Lewis v. Whittemore

By the court. The direction which was given to the jury in this case, in relation to the corn, was correct. It is immaterial whether the corn had been mixed with the plaintiffs assent or not. It was all in the possession of the plaintiff’s agent, Haywood, and while in Haywood’s possession had been intermixed. Haywood at first told the officer that the corn belonged entirely to the plaintiff; and although he afterwards informed the officer that on [366] ly a part of the corn belonged to the plaintiff', it does not appear that he stated what portion was the property of the plaintiff'. 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 redelivery. 8 Pick. 443, Shumway v. Rutter ; 7 Mass. Rep. 127; 2 Bl. Com. 405 ; 1 N. H. Rep. 87, Pettingill v. Bartlett ; Cooper’s Justinian Lib. 8, F. 1 sec. 17 and 18. The sheriff cannot be treated as a trespasser for doing what he liad a right to do. If the plaintiff' gave the officer notice of what interest he had in the corn, 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. As to the goods which were sold to the plaintiff by Haywood, if it appeared that the sale was kept secret, and that Haywood continued to be apparently the owner as before, the case would come within the principle of the case of Trask v. Bowers, 4 N. H. Rep. 309, and the sale must be deemed fraudulent. In such a case, the secret trust, which constitutes the fraud, is the advantage which the seller of the goods derives from retaining the possession apparently as owner, and thus sustaining .his credit. But in this case, if does not appear that there was.any secrecy in relation to the sale. Haywood was indebted to the plaintiff and sold the goods, to pay the debt, at a fair price. He had a right to pay the plaintiff in preference to any other creditor..- And if the sale was open, and the possession not calculated to give Haywood a false credit, it is not easy to imagine any trust in ihe case. We are therefore of opinion, that dio jury wore misdirected with respect to those good.-, ami die verdict must be set aside and 'J.irl ¡a;, trij ■_ • ; ikJ