Reuben Lamb vs. Day & Peck, 8 Vt. 407

The opinion of the court was delivered by Phelps, J. There is no doubt, that the use of the horse by the defendant.Peck, was a tortious act. The authority of a sheriff, with respect to property attached, extends only to the safe custody of it. He has no interest in it, except to retain it as security for the creditor: and whenever.the use of it would impair its value, to permit such use would be to inflict an injury upon one or the other of the parties, without a corresponding benefit to either.

There are indeed cases, where the use of a chattel might compensate for the expense of keeping it; and in such cases, there is a plausibility in permitting it. But as a general rule, it would be extremely unsafe and pernicious : and, inasmuch as there is no provision by law for adjusting such an account between the parties^ we are not at liberty to countenance a proceeding so prolific of embarrassment and dificulty. That the using the property by Peck, in this instance, would render him a trespasser ab initio, is a point too well settled to require discussion.

It is however insisted,.that Day, the other defendant, cannot be made a trespasser by relation. This depends. upon the question, whether he is to be considered as implicated in the original taking. If he is not, then certainly no subsequent tortious act of his could make him a trespasser in that respect. There is a strong presumption however in the outset, of Iiis concurrence in the attachment made by Peck; and his subsequent adoption of tha't act, by taking the horse into his possession, and subsequently selling it on the execution, afford sufficient evidence of his participation.

Being implicated in the original taking, the authority of the process was as necessary for his justification, as for that of Peck ;"and whatever would defeat that justification, would, of course, subject him to this action. Had the subsequent tortious act been the act of the officer .Jalone, without the assent or concurrence of Bay, there would be good ground to argue, that he, Day, would not be affected by it. But as the act complained of, was the concurrent act of both the defendants, they are equally implicated.

The justification being equally necessary for both, as to the original taking, and that justification being unavoidable, by reason of their joint act, the eonse-quences must be the same as to both. The case of Van Brunt et al. vs. Schenck, 11 John. R. 377, illustrates the distinction. Upon the first trial of that case, Schencb, not appearing to have participated in the original seizure, was held not to be a trespasser by relation. If a trespasser at all, it was only in the subsequent use of the vessel.

But when, upon the second trial, his concurrence in the seizure appeared, he was held to be a trespasser ab initio, in the same manner as his deputy Van Burén, who made the seizure in fact. In short, if Day had not been concerned in the first taking, he could be made a trespasser only by reason of the subsequent tor-tious use of the property, and in this view7, the action might fail, for want of a right of possession in the plaintiff at the time. So if he had no agency in the after use of the animal, it might be questioned, whether he could be made a trespasser by relation by the act of the officer.

But concurring, as he did, in both the acts, it is impossible to distinguish between him and his co-defendant. The plaintiff’s right of recovery being sustained, the next inquiry relates to the rule of damages. Generally, the extent of the injury sustained is the criterion of damages. The value of the property taken, is not necessarily the minimum of damages. Whether it is so or not, in any case, depends upon the inquiry whether the chattel is wholly lost to the party. If not, then the rule of damages must conform to the actu^ al injury, under the circumstances of the case.

In this case, the horse is not lost to the party ; but its value, at the time of the sale upon execution, has been applied in satisfaction of his debt; and the extent of the injury depends upon the comparative value of the animal at different periods. If the value has been reduced by transaction in question, the plaintiff has been injured in a comparative degree. But whether this injury be more or less, is a question for the consideration of the jury. It seems to have been supposed,' that, inasmuch as the justification fails, none of the proceedings are proper to be considered in mitigation of damages.

This is a mistaken view of the subject. The distinction between a full justification, and matter of mitigation, is obvious and palpable ; and it is no answer to matter, which has a legitimate tendency to mitigate damages, that it falls shoit of a full justification. Placing the liability of the defendant upon the footing of the original taking, as

an act of trespass, still the ultimate disposition of the horse is material to the question of damages ; and, as the properly was applied in satisfaction of the plaintiff’s debt, that circumstance serves to reduce the damages accordingly. This view of the subject is sustained by the cases cited by the counsel. — See 5 Car. & P. 332.-6 Mass. R. 20. — 1 N. H. R. 91. .And is so obviously equitable in its result, in this case, that we hesitate not to adopt it. The county court having given the full value of the horse, we consider their judgment erroneous. It is therefore reversed, and the cause remanded.