Lucius G. Fisher vs. Stephen Cobb, 6 Vt. 622

The opinion of the court' was delivered by Mattocks, J. — The case shows that" defendant took thé horse from the possession of the plaintiff. Actual possession of personal property is sufficient to maintain trespass against any person but the legal owner, and according to some authorities, even if the possession is illegal — and according to all, if the possession is under an assertion or color of right. — 1 Chitty, 168. — 1 Swift, 53Í.

The plaintiff then, acting as an officer, and attaching the horse as the property of Willson, and taking if from the' possession of Clark into his own keeping, until the trespass complained of, is entitled’ to recover against a stranger. The next question is, whether the defendant was justified in taking the horse from the plaintiff by any previous act or doing of his.

If the property had been Willson’s, then the question would have been, whether it was necessary for the defendant,when he made the- attachment, to have removed the property from Clark’s, in whose possession it was- found,' in order to perfect the lien as against the subsequent attachment made by the plaintiff — ¿-both parties being .deputy sheriffs — the same as if it had been attached and left in the possession of the debtor.

But as the horse was not the property of Willson, the debtor, but of Clark, no right or lien was acquired by either attachment; and as the defendant, when he made the attachment, did not’ take possession of the property, his attachment was a perfect’ nullity — it was not everi a trespass.

Clark asserted his claim to the property; and his adding that he would not put it out of the way, nor dispose of it, for two or three days,was not a relinquishment of his claim.- The plaintiff after-wards, by attaching and taking the horse away, was a trespasser, although under claim of right, and as such, was liable in law to Clark, the owner, for the value of the horse. — • Therefore, only by Clark, or by process of law against Clark,could the horse be lawfully taken from the plaintiff.

It is not perceived that there was any manner of'right in-the defendant to take it from the plaintiff; and can it affect the case that the defendant, after the trespass, advertised'and sold the horse on" the execution against Willson,- and that, pendihg the advertisement of sale, at the request of the defendant, Clark kept the horse and re-delivered it at the sale ?

It is not in the case that-Clark relinquished his claim to the property which had been’ before asserted to both' plaintiff and defendant ;■ and on what principle can it, in law, be an extinguishment of his right and property in the horse — having given warning to all concerned of his ownership ?

The suit of trespass in favor of Clark against the plaintiff, going on in- the mean time, ■ and a recovery, and afterwards payment of the judgment by the plaintiff, seem to ' have no bearing in- the case other than as a public declaration by him that he persisted in his claim to the horse; and, if known to the defendant, might have been a further warning to him not to convert the horse by a sale. The recovery in that case was no rule of damages in this; but the value of the horse, and the ground of the plaintiff’s claim, as before mentioned, was his liability to Clark.

The payment of the judgment since does indeed place the equity of the case very strongly with the plaintiff, for now Clark’s claim is extinguished; and by no possibility can the defendant be liable to him; and the plaintiff having paid for the property, it would be unjust that the defendant should retain the avails of it, or the creditor, for whom he acted; so that the effect of the plaintiff’s recovery in this suit will be to leave all parties in statu quo, save the costs. Judgment of the county court is reversed.