Heald v. Sargeant

The opinion of the court was delivered by Redfield, J. Many questions have been moved by the counsel in the discussion of this case, which we are not. prepared to determine. In the case of Ladd v. Hill, 4 Vt. 164, it would seem to have been determined, that a sale upon execution of the entire chattel, although upon the debt of but one of the tenants in common, did devest the title of the other tenant, and was, in law, a conversion of his interest. Where the taking was on the execution, the sale would, in that view, be such an abuse of the authority, as would make the officer a trespasser ab initio. We are now asked to extend the same rule so as to make the taking upon the original writ a trespass. The case of Melville v. Brown, as understood by the same court in Weld v. Oliver, 21 Pick. 559, would seem to be an authority to that extent. But the case, as reported, only shows a taking on the same process, on which the sale was made. It does not seem to have been much considered, by court or counsel, and being a mere abstract of the point decided, cannot be much relied upon, as an authority. And it being a well settled point, that the attachment of the whole property, and the whole proceedings, under the first process, were legal and regular, we could not make the officer a trespasser for any irregularity in the sale upon the execution, which is a distinct matter. To make an officer a trespasser ab initio, he must abuse the same authority upon which was the original taking. The entire doctrine of making officers trespassers by relation, for an abuse of authority in law, rests upon not well defined ground, which commends itself to our sense either of reason or justice. It is but a technical rule of law, and one, which it would be almost absurd, and wholly unjustifiable, to extend the length now asked for. The view we have here taken of this point, renders it unnecessary to go further in the case. Judgment affirmed.