Dickinson v. Lovell

Bell, J. The case of Brown v. Davis, 9 N. H. 76, quoted and relied on in Angier v. Ash, 6 Foster 99, establishes the principle that the return of an officer, upon legal process, of matters material and proper to' be returned, is conclusive between parties and privies, and others connected with the suit as bail, &c., but not as to third persons. It becomes a question, then, in this case, whether the plaintiff is a privy to the suit in which this attachment is alleged to be made, or a third person, unconnected with the suit. If he is a privy, the ruling of the court that the return was conclusive was correct on that ground. A privy in estate is any person who must necessarily derive his title to the property in question from a party bound by a judgment, return, &c., subsequently to such judgment, return, &c. 5 Cruise Dig. 159; Touch. 21; 1 Greenl. Ev., secs. 189, 190; 2 Phill. Ev. 12; Duchess of Kingston’s Case, 20 Howell St. Trials 578, quoted 2 Phill. Ev. 4-6; Doe v. Derby, 1 A. & E. 787; Jackson v. Bradford, 4 Wend. 623; 7 Stark. Ev. 194; — 17 — Adams v. Barnes, 17 Mass. 368; Trevivan v. Lawrence, 1 Salk. 276; 2 Bac. Ab., Evid., 617; Gurnsey v. Edwards, 6 Foster 224. In the present case the plaintiff, against whom these returns were offered, was not a party who claimed under the debtor by a title subsequently acquired, because his mortgage was of an earlier date than the attachment. The returns were not, therefore, conclusive against him on the ground that he was a privy in estate, and it is not suggested that he was a privy in any other way. But the returns were, nevei’theless, conclusive upon another ground. The attachment here constitutes a part of the title under which the defendant claims to hold this property. The question between the parties here is, whether there was a valid attachment of these goods, as between the parties to that action. If there was such attachment, this point in the defence is established. It would not be disproved or even weakened, if the plaintiff should show conclusively that as between him and the defendant no attachment was made. The debtor is estopped to deny an attachment, and that estoppel passes the property to the officer ; and unless this conclusive effect can be destroyed, the disproof of the fact is to no purpose, because the question to be tried is, whether such an attachment was made as would be effectual between the parties to the proceedings, to give the officer the title to the goods, under which he justifies this taking. The evidence to disprove the attachment is rejected, not because it is in conflict with the return merely, or because no evidence is admissible against it, as between the parties to this suit, but because the evidence offered does not tend to impeach the title set up here by the defendant, and therefore the evidence is immaterial in the case. It is on the same principle that the return of a levy on real estate can not be disproved. II. The witness Lefavor swears positively to certain facts. It can not be for the court to decide that he did not know these facts upon any criticism of the terms he uses. If the plaintiff doubted — 18 — his means of knowledge, he should have cross-examined the witness, and he was at liberty to discuss at his pleasure the credibility of the witness’s statements in his address to the jury, and the jury could give them such weight as they seemed to deserve. The witness might know the facts he states, as that term is often used by witnesses, without seeing Brown making his purchases at the store; as if he had seen Brown at the store at the date of the last bill, June 6, 1854, and had then shown him the account of his previous purchases, and Brown had admitted their correctness. So if the witness had stated, in answer to a further inquiry, whether he had seen Brown at any other time, that he saw him again at the store May 7, 1853, &c., there would have been no contradiction. His first answer would be true, but imperfect as an answer to the whole question. If a party does not pursue his inquiries, it would be unjust to many witnesses to infer an intention to deceive, from the fact that a question is imperfectly answered. Probably few depositions contain all that a witness knows about a case. He may well suppose that if no inquiries are made, the matter is-not material. III. In replevin, if the general issue were of the nature of not guilty in trespass, it would be a denial of all the material facts alleged in the declaration. But there is no such general issue in this action. There are two material facts in the declaration ; 1, the defendant took or detained certain goods ; 2, which it is alleged were the property of the plaintiff. These may be separately denied, because the consequences resulting from a verdict against the plaintiff as to these points are different. If the plaintiff fails to prove a taking or detention by the defendant on the plea of non cepit, it shows that the action has been commenced against a wrong party, and the defendant recovers his costs ; but as he has not had the property in his possession, he is not entitled to have it restored. Upon the plea of property in the defendant or in a third person, the taking, or detention, or both, are admitted, and it consequently appears that at the commencement of the replevin the defendant was in possession. If the issue on this plea is found — 19 — against tbe plaintiff, it appears that he has replevied property to which he has no right, and it should consequently be restored, or the value of it, to the defendant. A defendant in replevin may plead property in himself, or in himself and the plaintiff, or in himself and others, or in others, but in either case he must specially traverse that the property belongs to the plaintiff in manner and form, &c. Chambers v. Hunt, 3 Harr. 389; Anderson v. Talcott, 1 Gilm. 365. It is not enough, in a plea denying the plaintiff’s property, merely to make such denial.. It is necessary to allege the property to belong to the defendant, or to a third person alone, or jointly with one or both the parties. Austin v. Holmes, 3 Denio 245. To such a plea the plaintiff must reply, taking issue on the traverse, and reaffirming property in himself, in manner and form, &c. He is not at liberty to traverse the title set up in the plea, which is merely inducement to the traverse of the defendant. 