Ives v. Strong

[548] The opinion of the court was delivered by Davis, J. The recent case of Kidder v. Barker, 18 Vt. 454, recognizing an exception to the well established rule in this state, that, in actions on the case against sheriffs for not collecting or returning final process, the plaintiff is entitled to recover the full amount of the execution, must control the present case. The two cases are almost precisely the same, — at least so far as respects Alpha Allyn, the principal execution debtor. Assuming the facts, offered to be proved in respect to the other two debtors, to be true, as we must for the present purpose, there can be no question, but that the whole case falls within the admitted exception. The testimony offered in the county court, and excluded, should have been received. As this opens the case for trial, it becomes unnecessary to pass upon the objection raised against the regularity of the execution. The judgment of the county court is reversed, and the case remanded for trial, unless the plaintiff consents to take a judgment for nominal damages and costs; in which case the judgment, so modified, will be affirmed, with costs to the defendant in this court, to be deducted from the plaintiff’s costs. The plaintiff’s counsel declined taking a judgment for nominal damages, and the case was remanded.