#### Overby et al. vs. McGee.

It is a general rule that a sheriff, or other officer, who executes a writof attachment or execution, is bound to take the debtor’s goods alone; and that he is guilty of trespass for taking the goods of a stranger.

The owner of property levied upon and sold under a writ of attachment against another; may not only recover the property and damages for the detention, from the purchaser, but may also maintain an action of trespass against the officer and plaintiff ‘in attachment, for the taking of the property; although, at the time of the levy and taking-, the property was in the possession, under a bcm, of the defendant in the attachment.

Appeal from Johnson Ci/rcwit 'Oov/rt.

Hon. Felix I. BatsoN, Circuit Judge.

'WaleeR & GreeN, for tbe appellants.

A valid writ of attachment or execution, is a protection to an officer in seizing personal *460property, wbicb be finds in tbe possession of tbe defendant in snob writ — possession of personal property bein g prima facie evidence of ownership. Williams vs. Lownds, 1 Hall 595/ 8 Gowen Rep. 65/ 7 Wend. 236.

"Where a trespass has been committed by several persons jointly, tbe party may sue any or all of tbe trespassers; but be can recover but one satisfaction, and so tbe plaintiff having recovered tbe property and damages from tbe purchaser, as stated in tbe second plea, such recovery is a bar to the prosecution of this suit. 2 Rawle Rep. 395/ 6 J. R. 168/ Gowen d Hill’s-Holes to Phill. on Pk., vol. 3,pages 823, 978/ 8 J. R. 388.

Tbe gist of this action, is tbe injury to tbe possession, and tbe general rule is, that, unless, at tbe time tbe injury was commit-' ted, tbe plaintiff was in actual possession, trespass cannot be supported. In this case, tbe bailee or person in possession, bad tbe right to maintain trespass, and not tbe general owner. 1 Gh. Rl. 174/ 12 J. R.. 183/ 11 ib. 385/ 11 Mass. 415/ 17 ib. 299..

Mr. Justice Waíkeb

delivered tbe opinion of tbe Court.

This is an action of trespass, brought by McGee, against Overby (a constable) and others, for forcibly taking -a mule.

Tbe defendants jointly pleaded tbe general issue; and tbe defendant, Overby, filed special pleas of justification ; tbe first, and most material of wbicb was, that, as constable, bo levied an attachment upon tbe mule, having found it in tbe possession of Higgs, tbe defendant in attachment, and kept tbe mule, under and by virture of this authority, until’the return of the writ.

To this plea, a demurrer was sustained, and tbe defendant refusing to plead over, insists here that tbe plea is a sufficient justification. It is conceded that, if tbe matter of defence is sufficient, tbe plea is good in all other respects. The grounds of tbe defence are,. that possession is prima faeie evidence of title to a chattel, and that prvma faeie title is sufficient to justify tbe officer in making a levy. It is true that the officer must, in distinguishing tbe defendant’s property from that of a.stanger, rely upon tbe ordinary *461evidence of title to such property, amongst which are actual possession, use, declarations of ownership, and common reputation.. And these, with many others, give evidence, more or less conclusive, of title. It is not to be expected that the officer has personal knowledge of the property owned by the numerous individuals against whom he may have process, or that he can, even upon enquiry, in many instances, get any reliable information. That goods are found in the storehouse of a merchant, or a horse or implement of husbandry in the possession of a farmer, in the-absence of any evidence to the contrary, furnish such reasonable-presumption of ownership. And the question is, shall the officer be held justifiable, in the absence of evidence to the contrary,, in taking the goods in execution.

The general rule, as laid down by the authorities, is, that the-sheriff, or officer, who executes a writ, is bound, at his peril, to take the debtor’s goods alone; and that he is guilty of trespass-for taking the. goods of a stranger, even though assured, by the-plaintiff in execution, that they are the property of the defendant. 4 Term Rep. 633; 3 Maule & Selw. 175; 8 Cowen Rep. 65; 1 Pick. 545.