3 Harr. 339; 1 Gilm. 365, above; James v. Dunlap, 2 Scam. 481; Prosser v. Woodward, 21 Wend. 211. Though it is generally held that a plea by an attaching officer, that the property belongs to a third person, (the debtor,) and not to the plaintiff, is sufficient; Quincy v. Hall, 1 Pick. 357; yet in this State it has been the general practice to state the title of the third person, and the attachment in the nature of a special inducement. Yet the issue is still upon the fact alleged in the declaration, that the property belonged to the plaintiff; and any replication raising an issue upon any fact stated in regard to the property of the third person, or in regard to the fact of the attachment, is insufficient, because an issue upon it would be immaterial. On an issue upon the title to the property, the affirmative is on the plaintiff. He must show that at the time of suing out the writ he had such a general or special property in the goods as entitled him to the exclusive possession as against the defendant. On such an issue the plaintiff can never have judgment, unless the jury find the property to be in him, as alleged in his declara — 20 — tion, and maintained in bis replication. It is not sufficient that the inducement to the defendant’s plea is not proved true. Gentry v. Borgis, 6 Blackf. 261; 3 Denio 245; 21 Wend. 211; 2 Scam. 481; Amos v. Sinnott, 4 Scam. 440; 1 Gilm. 365; 3 Harr. 339. Though if the jury find any part of the goods to belong to a third person, the defendant is entitled to a verdict for them. Morss v. Stone, 5 Barb. 516; Williams v. Beede, 15 N. H. 485. At common law, “ if the defendant in replevin pleads property in the beasts in himself, or in a stranger, whether it be pleaded in abatement or pleaded in bar of the action, or by justification, if the defendant prevails in it he shall have a return without an avowry, because, if the pleas be true, they destroy all right of complaint in the plaintiff for the caption and retention; and if the plaintiff hath no right to the replevin under the present form, nor any other, he ought to have no benefit from his unjust complaint, and therefore the court must award restitution of the beasts to the defendant, out of whose possession they were taken by the replevin.” Wilkinson on Rep. 91; Gill 213; Com. Dig., Pleader, 3, K, 13; King v. Ramsay, 13 Ill. 619. This was so held in the case of a plea of property in a stranger, in Porter v. Butcher, 1 Shaw 401; 1 Salk. 94; S. C., 2 Lill. Ent. 353; Parker v. Mellor, 12 Mod. 122; Presgrove v. Saunders, 6 Mod. 81; S. C., 2 Ld. Ray 984, and 1 Salk. 5 ; Wildman v. North, 2 Lev. 92; Vent. 249; 18 Vin. Ab. 593 ; and in case of property in himself, in Salkold v. Skelton, Cro. Ja. 519 ; Orosse v. Bilson, 6 Mod. 102 ; Harrison v. McIntosh, 1 Johns. 380 ; Bemus v. Beckman, 3 Wendell 673; Rogers v. Furnald, 12 Wendell 30. In Ingraham v. Hammond, 1 Hill 353, Cowen, J., says, it has been long settled, and never questioned, that in replevin the plea of property in a third person is good, and entitles the defendant to have a return thereof, without connecting himself with the right of such person, or making avowry ; and in Whitwell v. Wells, 24 Pick. 32, it is said, It is well settled that where the defendants plead property in a stranger, or in themselves, — 21 — and traverse the plaintiff’s property, if the issue be found in their favor they aré entitled to a return without an avowry or conusance. 5 Dane Ab. 530, 531 ; and the general rule is, that when it appears from the record that the defendants were in possession at the time of the replevin, they shall, if they prevail, have a return. 21 Wendell 209; Clair v. Adair, 3 Harr. 113; Tuler v. Marizey, 4 B. Mon. 5; Quincy v. Hall, 1 Pick. 357; Moulton v. Bird, 1 Red. 298; Simpson v. McFarland, 18 Pick. 431. It would be different if it appears that the title of the plaintiff has terminated pending the suit. Wheeler v. Train, 4 Pick. 168; 24 Pick. 33 ; 18 Pick. 431. Where the defence admits the facts alleged in the writ, and sets up a taking or detaining the property, as the property of the plaintiff, by some legal right there, an avowry or conusance must be pleaded. Crosse v. Bilson, 6 Mod. 103; Com. Dig., Pleader, 3, K, 13; Wilk. on Rep. 51. A suggestion in the nature of an avowry is necessary, where a plea in abatement or in bar puts in issue some merely collateral matter, which decides nothing as to the right of possession of the property. 6 Mod. 103; Com. Dig., Pleader, 3, K, 13; 3 Selw. N. P. 1026; Wilk. on Rep. 46. In the case of Bell v. Bartlett, 7 N. H. 178, in which the history of the law of this State in relation to the action of reple-vin was most ably and carefully investigated, it was settled that whenever the defendant at common law is entitled to a judgment for a return of the goods, he is in this State entitled to a judgment for damages. IV. It is objected that the rule of damages given to the jury was wrong, and that the rule in trover is the proper rule in re-plevin. But we think replevin is of the nature of trespass, and it lies in the same cases where trespass lies for the taking of personal property. Wilk. on Rep. 1; Com. Dig., title, Replevin; B. N. P. 52; Saund. P. & E. 760. In Kendall v. Fitts, 2 Foster 1, the amount of the damages was not the subject of consideration, and the case cited from 21 Wend. 145, does not sustain the views of the counsel for the plaintiff, since it is there — 22 — held that where the writ of replevin has obviously been perverted to the purpose of a willful injury, with 'a full consciousness in the plaintiff that he has no claim, the jury may assess smart money, as they might for a willful and malicious trespass. The authorities cited for the defendant show that the plaintiff may recover the damages actually sustained, in addition to the value of the property, though they exceed the interest; as, if the property taken were work horses or oxen, he might recover the worth of their labor. The error in the reference to the date of the writ, instead of the caption, may be corrected in the manner suggested by a remittitur. There is no suggestion that the damages should be less than the whole value, because the debts on which the attachments were made were less than the value of the property. Perhaps, if it appeared that the plaintiff was the general owner, subject to the attachment, and the judgment was less than the value, the damages might be limited to the amount of the judgment; and if the suit were ended and the attachment dissolved, the damages might be only nominal. Judgment on the verdict.