Paine v. Tilden

One defendant in an action of tort may enter a review of the case, when the judgment is final as to the other defendants ; and this will not have the effect to carry the case forward as to the defendants who do not review. Ordinarily a joint tortfeasor is a competent witness for either party, if he be not sued, or be sued in a separate action, or, being joined, have suffered judgment to be rendered against himself. It is no objection to a witness, who is willing to testily, and has no interest in the event of the suit, or is called to testify against his interest, that he is a party to the record. It is now well settled, that, whenever the character of a witness for truth is attacked in any way, whether by cross examination, or by general evidence of want of character for truth, or by proving statements made by him out of court different from those sworn to, it is competent for the party calling him to give general evidence of his good character. The plaintiffs caused an attachment to he made of certain sheep belonging to their debtor, for the purpose of securing their debt, and thereby acquired what was supposed by all concerned to be a valid lien. Subsequently the debtor assigned - the sheep to the defendant, to he disposed of for thé payment of certain debts, the defendant understanding, that he was taking his title subject to the plaintiffs’ lien, and not expecting to realize any benefit from it, until the plaintiffs’ claim was settled. The debtor afterwards, with the consent of the plaintiffs and defendant, exchanged the sheep for a less number of other sheep, and received a note for the difference, and delivered the note to the plaintiffs in part payment of their claim, and then executed to the plaintiffs a bill of sale of the sheep for which he thus exchanged, as security for the balance of their claim. And the defendant having disposed of these sheep, it was held, that the plaintiffs were entitled to recover against him in trover therefor, to the extent of the balance due upon their claim. It would not vender an attachment absolutely void, as against subsequent attaching creditors, that some of the parties were omitted, who should have been joined as plaintiffs. This would be matter of defence, and might be waived.

Trover for sixty four sheep and two hundred pounds of wool. Plea, the general issue. At the November Term, 1844, there was a trial and a verdict for the plaintiffs for $91,58 damages, and the ■defendant Harvey Tilden reviewed, but the other defendant did not. At the April Term, 1S45, there was a verdict for the defendant Harvey Tilden, and the plaintiffs reviewed. Trial by jury, November Term, 1845, — Redfield, J., presiding. On trial the plaintiffs gave in evidence a bill of sale of sixty four sheep, signed by David R. Tilden, and dated April 12, 1842. And it was proved, that previous to February 8, 1842, David R. Tilden was the owner of about one hundred sheep, which were in possession of one Chandler, in Berlin, A few days previous to February 8, 1842, these sheep were attached on several writs, in fai;or of creditors of David R. Tilden, by' one Brown a constable, who gave Chandler notice of the attachment and engaged him to keep the sheep for him. David R. Tilden was indebted to the plaintiffs to the amount of $159,91, and on the 8th day of February, 1842, with' his consent, a writ of attachment was made against him, brought in the name of the plaintiff Paine alone, and put into the hands of one Silsby, a deputy sheriff, and he attached thereon the sheep at Chandler’s, not taking possession of them, but giving Chandler notice of the attachment, and Chandler consented to keep the sheep for ,hhw also. About the 12th of February, 1842, David R. Tilden applied to L. & W. Tilden & Co., (which firm was composed of Lester Tilden and Webber Tilden of Barre, and the defendant Harvey Tilden of Northfield, all brothers of David R. Tilden, and of which firm Harvey Tilden was the active partner in the business at North-field) to assist him in his affairs; and they did either pay, or assume, all the debts, upon which the sheep were attached, except the plaintiffs’, and the creditors relinquished their claims to L. & W. Tilden & Co., and David It. Tilden assigned the sheep to them, together with all his other attachable property, to secure them, and to be disposed of to liquidate said claims; and it was then agreed between them, that David R. Tilden should assist in the disposition of all the property, so far as he could do so, without exposing it to attachment by other creditors. Brown, the constable, then directed Chandler to deliver the sheep to L. & W. Tilden & Co.; but he refused to do so, without permission from Paine, or Silsby. Paine then gave a letter to David R. Tilden, to be carried to Chandler, informing Chandler, that he might deliver the sheep to Orrin Clark ; and the letter was carried to Chandler by Clark, who was in the employment of David R. Tilden. When David R. Tilden gave the letter to Clark, he told him, that Paine wished to see him, when he came back with