#### Ezra Gibbs *versus*Asa Chase.

To maintain trespass *de lonis asportalis,*evidence of a forcible taking is not required The title of a deputy sheriff to personal property, seized on execution, is sufficient to maintain trespass against a stranger for a tortious disturbance in his possession of it; nor is his right of action taken away by his failure to sell the property on execution at the time he had advertised.

Trespass for taking and carrying away four hundred tons of timber, on the 23d day of March, 1810.

The defendant pleaded the general issue, which was joined. He also filed a brief statement, pursuant to the statute, in which he avowed and justified, as a coroner for this county, the taking of three hundred and eighty-six tons and three quarters of a ton of timber, having attached it as the property of *Amos*Ordioay, by virtue of an original writ, in favor of *Israel Smith*against *Seth Mitchell*and the said *Ordioay,*on the 30th of October, 1809, and having seized it on the 19th of March, 1810, by virtue of an execution issued upon a judgment rendered on said writ in favor of said *Smith,*and having, on the said 23d day of March, sold it, pursuant to law.

The issue joined as above was tried upon a review, October term 1811, before *Thatcher,*J., when the defendant produced a copy oí *133the writ mentioned m his brief statement, a copy of the judgment in the same action, and of the execution issued thereon, dated March 19, 1810, and of his return upon the same, purporting that he had seized said timber, and, after duly advertising it, had sold it at public auction, &c. To prove that *Ordway*was tie owner of the timber, he produced a witness who testified that, in January, 1808, he was called by one *Robbins*and the said *Ordway*to witness the delivery of a quantity of timber from *Robbins** to *Ordway,*and that he saw' it surveyed and delivered, [ * *126*j and which, with some that he expected Irum the country, would make 400 tons. The price to be paid for part of it was three dollars, and for part five dollars, the ton; but the witness saw nothing paid for it, nor any security given ; nor was any account taken of the timber. The witness also testified that *Robbins*was largely indebted at that time, immediately after left the country, and has never been considered a man of any property since.

The plaintiff, a deputy sheriff for this county, produced a copy of an execution, dated March 19, 1810, in favor of *S. &f N. Appleton,*against said *Robbins,*and of his return on the same, dated on the same day, in which he certifies that on that day he levied the execution on 400 tons of timber, as the property of *Robbins,*lying in the dock adjoining *Union*Wharf, in *North Yarmouth;*that he advertised it for sale on the 23d of the same month; but that on the last-mentioned day the said timber was forcibly taken out of his possession by *Asa Chase,*a coroner, he claiming the same as the property of *Ordway,*by virtue of the attachment on the writ of *Smith*against *Mitchell*and *Ordway;*wherefore, by the creditor’s order, he returned the said execution unsatisfied. The plaintiff also proved, by the deposition of *David Drinlavater,*that he posted an advertisement of the sale on the said 19th of March, and at the same time put the timber into the care of the witness; that, on the 23d of March, *Chase*came in the morning to sell the timber, when *Drinkwater*forbade him, and notified him of the seizure thereof by *Gibbs.*It was also in evidence that when *Gibbs*came to sell the timber, which was about two hours after the sale by *Chase,*the purchaser under *Chase*was standing on the timber with *Chase,*both of whom forbade *Gibbs*and all others to touch it, saying it was sold as aforesaid; whereupon *Gibbs*went away, without pursuing" his intended sale. It appeared that the timber, at the time of these transactions, was lying in the dock, frozen in the ice, and was not removed until some time after the sale. The plaintiff also * produced the deposition of *Ordway,*testifying that [ * 127 ] he purchased of *Robbins*about 90 tons of timber, not being part of the timber in dispute, but that he never purchased any *134other timber of *Robbins;*that he took charge of the timber in dispute, and often called it his; but this was merely to cover it from the creditors of *Robbins;*that he never owned any part of it, but sold some of it for *Robbins,*and accounted with him for the proceeds. There was also other evidence, tending to prove that the timber was the property of *Robbins,*and in *Ordway1s*custody as his agent, or factor; and showing that, in August, 1809, *Ordway,*whose affairs had become embarrassed, declined any further agency respecting it, and informed *Robbins*that he must himself attend to it; and that after this he never exercised any act of ownership over it, but that *Robbins*made several attempts to sell it as his own.

