Sprague v. Fletcher
| Decision Date | 03 December 1894 |
| Citation | 30 A. 693,67 Vt. 46 |
| Parties | NATHAN T. SPRAGUE v. WILLIAM C. FLETCHER |
| Court | Vermont Supreme Court |
OCTOBER TERM, 1894
Action on the case. The declaration contained ten counts, of which five were in trover, in the common form, and five, viz., the first, third, fifth, seventh and ninth, with special counts in trespass on the case. The defendant filed a general demurrer to each of the five special counts. Heard upon such demurrer at the March term, Rutland county, 1894, MUNSON, J presiding. The court overruled the demurrer and adjudged the counts sufficient, to which the defendant excepted. Exceptions certified to the supreme court before trial in the county court.
Judgment reversed, demurrer sustained, counts adjudged insufficient, and cause remanded.
J C. Baker and C. M. Wilds for the defendant.
The contention is in regard to the sufficiency of the several counts in case, demurred to. In substance they are alike. The essential facts, admitted by the demurrer are that the defendant was a collector of taxes, acting in that capacity, and pretended to hold a tax for collection against the plaintiff; that the plaintiff was the owner of bank stock of value, and that the defendant levied upon and sold the bank stock, without right, in satisfaction of the pretended tax. The allegation, "whereby the plaintiff was divested of his title to the stock and wholly lost its use and value," is the conclusion of pleader.
To be justified it must be supported by sufficient, proper allegations, antecedently pleaded, so that the court can see that the conclusion of the pleader is one which the facts already set forth will uphold.
To support an action on the case the facts, well pleaded, must show an invasion of a legal right of the plaintiff, either with a proper allegation of injury, or the invasion of such a right that the law implies some resulting injury. Griffin v. Farwell, 20 Vt. 151; Troy v. Aiken, 46 Vt. 55. The right alleged to have been invaded was the plaintiff's right in and to the shares of bank stock. This is an intangible right incapable of manual possession. It can be invaded, in the collection of a tax, only in the manner prescribed by Sec. 2, of Act No. 11, of the Laws of 1882. This act requires that the collector, after duly advertising and selling the stock, shall leave with the clerk of the corporation a copy of his warrant with his return of his doings thereon, giving a description of the property distrained, and the character and amount of the tax. When the collector has done this, it is made the duty of...
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