Wilson v. Lane , 33 N.H. 466 ( 1856 )

Bell, J.

The case shows a mortgage of all the stock in trade now in store No. 18, &c., consisting of boots, shoes, leather, rubbers and fixtures ; and an attachment, made three quarters of a year afterwards, of all the stock then in the store. The stock reported in the schedule of the commissioner, as included in the mortgage, and subsequently taken by the officer, was, with some trivial exceptions, goods such as are commonly kept for sale in a shoe store. Other similar goods then in the store were attached. It is evident it was not in the power of the officer, from the description in the mortgage, to select the goods included in it. It was quite too general. It afforded no means by which a safe discrimination could be made.

It would seem that in England it was formerly considered that the sheriff might empannel a jury, to decide, in case of dispute, whether goods seized were the property of the debtor ; but it is now held that he must take the goods of the debtor only at his peril, though the courts will afford him protection upon a proper and seasonable application, by not requiring him to return his writ till he is fully indemnified. Watson, Sheriff, 195, &c. No case has been found by us in the English Reports presenting the substantial features of this case, though they doubtless must exist.

The question arose in this country as early as 1810, in the case of Bond v. Ward, 7 Mass. 127, and it was held by Parsons and the court, that if the goods of a stranger are in the possession of a debtor, and so mixed with the debtor’s goods that the officer, on due inquiry, cannot distinguish them, the owner can maintain no action against the officer until notice and demand of his goods, and a refusal or delay of the officer to re-deliver them. In Shumway v. Rutter, 8 Pick. 443, it was again held that when the owner of chattels suffers them to be mixed with those of another person, so that they cannot be distinguished, an officer will not be liable to an action of trespass for attaching them as the property of such other person. But if after the attachment such owner points out his goods to the officer, and demands a re-delivery of them, and the officer, notwithstanding, sells them, the sale will be a conversion. If such owner exhibits to the officer a bill of sale of articles of the same kind with others attached by him, with which they are intermixed, so as to "be undistinguishable, the officer will be justified if he selects and gives up the least valuable articles corresponding with the bill of sale.

The doctrines of these cases were fully recognized here in the case of Lewis v. Whittemore, 5 N. H. 366, where it was held that it was the duty of the officer to attach the goods of the debtor, notwithstanding they were intermixed with the goods of the plaintiff; and he had a right to take and hold the whole, until the plaintiff identified his goods and demanded a re-delivery. The sheriff cannot be treated as a trespasser for doing what he has a right to do. If the plaintiff gave the officer notice of what interest he had in the corn, (there in question,) “ and demanded a return, trover may be maintained. If the officer has sold the whole after notice of the plaintiff’s claim, that may be a conversion, but trespass does not lie for the original taking.”

To make the officer liable in this last case, it seems the stranger must identify his property, and give notice thereof to the officer. 8 Pick. 448.

In order to justify the attachment of the goods of a stranger with those of the debtor, it is incumbent on the debtor to show that the goods were of such a character, or at least that there was such an intermixture, that they could not upon due enquiry have been distinguished by the officer who made the attachment, or that the aid of the plaintiff was required for that purpose. Walcutt v. Keith, 2 Foster 210; Holbrook v. Hyde, 1 Vt. 331; Bryant v. Ware, 17 Shep. 295.

From the principles established by these decisions it follows that the sheriff in this case, being unable to distinguish, from the description given in the mortgage, the goods which the plaintiff was entitled to claim, had the duty imposed upon him of making reasonable inquiry to ascertain what were the goods liable to be attached, and what belonged to others. No general rule can be laid down as to what should be deemed reasonable inquiry in the various cases that may be supposed. The officer here applied to the plaintiff himself, told him he had attached the stock, and if he had a mortgage on any of the goods, to take them away, and the plaintiff said he did not know exactly what his mortgage consisted of, and could not tell till he saw Currier, the mortgagor. This must be deemed sufficient notice to the plaintiff of the attachment, as well as sufficient inquiry as to the property of the articles. The defendant had, then, a right to attach and to retain the articles until the plaintiff should select those belonging to him, and point’ them out to the officer, and request the return, or delivery to himself, of the articles thus pointed out; and he was not liable to any action until these things had been done, and he had then either refused to give up the property, or had unreasonably delayed to do it. There is no pretence that any of these things were done before the institution of this suit. The goods were not identified, nor pointed out to the officer by any description which would enable him to separate them from the goods not claimed by the plaintiff. Though he had been requested to take away his goods, his demand was accompanied by no offer to aid in their separation. The demand was general of the goods in the officer’s hands included in the mortgage. The plaintiff seems to have mistaken the law as to the party on whom rested the burden of discriminating the goods belonging to the plaintiff, and to have supposed that the officer was bound at his peril to make the selection. The action was consequently prematurely brought before any right of action had accrued. There was no conversion until the officer had done something with the property which he had not by law the right to do.

It is said, in Shumway v. Rutter, that if a bill of sale of articles of the same kind as those attached, is exhibited, a sheriff may give up the least valuable articles, answering that description, but he was not bound to do that under the circumstances of this case. The mortgage had been made three fourths of a year, during which the trade of buying and selling had been going on, and it could not be assumed, without proof, that all or any given portion of a particular kind of goods remained at the time of the attachment, as they were at the time of the mortgage, from the mere fact that goods of the same kind were then found. The burden was on the plaintiff to show, not only that the goods answered to the general description of those in the mortgage, but that they were a portion of those then on hand in the store. Nothing like this was done, or attempted, so far as appears, till the hearing before the commissioner; and none of the goods were ever pointed out as those included in the mortgage before suit.

It is suggested, in argument, that upon the demand for the property, the defendant did not call upon the plaintiff to select and identify the goods he claimed, but persisted in holding them at any rate — declaring he had a bond of indemnity, or good backers ; and that in such a case the demand is sufficient, without any designation of the particular goods claimed, and two decisions in Massachusetts are cited in support of the position.

We cannot doubt that if a sheriff, in a case where he had attached mortgaged goods, intermixed with those liable to attachment, should refuse, when requested to deliver them, at any rate and without any enquiry or request to have those claimed pointed out, such refusal might dispense with any identification ; just as upon a tender a party who declares he will not take the money if offered, cannot object that the money was not produced, because by his own conduct he dispenses with its production. But here we regard the case as standing on a different ground. The officer had made endeavors to ascertain the goods mortgaged. He had called on the plaintiff to point out his goods and take them away. The plaintiff was then the party in default, and it had become his duty to point out his goods, when be made his demand of them, and the sheriff had done all that was necessary to entitle him to hold the goods until the plaintiff has designated distinctly those he claimed. And there seems to us no reasonable ground to understand the sheriff as peremptorily refusing to give up the goods; at any rate, after he had thus applied to the plaintiff to take his goods, and he had not done it. The only reasonable understanding of what passed would be, “ If you do not choose to point out your goods, as I have requested, I shall not give them up.”

Upon the facts reported there must be

Judgment for the defendant.