Tufts v. McClintock , 28 Me. 424 ( 1848 )

Tenney J.

— The jury would have been authorized by the evidence introduced in the case, to have found the goods in-question to be the property of the plaintiffs, at the time they were taken by the defendant’s deputy; they had been previously Iéft with Gerrish to be sold, the avails to be accounted for, or the goods returned on demand. The boots were in a case by themselves, two pair having been sold, and the cover of the case removed. The brogans • belonging to the plaintiff were the only ones in the store, and they together with some shoes of the plaintiffs were in drawers and on shelves with shoes belonging to Gerrish. . The officer who made the attachment, and the creditors’ attorney, who directed it, had no means of distinguishing the goods of the plaintiffs from those of Gerrish at the time of the taking, excepting from information derived from Gerrish, the plaintiffs not being present. No goods, which Gerrish pointed out as not belonging to him were ■ taken; and he testified, that at the time, he had the impression that he owned those belonging to the plaintiffs, by virtue of the receipt which he gave to the plaintiffs, when he received them, and that he did not think or state to the contrary, when they were taken. The officer acted under an honest but mistaken belief, that he took nothing which did not belong to Gerrish. There is no evidence tending to show, that both parties, and all those concerned in the property previous to and at the time of the taking, did not conduct in good faith touching the goods.

An officer is not protected in taking property belonging to one against whom he has no precept, unless the owner has so conducted, in reference to it, that he has forfeited his legal rights. An action may be maintained against the officer by the owner without any previous demand or notice. It is no defence that he acted under a mistake. He, as a public officer, can avail'himself of his own mistake, no more, than could a private individual. Hobart v. Haggett, 3 Fairf. 67 ; Lothrop v. Arnold, 25 Maine R. 136., But a previous demand upon the officer may be necessary for the maintenance of an action, when the plaintiffs’ goods are so intermingled with those of the debtor, as not to be distinguishable. Bond v. Ward, 7 Mass. R. 123. It is only under such a condition of the property that the officer may be regarded by the law, as without Ipult, though guilty of no moral wrong. If the confusion be by consent of, or without the fault of either party, the proprietors would have an interest in common, in proportion to their respective shares. But if the mixture were caused by one party without the consent of the other, knowingly and wrongfully, and it were impossible to distinguish what had belonged to one, and what the other, the one who had caused the confusion would under the common law forfeit the portion, which was previously his. Shumway & al. v. Rutter, 8 Pick. 443 ; 2 Blacks. Com. 405 ; 2 Kent’s Com. 364 (2d Ed.) ; Lupton v. White, 15 Vesey, 442; Hart v. Ten Eyck, 2 Johns. Ch. 108. “ But,” Chancellor Kent remarks, “ this rule is carried

no farther than necessity requires; and if the goods can be easily distinguished, and separated, as articles of furniture for instance, then no change of property takes place.” In Shumway & al. v. Rutter, the Court say, “ if the owner of a part can distinguish and point out to the officer what belongs to him, the officer would be a trespasser if he should take it.”

It is not necessary, that the property should be so distinctly marked, that an officer, by his own minute observation, would be able to perceive that it did not belong to the same individual, in order to make him liable; if such were the law, ho would be excused for taking cattle belonging to a stranger, when found in the same herd with those, against whom he had a precept, but it must be such a confusion, and the character of the articles must be such, that they are not distinguishable by those, who from their interest or situation, have full opportunity of making and pointing out the distinction, if one exists.

In the case at bar, the boots could not be considered as intermingled with those of Gerrish, so that they could not be distinguished as easily as any two parcels of goods, which are found in shops ; the brogans were the only article of the kind in the shop; and the shoes although in the same drawers or on the same shelves with other shoes belonging to Gerrish, still it does not appear from the evidence, that they were not distinguishable therefrom. The case presents nothing, which discloses, that the plaintiffs, or Gerrish, or others, might not have made and pointed out a clear distinction at the time. After the plaintiffs were informed of the taking, they satisfied those interested in the attachment, that the goods were theirs, so far, that they did not insist upon retaining them as legally holden. The mistake of the officer did not arise, from a confusion of the goods, as the term is understood in law, but it arose from the omission of Gerrish to inform him what goods belonged to the plaintiffs, on account of an erroneous impression in reference to the plaintiffs’ legal rights, he supposing, that the goods in question were his, under the receipt which he had given therefor, when they were not.

It is insisted, that the plaintiffs had waived the right to commence and maintain the action by his agent, Gerrish, who did not point out these goods as not belonging to him, when they were taken by the defendant. Gerrish was the agent of the plaintiffs to sell the goods for them, and the evidence exhibits no other agency. He could not by virtue of that authority have surrendered these goods to the officer, to be attached as his, and consequently the simple omission to assert the plaintiffs’ ownership could have no greater effect to the prejudice of the owner. Neither is it certain that the plaintiffs themselves waived their rights, by what is shown to have taken place, when they called upon the creditors’ attorney, as it is contended that they did. They called upon the attorney, exhibited their receipt from Gerrish, and claimed the goods, then in the custody of the officer, at considerable distance from the place, where he had left them; and offered to take them where they then were, if they should be given up ; and would send their messenger for them. The attorney declined to give them up, for want of power from the creditors ; but said he would write to his clients for instructions. This he did, and received authority to give up the goods, but no communication of this was proved to have come to the plaintiffs’ knowledge, and it does not appear that the attorney wrote by his request; and it is difficult to perceive how, by these facts, he relinquished any rights before existing. His offer to take the goods could have no effect, so long as he was not permitted to take them. >

The facts relied upon by the plaintiffs, we think, should have been submitted to the jury, as there was evidence, from which the jury might have found the trespass to have been committed ; and there was nothing in the proof adduced by them, which conclusively showed, that they had waived their right to maintain the action. Exceptions sustained, and nonsuit taken off.