the sheep. Clark, assisted by the son of David R. Tilden-, drove the sheep from Chandler’s to Northfield; and on his way he called on Paine, who asked him, if he was going to drive the sheep to Boyce’s. Clark told him, that he was, but that he should not have time that night; and Paine then directed him to tell Boyce to keep the sheep for him. Clark then drove the sheep to the village in Northfield, where David R. Tilden and Harvey Tilden lived; and, it being nearly night, the sheep were put into the garden adjoining the house in which David R. Tilden lived. The next day permission was obtained by Harvey Tilden to put the sheep into a garden lot adjoining the one in which they were kept that night, and with no fence separating them ; and the sheep were put into the latter lot, and Clark, by direction of David R. Tilden, built a fence between the two lots, so as to keep the sheep from the lot occupied by him. The sheep remained there a few days, and were fed from hay belonging to David R. Tilden, by a man in his employment, and' were then, by direction of David R. Tilden, driven to the farm of one Boyce, whom David R. had engaged to keep the sheep during the winter, — his brothers becoming responsible for the keeping. The testimony in the case proved, also, if believed, that Harvey Tilden took the assignment of the sheep at Chandler’s, for the benefit of himself and brothers, subject to Paine’s attachment, and expecting, from that time until the sheep were killed and disposed of by him, that the plaintiffs must be paid, before he could have any claim to the sheep, — or that, previous to the execution of the bill of sale above referred to, David R. Tilden having, by consent of Harvey, negotiated with Boyce an exchange of the sheep first attached for sixty four other sheep, Harvey consented, that David R. should give the plaintiffs a bill of sale of these last sheep, and should also deliver to the plaintiffs a note for $100, or 250 lbs. of wool, which he received from Boyce as the difference between the sheep,— which note David R. did accordingly deliver to the plaintiffs, and on which they received 245 lbs. of wool, and the balance in money, and credited the amount to David R. upon their claim against him, —and that after this Harvey Tilden always esteemed his claim as subject to the plaintiffs’ claim. Boyce knew that the sheep, while in his possession, and previous to April 12, 1842, were under an attachment in favor of Paine, or that he had a claim upon them, but had no communication from him until after the execution of the bill of sale. Paine, upon receiving the note from Boyce and the bill of sale of the sheep, discharged his attachment. The testimony tended to show, that the writ, on which this attachment was made, omitted, by mistake, the names of all the plaintiffs, except Paine. It was conceded, that Harvey Tilden killed and disposed of most of the sheep in the autumn of 1842, and that they were of value equal to the balance of the plaintiffs’ claim. All the propérty of David R. Tilden, which was disposed of by Harvey Tilden, was applied upon debts due from David R. Tilden, or to pay the expenses of keeping his property. The testimony also tended to show, that Paine was consulted by David R. Tilden respecting the exchange with Boyce, and consented to it, on condition that he could have, in lieu of his attachment, a bill of sale of the sheep received from Boyce, and the note given by Boyce for the difference. The testimony also tended to prove, that Paine did not send the letter, directing Chandler to deliver the sheep to Clark, with a view to release his lien, but directed David R., at the time, to have Clark call upon him, when he drove the sheep along, so that he might give him directions how the sheep should be kept, with a view to preserve his attachment, and that the sheep were kept out of David R. Tilden’s possession, with a view to preserve that attachment, until the exchange was made with Boyce. The plaintiffs called David R. Tilden as a witness; and he was objected to by the defendant Harvey Tilden, upon the ground that he was a party to the suit, and was interested, — and he was rejected by the court. The plaintiffs then delivered to the witness a release, under seal, of all indebtedness to them, except the judgment recovered against him in this action at the November Term, 1844; and the witness was thereupon admitted to testify. The plaintiffs also used one Clark as a witness; who was contradicted, in material parts of his testimony, by the defendants’ witnesses, and was also proved, with a view to impeach his credit, to have given different and contradictory accounts, respecting the subject matter of his testimony, from those sworn to by him in court; and the defendant also elicited facts from the witness on cross examination, tending very materially to discredit him. The plaintiffs thereupon called witnesses to support the general character of Clark for truth and veracity; to which the defendant objected; but the objection was overruled by the court. The defendant requested the court