
    *Fechheimer v. National Exch. Bank of Norfolk.
    March Term, 1879,
    
    Richmond.
    I# & S carried on two stores in Norfolk, on premises of which they held leases. On the 8th of May, 1866, they conveyed to F all their goods in these stores, all debts due them, and the leasehold premises, in trust to pay certain specified debts, -with authority to take possession, sell the goods,, and collect the. debts. On the 15th of May W sued E & S in assumpsit for $913.30, .and on the. same day sued out an attachment against their effects, and this attachment was levied on all the goods and debts at the two stores, which were taken possession of by the sergeant of the city. On the same 15th of May, but two or three hours after the■ attach-, ment of \Y was levied, the National Exchange Bank of Norfolk sued,out art attachment against the prop-, erty of E & S, claiming a debt of $11,665, and this attachment was levied by the sáfne officer upon the-goods, &c., in his hands .under the other attachment, arid also upon the leaseholds of the two houses. In this case F interpleaded, and there was a verdict and judgment in his favor; and afterwards the suit of W was dismissed. F then sued the Bank in an action of trespass -on .the -case* ■for 'the damages he had sustained by the levy of their attachment—
    1. Practice — Remedies.—Though at common law action on the case was the proper remedy' so far as the goods, &c., 'embraced in the first attachment were' involved, and trespass vi et'armis, was the remedy as to the "leaseholds which were not levied on by the first, yet as'under the'Virginia statute case may be brought’wherever the action of trespass vi et armis could be brought, the action on the case was 'properly brought to recover the'damages sustained as to all the property attached.
    2. Wrongful Levy — Damages.—F has a right to recover from the Bank all the 'damages he has sustained by the levy of the attachment of the Bank upon two storehouses held under lease, and the withholding the possession from him.
    *3. Joint and Several Liability.— If the attaching creditors had been joint trespassers in seizing and detaining the attached effects, then they would have been jointly and severally liable for* the whole amount of the damage resulting from such joint trespass. But their acts in so seizing and detaining said effects having been several, they are liable severally for the damage resulting from their several act.
    4. Evid ence — Admissibility.—The attachments and returns of the officer thereon showing that the property was held under both attachments, parol evidence is not admissible to prove that it was held exclusively under the first attachment.
    5. Same — Purposes of Admission. — If the plaintiff seeks to introduce a copy of the record in the attachment suit for the purpose of showing the existence of- said record and how the case therein mentioned had been disposed of, it can only be done by its being introduced for all the purposes for which it may properly be available to either party.
    This was an action of trespass on the case in the circuit court of the city of Norfolk, brought in September, 1867, by Martin S. Eechheimer against the National Exchange Bank of Norfolk, to recover the damages alleged by the plaintiff to have been sustained by the levy of an attachment, at the suit of the said National Exchange Bank of Norfolk, upon certain goods, wares and-merchandise, debts, books, &c., and two leasehold interests in two storehouses, all in the city of Norfolk, the same having been attached as the property of Eublin' & Steiner, but which the plaintiff claimed to'be his, .and to have been in his possession at the time of the levy. On the trial of the cause there was a verdict and judgment for the defendant, and a writ of error to this court.-
    In‘the progress of the trial the plaintiff took several exceptions to rulings of the court, marked, respectively, A, B, .0, D. .E and E, the last being to the refusal of the court to set aside the verdict on the grounds that the verdict was contrary to the law and the evidence, and that the court had given an erroneous instruction to the jury at the instance of the defendant, •and had refused to give an instruction asked for by the plaintiff. In this exception all the.-facts proved are set out.
    It appeared that Eublin & Steiner were merchants carrying on two stores ■ in the city of Norfolk, in houses which they held under leases. One of these was No. 9 east Market square, and the other No. 11 east Main street. On the 8th of May, 1866, they conveyed to the plaintiff, Eechheimer, all their goods in these stores, -all - debts due them, and the leaseholds, in trust to pay certain debts named in a schedule attached to the deed, with authority to take possession and sell the goods and collect the debts, and for this purpose to employ the necessary agents and clerks to attend to the business.
    On the 15th of May. 1866, Wm. T. Dixon & Brother sued Dublin & Steiner in assump-sit in the corporation court of the city of Norfolk to recover a debt of $913.30, which they claimed to be due them; and on the same day sued out an attachment against their effects. And this attachment was levied on all the goods and debts at the two stores, which were taken possession of by the sergeant of the city. These plaintiffs did not file a declaration in their action, and at the September term (1866) of the court the suit was dismissed by order of the court. The record in this case is referred to as No. 2.
    On the same 15th of May. 1866, but two -or three hours after the attachment of Dixon & Bro. was levied, the National Exchange Bank of Norfolk sued out an attach'ment against the property of Dublin & Steiner, claiming a debt of $11,665.47, and this attachment was levied by the same officer upon the goods, &c.. in his hands under the other attachment, and also upon the leaseholds of the two storehouses.
    *Fn this case Eechheimer inter-pleaded, claiming that all the property levied on was his, and that he was in possession of it at the time of the levy of the attachment. This attachment case came on to be tried at the July term of the court, and after a trial which lasted from the 5th to the 25th of the month, the jury found a verdict that “Eechheimer has title to the property . levied upon by the attachment sued out by the National Exchange Rank of Norfolk,” and the court rendered a judgment that the said prop- ’ erty be discharged from the said levy, and that the sergeant of the city do forthwith deliver the said property to the said Eechheimer, his agents or attorneys; but this order is not to affect the authority of the said sergeant to hold the same for any other cause than the . levy aforesaid. This case is referred to in this cause as record No. 1. The other facts in the case, and the questions involved in the exceptions, are sufficiently stated by JUDGE MONCURE in his opinion.
    Scarburg & Duffield, for the appellant.
    W. IT. C. Ellis, for the appellee.
   MONCURE, E.,

