Huntley against Bacon and another, 15 Conn. 267

Church, J. The first objection to the proceedings in the court below, was, as to the admission of Israel Champion's deposition. It was claimed, by the defendants, that Israel Champion was a co-partner with the first, attaching creditor, R. Champion, and was, therefore, interested in the event of this suit. Let the fact of the co-partnership be conceded ; and also that Israel Champion and 11. Champion sustained the same relation to this suit; and still it does not follow, that the deponent, Israel Champion, had a disqualifying interest.

Huntley, the officer, had attached the property in question, upon writs in favour of R. Champion, and had not removed it; and one principal question in the case, was, whether he was justified in permitting it to remain, and whether for that reason, his attachment was not void ? Huntley acted upon his own responsibility, and without special instructions from the attaching creditor.

He was liable for its safe-keeping, and for its continuing in a condition to be applied upon the forthcoming judgment and execution of the attaching credit- or ; or, if not wanted for this purpose, it being in his legal custody, he was responsible for it to somebody else. If by negligence or official misconduct, he had so conducted, as that the lien created by the attachment was discharged ; for this, he was responsible to R. Champion, the attaching creditor, whatever might be the result of the present action. Nor could the judgment in this case furnish any evidence of the rights of R.

Champion, in a suit by him against Huntley, the officer. It is claimed, if the officer recovers, in this case, the amount recovered will constitute a fund for the benefit of the attaching creditor. This is not so. The creditor can have no interest in the sum recovered. His claim against Jluntley is precisely the same, whether there be a recovery or not in this action. If the officer recovers, it will be for a wrong clone by these defendants to himself, and not to R. Champion. No action for money had and received, could be sustained, by II.

Champion against Huntley, to recover the amount collected upon this judgment, as constituting a fund to which he is entitled. The most which can be made of this claim, is, that if Huntley recovers here, he may be the better able to meet his responsibilities to the attaching creditor ; and this creates no other interest in such creditor, than all others have in the successful litigation of their debtors. The objection to the deposition was properly overruled.

The charge of the judge is objected to, because the jury were instructed, that they might give vindictive damages, if they should find, that the trespass was committed maliciously, and in a wanton and aggravated manner, and with a design to vex and injure the plaintiff. The propriety of the charge in this respect has been too frequently and too recently sane-tioned, by this court, to be again drawn into discussion or doubt. See Linsley v. Bushnell, ante 225., and the cases there cited.

In the progress of the trial, the defendants claimed, that they bad proved, that the attaching creditors, or some of themf for whom Huntley, the officer, had attached the property in question, had agreed to save him harmless for not removing the property attached ; and if they had, that the intgrest of the plaintiff in this cause of action, was extinguished, The claim is a novel one.

If sanctioned, it goes to the extent of holding, that an officer can, in no case, recover for a trespass committed upon, or even for the destruction of, property attached by him, if the circumstances of the case show, that he is not liable to the attaching creditor. This doctrine cannot be supported by principle, nor by authority.

An officer is never liable, if he has followed the law, and has been guilty of no culpable negligence ; and it will not do to say, that, in all cases where the officer is justified by the law, a stranger— a wrong-doer — may invade his possession, and take away op destroy the property thus in his legal custody. The gist of the action of trespass, is, the force and injury to the lawful possession of the plaintiff; and a wrongful act of a trespasser is not, in any way, modified, extenuated or excused, by reason of any agreement which such plaintiff, if an officer, may have made with attaching creditors.

In this opinion Williams, Ch. J., and Storks, J., concurred ; one of the other Judges being disqualified, by his connexion with the cause, and another not being present. New trial not to be granted.