Cox v. Hall

Supreme Court of Vermont

Cox v. Hall

18 Vt. 191

CourtSupreme Court of Vermont

DecidedJanuary 15, 1846

StatusPublished

Cited by7 cases

This text of 18 Vt. 191 (Cox v. Hall) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cox v. Hall, 18 Vt. 191 (Vt. 1846).

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Opinion

[194]*194The opinion of the court was delivered by

Williams, Ch. J.

On the first question presented in this case, whether Peter Cox should have been excluded as a witness, we perceive no interest in him, created by the covenants in the bill of sale, which should exclude him. The covenant was, to secure the title, —and not to defend against the acts of a wrong doer. The covenant did not bind him either to deliver or defend the possession; and it appears by the bill of sale, that possession was delivered to the plaintiff. The principle recognized in the case of Seymour v. Beach, 4 Vt. 493, is, that the vendor of property may be a witness for the vendee, in a suit brought by the vendee against a sheriff, who has taken the same on an execution against the vendor.

On the other point we apprehend the views taken by the counsel for the defendant are not correct. They contend now, that the taking was not a trespass. If it be true, that the defendant Hall exercised no act of ownership over the property, and did no act to withhold the possession from the plaintiff, then, according to the opinion expressed in Hart v. Hyde, 5 Vt. 328, and Amadon v. Myers, 6 Vt. 308, he might not have been liable. The question really presented in the bill of exceptions is, whether the previous attachment, made by Burt on other writs, so far divested the plaintiff of bis possession, that he could not maintain trespass. In this view the charge was undoubtedly correct. If the first taking was wrongful, the plaintiff was still, in contemplation of law, the possessor, and could maintain an action against a subsequent wrong doer ; and the charge was a reiteration of the doctrine found in Siderfin, 438, that, if a second trespasser take goods out of the possession of the first trespasser, the owner may maintain trespass against such second trespasser, — ^ Ms act not being excusable. 1 Chit. 170. From the exceptions we do not perceive, that any other question was presented to the county court; and their charge on this point was undoubtedly correct.

Judgment affirmed.

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[194]*194The opinion of the court was delivered by

Williams, Ch. J.

On the first question presented in this case, whether Peter Cox should have been excluded as a witness, we perceive no interest in him, created by the covenants in the bill of sale, which should exclude him. The covenant was, to secure the title, —and not to defend against the acts of a wrong doer. The covenant did not bind him either to deliver or defend the possession; and it appears by the bill of sale, that possession was delivered to the plaintiff. The principle recognized in the case of Seymour v. Beach, 4 Vt. 493, is, that the vendor of property may be a witness for the vendee, in a suit brought by the vendee against a sheriff, who has taken the same on an execution against the vendor.

On the other point we apprehend the views taken by the counsel for the defendant are not correct. They contend now, that the taking was not a trespass. If it be true, that the defendant Hall exercised no act of ownership over the property, and did no act to withhold the possession from the plaintiff, then, according to the opinion expressed in Hart v. Hyde, 5 Vt. 328, and Amadon v. Myers, 6 Vt. 308, he might not have been liable. The question really presented in the bill of exceptions is, whether the previous attachment, made by Burt on other writs, so far divested the plaintiff of bis possession, that he could not maintain trespass. In this view the charge was undoubtedly correct. If the first taking was wrongful, the plaintiff was still, in contemplation of law, the possessor, and could maintain an action against a subsequent wrong doer ; and the charge was a reiteration of the doctrine found in Siderfin, 438, that, if a second trespasser take goods out of the possession of the first trespasser, the owner may maintain trespass against such second trespasser, — ^ Ms act not being excusable. 1 Chit. 170. From the exceptions we do not perceive, that any other question was presented to the county court; and their charge on this point was undoubtedly correct.

Judgment affirmed.

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18 Vt. 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-hall-vt-1846.

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