Osgood v. Carver

43 Conn. 24

Opinion

Poster, J.

Footnotes

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The defendants justify the trespass complained of, under a writ of replevin, which directed the taking of the property in question. The plaintiff claims that that writ was void on its face. Yoid process, of course, is no protection for acts done under it; the party serving it is in the position of a mere wrong-doer. There are some informalities in this process, but we are clearly of opinion that it is not void.

The question then is, how far, if at all, does this process, which we recognize as valid, afford protection, to the defendants for the acts done ?

And first, as to the officer. The process placed in his hands directed that ho “cause to be replevied to Thomas Pray,” &c., “one parcel of white cotton yarn, in skein,” Ac., “ now in the possession of N. D. Cady, of Putnam, and by him, as it is said, unlawfully detained.” That the law required him, as an officer, to execute this precept, and would have subjected him to penalties, if without adequate cause he had failed to do so, cannot be doubted.

Under these circumstances it is certainly a bold claim to make, that the officer becomes a trespasser simply by serving this process. He had in his hand a lawful mandate; he was bound to obey it; he did obey it; and that such obedience should constitute a trespass is repugnant alike to every sound principle of justice and of law.

But it is said that the officer misapplied the process; that he was directed to take goods in the possession of Cady, and lie took those in the possession of Osgood.

If an officer goes outside of his precept; if, when commanded to attach the goods of A, he takes the goods of B, no doubt lie is a trespasser. Nothing like that however has occurred here. These goods were in fact in Cady’s house, apparently in his possession, though legally in the possession of Osgood. There is no doubt but that they were the identical goods against which the process was aimed, and which the precept commanded the officer to replevy. Carver, the officer, then is clearly not guilty of trespass.

IIow is it with the other defendants, Jacques and Pray? All the defendants unite in a joint plea, and rest tlicir defence upon ilie process under which they acted. It is found that the officer acted boná fide, but that Jacques knew that the yarn was not in the possession of Cady; that it did not belong to Pray; and that it was in the sheriff’s possession under legal process. This knowledge of Jacques, the agent, the committee finds should be imputed to Pray, the principal, though in fact it was not communicated to him.

That these defendants should be held liable for wrongs so gross and so palpable as these, and liable too in the full amount of damages sustained, admits of no question; but are they liable in trespass ?

The case of Watson v. Watson, 9 Conn., 140, and the very recent case of Cannon v. Sipples, 39 Conn., 505, answer this question so decidedly in the negative that we must consider it settled Those cases are identical, in principle, and almost in detail, with this. In Watson v. Watson the plaintiff in replevin and the officer were both sued, and both knew that the horse which was replevied did not belong to the plaintiff in replevin; that he had not been distrained or impounded; that there was no cause of action, and no right to replevy. Yet they took him by force out of the possession o.f his owner, and the court, speaking by Chief Justice Hosmer, say, p. 148, “Most clearly it.was not a trespass.” The act was done by virtue of a legal process. If that process protects the one who does the principal act, it does not seem reasonable to make a distinction against those who procure the process to be instituted, or who render incidental aid in serving it. We think the other two defendants are not trespassers.

These two defendants would undoubtedly however be liable upon the count in trover if it appeared that the property was not still in the custody of the law, but as nothing is found on the subject it is to be presumed that the custody of the law is not yet terminated by a final judgment in the replevin suit; at any rate we can not presume the contrary. The fact that the property was delivered by the officer to these two defendants is entirely consistent with a continued custody of the law, as their possession may have been under him and subject to his control.

The rights of. this plaintiff to this property, as bailee, or owner, surely could not have been taken away, or impaired, in any degree, had he been made a party in the action of replevin. Every form of redress to which a bailee or owner could be entitled, would have remained his; not being a party, he can be entitled to no more. If property other than that described in the writ of replevin be taken on the writ, whether it belongs to the defendant in the writ or a third person, no doubt trespass would lie.

We advise the Superior Court to render judgment for the defendants.

In this opinion the other judges concurred; except Carpenter, J.,-vvho was-of opinion that judgment should be rendered against the defendants Pray and Jacques upon the count in trover.

This case was submitted on briefs, and Judges Park and Foster joined in the decision though not present at the term.