delivered the opinion of the court.

The court is of opinion that the circuit court erred in overruling the motion of the plaintiff in error to set aside the verdict and grant him a new trial, “because the said verdict is contrary to law and to the evidence produced before the jury at the trial of this cause,'’ as stated in the last bill of exceptions, marked “F,” in which are certi- ■ fied the facts proved at the trial of cause.

It was proved as a fact in the cause, that at the time of the levy of the attachment referred to in said certificate *sued out by the defendant, the National E)x-change Bank of Norfolk, against the estate of T.ubb'n & Steiner for the amount of a debt of which the principal was $11,665.47, claimed by the former to be due to it by the latter, the property so levied on, to-wit: “all the goods, wares and merchandise, consisting of boots, shoes, &c.. at the stores No. 9 Market square and 11 Main street, Norfolk, Virginia, and also on the unexpired terms of the leases of said stores,” was the property of the said plaintiff in error, Martin S. Eechheimer, as claimed by him, and not the property of the said Dublin & Steiner, as contended by the defendant in error, the National Exchange Bank of Norfolk, aforesaid. It also appears from the facts set forth in said certificate that the said attachment was levied on the said property at the instance and request of the said defendant in error. And although it appears that at the time of such levy the said property, except “the unexpired terms of the leases of said stores,” was subject to a levy which had previously, on the same day, been made thereon by the same officer, under another attachment sued out in the same court by William T. Dixon & Brother against the estate of the said Dublin & Steiner, for a debt claimed by the former to be due to them by the latter, the principal of which is $913.30, with interest and costs; and that the said property on which the attachment in favor of William T. Dixon & Brother was levied as aforesaid, remained subject to both of the said attachments until the 25th day of July, 1866, when a verdict and judgment were rendered in favor of the plaintiff in error, the said Martin S. Eech-heimer, on his petition of interpleader in the said attachment case of the National Exchange Bank of Norfolk against the said Dublin & Steiner, and continued subject to the said attachment in favor of the said William T. Dixon & Brother until two or three days after the day and year last aforesaid, when possession of *the said property was delivered by the sergeant to the plaintiff, Martin S. Eechheimer, by the direction of the counsel of the said Dixon & Brother, upon the advice of the counsel of the National E)x-change - Bank of Norfolk aforesaid, to the counsel of the said Dixon & Brother, for the reason .that the said Martin S. Eechheimer had established his title to the said property.

Without deciding, therefore, what amount of damage the plaintiff is entitled to recover, for the seizure and detention of his said property, against the defendant under the said attachment of the latter — that being a question of fact for the jury to decide, with the aid of the court in the solution of any question of law which may arise in the course of enquiry as to the said fact — it seems to be very clear that there ought to have been a verdict and judgment in the cause in favor of the said plaintiff instead of the said defendant, and that the circuit court therefore erred in overruling the motion of the plaintiff to set aside the verdict and grant him a new trial as aforesaid.

