There being no evidence of title in a third person, the plaintiff's possession was sufficient to enable him to maintain this action. Bartlett v. Hoyt, 29 N.H. 317. The judgment in the replevin suit was not on the merits, and was no bar to the plaintiff's recovery. Holton v. Gleason,26 N.H. 501; Demerit v. Lyford, 27 N.H. 541. Nor is the plaintiff estopped by his receipt, even if it were in the common form. Barron v. Cobleigh,11 N.H. 557; Morse v. Hurd, 17 N.H. 246; Robinson v. Mansfield, 13 Pick. 139.
By the attachment, the defendant was guilty of a tort, for which he is liable, but he contends that the plaintiff can only recover nominal damages. That might be so if the case stopped with the attachment; but when the defendant took the property from the plaintiff's possession on the execution, he committed another tort, for which he is liable in damages, and, having recovered in the replevin suit the full value of the property, he is answerable as if he had the property itself, or had received its value from some other person. The plaintiff did not waive his right to the property by delivering it in response to the defendant's demand.
Case discharged.
FOSTER J., did not sit.