to charge the jury; — 1, That Paine, by putting his writ into the hands of an officer other than the one who made the first attachment, acquired no lien by his attachment of the sheep and the notice to Tilden ; — 2, That if his -attachment did create a legal lien upon the sheep, his directing dhandler to deliver the sheep to the servant of David R. Tilden was a full surrender of that lien ; — 3, That, if his lien were not surrendered, to the time of the exchange with Boyce, it did not extend to the sheep received from Boyce, even though that exchange were made with his consent; — 4, That Paine and David R. Tilden could not change Paine’s lien upon the sheep from an attachment to a mortgage, or pledge, without the consent of L. & W. Tilden & Co., or of Harvey Tilden, who acted for them. But the court instructed the jury, that the attachment would not be rendered absolutely void, by being made in the name of Paine alone, if so made by the mistake of the attorney, but that the writ might be amended by the court, as against David R. Tilden, if not objected to by him, or he might suffer judgment to be rendered against him, and if there were a bona fide debt due to the plaintiffs, and judgment were rendered only for the amount due, although the suit was not in the name of all the creditors, the judgment would not, on that account merely, be void; — that the court considered the attachment valid, if made as above described, so long as it was submitted to by David R. Tilden, if the plaintiffs had a bona fide debt against him; —that the court did not consider the attachment a nullity, because made by a different officer from the one who made the first attachment, for that, even after property is attached by one officer, another officer may attach it in favor of other creditors, but that, in order to do this, he must take possession of it, and, in so doing, will become liable to the first officer, to the extent of his lien, and may be sued in trespass, doubtless, — but still his attachment will be good; — that so, also, if he find the property in possession of a receiptor, and take possession of it, he may re-deliver it to him, and if he will consent to keep it, the attachment is good; — that, if the attachment were made in this manner, and Chandler were actually keeping the property for Paine’s officer, after all the other attachments were removed, the attachment was sufficient in that respect; — that if Paine gave the letter to Chandler merely with a view to have the sheep removed to Boyce’s and there kept under his attachment, that act would not dissolve it; — and that, if the sheep were kept over night in the garden adjoining the house of David R. Tilden, but without the consent of Paine, and were immediately put into a separate yard, and there kept, with a view to preserve Paine’s attachment, and this were known to Harvey Tilden, and he and his brothers took the assignment, knowing of Paine’s attachment, and not expecting to. derive any benefit from the property, until Paine’s claim were removed, and the sheep were subsequently removed to Boyce’s, in the manner attempted to be proved by the plaintiffs, and with the intention of preserving the plaintiffs’ attachment, and this were understood by Harvey Tilden, and then Paine, as the agent of the plaintiffs, and David R. Tilden exchanged the attachment for the note of Boyce and the bill of sale, to secure the same debt that had been secured by the attachment, this would not release the plaintiffs’ security, although it was done without the consent of Harvey Tilden, if he were made aware of the exchange, so that he was not misled by it and thereby induced to suppose, that Paine’s claim was abandoned, — but that the mere fact, that the change of the form of the security was made without the consent of Harvey Tilden, would not postpone the plaintiffs’ claim to his, if it had all along been esteemed prior, and Harvey had consented to the exchange of the sheep with Boyce ; — that if this were the state of the case, and Harvey Tilden had killed and disposed of the sheep, he would be liable in this form of action, to the extent of the portion of the plaintiffs’ debt still remaining unpaid, and no farther, provided that did not exceed the value of the sheep; — that if the plaintiffs’ case were not made out in this view, they would say, whether, from the proof, they were satisfied, that, at the time David R. Tilden delivered to the plaintiffs the note of Boyce and executed to them the bill of sale, Harvey Tilden consented he should do so, — for that the plaintiffs would be entitled to recover to the same extent upon that ground. The jury returned a verdict for the plaintiffs, for $48,45. Exceptions by the defendant Harvey Tilden. 1. A defendant in an action of tort cannot be a witness for the plaintiff, — although he may be for a co-defendant, after he is discharged for want of evidence against him. Chapman v. Graves, 2 Camp. 333. Brown v. Brown, 4 Taunt. 753. 2 Stark. Ev. 765. 3 lb. 1063. When a co-trespasser suffers judgment to pass by default, he is a competent witness for a co-defendant, but not for the plaintiff. 