Nutt v. Wheeler

The opinion of the court was delivered by' Bennett, J. It is assumed by the plaintiff’s counsel, in this case, that this cask of gin was the property of the plaintiff, that it was not purchased by him in contravention of the statute law of this state, and that upon the face of the bill of exceptions there was no evidence tending to justify the finding of the court below; that the plaintiff bought this liquor mainly to furnish to his guests in violation of the statute. If we admit all this assumption to be [439] well founded, it necessarily rais'es tile question, whether upon that assumption this action can be sustained against this defendant. We find that the defendant on the 15th of January, 1855, attached this cask of gin on a writ against the present plaintiff, and in favor of Ostheim, of New York, which'he was duly authorized to serve, that under the process the liquor waá taken by this special officer and deposited in his own cellar, And the writ was duly returned to the magistrate, and the cause continued from time to time until the 12th day of March, 1855, when the plaintiff became nonsuited. It is clear that this defendant was guilty of no wrong in attaching and carrying away this liquor, and that this action can not be maintained for the taking, unle’ss he became a trespasser ab initio. A lawful taking is no conversion. There is nothing in the case subsequent to the taking, that can make the defendant a trespasser from the beginning. If he was guilty of negligence in taking care of this liquor, so as to preserve it for the plaintiff, upon the dissolution of the attachment, it was a non-feasance, as was held in the case of Abbott v. Kimball, 19 Vt. 558, for which trover will not lie, as was there held. The remedy would be in case for the negligence. It appears it is true that the plaintiff made a demand upon the defendant for a return of the gin after Ostheim had entered his nonsuit, but before that, Ostheim, by his agents, had, in the absence of the defendant from home, taken the liquor away from his cellar and sold it. The failure of the defendant, under such circumstances, to deliver the gin to the plaintiff, was no evidence of conversion. As to the seven gallons that was found missing, when the agents of Ostheim sold the gin to the town agent, the case finds “ it had been taken out by some one, or had evaporated or halted out." This, to be sure, may be thought to be a misfortune, and if it happened for want of care in the defendent, he would be liable in case for the negligence, but to charge him in trover for it there must be something more than a non-feasance, and this must have been found by the exceptions. We can not presume it for the sake of reversing a judgment of the county court. But it was said in the argument that this liquor was not subject to attachment, and that therefore the defendant can not justify the taking under his process. [440] But why not ? It is assumed by the plaintiff’s counsel that it is property, and held by the plaintiff for a lawful purpose, and if so, it should be protected in his hands, and subjected to his debts, in common with his other property. It could be sold on the execution for a lawful purpose, and we can hardly presume, in the absence of proof, an intent to sell it for an unlawful purpose, and thereby contaminate the attachment. In this view of the case, the judgment was right below, and it is of no importance to consider any other questions arising on the bill of exceptions. Judgment affirmed, with costs.