The judge instructed the jury, in summing up the evidence to them, that the possessory right acquired by *Gibbs*in the timber, by his seizure of it upon the *Appletons1*execution, must be considered as lost at the expiration of four days from the seizure, as he did not proceed to sell it, pursuant to his advertisement, as by law he ought to have done, and as it appeared from the evidence that he might have done. The statement made in his return, that it was forcibly taken out of his hands, was not supported by the evidence. It appeared that the timber then, and for a long time before and after-wards, was frozen in the dock, and could not be, and was not, taken away or removed. As he had seized it, he ought to have proceeded to sell it, without regard to any thing said by any pretended purchaser. The judge also observed that there was nothing in the evidence to support the ground taken for the plaintiff at the trial; that *Gibbs*had a right, as creditor to *Robbins,*to take the timber out of the possession of *Ordway,*or of any person claiming under him. If the conveyance from *Robbins*to *Ordway*was fraudulent, it was no concern of *Gibbs;*for there was no evidence [ * 128 ] of his being a creditor * of *Robbins,*or claiming under a creditor. If *Gibbs*had disregarded his duty to Messrs. *Appletons*as an officer, and had voluntarily given up the timber, when he ought to have sold it, — this act, although it might make him answerable to them, did not make him a creditor to *Robbins;*and, as the execution was immediately returned in no part satisfied by order of the *Appletons,*it was questionable whether they could call on *Gibbs*for the value of the timber.

The jury returned a-verdict for the defendant, and the plaintiff’s counsel filed exceptions to the opinion and directions of the judge, and the action was continued for the consideration of those exceptions.

The cause was argued at the last May term in this county by *Mellen*and *Greenleaf,*for the plaintiff, in support of the exceptions, and by *Whitman*and *Cutler*for the defendant; and, the action being *135continued for advisement, the opinion of the Court was at this term delivered by

Sewall, J.

The exceptions bring before us these questions:

1. Whether there is any evidence of a trespass in this case, the jury having been instructed that the plaintiff must fail in his action, for want of evidence to prove a forcible taking by *Chase,*the defendant, of the timber in question.

We think this direction to the jury incorrect. The brief statement admits the taking, and no actual force is necessary to be proved, *(a)***An owner may admit himself dispossessed and deprived of a personal chattel, for the sake of his remedy. He who interferes with my goods, and, without any delivery by me, and without my consent, undertakes to dispose of them, as having the property, general or special, does it at his peril to answer me the value in trespass or trover; and even a subsequent tender of the goods will *136not excuse him, if I choose to demand the value; and the return, if accepted, is only evidence in mitigation of damages. Thus the working of an estray, or a beast distrained, is a [* 129 ] * trespass *ab initio*; and the owner may declare for an unlawful taking, after he has regained his property. (1) 2. Another question then arises,—whether the evidence establishes a property in the plaintiff' sufficient to maintain this action, (a)

*135ADDITIONAL NOTE.

[To maintain trespass *de bonis asportatis,*it is sufficient to prove an unlawful exercise of authority by the party over the goods, against the will and to the exclusion of the owner, without any manual taking or removal. — *Miller*vs. *Baker,*1 *Mete.*27.

See *Price*vs. Helyar, 4 *Bing.*597.— *Wilson*vs. *Barker, 4 B. Adol. 614.—Mead vs. Young, 2 Deo. B.*521. — *Bell*vs. *Miller,*5 *Ohio,*252. — F. H.]

*136His title as deputy sheriff, by force of the seizure in execution, is *137special, depending on his authority by the execution; that is, it is not otherwise insisted on, or maintained, against the owner, or another creditor; but his possession is a sufficient authority against a stranger.