2 Stark. Ev. 769, n. 9. B. N. P. 285. Worrall v. Jones, 20 E. C. L. 177. Emmet v. Butler et al., 7 Taunt. 599. Maní v. Mainwaring et al., 8 Taunt. 139. 13 Pick. 125. The discharge given to David R. Tilden can have no effect; for it does not profess to discharge him from the tort, for which the defendant is sought to be made liable. 2. Testimony in support of the general character of a witness is inadmissible, unless his evidence is attacked by evidence other than that given by him on cross examination. 1 Stark. Ev. 221. Rex v. Clarice, 2 Stark R. 241. Wallcer v. Stephenson, 3 Esp. R. 284. 4 lb. 50. 1 Camp. 207, n. 8 Pick. 143, 154. Rogers v. Moore, 10 Conn. 13. 3. There was error in the refusal of the court to charge the jury as requested. The plaintiffs acquired no lien on the sheep by the attempted service of their writ by Silsby. Burroughs v. Wright, 16 Vt. 619. Watson v. Todd et al. 5 Mass. 271. When a plaintiff does any act, whereby he discharges the officer, he thereby loses his lien by the attachment. By Paine’s directions to Chandler the officer was released from all liability. It is not competent for the plaintiff and debtor to make an exchange, or transfer to another chattel, a lien created by attachment, and thereby defeat the rights of third persons. When a third person has acquired an interest in a chattel attached, if the attaching creditor intend to preserve his lien, he must pursue the course prescribed by law, or obtain the consent of all persons concerned; otherwise his lien is lost. Murray v. Eldridge, 2 Vt. 388. Hall v. Walhridge, 2 Aik. 215. 4. There was error in the charge. The omission to join all the plaintiffs, in the suit upon which the sheep were attached, rendered the attachment void as to third persons. The proposition submitted to the jury, in relation to the service of the plaintiffs’ writ by Silsby, was calculated to mislead them, and should not have been submitted, both for the reason, as the exceptions show, that he took no possession of the sheep, and because it is a question of law, whether the plaintiffs thereby acquired any lien. There was also error, in relation to the effect of Paine’s letter to Chandler, and relative to what was afterwards done with the sheep. The defendant acquired an interest in them; and his claim could not be defeated by the plaintiffs, without pursuing a legal course in the disposition of the sheep attached. I. David R. Tilden was a competent witness, without a discharge. If the plaintiffs recover, the value of the property goes in satisfaction of their debt. Should the plaintiffs lose, then the property is to be accounted for by L. & W. Tilden & Co., and pays so much of his debt to them. Ridley v. Taylor, 13 East 175. Frost v. Hill, 3 Wend. 386. 3 Fairf. 371. But the discharge removes all objec-tion, and leaves the witness standing like any joint trespasser. West v. Bolton, 4 Vt. 558. Kimball v. Lamp son, 2 lb. 138. Brown v. Marsh, 8 lb. 310. Morris v. Daubigny, 16 E. C. L. 402. 1 Phil. Ev. 41. If the witness is now to be regarded as a party to the record, his evidence for that reason is not to be rejected. Flint v. Ally n et al. 12 Vt. 615. Pipe v. Steele et al., 42 E. C. L. 888. Wor-rall v. Jones et al., 20 E. C. L. 177. Norden v. Williamson, 1 Taunt. 378. Cowles v. Whitman, 10 Conn. 124. Woodruff v. Westcott, 12 lb. 134. Johnson v. Blackman, 11 lb. 342. 2. The evidence to support the character of Clarke was properly received. State v. Roe, 12 Vt. 93. 1 Greenl. Ev. 549. Proms v. Reed, 5 Bing. 435. Gibbs et al. v. Linslei/, 13 Vt. 208. Rex v. Clark, 2 Stark. R. 241. 3. The writ, on which the sheep were attached, was not void, because all the plaintiffs were not parties. It was optional with the defendant in that case to take the objection, or not. If the debt were bona fide, his creditors had no ground for complaint. 4. Chandler’s agreeing to keep the sheep for Silsby, who served Paine’s writ, was, in effect, the same as though Silsby had taken the sheep from Chandler’s possession. At all events, after the former attachments were dissolved, Paine’s lien, by virtue of his attachment, would attach, — wore especially, when Harvey Tilden took the transfer of the sheep with knowledge of this attachment, and with the understanding, that his right was subject to it. Hall v. Walbridge, 2 Aik. 215. 5. The writing to Chandler, to deliver the sheep to Clark, was not of itself an abandonment of the attachment. Whether it was to have that effect depended upon the intention of the parties, — which was a question of fact for the jury. 6. If the plaintiffs’ lien, created by the attachment, was preserved until the exchange with Boyce, and L. & W. Tilden & Co. took their assignment with knowledge of and subject to the plaintiffs’ lien, and agreed to the exchange with Boyce, and were apprised of the execution of the bill of sale to the plaintiffs, they cannot, by any legal or moral rule, claim priority over the plaintiffs. And if they consented to the execution of the bill of sale, they are certainly bound by it.