Goodrich v. Church

The opinion of the court was delivered by B.edfield, J. The question in this case is one, which, sub silen-tio for the most part, perhaps, but for a very great number of years, has been considered as perfectly settled. The case of Clark v. Washburn, 9 Vt. 302, is considered by the court as deciding the only point involved in the present case. The statute, also, is perfectly explicit, that, “ unless the plaintiff shall, within thirty days from the time of rendering final judgment, take such property in execution, the same shall be discharged from such process.'” This property was not taken in execution; and if [191] it is discharged from the process, that the plaintiff cannot recover beyond the amount of nominal damages, or, at most, actual damages to the time the lien was lost, is confessedly true. The consequence, then, must be very obvious, unless the requirement of the statute may be dispensed with. We have one express decision upon the subject, and a practical construction of half a century, and some thousands of decisions at jury trials ; and still we are urged to adopt a different course of decision, upon the ground that the former notions upon the subject have all grown out of some fatal blunder, which we ought to seize the earliest opportunity to correct. This is all very well, — specious enough, no doubt, — but it is setting a sufficiently severe task for us, and a H'erculean one for our successors. In a case which seems so free from reasonable doubt, I certainly would not feel justified in even bringing in question so long and so uniform a course of decisions. The cases, which have been cited from other states, are, of necessity, very little to be relied upon in regard to a case like the present, and, taken all together, they make very little for the plaintiff. The other points, which have been urged upon the present argument, seem to us not well founded. For if we admit, that the defendant’s attachment was a mere tort, not only as to the plaintiff, but as to the debtor also, there is no necessity, that this plaintiff should recover beyond the extent of his own . injury, including all for which he is liable over. And it is now settled, by the case of Bridges v. Perry, 14 Vt. 262, that the plaintiff is not, in a case like the present, liable over to the debtor. And while it may be true, that the plaintiff, at the time of the taking by the defendant, had such a special property, with the exclusive possession of the property, that the debtor cannot maintain trespass, for any wrong done to the property by a mere stranger even, still he may have case, — which he should doubtless bring, if he have any remedy, and not seek to redress a supposed wrong, through another, not in any sense interested in the matter. But we are satisfied, that the act of the defendant was no wrong, so far as the debtor is concerned, but a justifiable act. But the claim for actual damages to the time of the abandonment of the lien cannot be viewed with favor. I have never known any case, where damages beyond the actual value of the property for [192] which an officer is liable, as against another officer, have been recovered, unless in a single case in Massachusetts, which has not been followed any where. The conduct of officers, in making attachments of personal property, is always presumed to be in good faith; and if it prove to be, in laio, a tort, the officer is merely held to the extent of one giving an indemnity against such act. This is highly reasonable, as the law, in such case, provides, that the second officer may, if he choose, take indemnity, before he proceeds to make the attachment; — and in such case the costs recovered are the taxable costs, and not those between attorney and client, as allowed- in some other cases of indemnity. The practice of giving damages in any case, with a view to reimburse to the plaintiff his actual expenses in the suit, has been very much questioned in England, and is not well understood or strictly defined here. Grace v. Morgan, 3 Bing. N. C. 534, [29 E. C. L. 409,] and cases there referred to. Surely there is good reason, why that rule should not be extended to cases like the present. Judgment affirmed. The defendant’s costs in this court will be deducted from the plaintiff’s costs below, and execution issue for the balance.