In regard to the unexpired term of the leases of said stores, which was conveyed with the other property aforesaid by said Dublin & Steiner to said Eechheimer, the same was not included in the lew of the said attachment in favor of the said Dixon & Brother, but was included in the levy of the said attachment in favor of the National Exchange Bank of Norfolk aforesaid. For damages arising from the unlawful seizure and detention of the said leasehold estates under the said attachment in favor of the National Exchange Bank of Norfolk against the said Lublin & Steiner, an action of trespass vi et armis at common law was the proper remedy. And the Code, ch. 145, § 6, p. 995, provides that “in any case in which an action of trespass will lie, there may be maintained an action of trespass on the case.” The latter is the form of action in this case. It is perfectly clear, therefore, that in regard to the said leasehold estates, the *right of action exists; and that is enough to show that the circuit court erred in overruling the motion to set aside the verdict and grant a new trial as aforesaid. ■

But in regard to the other property on which the said attachment in favor of the National Exchange Bank of Norfolk was levied — being the same property on which the said attachment in favor of said Dixon & Brother was levied as aforesaid — both of the said attachments were actually levied on the said property, and were certainly intended so to be by the plaintiffs therein respectively. Certainly the detention of the said property thereafter by the officer who made the said levies was with the consent and approbation and upon the responsibility of the plaintiffs respectively, at whose instance the said property was so detained. It is unnecessary, and would be premature now, to decide in what proportion the said plaintiffs would be so liable. That several attachments may successively be levied upon the same property, is perfectly clear and a fact of frequent occurrence. It would be strange if by levying an attachment for a small debt upon property worth ten .times the amount of the debt, the property should be exempt from the levy of any other attachment until it should be discharged from the first attachment. The Code, ch. 148, § 26, p. 1015, expressly provides that “the attachment first served on the same property, or on the 'person- having the property in possession,-shall have priority of lien.” Certainly the levy of the second attachment in this case on the property in, question was at the instance and with the consent of the attaching creditor and his counsel, and the said creditor is therefore liable for any damages which may be sustained by any person by reason of a wrongful seizure or detention of such property. In this case the debt claimed by the first attaching creditor was small corn-pared with that claimed *by the second attaching creditor. It is not improbable that if the first had been the only attachment in the case, there might have been a replevin of the property, which would have prevented any damage to the claimant by reason of the seizure and detention of the property; whereas the large amount of the aggregate of the claims of the two attaching creditors might have deterred or prevented the claimant from replevying it. But we repeat that we do not mean to intimate in this opinion, in the slightest degree, what ought to be the measure and proportion of the damages to which the different attaching creditors would or ought to be held liable in such a case. At common law the form of .'action against the second attaching creditor for the seizure and detention of the same property levied upon by the first attaching creditor would have been trespass on the case, the form pursued in this instance. But as by the statute now in force, that form may be pursued when the cause of action is trespass vi et armis, therefore one action of trespass on the case will cover a cause of action, though at common law, as to part of it, trespass on the case, and. as to the other part, trespass vi et armis, would have been the proper remedy.

The court having thus disposed of the principal question in the case, to-wit: whether the circuit court erred in overruling the defendant’s motion for a new trial because the verdict was contrary to the law and the evidence,.which arises on the last bill of exceptions. in the case, marked “F,” will now take notice of the other bills of exceptions, or such of them as may seem to require notice. And first, as to

Bill of exceptions marked “A”:

We do not think that the circuit court erred in refusing to give the instruction asked for by the plaintiff as mentioned in that bill of exceptions. That instruction assumes that the defendant is liable for the whole amount *of damage sustained by the plaintiff from the seizure and detention of his property therein mentioned, without regard to any liability therefor of the first attaching creditors. If the attaching creditors had been joint trespassers in seizing and detaining the attachments, then such trespassers would have been jointly and severally liable for the whole amount of thé damage resulting from such joint trespass. But their acts in so seizing and detaining said effects were several; and they are only liable severally for the damage resulting from their several acts. The instruction, in the form in which it was asked for, was calculated to mislead the jury, and ought to have been so modified as to inform the jury of the extent of the appellee’s liability as aforesaid. Second, as to

Bill of. exceptions marked “B”:

We think that the circuit court erred in refusing to give the instruction asked for by the plaintiff, and set out in this bill of exceptions; which is, that if the jury believe from the evidence that it proves what it tends to prove as stated in said bill, then the levies mentioned in the said first bill of exceptions, marked “A,” and which were made upon the goods, wares and merchandise and leaseholds mentioned in the said first bill were wrongful, and that as to the said leaseholds the defendant in this action is liable to the plaintiff in this action for damages therefor, and also for the detention of the said leaseholds from the possession of the said plaintiff, and that the defendant’s said liability is for such damages as will compensate the plaintiff for the injury sustained by him as to the said leaseholds by reason of the said levies and the detention aforesaid of the said leaseholds from the possession of the said plaintiff. The attachment in favor of the National Exchange Bank of Norfolk, but not' the attachment in favor of Wm. T. Dixon & Bro., having, *been levied upon the said leaseholds, the former plaintiff is exclusively liable for the said damages. Third, as to

