Lampson v. Fletcher

• Decision Date: 01 January 1828
• Citation: 1 Vt. 168
• Parties: HORACE LAMPSON v. CALVIN FLETCHER
• Court: Vermont Supreme Court

1 Vt. 168

HORACE LAMPSON v. CALVIN FLETCHER

Supreme Court of Vermont, Grand-Isle

January, 1828

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The plaintiff, Lampson, brought his action of trespass against the defendant, Fletcher, before a justice of the peace, and declared against him as follows to wit: " In a plea of trespass, for that the defendant, heretofore, to wit, on the first day of September, 1823, with force and arms, at South Hero, aforesaid, took, seized, and carried away, a certain two-horse-wagon the property of the plaintiff, of the value of sixty dollars; and other wrongs and injuries then and there did to the plaintiff, against the peace, and to the damage of the plaintiff seventy dollars; to recover which, with just costs, this suit is brought."

This action was carried by appeal to the County Court, and decided upon the following pleadings, in favor of the defendant; and was brought by a writ of error to this court.

" And now the defendant in court, by Blodget and Allen his attorneys, defends the force and injury when, & c. and says that the plaintiff from having and maintaining his aforesaid action against him, (the defendant), ought to be barred; because, he says, that at the time of the supposed trespass, set forth in the plaintiff's declaration, he was, and for a long time before, and ever since has been, the sheriff of said county of Grand-Isle, legally authorized to act as such; and that at South Hero, in said county of Grand-Isle, on the 31st day of May, A. D. 1823, he the defendant, as such sheriff of Grand-Isle county, as aforesaid, received a certain writ of execution, in favor of one Gardner Jennison, against the said Horace Lampson, issued on a judgment rendered by Gideon Hoxie, justice of the peace in and for the county of Chittenden, on the said 31st day of May, 1823, aforesaid, signed by said justice, and bearing date on the same day and year last aforesaid, for the sum of seventeen dollars and fifty-two cents damages, two dollars ninety-three cents costs, and twenty-five cents for said writ of execution, returnable in sixty days from its date, and directed to the sheriff of Grand-Isle county, his deputy, or either constable of South Hero, to collect according to law; and that upon said writ of execution was a notice in writing, that the same was the property of one Ethan Austin of Milton, in said county of Chittenden, to whom the debt, on which said judgment was obtained, had been duly assigned; and that the said Calvin Fletcher, sheriff as aforesaid, by virtue of said writ of execution, and in order to levy the sums contained therein, afterwards, to wit, at South Hero aforesaid, on the 26th day of July, 1823, took a wagon as the property of the said Horace, and having advertised the same for sale, as the law directs, afterwards, to wit, at South Hero aforesaid, on the 2d Saturday of Aug. 1823, agreeable to the time set forth in his said advertisement, sold the same at public vendue, for the sum of twenty-two dollars and twenty-five cents, in full satisfaction of said writ of execution, and officer's fees thereon. And the said Calvin avers that the taking and sale of said wagon, as aforesaid, is the same supposed trespass as set forth in the plaintiff's declaration, and no other; and this he is ready to verify: wherefore, he prays judgment if the plaintiff ought to have and maintain his aforesaid action thereof against him the defendant."

" By BLODGET and ALLEN, his attorneys."

" And now the plaintiff, in reply to the plea of the defendant above pleaded, pleads and says, that for anything contained in said plea, he ought not to be barred; because, he says, that before the delivery of the said writ of execution, mentioned in said plea of the said defendant, and before any assignment of the said debt, contained in said execution from said Jennison to said Austin, the said plaintiff fully paid and satisfied the said debt, to wit, the said damages and costs in said execution specified; and the said Jennison thereupon released and discharged the said plaintiff therefrom, and directed the said defendant not to levy said execution; all which, at the time of the levy of said execution on the said wagon by the said defendant was well known to the defendant; and this the plaintiff is ready to verify; and therefore prays judgment for his damages and costs,

" By ADAMS and SWIFT, his attorneys."

" And the said Calvin Fletcher, as to the said replication of the said Horace Lampson, to the aforesaid plea of him the said Fletcher, says, that the said Lampson ought not to have and maintain his aforesaid action thereof against him, because, he says, that the aforesaid judgment mentioned in the plea of the said Calvin above pleaded, on which said execution issued, was rendered in an action upon a promissory note given by the said Horace to the said Gardner Jennison, dated November 1, A. D. 1821, payable on the 1st day of January, 1823, in good merchantable grain to be delivered at the said Lampson's dwelling house in South Hero, which said note the said Gardner, afterwards, to wit, at Milton, in the county of Chittenden, on the same 1st day of November, 1821, aforesaid, for a valuable consideration, to wit, seventeen dollars, paid by Ethan Austin of Milton, in the county of Chittenden, to the said Gardner, sold, assigned, transferred, and delivered over, to the said Ethan, said promissory note, and did then and there endorse the said note with his own proper hand and name: which said note, from the time of said transfer and assignment, became, and ever since has been, the property of said Ethan; of which said assignment and transfer, as aforesaid, the said Horace Lampson, on the 1st day of January, 1823 aforesaid, and long before any discharge of said note to him from the said Gardner, was informed by said Ethan, and had legal notice thereof: and this he is ready to verify; without this, that before any assignment of the said debt, contained in said execution from said Jennison to said Ethan, the plaintiff fully paid and satisfied the said debt, to wit, the said damages and costs in said execution specified; the said Jennison thereupon released and discharged the plaintiff therefrom, and thereupon directed the said defendant not to levy the said execution. All which, at the time of the levy of said execution on the said wagon by the defendant, was well known to the defendant: wherefore, he prays judgment, if the said Horace ought to have and maintain his aforesaid action thereof against him,

" By BLODGET and ALLEN, his attorneys."

" And now the plaintiff, in answer to the rejoinder of the defendant, surrejoins and says, That for any thing contained in his said rejoinder, he ought not to be barred from having and maintaining his said action, because, he says, at the time of the execution of the said promissory note by the said plaintiff to said Jennison, as is set forth in said rejoinder, the said Jennison was justly indebted to the said plaintiff in a sum of money greater than the amount of the said note, to wit, the sum of seventeen dollars and fifty cents; and afterwards, and before the rendition of said judgment in favor of said Jennison against said plaintiff, as aforesaid, to wit, on the 24th day of May, 1823, the said plaintiff recovered final judgment by the consideration of Wallis Mott. Esq. one of the justices of the peace for the county of Grand Isle, to wit, at said South Hero, for the aforesaid seventeen dollars and fifty cents, as damages, and for two dollars and fifty cents costs of suit; and afterwards, to wit, on the 15th day of June 1823, the said judgment in favor of said plaintiff, being unpaid, he the said plaintiff and said Jennison, by mutual consent and agreement, offset the aforesaid judgment; and the said Jennison thereupon discharged and released the said plaintiff from the said judgment so obtained by said Jennison, as aforesaid; of which the said defendant afterwards, to wit, at South Hero aforesaid, on the 17th day of June, 1823 aforesaid, and at the time of the delivery of the said execution to him as aforesaid, had due notice; and the said Jennison thereupon directed the said defendant not to proceed to levy said execution on the property or body of said plaintiff; but to return the same without further proceedings: all which the said plaintiff is ready to verify, and therefore prays judgment for his damages and costs as above,

" By ADAMS and SWIFT, his attorneys."

To the foregoing surrejoinder there was a demurrer and joinder in demurrer. The judgment of the County Court was in favor of the defendant. And the plaintiff, in his writ of error, assigned the following for error:

" 1. The plea, rejoinder, & demurrer, of the said ...