The opinion of the court was delivered by
Bennett, J.As in this case, the defendants, after pleading the general issue, have given notice that they shall justify the *452entry under process of law, the whole merits of the question are opened by this form of pleading on both sides; and a new assignment is not necessary to enable the plaintiffs to recover on the matter alleged in the declaration by way of aggravation, as for a distinct and substantive cause of action; Alsop v. Price, Douglas 160; Hubbell v. Wheeler, 2 Aikens 359.
The plaintiffs are then entitled to have the whole merits of their case considered. The main and important question in the case involves the inquiry whether the property sold on the execution is to be treated as personal estate, or as a part of the realty. If as a part of the realty, it would pass under the mortgage. Since the recent case of Hill v. Wentworth, 28 Vt. 429; in which the doctrine in relation to fixtures was considered somewhat at length, it can not be necessary, nor hardly expedient to go over the same ground again. The doctrine of that case is, that if articles of machinery, used in a factory for manufacturing purposes, are only attached to the building to keep them steady and in their place, so that their use, as chattels, may be more beneficial, and are attached in such a way that they can be removed without any essential injury to the freehold, or to the articles themselves, they still remain personal property. The exceptions in the case at bar, detail the particular manner in which the machinery was annexed to the building, and also state the facts that the building was erected for a bedstead shop, and the machinery placed in it after it was finished and for the purpose of carrying on the business for which the shop was designed, and that there was no difficulty in removing the machinery, and that it was in point of fact removed without material injury to the freehold or to the machinery. The shop, it is found, could be used for any purpose for which such buildings are adapted, either by putting in new machinery of the like kind, or for other purposes, as the owner might elect. All the large and principal machinery was, in fact, set up in another shop in the same town.
The case also finds, that the plaintiffs themselves, treated this machinery as personal property, at the time they took possession of the mortgaged property under the foreclosure.
This case is obviously within the principles of the case of Hill v. Wentworth. When there is no controversy about the facts, the *453character of the property, whether it is to be regarded as personal or real, becomes a question of law, and the court might well charge the jury, that as matter of law, the machinery in question was personal property, and liable to attachment on the debts of Crossett. The officer, if refused admittance into the building by Fullam, had a right, after a request to be admitted and a refusal, to break into the building, using so much force as was necessary and no more. The building was not the castle of Fullam, although he was in the actual possession, and the outer door could not protect his chattels from attachment, and much less the chattels of a third person. The plaintiffs have no ground to .complain of this part of the charge.
As the officer had the right to levy on the machinery, he must have the right to remove it froih the building, exercising all reasonable care in so doing, and if some small injury was done unintentionally in so doing, the officer should not, for such cause, be made a trespasser, ab initio. ■ He was in the exercise of a legal right, and if he used reasonable care, he exercised the right in a legal manner. The jury were, in fact, charged that the officer must not act willfully, rashly, maliciously or wantonly.
The court below, in effect, assumed in their charge, that if the officer continued in the possession of the building, keeping the property levied upon in it, and persisted in holding the auction in the shop, against the will of Fullam, he became a trespasser, ab initio.
Of this, the plaintiffs can not complain.
The case shows that the defendants gave evidence tending to show that Fullam did not forbid their selling the property in the mill and shop, and that he employed a man to bid on the machinery, and that he himself was in the mill a part of the time, and waived all objections to the officers selling the property in the mill. If Fullam waived all objections to the officers selling in the mill, he can not now complain of that. The jury have found the sale was made in the mill by the consent of Fullam, and that the nuts, wrenches and screws were taken or lost by the bidders, without the knowledge of the defendants.
Upon such a state of facts, the defendants can not be made liable for the acts of the bidders, and this was not even claimed on the argument.
*454It seems the platform was nailed to the sills of one of the lathes, to which it was attached, and that this lathe could not be removed without taking the platform to pieces, and that some of the machinery could not be conveniently removed without taking down the partition, which had been put up at one end of the lathe to secure the shavings from falling into the com cracker in the grist mill. The design of the platform was to accommodate the operator better in the use of the lathe, and it can hardly be regarded as a permanent part of the mill. We think the officer had the right to remove the platform and the partition in a proper manner, if found necessary, and the case finds that the machinery was removed without material injury to the mill, or the machinery itself.