The plaintiff seized the timber as the property of *Robbins,*and lie had the exclusive possession of it; as muph so as the nature of the article and its actual situation at the time permitted, it being bulky, and frozen in the ice. He placed it in the custody of *Drinkwater*Notice was given of this to *Chase,*when he reclaimed it, and proceeded to sell it. This was a possession, which the owner, or any person having a general property, or even one who had acquired a special property by a seizure or possession more rightful than that of the plaintiff, had power to remove, without a breach of the peace.

Such a possessor might surely disregard this possession of *Gibbs;*but a mere stranger could not.

The defendant objects the plaintiff’s neglect to proceed in the sale, and his return of the execution.

If the property, as *Robbins’s,*had been seized on two distinct executions against him, as by *Chase*and by *Gibbs,*supposing the latter to have one execution, and the priority, by his seizure or attachment, the neglect of *Gibbs*to sell would justify the other in proceeding to sell. But the defendant, in the case at bar, was a stranger to the property, having neither a general nor special authority ; and against him the plaintiff, by his mere possession, which renders him accountable to the owner of the general property, would be entitled to damages to the value. As to this point, therefore, the direction was incorrect.

ADDITIONAL NOTE.

[Where goods attached by a deputy sheriff are deposited with a keeper, to be forthcoming on demand, the sheriff has a special property in them, and may maintain an action for them against the keeper, for the benefit of the attaching creditor. — *Baker*vs. Fuller, 21 *Pick.*318. — See *Lowry*vs. *Walker,*5 *Verm.*181. — *Fisher*vs. *Cobb,*6 *Verm.*622.— *Whitney*vs. *Ladd,*10 *Verm.*165.

Where a sheriff brings an action against the keeper of goods attached, more than thirty days after judgment, lie must allege a demand on the defendant upon the execution within the thirty days, or else that the latter has disabled himself from delivering them to him, by delivery to a third person.— *Baker*vs. *Fuller,*21 *Pick.*318.

An officer may maintain trespass against one who takes out of his possession goods held under an execution before the return day, although the execution has not been returned. — *Sewell*vs. *Harrington,*11 *Verm.*141. — So although the officer himself *138made out the writ of attachment. This is an exception, of which only the debtor can avail himself. — *Ibid»*— So against a subsequent attaching creditor who takes the property, without a demand previous to the action. — *Mills*vs. Camp, 14 *Conn.*219.

Where goods are levied on, and by arrangement left in possession of the defendant, he becomes, *quoad*hoc, the servant of the officer; and, upon his refusal to deliver the goods according to contract, trespass lies against him, and any one who aids him in retaining or removing them. — *Tromllo*vs. Telford, 6 Watts, 468.— F. H.]

* Notwithstanding the mistakes supposed in the direction to the jury, it would be incompetent for the Court to confirm the verdict, if the question, as between the parties to the action, had been determined. If the timber was *Ordioay’s,*the defendant might be considered as entitled against the plaintiff; and in a case of exceptions, we are to do what to justice appertains.

There was evidence of a sale by *Robbins*to *Ordiuay;*there was also some contradictory evidence on this point; and a redelivery and relinquishment to *Robbins*was proved.

The question arising on this evidence was not distinctly stated to .the jury, and is not determined by their verdict. It was precluded by the opinion expressed to them, that the plaintiff’s title depended on a question of fraud in the sale, as between *Robbins*and *Ordway;*or upon the want of evidence of a trespass; or upon the plaintiff's neglect in proceeding with his execution; even supposing the general property to have been in *Robbins,*and not in *Ordway.*But the possession was sufficient for the plaintiff, if the property was not *Ordioay’s.*A new trial is therefore necessary, to determine whether *Robbins,*if he had sold and delivered, had received the property back again before the attachment.

Between these parties the question of fraud does not arise. If in *Ordioay’s*possession, as his property, by an actual transfer from *Robbins,*however fraudulent as to his creditors, after an actual seizure by *Ordway’s*creditor, the property was not to be reclaimed. If the evidence proves an agency only in *Ordway,*or that, before the attachment, the timber had been actually restored to *Robbins, Ordway’s*creditor is not entitled; and the defendant’s possession was a trespass ; because he was entirely a stranger to the property, when he took it from the possession of the plaintiff.

