Thompson v. Lothrop

38 Mass. 336

• Court: Massachusetts Supreme Judicial Court
• Decided: October 31, 1839
• Status: Published

Opinion

Shaw C. J.

delivered the opinion of the Court. The or ly question reserved in the present case is, whether Calvin Forrest was a competent witness for the plaintiff. The facts appear in the report, from his own testimony.

The action is brought by a deputy sheriff, claiming a special property in the goods by force of the attachment, and is trespass against the defendant for taking them, knowing of the prior attachment, and under pretence that that attachment was waived and dissolved, by relinquishing the possession of the goods, and leaving them without a keeper, in the possession of the debtor. And the defence rests partly, on that ground. The plaintiff’s principal, the sheriff, has been charged in an action by the prior attaching creditor, on the ground that the goods were so negligently kept that he had not them forthcoming to meet his judgment. And it probably may be true, that the sheriff, who has the power of the county at his command, may be responsible, to see the goods forthcoming; and yet that there may not have been such negligence in keeping, as to be construed a relinquishment of the possession, and an abandonment of the attachment. It does not follow, therefore, that because the prior attaching creditor has recovered against the sheriff, the attach ment was dissolved. If so, it would be an end to this action ; because the ground of the present action is, that the limited special property created by his attachment, continued, and without it, this action could not be maintained.

If the defendant could show that the possession of the property, by the attaching officer, or his bailiff, was relinquished, it would lead to the conclusion, that the attachment was released and that he knew it. But if that possession was relinquished, it must have been by the negligence of the keeper. The witness was called for the purpose of showing that the property was faithfully and carefully kept, and that the defendant knew that tt was under attachment at the time that he made the second attachment. The keeper was a servant of the plaintiff for hire, and would have been liable to the plaintiff for any loss he might sustain by his negligence. But if the plaintiff can establish his title against the defendant, he thereby shows that such attachment was not relinquished, but remained in force, and he may also obtain a full satisfaction of his damages. Such an action would be a bar to an action against the witness, or would be evidence of part satisfaction, of which the witness could avail himself, in case of a suit by the plaintiff against him. The recovery in the present case would tend to place the witness in a state of security against an action, to which a failure of the plaintiff in this action would expose him. Morish v. Foote, 8 Taunt. 454 ; Rotheroe v. Elton, 1 Phillipps on Evid. (6th ed.) 53, and 2 Phillipps on Evid. 61. The Court are of opinion that the witness was incompetent.

It was argued that the testimony given by Forrest was not material, or rather that the other evidence was sufficient to support the action. There are undoubtedly many cases, where injustice might be done by setting aside a verdict, after a full and elaborate trial, on the ground that some unimportant and immaterial evidence, though incompetent, had been admitted. And the Court would be strongly inclined to apply this rule, in a proper case. But it must appear very satisfactorily, that the verdict must and ought to have been the same, whether the questionable evidence was admitted or not. But in the present case, several facts were testified by Forrest, tending strongly to prove collusion on the part of the defendant and knowledge that the goods were still under attachment, as that when he went there on Saturday evening, all the lights were out, and every thing was still ; that in the morning, he found the straps of the cow-bells cut, and the bells left in the yard; that the defendant used expressions to him, implying that he knew of the prior attachment, and that he offered the witness five dollars to tell him where he was that night. The Court are not prepared to say, that without this evidence, the jury would have found the verdict which they did.

Verdict set aside and a new trial granted