It is claimed that at all events, it was the duty of the officer to have replaced the platform and the partition. Rut when the machinery was removed, the use of the platform and of the partition was superseded, and if it had been the duty of the officer to have replaced and repaired them, the omission to do it, would have been but a non feasance, and the officer could not by such neglect, have been made a trespasser, ab initio.
We have more difficulty in relation to the manner in which the court put the case to the jury, relative to the bands or belts. The case is not put to them upon the ground that it was necessary to cut the thongs with which the bands were laced or fastened together.
It could not have so been, for the case says the evidence went to show that they could have been easily taken out without cutting.
With reference to the value of the thongs, the case should have been put to the'jury upon the ground that they found just what the defendants’ testimony tended to prove, and nothing more, and that was “ that the thongs were considerably worn and of small value." The court were not warranted upon such evidence to put the case to the jury upon the hypothesis that they should find the thongs, to be old, worn out and nearly worthless. The court should have charged the jury as to what the law would have been, had the jury found the thongs to have been “ considerably worn and of small value.” Would the court, upon such a finding, apply the maxim de minimis non curat lex? While on the one hand, we should be unwilling to hold out inducements to useless and vindictive litigation we should on the other, be slow to violate and *455set aside well settled principles. To give a right of action, it has often been said there must be both an injury and a damage, and it has been as often said that evéry violation of a right imports some damage, and if none other be proved, the law allows a nominal damage. See Whitemore v. Cutter, 1 Gallison 429. The maxim, “de minimis non curat lex” I apprehend, whenever it is applied correctly to take away a right of recovery, has reference to the injury, and not to the resulting damage.
If a person has a right to vote at an election, and he is refused this right, he may have his action, even though the person, for whom he proposed to vote, should chance to be elected. Ashley v. White, Lord Ray 938. So if a sheriff neglect to return an execution, the creditor may have his action for nominal damages; although no damage appeared to have resulted from the neglect. Kidder v. Barker, 18 Vt. 454. In the case of Clifton v. Hooper, 6 Adolphus & Ellis, N. S. 467, in an action for not executing a ca. sa., the jury found the defendant in default, but that the plaintiff had sustained no damage, and still judgment was given for the plaintiff for nominal damages. Lord Denman in that case said : “ that where a clear right of a party was invaded, in consequence of another’s breach of duty, he must be entitled to an action against .that party for some amount, and that there was no authority to the contrary.”
In Ashley v. White, 2 Lord Ray, it is said by Lord Holt, “ that every injury to a right imports a damage in the nature of it, though there be no pecuniary loss.” See also, Barker v. Green, 2 Bingham 317. The case of Williams v. Moyston, 4 M. & W. 145, is not in conflict with Clifton v. Hooper. In that case the distinction beetwen mesne and final process is well taken. In the case of mesne process, no right of the creditor is violated by an escape, unless he is delayed in his suit thereby, or has sustained actual damage. The creditor, it is said in that case, simply had the right to have the sheriff keen the prisoner ready to be removed at any time the plaintiff might elect, by habeas corpus, into the superior court, there to be charged with a declaration, or to be declared against as in the custody of the sheriff. The right of the plaintiff was correlative to the duty of the sheriff, and unless the plaintiff was delayed in his suit by reason of the escape, no right *456of his had been violated; but if delayed, though for ever so short a time, a right had.been violated, and he has his action. See also, Cady v. Huntingdon, 1 N. H. 138. So in Young v. Spear, 10 B. & C. 145, the action was by the person who had the reversionary interest against a lessee, and the court refused to allow nominal damages for a wrongful act of the lessee, which did not injure the estate in reversion. Here also, no right of the reversioner was violated. A legal right must be violated, and a damage ensue; but actual, perceptible damages are not indispensable, and they will be presumed to follow. Embury v. Owen, 6 Exch. 352, 372; Williams v. Esling, 4 Barr 486. The maxim, “ de minimis non curat lex” has been applied to claims for tithes, where the quantity was small and involuntarily left upon the ground in the process of raking; yet, if there is a fraud, or an intention