The first question and the important - one is, can the plaintiff, being the general owner of property attached by one of his creditors, maintain a suit against the attaching officer for damage done to property attached through the officer’s negligence, while the suit upon which the property is attached is still pending, and the attachment is still in force.
The debtor is the gener&l owner of the property ; the attaching creditor has a contingent lien by his attachment — a lien which may be defeated by the debtor’s paying the debt, or replevying the property, or by the creditor’s failing in the suit, *65or by his collecting his execution of the debtor in money, or levying it upon other property. An injury to the'property may happen through the officer’s negligence in not properly taking care of it, and must be an injury to the debtor in any event. To the creditor it may be an injury if the debtor has uo other property from which the debt can be collected, and the injury to the property attached depreciates its value below the amount of the debt; otherwise it is no injury to the creditor. Hence the creditor can never tell whether it is, or is not, an injury to him till his suit is perfected by judgment, the issuing of an execution, and its levy on the property attached. Then and not till then can he ascertain whether the officer’s negligence has caused him damage; and hence .until then he can not sue the officer for such damage.' This point is conceded upon the argument by the defendant’s counsel as we understand. It is difficult to see how it can be otherwise.
But while it is thus uncertain whether the officer’s neglect will work an injury to the creditor, it is certain that it must be an injury to the debtor ; for whether the property is restored to him or is sold to pay his debts the loss finally falls on him. Even if the loss affects the creditor by preventing him from collecting his whole debt, it falls also upon the debtor, for he remains still indebted for the amount which would have been paid if the property had not been diminished in value.
Thus the debtor’s loss is absolute and immediate — the credit- or’s uncertain and remote.
It seems highly unreasonable to say that the officer may by his negligence depreciate or destroy the value of the property attached, and yet not be liable to be sued therefor. He should be liable to somebody. The interests of all the parties require that his liability for neglect should be ascertained while the wrong is recent, the proof accessible and not forgotten or lost in the lapse of time. So the officer may become bankrupt. To put off a suit till the rights of the attaching creditor are settled by litigation, or as it may be till successive suits and attachments are all ended, would not unfrequently work a delay fatal to any recovery for the wrong. When to these considerations we add the further suggestion that the debtor is the real owner of the *66property and the real and absolute loser by the misconduct of the officer, it seems .to us very plain that he should be allowed to bring the suit, unless a recovery by him of the damages would withdraw them necessarily from the lien of the creditor. But this by no means follows. In a suit brought by the debtor for such damage the officer, who is sued, or the creditor might show to the court that the damages were recoverable for property subject to a pending attachment, and the court would thereupon order a stay of execution till the creditor’s rights were determined — or might require the money to be paid to the clerk to be held for the benefit of the creditor. Where debts are subject to the trustee process and suits by the creditor have been begun, and other suits have also been instituted to trustee such debts, it is a frequent practice of our courts to stay the rendering of judgment, or the issuing of execution in such suits, until the rights of all interested can be protected. The exercise of the same power for a similar beneficial end would preserve the damages, which the owner of property attached might recover of the officer for negligence, to be ultimately awarded to the party who should be found in the end entitled to the same.
2. It is objected to the maintenance of this suit that Griffin was a co-tenant with the plaintiff of a part of the property sued for, and that the plaintiff can not maintain this suit alone, but should have joined Griffin.
In suits ex delicto this objection should be pleaded in abatement to defeat the action. Upon trial, if not so pleaded, the objection can only avail in apportioning or severing the damages; see Chandler v. Spear, 19 Vt. We see nothing to distinguish this action from ordinary suits ex delicto, or to require the application of a different rule. The ruling as to damages does not appear to have been objected to.
3. The phrase “ grain” as used in the officer’s return might include grain in the straw. The words are “ all the hay and grain in the barns and in stacks.” If there were grain in the straw in the barn, we think the plain and ordinary meaning of the words “ all the grain in the barn” would include such grain, though it might include other grain.
4. Whatever difficulty there may be in determining the extent *67of an officer’s duty in taking care of property attacked when in the process of manufacture, we see none whatever in regard to his duty to thresh grain in the straw, when it is necessary to thresh it in order to preserve it. It is an act which every prudent man would do, and about which no prudent man would hesitate. It is the ordinary mode of preserving grain from mice and vermin and other causes of waste ; to omit it is negligence.
5. The charge of the court as to the carriage, wheels, and sled obviously intended to follow the language of the decision of this case in the 28th Vt. The language of the charge does not in express terms meet and fully answer the request of the defendant on this point. It does not say, if the carriage and wheels were of no value except for their irons, and these received no detriment from their exposure to the weather, then the plaintiff can not recover for damage to them. But it says in substance if the carriage and wheels were past use and had no value for use or sale the plaintiff can not recover. This would lead the jury to consider whether they were of use and value as a carriage and wheels (for the plaintiff’s evidence tended to prove they had such use and value ;) and to lead them to understand that if they had not such value, — if they were only of value for their irons, — then the plaintiff could not recover. We think the charge, though not as full and explicit as it might have been, and as the request plainly demanded, could not have misled the jury to the injury of the defendant; but rather led them by implication to that conclusion which on this point the defendant claimed to be correct.
6. The copy of Gleason’s deputation, as recorded in the county clerk’s office, was admissible. Such record is required by law, Comp. Stat. p. 97, §5 ; and may be proved without proving the loss of the original. So that Gleason acted as a deputy sheriff was admissible to prove that he was such.
7. The fact that the plaintiff often met Gleason and knew how he was keeping the property and did not complain had no tendency to show either that Gleason was not negligent, or that the damage was slight. Mere silence of the party is not evidence against him when nothing is said or done requiring or naturally calling upon him to speak. The plaintiff might well *68have been silent, relying on his legal rights and the defendant’s responsibility. There was nothing requiring him to complain,
8. The plaintiff claimed damage for injury to the wheat from Gleason’s negligence. Gleason denied such injury, and on this trial claimed that the wheat was injured by the weevil. The plaintiff offered to show that on a former trial of this case Gleason, on being examined on this point, said nothing about injury to the wheat by weevil. The evidence offered was clearly admissible as tending to discredit Gleason. It is every day’s practice to admit proof to show, that a witness has testified to material facts upon a second trial which he omitted to relate upon the first. Whether the fact tends much or little to discredit the witness must depend upon the circumstances of each case, and the explanations given by the witness.
9. Marshall was the plaintiff’s hired man, and had been accustomed to lend farming tools kept on the farm. This would tend to show an authority in him to lend such tools while kept on the farm in the ordinary way. But it would not tend to show any authority to lend such property after it had been attached. By the attachment new relations arise, the condition of the property is changed, and the exercise of such power by the hired man might affect the plaintiff’s interests further and differently from what it would if the property was merely in its ordinary condition and use. An authority in the hired man to lend property attached and in the custody of the sheriff can not be inferred from his having exercised such authority before attachment and when the property was in the ordinary use of his employer. There was no error therefore in the ruling of the court, that there was no evidence to show any authority in Marshall to lend the plaintiff’s property which was not on the farm.
These we believe are the material points urged by the counsel for the defendant, on the hearing of the ease, and as we find no error therein the judgment of the county court is affirmed.