Bill of exceptions marked “C”:

We think the circuit court erred in overruling the objection of the plaintiff to the introduction of “W. H. C. Ellis, a witness, to testify that the sergeant of the city of Norfolk held the goods, wares and merchandise and leaseholds mentioned in the said first bill of exceptions, marked ‘A,’ as aforesaid. under, or under color of. the attachment mentioned in the record set out in the plaintiff’s said first bill of exceptions, of which the No. 3 therein mentioned is a copy, and not under, or under color of, the attachment mentioned in the record set out in the plaintiff’s said first bill of exceptions, of which the No. 1 therein mentioned is a copy.” We think -that the said attachments and returns thereon show that the said goods, &c., and leaseholds were not held by the said sergeant, as the testimony of the said witness tends to show they were held, and cannot be contradicted by parol testimony. Fourth, as to

Bill of exception marked “D”:

It is stated in that bill, that at the trial of the cause “the plaintiff, to maintain the issue joined on his part, offered to introduce in evidence before the jury an authenticated copy of a record, which is the same mentioned in the plaintiff’s first bill of exceptions marked ‘A,’ and is therein referred to as marked ‘No. 3,’ for the purpose of showing the existence of said record and how the case therein mentioned had been disposed of; but the defendant, by its counsel, objected to the introduction of the said copy of the said record in evidence before the jury, unless the same should be introduced for all the purposes for which it might be properly available to either party; and the court sustained the said objection of the defendant, and refused to allow the said copy of the said record to be introduced in evidence, unless the same should be introduced by both parties for all the purposes for which it might properly be available to either party; to which ruling of the court the plaintiff excepted,” &c.; “and then the plaintiff introduced in evidence the said copy of the said record, reserving the benefit of and not waiving his said exception.” We think there is no error in the said ruling of the court. Fifth, and lastly, as to

Bill of exceptions marked “E”:

It is stated in that bill, that after the jury were sworn to try the issue joined in the case, and after all the evidence on both sides had been produced, which evidence tends to prove the facts certified in the plaintiff’s sixth bill of exceptions, marked “F,” the defendant moved the court to instruct the jury as follows:

“If the jury believe from the evidence that before the attachment of the National Exchange Bank against Dublin & Steiner was levied by the sergeant, he had taken the property in his return mentioned out of the possession of Dublin & Steiner or Fechheimer, by virtue or under color of a prior attachment issued in the suit of Dixon & Bro., then pending, and that he kept the actual possession of said property and held the same by virtue or under color of the said attachment of Dixon & Bro. until and after the verdict of the jury and the judgment of the court in the case mentioned in the record of which the No. 1 mentioned in the plaintiff’s first bill of exceptions (‘A’) is a copy, and then delivered the said property to the said Fechheimer in consequence of the instructions of said Dixon & Bro., or their counsel. so to do, they ought to find for the defendant.”

The court gave the said instruction, to which the plaintiff excepted.

*We think that the record shows that after the attachment of the National Exchange Bank against Dublin & 'Steiner was levied by the sergeant, which was on the same day, though after the attachment of said Dixon & Bro. was levied, he kept the actual possession of said property, and held the same by virtue or under color of both of the said attachments until and after the verdict of the jury and the judgment of the court on the said verdict in favor of the said Fechheimer, on his interpleader, in the attachment of the National Exchange Bank of Norfolk aforesaid, and then delivered the said property to the said Fechheimer, in consequence both of the said verdict and judgment in favor of the said Fechheimer, and of the instructions of said Dixon & Bro., or their counsel so to do. The said instruction was therefore not warranted by the facts of the case as certified by the court, which erred in giving the said instruction to the jury. The court is therefore of the opinion that the judgment of the said circuit court, to which a writ of error and supersedeas were awarded by this court in this case is erroneous for the reasons and on the grounds aforesaid, and ought to be reversed and annulled, the said verdict set aside, and the cause remanded to the said circuit court for a new trial to be had therein in conformity with the foregoing opinion.

The judgment was as follows:

The court is of opinion, for reasons stated in a written opinion of the court, filed with the record, that the said judgment of the said corporation court is erroneus. Therefore it is considered and adjudged that the said judgment be reversed and annulled, and that the plaintiff recover against the defendant his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid -diere. And it is further considered and adjudged that the verdict rendered by the jury in the said case be set aside, and the cause remanded to the said corporation court for a new trial to be had therein in conformity with the said opinion filed as aforesaid; which is ordered to be certified to the said corporation court of the city of Norfolk.

Judgment reversed.  