Paul v. Slason

[236] The opinion of the court was delivered by Poland, J. The first question, arising in this ease, is in relation to the charge of the county court to the jury as to the use of the horse, wagon and harness by the defendants, in removing the other property of the plaintiff, which was attached at the same time. The jury were charged, that if they were only used in removing the other property, and were not injured or lessened in value thereby, such use would not make the defendants trespassers ah initio. It was an early doctrine of the common law, that when a party was guilty of an abuse of authority given by the law, he became a trespasser ah initio, and lost the protection of the authority, under which he originally acted, — as, if beasts, taken damage feasant, or distrained for rent, were killed, or put to work, by the party taking them, he might be sued in trespass as for an original wrongful taking. This doctrine has fully obtained in this country, and was acted upon by this court in the case of Lamb v. Day et al., 8 Vt. 407, where it was held, that the defendants, who had attached the plaintiff’s mare (one being creditor and the other officer) and worked her for several weeks in running a line of stages, without the plaintiff’s consent, became trespassers ah initio. The doctrine has, to our knowledge, never been extended to any case, except where there .has been a clear, substantia] violation of the plaintiff’s rights, and of such a character as to show a wanton disregard of duty on the ipart of the defendants. Were the acts of the defendants, in using the horse, wagon and harness under the circumstances and for the purposes mentioned in this case, such an abuse of the property, and of-the authority under which it was taken, as ought to deprive them of the benefit of its -protection l It was the duty of the officer to remove the property, in order to make his attachment effectual, and the expense of such removal must be borne by the debtor; and instead of the plaintiff being injured by the use of the property, he was really benefited by it. The doctrine, for which the plaintiff contends, goes the extent of saying, that any use of the property makes the officer a trespasser; — so that if an officer attach a horse and wagon, and use the horse for the purpose of drawing away the wagon from the possession of the debtor, he becomes a tort feasor. We are wholly unable to satisfy ourselves, that the law has ever gone to so unreasonable an extent, or [237] lias ever been applied to any ease, except those where the property has been injured, or has been used by the officer for his own benefit, or for the benefit of some one other than the debtor. This was the rule laid down by the county court, and we are fully satisfied of its correctness. 2. The next question arises upon the charge to the jury in relation to the driving of the horse and wagon by the officer on the n,ext day after the attachment. The case states, that the officer was s.een driving the horse and wagon in the highway, but upon what business did not appear. The jury were charged, that if they found, that the officer was using the horse and wagon for other purposes, than that of removing and securing them in a place for conveniently keeping them, while under the attachment, the defendants would b,e liable, — otherwise not. The officer, no doubt, had the right to drive the horse and wagon for the purpose suggested in the charge; but the plaintiff claims, that the legal presumption should be, in the absence of express proof as to the object and purpose of driving the horse and wagon, that it was for an unlawful purpose. But in our opinion this would be contrary to the ordinary rule of legal presumption in relation to all persons, and especially persons acting under legal authority. Omnia prmsumuntnr rite acta is a maxim, which is always applied to the conduct of persons acting under the authority of law. Although there was no direct evidence as to the object and purpose of driving the horse and wagon, the jury might well infer the object from the time, circumstances and direction of the driving; and we think it was properly left to them to determine. We think, it was upon the plaintiff to show the act of the officer to be unlawful; and if he had it left to the jury to decide, even without any evidence to prove it, we do not see, that he has any ground of complaint. 3. Another question is also raised upon the charge to the jury in relation tío the use of the pitchfork by the defendants. Under the charge thje jury must have found, that the pitchfork was used by the defendants only in moving the plaintiff’s property, that it was left where they found it, that the plaintiff received it again, and that it was in nio way or manner injured. They were told by the court, that if jthey found all these facts proved, they were not obliged to give the/; plaintiff any damages for the fork. It istrue, that, by the theory of the law, whenever an invasion of [238] a right is established, though no actual damage be shown, the law infers a damage to the owner of the property and gives nominal damages. This goes upon the ground, either that some damage is the probable result of the defendant’s act, or that his act would have effect to injure the other’s right, and would be evidence in future in favor of the wrong doer. This last applies more particularly to unlawful entries upon real property, and to disturbance of incorporeal rights, when the unlawful act might have an effect upon the right of the party and be evidence in favor of the wrong doer, if his right ever came in question. In these cases an action may be supported, though there be no actual damage done, — because otherwise the party might lose his right. So, too, whenever any one wantonly invades another’s rights for the purpose of injury, an action will lie, though no actual damage be done; the law presumes damage, on account of the unlawful intent. But it is believed, that no case can be found, where damages have been given for a trespass to personal property, when no unlawful intent, or disturbance of a right, or possession, is shown, and when not only all probable, but all possible, damage is expressly disproved. The English courts have recently gone far towards breaking up the whole system of giving verdicts, when no actual injury has been done, unless there be some right in question, which it was important to the plaintiff to establish. In the case of Williams v. Mostyn, 4 M. & W. 145, where case was brought for the voluntary escape of one Langford, taken on mesne process, and it'was admitted, that the plaintiff had sustained no actual damage, or delay, the defendant having returned to the custody of the plaintiff, a verdict was found for the plaintiff for nominal damages. But, on motion, the court directed a nonsuit to be entered, saying that there had been no damage in fact or in law. So in a suit brought by the owner of a house against a lessee, for opening a door without leave, the premises not being in any way weakened, or injured, by the opelning, the court refused to allow nominal damages, and remitted the case to the jury to say, whether the plaintiff’s reversionary interest had in point of fact been prejudiced. Young v. Spencer, 10 B. & C. 145, [21 E. C. L. 47.] Mr. Broome, in his recent work on Legal Maxims, lays down the law in the following language, — “ Farther, there are some injuries of so small and little consideration in the law, that no action will lie for them; for instance, in respect to the payment [239] of tithes, the principle which may be extracted from the cases appears to be, that for small quantities of corn, involuntarily left in the process of raking, tithe shall not be payable, unless there be any particular fraud, or intention to deprive the parson of his full right.” If any farther authority is deemed necessary, in support of the ruling of the county court on this point, we have only to refer to that ancient and well established maxim, — -de minimis non curat lex, — which seems peculiarly applicable in this case, and would alone have been ample authority upon this part of the case; for we fully agree with Mr. Sedgwick, that the law should hold out no inducement to useless or vindictive litigation. Sedgwick on Dam. 62. This disposes of all the questions raised upon the charge. 4. The remaining questions in the case arise upon the admission of the original files and record of the case Langdon v. Paul. The plaintiff objected to the introduction of the original record, and claimed, that the judgment could only be proved by an exemplified copy of the record. But we think the objection not well founded. If the clerk of the supreme court were willing to bring the original record into court, we think it might well be used. He probably could not be compelled to do so, and might have required the party to procure a copy of the same; but when the original record is brought into court, we think it would be very difficult to give any substantial reason, why it is not evidence of as high a character, as a copy of the same record would be. The practice of receiving original records as evidence has been universal, as we believe, in this state, and is often much more convenient than to procure copies. Nye et al. v. Killam, 18 Vt. 594. In relation to the amendment of the execution by the officer, it is very clear, that the county court had no power to permit any such amendment; but we cannot perceive, that the case was in any way affected by it. If the officer, who held the execution, was guilty of any irregularity in his proceedings in the sale of the wagon upon the execution, it could not have the effect to make these defendants trespassers, who took the property rightfully, and were in no way responsible for the act of the sheriff, who had the execution. We find no error in the proceedings of the county court, and their judgment is affirmed.