*The verdict is set aside, and a new trial is granted.*

(a)

**[If the brief statement admitted and justified the taking, the general issue denied it, so that the case did not differ from the common case of a plea of the general issue and a justification. And, notwithstanding the decisions made in *Jackson*vs. *Stetson AL*(15 *Mass. Rep.*48,) and *Alderman*vs. *French,*(1 *Pick.*1,) it is quite clear that what is stated in one plea cannot be used as an admission to disprove what is contained in another plea in the same action.— *Harrington vs. M’Morris,*5 *Taunt.*228. — 1 *Stark. Ev.*295. — 1 *Saund. Pl. and Ev.*41.

The declaration alleges a taking *with force*and carrying away. And in a respectable treatise on the law of pleading and evidence, it is stated *that,11*to sustain trespass, the act must be committed *with force,*but the *degree*of force with which the act is done is immaterial.” — 2 *Saund. Pl. and Ev.*853, 863.

In the *Commonwealth*vs. *Jones,*(1 *Pick.*375,) where a miller, having received barilla to grind, fraudulently retained a part of it, returning a mixture of barilla and plaster of Paris, it was held, that he was properly charged, as having with force and arms stolen, taken, and carried away, the barilla from the possession of the owner. So, in *Badger*vs. Phinney, (15 *Mass. Rep.*359,) it was held, that replevin would lie, although there was no tortious taking. And this decision was revised and confirmed in *Baker*vs *Fales,*(16 *Mass. Rep.*147,) and has since been pertinaciously adhered to.— *Marston*vs. Baldwin, (17 *Mass. Rep.*606.) — But it clearly is not good law, as the best authorities will show.— *Galloway*vs. *Bird & Al.,*4 *Bing.*299. — *Meany*vs. *Head,*1 *Mason,*319. — *Paugburn*vs. *Partridge, 7 Johns.*140. — *Ex parte Chamberlain, 1 Sch. Lef.*320. — *Ex Parte Wilson,*1 *Sch. & Lef.*321, *n.*— *Shannon*vs. *Shannon,*1 *Sch. Lef.*320. — *Com. Dig., Replev. A, Pleader,*(3 K), 1, 11, 23, (3 M). — 26 *Gilb. Rep.*61, 157. — 6 *Instr. Cler.*517. — *Rastall,*569. — *Ham. N. P.*225. — *Brooke, Detinue de Biens,*pl. 21, 5th ed. 2,157. —33 *H.*6, pl. 12. —2 *Phill. Ev.*175.— These decisions of our Court have not met the approbation of the profession. See note to Mr. *Wheatons*edition of *Selwyn's Law ofACisi*Prius, title *Replevin.*It is unaccountably strange that, after being driven from every ground taken in former decisions, the Court should, in the last resort, endeavor to fortify their opinion by some supposed peculiarity in the form of the writ prescribed by the statute, which relates solely to cases where goods are taken, distrained, or attached, which shall be claimed by a third person; and, moreover, appears to have adopted the form in the Register. — Ed.]

(1)

*Cro. Jac.*147, *Bagshawe*vs. *Goward.*— 1 *D. &*12, *Oxley*vs. *Watts.*

(a)