to deprive the person of his right, the maxim will not be applied to cut off his right of recovery, though the quantity be small, and in Glanville v. Stacy, 6 B. & C., the plaintiff had a judgment on his verdict for three shillings, and in the Seneca Railroad Company v. Auburn Railroad Company, 5 Hill 175, it is said the maxim “ de minimis,” etc., is never applied to a positive and wrongful invasion of anothers property; and I apprehend it may at least be safe to say, it should never in such cases be applied, to cut off a recovery, where the positive and wrongful act causes damages, which can be fairly valued. The damage done to the plaintiff’s property by cutting their thongs, which fastened the bands together, though “ considerably worn and of small value,” could be estimated, and we can not say that he shall not recover them. In Paul v. Slason et al., 22 Vt. 235, the jury were charged, that if they found that it (the pitchfork), was merely used for a portion of a day in removing the plaintiff’s property, there attached, and was left where it was found, so that the plaintiff had it again, and that it was not injured by its use, they were not bound to give the plaintiff damages for such use. The supreme court, it is true, affirmed this ruling, and applied the maxim, “ de minimis non curat lex” to the case. It may be remarked that in that case the pitchfork was used in removing the plaintiff’s hay, which had been attached and which was to be removed at his expense, and it may, in one sense be said, that the fork was used in the business of the plaintiff *457and for his benefit, and the jury must have found that the plaintiff had his fork again, and that it had not been injured by the officer in removing the hay. We apprehend that case does not warrant the charge of the court in the case at bar. Both the injury and the damage were too insignificant to be made the ground of an action. Indeed, the jury must have found there was no actual damage, and the court would not imply a damage from such a taking, though perhaps it might technically have constituted a wrongful taking by the officer, though taken to bo used in removing the plaintiff’s hay, and for the expense of winch the plaintiff was to be charged.
In regard to the validity of the attachment, it may be remarked, the officer in his return has named all the articles attached specifically, as the property of Crossett & Robinson, and described them as being in the shop upon the premises occupied by Crossett & Robinson. We are to assume in this case the officer did not go near the mill or shop where the property was, as no question was submitted to the jury on this point. But the machinery was potentially within the power and control of the officer, and this is a case where a valid attachment could be made against every body, by leaving a copy of the process with the town clerk, without any removal of the property. It would have been a useless ceremony for the officer to go to the shop, as much so as to require him to go upon land before he attaches it, and his lien by such a service is as perfect as if he had removed the property. The officer not only had potentially the property, subject to his control, but had, by leaving his copy with the town clerk, given timely and unequivocal notice of his attachment, and he could assert his control over it to the exclusion of the debtors and all other persons. See Lyon v. Rood, 12 Vt. 233.
It is claimed that no valid lien was created by the attachment, but all that is necessary is, that the officer’s return should have so much precision as may be necessary to give identity to the property attached. The fact that the property was attached as the property of Crossett & Robinson is no part of its description, and the attachment would be valid to hold all Crossett’s interest in it, be the the same more or less. The fact that it was stated in the officer’s return, to be in the shop occupied by Crossett & Robinson, although in fact occupied by Crossett alone, can have no conclu*458sive effect. It may be an inaccuracy in a circumstance effecting the identity of tbe property, but as no question was made on that point there was no occasion to submit it to the jury.
The service of the writ was sufficient notice to both defendants to appear, though the whole property attached, in fact, belonged to one of them, and if the description of the property in the return was too defective to create a lien upon it, still I should apprehend the service might bind the party as a notice. Though the case, in the main, is right, yet on the one point named, for the reasons we have assigned, we feel constrained to say there was error, and though we regret the opening of this case to a fresh litigation, yet we should much more regret the violation of what we regard as well settled principles of law.
The result must be a reversal of the judgment of the county court, and the cause is remanded.