeck, 9 Pick. 551; Pierce v. Benjamin, 14 Pick. 356. The same principle should apply in the present case. The plaintiff could not hold the property against the creditors of Corey, and can stand in no better situation, as to the creditors, than Corey would have stood in, if he had remained still the owner, and, in a moral view, not as favorable. The plaintiffs title is derived through a fraud; Corey’s title, before the conveyance, had no such brand upon it.

A question then arises, whether there is any difficulty in applying this principle to the present case, as Huling, the creditor by virtue of whose attachment the plaintiff took the goods in Shafts-bury, had not recovered judgment against Corey, but the suit was then pending; and we think this can make no difference. According to the opinion already expressed, the creditors of Corey had a right to attach this property, and this defendant, as constable, could serve this writ. The cattle attached were in the custody of the defendant, as constable, to be kept by him until the suit in favor of Huling against Corey should be ended. If Huling recovered judgment in that suit, it was to satisfy his execution; if he failed, it was to be returned to the defendant, Corey, or to Mrs. Stewart; and if the defendant in this case should be made accountable to'the plaintiff for the value, he will also be liable to Huling, the creditor, if judgment should be rendered in his favor against Corey. It is manifest, therefore, that the defendant should be permitted to avail himself of the evidence in mitigation of damages, and confine the plaintiff to a recovery for such injury, and only such, as she had actually sustained at the time of trial. Some doubts have been entertained, on this branch of the subject, whether, if Huling should not recover in his suit against Corey, ( and we cannot judicially know in this case that he has,) and this property should not be returned to Mrs. Stewart, the plaintiff, by the defendant,-the judgment in this suit would not be a bar to any further claim against him for the value of the property. In that event, if the defendant should refuse to deliver the property to her, it would be a conversion at that time, and, inasmuch as she recovers in this case only for the taking, it would be no bar to an action of trover for the subsequent conversion. That a judgment in trespass, under such circumstances, would be no bar "to the action of trover, is fully established in the case of Lacon v. Barnard, Cro. Car. 35, the authority of which is recognized in Put v. Rawsterne, 3 Mod. 1, and T. Raym. 472; and also in the case of Gates v. Goreham, 5 Vt. 317. Indeed the case from Croke is almost identical with the case at bar.

The charge to the jury in this case was correct. The actual damages, which the plaintiff sustained, were no other than nominal. The damages for driving the cattle across the line between the towns of Arlington and Shaftsbury could be no other than nominal, when they were at all times liable to be taken by the creditors of Corey, and were so in fact taken by Huling, claiming to be a creditor. The plaintiff may consider herself fortunate in trying this question of the validity of the sale from Corey to her at the cost of the defendant, who has been subject to nominal damages in consequence of his going out of his precinct to serve .the .writ of Huling.

The judgment of the county court is affirmed. The defendant to be allowed the costs of this court, to be deducted from the cost awarded against him in the county court.