 [There is a distinction with respect to the necessity of actual possession between the action of trespass for breaking and entering upon lands and tenements and the action for taking and carrying away goods. In the former case, the action cannot be maintained unless the plaintiff" have actual possession, although he may have the freehold in iaw. — Sed vide *Starr*vs. Jackson, 11 *Mass. Rep.*519.—In the latter case, proof of actual possession will not be absolutely necessary, if the plaintiff have the exclusive right of possession. But the plaintiff must have either the one or the other, — either the actual possession at the time when the act was done, or the constructive possession in respect of the right actually vested in him. — 2 *Phill.*184,186, 7th ed. — Proof of actual possession by the plaintiff of the chattel at the time of the trespass will in all cases suffice to maintain this action against a mere wrong-doer, not being the real owner of the chattel, (2 *Saund.*47, and 4 *Taunt.*547. *— Hoyt*vs. *Gelston,*13 *Johns.*141,561;) and this although such plaintiff had the wrongful possession, *(Ibid.*— 1 *East, 244__Cro. Eliz.*819. —2 *Marsh.*233,) or were the mere tinder of the chattel. — Ibid.—Such proof of an actual possession will suffice where plaintiff is a bailee, coupled with an interest, as a carrier, factor, pawnee, &c., (2 *Saund.*47, b.— 1 *Roll. Abr.*551,) or even a gratuitous bailee, (1 *Barn. & Ald.*59 ;) but he cannot sue if he be a mere servant, *(Owen,*52. — 3 *Inst*103. — *2 Saund.47, b, c, d;)*and a distrainer of goods has neither such an actual nor constructive possession in the chattel seized as will enable him to bring trespass for an injury, the goods, till sold, being in the custody of the law, (1 *M. Y.*118;) and he who was in possession before the seizure is the proper person to sue for the injury. — *Abr. Bro., Property,*52, cited in *M. & Y.*118. — A sheriff, having duly seized goods under a *fieri facias,*has such a special property in them as *to enable him to support*this action against any person taking them out of his possession. — 2 *Saund.*47.— 1 *Vent.*52. — 1 *Lev.*282. — And see *Sawle*vs. *Paynter,*1 D. & *R.*307. — But the sheriff, in order to maintain this action, must continue in actual possession of the goods; for where a sheriff’s officer seized a table in the name of all the goods in a house, and locked up his warrant in the table drawer, and left the house, it was held, that the sheriff could not sue the landlord, who afterwards distrained the goods for rent..— *Blades*vs. *Arandole, M. & S.*711. — If the owner of a chattel gratuitously permit another person to use it, he may maintain trespass for an injury done to it while it is so used, (2 *Camp.*464,) though it is otherwise where the chattel is let to him. — *Croft*vs. *Alison,*3 *Camp.*187. — 4 *B. & Ald.*590. — *Ward*vs. *M' Cauley, 4 T. R.*489.—The owner of goods, though he has deposited them in the hands of a bailee, may maintain trespass for the taking of them, because he has the general property, (7 2’. *R.*10. —16 *East,*33;) in which case there is also a mixed possession, viz., an actual possession in the bailee, and an implied possession in the owner— 4 T. R. 490. — So an executor for the goods of his testator, *{Ibid.,)*or an executor of an executor, *(Com. Dig., Tres.*B, 5,) or an executor *de son tort,*(1 *Ch. PI.*51;) and the owner of tithe may support trespass after it has been set out against a person for injuring it. — 8 *T. R.*72. —The vendee of goods, even before delivery, has a property sufficient to maintain this action, *(Com. Dig., Tres.*B, 4;) and the factor or consignee of goods, before actual pos session, has such a constructive one as will enable him to bring trespass. — 1 *B. P*47. — Where the *bond fide*assignee of a bill of sale, executed by the sheriff under a *fi. fa.*against the goods of A, allowed the latter to remain in the possession and enjoy ment of the goods until another execution was put in, and the same effects were again seized, it was held, that the first execution being notorious, the assignee of the bill of sale might maintain trespass against the sheriff, and that an absolute change of posses *137sion was not necessary to give effect to the bill of sale against *creditors__Latimer*vs. *Batson, 7 D. & R.*106. — 4 *B. & C.*652.

A tenant for years may support trespass for cutting down trees, unless they were excepted in the lease; though he cannot for carrying them away. — 2 *Camp.*491. — 2 *M. & S.*499. — 2 *Salk.*638. — A shopkeeper to whom goods are sent to be sold or returned has such a special property in them as, when coupled with possession, will enable him to bring trespass against a person for taking them away. — 2 *Camp.*576. —Ed.]