Soule v. Austin

Poland, Ch. J. These eases do not in our judgment present any question of law decided by the county court, which this court can revise. The granting or refusing a certificate might become a legal question so as to be brought up on error from the county court. If the county court were to grant a certificate in á case where, from the form of action, none could be legally granted, or if they were to refuse one upon the ground that the form of action would not allow it, undoubtedly such decision might furnish proper ground for exception or writ of error to this court. But in an action where the county court may grant a certificate, if the evidence shows the cause of action arose from the. wilful and malicious act or neglect of the defendant, the allowance or refusal of a certificate becomes necessarily a matter of fact for the decision of the county court, requiring the exercise of the judgment and discretion of that court, which this court can not revise; Robinson v. Wilson, 22 Vt. 35. The cases might be disposed of without further observation, but as the counsel have argued the propriety of granting certificates in such cases, it may not be out of place for us to state our view- in relation to the action of the county court. The statute Í3 intended to apply to cases of tort, and not to breaches of contract. Its object is two-fold, partly remedial, partly punitory; to furnish a more effectual remedy to a party who has suffered injury from the wanton and malicious act or conduct of another, and to punish such offender for such wanton and wicked viol ition of another’s rights. Under our system of attaching property on mesne process, whenever the property is left by the officer in the hands of the debtor, by his procuring a receipt for it, it is universally understood that the officer relies for his indemnity upon the receipt, [519] and not upon the property. When left in the debtor’s hands it is liable to attachment by other creditors, and to sale by the debtor, and the object in procuring it receipted is to give the debtor back his property, by his furnishing a security in its placo. And although in this state the officer has in form been allowed to treat the receiptor as bailee of the property for him, and maintain trover against him for non-delivery on demand, yet this has been rather a legal fiction, and the receipt has been treated substantially as a contract between the receiptor and officer, measuring and governing their respective rights. This was carried so. far in the case of Brown v. Gleed et al., 33 Vt. 147, as to allow an officer to maintain trover upon an officer’s receipt, where it was shown that the property had been disposed of by the consent of the officer. This was held upon the ground, that it appeared that this consent was given upon the expectation of all parties that the receiptors were to be liable to the officer upon the receipt. The sustaining of trover in that case was certainly going quite wide of the ordinary principles governing that action, and the decision was made upon ihe ground that such form of actioa had always been allowed on officers’ receipts, although they were purely matters of contract between the parties. In the case of Soule v. Austins, no specific property was .ever attached, and though the defendants liad property of the kind named in the receipt to a greater amount than that receipted, yet it was never separated and set apart, or taken possession of by the officer. In lact it was never attached, and though the receiptors might be estopped by their receipt to deny that, so far as maintaining the action was concerned, they were not, on the plaintiff’s application for a certificate. In the other case of Sherman v. Mears, the sheep were actually attached,- and went back into the defendant’s possession, he giving his receipt to the officer for the same. But as already said, we think the officer must be regarded as having yielded up his claim to the property as between him and the debtor, relying upon the obligation and security of the receipt, and that any failure to meet that must be regarded merely as a breach of contract, and not a tort. [520] What has been said is also a sufficient answer tofthe claim of the plaintiff’s counsel, that certificates should have been granted on the ground that the defendants held the property, for the conversion of which they were sued, in trust for the plain tiffh. Exceptions dismissed.