majority">

The opinion of the court was delivered by

WheeleR, J.

This case has been three times argued, without producing unanimity. of judgment among the members of the court who have heard it at either time ; but enough have concurred to dispose of it, and nearly all agree to the result now *154reached. Upon the facts reported, there would seem to be no good ground to doubt but that the defendant Drusilla Watkins, both in fraudulent purpose and wrongful act, after the decease of the intestate and before the granting of letters of administration, did embezzle the bonds for which this suit is brought, and had at the time the administration was granted, so far converted them to her own use, that if the administrator had then brought this suit to charge her for them, he would have been entitled to recover in it the full double value of them. Nor does there appear to be any good ground to question but that the defendant Cook so know of her purpose, and participated with and aided her in the wrongful act for which she made herself liable, that he made himself just as liable as she was. At that time the embezzlement by both was complete, although all of their acts which show their purpose in what they had done prior to that time, had not then been done. These later acts, although they would create no liability under this statute, afford competent and ample evidence that the former acts amounted to the very thing that the statute was aimed at. The facts reported show further,' that as to the coupons cut from the bonds by the defendant Watkins on the 8th day of September, 1869, the day before administration granted, and sold by the defendant Cook for her, she had not only embezzled them, but had alienated them before administration so as to make herself liable under that branch of the statute relating to alienation, and that the defendant Cook had so aided and abetted her in that act as to be equally liable for it with her. And these coupons were not only in that way converted, in law, to her use, but were so disposed of that they could not be and were not ever restored to the estate. But the administrator, when he had taken measures that apprized him of what the defendants had done, did not choose to, and did not in fact, stand upon the right of action for double the value of the property that had accrued to him against the defendants, but followed the specific property itself, and recovered it all except the coupons mentioned, from them to himself, for the estate. The important question in the case, and the one about which the most difficulty has been experienced, is, as to the effect of that recovery of the property. *155The statute makes the person embezzling or alienating, chargeable and liable to the action of the executor or administrator, without prescribing any form of action, leaving that to the common law— although! doubtless, the action would have to be brought expressly for the double amount or value, in order to recover it — and gives no new right other than by such an action. And the right it does so give, although in some sense, and in that sense it is sometimes spoken of in cases and books, it is as to once the value of the property, penal, is still remedial, and merely gives the enhanced damages by way of making greater compensation to the party injured on account of the nature of the wrong recovered for. The right of recovery remains the same as it would have been without the statute ; but when the right is established, the statute comes in and provides for the amount of recovery as a measure of damages merely. McCarty v. Guild, 12 Met. 291; Burnett v. Ward, 42 Vt. 80. In an ’action brought when this one was, to recover common-law damages only, the plaintiff could have recovered no more than merely nominal damages for the technical conversion of the bonds themselves, because they had been returned to and received by him, without being in any wise lessened in value. For the coupons, his right of recovery would have been measured by their value at the time of conversion, lessened by the amount he had received on account of them. He could not have recovered anything for the value of the bonds, for those, and the value of them, he then fully had. He could recover for the coupons and for their value, because he did not, and the defendants did, have them, but would have to suffer a reduction of his recovery on account of what had been paid him toward it, not because his right of recovery was that much less, but because he had received so much toward it. Chamberlain v. Murphy, 41 Vt. 110. In this action, brought for the same things, precisely, that the other would have been brought for, the first question i,s as to what property the plaintiff can recover once the value, or single damages for. The answer must be, not for the' bonds, for he has them-already ; and not for the mere technical conversion of them, for the statute only gives recovery for amount or value. There being no right of recovery for once the value *156of the bonds, there can be none, a fortiori, for twice their value. The answer further must be, that the plaintiff can recover once the value of the coupons ; and by force of the statute .this right of recovery is extended to twice their value, and this amount is to be lessened by the amount the plaintiff has received on account of them towards his damages. The value of the coupons is found to be one hundred sixty-eight dollars. The plaintiff’s right of recovery in this action measures twice that sum, and as he has received once that sum on account of them, there is left to him the right to judgment for that sum again. That judgment he was entitled to at the time the judgment in the County Court was rendered, and he is entitled to the same now, with interest on it from then till now.

Judgment reversed, and judgment on report for plaintiff for one hundred sixty-eight dollars damages, with interest from the time of judgment in the County Court.

Citation profile

Relationships

How this case has been treated — in progress