Majority
p. 175Vosburgh against Welch. NEW-YORK, May, 1814.
Headnote
if a justice ot *®g J^ttach™ent under si. c. su'4. s. property Sofh» ^nt’debto™ without any befóre°him“#óf ccaimentÓfthc debtor, he is liable as a tres** passer. Satis^re^ifed "¿y íegjevidence3 or such as * TeWed in the cou'^e of judi. ?ial proceed-return to an ^defendant £oultI n.ot he the satisfactory proof required. In an action of trespass guare clausum, &c. et de bonis asportatis brought against a justice, for issuing an attachment against the goods of the plaintiff, as an absent or absconding debtor, without legal proof of the fact of concealment, the restoration of the property attached, to the plaintiff before suit, cannot be pleaded in bar of the action, nor puis darrein continuance, but it may be’ admitted as eyidenoe in mitigation of damages,THIS was an action of trespass, tried before Mr. Justice Van Ness, at the Columbia circuit, in 1812. The declaration eontained several counts, for trespass guare clausum fregit, et deboms asportatis.
At the trial, the plaintiff’s counsel, pursuant to previous notice for that purpose, called on the defendant to produce two writs of attachment, issued by the defendant, as justice of the peace, against the plaintiff, or that he would offer copies of them in evidence. The originals not being produced, the copies were offered by the plaintiff. The first was dated the 25th of ' * October, 1811, under the hand and seal of the defendant, reciting that “ whereas satisfactory proof entitling the plaintiff to a writ of attachment, according to the law in such case made and provided,” &c. requiring the officer to attach the goods, &c. of the plaintiff, &c. returnable the 3d of November, 1811. The other writ was the same, excepting that it was dated the 28th of October, 1811, and was made returnable the 7th oí November. The officer to whom the attachment was delivered, testified that he served the first writ of attachment on the plaintiff’s goods, &c. on the 25th of October, 1811, the plaintiff being at home, at the time; and after the property was removed, he discovered that
p. 176
this attachment, with several other writs he had. to execute, were made returnable on Sunday, and the defendant sent word to the witness to alter the process in his hands; that the xvitness altered attachment so as to make it bear date the 28th of October, 'and to be returnable on the 7th of November, 1811; and a copy of it was delivered to the plaintiff, who was at home.
It was proved that, on the return of the first attachment, the plaintiff went to the defendant, who said the cause could not be íríed, as the writ had been made returnable on Sunday. On being asked by the plaintiff if the attachment was issued on the oath of any person, the defendant answered that it had been issued without oath. On the return of the second writ, the plaintiff again attended before the defendant, who was proceeding to try the cause, xvhen the attachment was withdrawn. The defendant admitted that no oath was made by any person of the plaintiff being absent, &c. but said he had sufficient evidence, which he did not, hoxvever, disclose.
The defendant gave in evidence an execution, issued by him, on a judgment in his court, against the plaintiff, on which was endorsed a return of the constable, dated the 25th of October, 1811, that neither the body nor the property of the plaintiff was to be found. The officer xvho was a xvitness stated, that being in ill health, and unable to attend to business, he made a return of all the process in his hands, and resigned his office; and that he made no effort to take the plaintiff on the execution. The defendant offered to prove that after the commencement of the suit, part of the property had been returned to the plaintiff, on a settlement made betxveen him and the creditor, at whose instance it had issued. This evidence xvas objected to, and the point reserved. ' A verdict was then taken for the plaintiff, for 31 dollars and 50 cents, subject to the opinion of the court on the above case. It was agreed, that if the court should be of opinion that the defendant was justified in issuing the attachment, then the verdict should be entered for the defendant; or if the plaintiff was entitled to recover, and the testimony offered as to the return of the property, ought to have been admitted, that the amount of the verdict should be reduced to six cents.
The cause was submitted to the court' xvithout argument.
delivered the opinion of the court. The statute (sess. 31. c. 204. s. 23.) requires the justice, before issu
p. 177
mg the attachment, to have satisfactory proof offered him, of the departure or concealment of the debtor, with intent to defraud his creditors, or to avoid being personally served with process,[1] A mere error in judgment as to the legality of the proof offered, would not make the magistrate a trespasser, by issuing the attachment. But such proof, in order to give jurisdiction to the justice, ought, at least, to be colourable. He cannot act upon his own knowledge, or mere belief on the subject, however well founded it may be. Proof, in the sense in which it is used in the act, means legal evidence, ( 9 Johns. Rep. 75 .) or such species of evidence as would he received in the ordinary course of judicial proceedings. The evidence upon which the justice acted, in this case, was not of that description. It did not amount even to the information of the constable, that the debtor had departed the county, or was concealed, with intent to defraud his creditors, or to avoid being served with process. The justice might have believed the fact upon mere reí port, or the information of some person in whom he had confidence. But this would not have been satisfactory proof, within the meaning of the act; nor was the return of the constable, on an execution against the debtor, any such proof. It was altogether foreign and irrelevant. The justice must be considered as having issued the attachment xvithout any proof xvhatever of the departure or concealment required by the act; and, of course, xvithout any authority.
The evidence offered to shoxv that the property taken under the attachment had been restored to the plaintiff after this suit xvas brought, ought to have been received in mitigation of damages. The plaintiff by his action, seeks to recover not only damages for the taking, but also the value of the property. It xvould be unjust to allow him the value, after the property had been restored to him. It is immaterial as to the person from xvhom he received the property; having received it, he is not entitled to a compensation for it. If the restoration of the property had been made before the commencement of the suit, it could not have been pleaded in bar of the suit, which is as xvell for the taking and detention, as the value of the goods; nor, for the same reason, could it have been pleaded puis darrein conn
(a) (a) By the new revised act, (sees. 36. c. 53. s. 23. 1 N. R. L. 398.) passed April 5,1813, the justice is required to have satisfactory proof, by at least one dispute-rested -witness.
p. 178
tinuance. It follows, then, of course, that the evidence mUst be received in mitigation of damages; otherwise, the plaintiff will recover for an injury which he never has sustained. (6 Bac. Abr. 628.) The plaintiff must, therefore, take judgment for six cents only, according to the stipulation in the case.
Judgment for the plaintiff, for gix cents.