Johnson v. Grand Trunk Railway , 44 N.H. 626 ( 1860 )

Sargent, J.

The question as to the original ownership of the property in dispute does not arise. It was attached as Pattee’s, and no one but Pattee ever made any claim to it afterward, except the officer who made the attachment. The defendant company was employed to transport the lumber by said Pattee, and the only question they had to settle was not whether Pattee owned the lumber originally, but whether he, as original owner, or the officer who attached it, was entitled to the possession and disposition of the lumber.

It does not become necessary to consider how the case would have been had the company carried away this lumber without knowledge of the attachment; as in this case it is found that Johnson, before any of it was carried away, notified the agent of the company of his attachment. Now this attachment by the officer gave him the legal possession and the right to possession, so that he can maintain trover for the conversion of it. Kittredge v. Warren, 14 N. H. 526; Lathrop v. Blake, 23 N. H. 46.

Johnson had forbidden the defendant to move the lumber, and the defendants therefore were called upon to elect whether they would obey Pattee’s orders, and carry away the lumber for him, or regard the claims of the officer who had attached it, and follow his directions ; and they chose the former ; and their act in carrying away the property beyond his reach and control, and contrary to his express orders, with full knowledge of his claim, is clearly a conversion of the property. It is not material whether the defendants supposed they were doing right in obeying Pattee’s orders, or whether — as is more probable under the circumstances — they were indemnified by Pattee against the claims of the plaintiff; still they are liable to this plaintiff. "Where a carrier delivered goods by mistake to a wrong person, or where he did so upon a forged order, and there was no intentional wrong on his part, yet the owner may maintain trover against the carrier. Devereux v. Barclay, 2 B. & Ald. 702; Stephenson v. Hart, 4 Bing. 476; Lubbock v. Ingliss, 1 Stark. 104 ; Hawkins v. Hoffman, 6 Hill 586.

In this case the officer had attached the property and had preserved his lien upon it by leaving a copy of the writ with the town-clerk, according to the provision of the statute. His rights in this case are analogous to those of a mortgagee of the property. Flanders v. Colby, 28 N. H. 34, was a case of mortgaged property, but the law of that case will be found to go farther than is necessary to maintain this suit. It is there held that if the defendant aid the mortgagor of personal property in carrying it away and concealing it, he will be liable therefor to the mortgagee in an action of trover, even though he might not have known of the existence of the mortgage. See Reynolds v. Railroad, 43 N. H. 580.

The damages may be assessed according to the agreement in the case, as there must be

Judgment for the plaintiff.