To this general rule, there is an exception, to the effect, that where the goods of the defendant and a third person are so mixed that they may not be readily distinguished, the officer may levy upon them, and' only becomes liable to a stranger for levying, should he refuse to deliver them to the rightful owner upon request. 7 Mass. 123.

The reason, upon which this distinction rests, is commendable for its tendency to encourage the officer in the discharge of his-duty, when acting in good faith, by furnishing him protection, at least until he is advised that there exists an adverse claim to-the propertyand, when viewed practically, the injury likely to result to the owner, if any indeed, is nominal, because, when the property is not in liis possession, when the levy is made, as-he is not deprived of the immediate possession, no damage is likely to result, on account of the taking in the first instance, *462to him, much less than to the defendant in execution; for, being possessed of it, the temporary use may be valuable to bim. So that it is not until after notice of his claim, that the officer should strictly be held to act at his peril.

And when considered in reference to our statute, which provides for a trial of the right of property, after a levy has been made, and before sale, and of the effect which the verdict of the jury has upon the officer’s liability, we should strongly incline to hold the officer justifiable, in the first instance, for taking the property in execution.

The statute declares that, if any person, other than the defendant in execution, shall claim.the property levied upon, and shall give notice thereof to the. officer, such officer may summon a jury to fey the right of property, which, if found subject to the execution, the verdict shall be an indemnity to the officer in proceeding to sell the property ; otherwise, unless indemnified, the officer is not required to sell it.

Now, it is evident that if the effect of the verdict of the jury, finding the property subject to the execution, is to justify the officer in selling it, it must be because he is considered as in the lawful discharge of his duty, up to the trial and verdict, as well as after it. Because, if the officer is to be held as a trespasser for making the levy, and up to the time of the trial of the right of property all the mischief intended to be remedied by the act, might arise before the officer could avail himself of the benefit of it. For, until after the levy is made, no trial of the right of property can be had. The justification must therefore be complete, extending to the levy, as well as the sale. And such is the decision of the Supreme Court of Kentucky, under a similar statute. Terrel vs. Cockrill, 3 Bibb's Rep. 258.

And although the officer may be justified in making a levy upon property found in the defendant’s possession, and in the absence of evidence to’the contrary, prima faeie his, it by no means follows that if, upon demand or notice, the officer refuses to restore the property to the true owner, he should not be held *463as a trespasser ab initio, as belcl in 7 Mass. Rep. 123. Nor do we intend to question but that the owner of property, wrongfully talcen and converted by an officer, may not pursue and reclaim his property, or its value, regardless of any finding of the jury, upon the trial of the right of property, or whether the officer is notified of his title or not. The greatest extent to which either could go, would be to relieve the officer from liability as a trespasser in suit in trespass for damages.

But the officer, who levies a writ of attachment, may, with good reason, be held to greater strictness in making his levy, because, when once made, there is no means, by statute, for trying the title to the property levied upon, but he must, at his peril, return it with his writ. And, in addition to this, as attachment is a proceeding m rem, it is the defendant’s property which gives authority to the court to proceed to render judgment and direct a sale. The trial by interpleader, after the return of tho writ, it is true, may afford to the claimant some relief, but generally, after much delay and expense. In addition to these considerations, it may be remarked, that the whole current of adjudicated cases is in favor of holding the officer responsible at his peril for levying upon the property of a third person.

The question raised upon demurrer to the second special plea, which sets up in defence a recoverry of the mule in an action of replevin from a third person, in bar of a recovery in this suit, was settled by this court, when this case was before us upon a former occasion. See Overby vs. McGee, 7 Eng. 164. The demurrer was properly sustained.

Upon the trial, under the general issue, the proof was, in substance, that the mule was the property of the plaintiff, a resident of Texas, who loaned it to Higgs, the defendant in attachment, to ride home, with instructions, after he got home, either to send it back to the plaintiff, if an opportunity should be offered, or keep it until plaintiff came to Arkansas. That the mule was levied upon, and taken from the possession of Higgs, whilst on his way, but before he reached home.

*464The appellants contend, that the plaintiff was not entitled to recover in trespass, because, in such action, the plaintiff must not only show a general property in the chattel, but also possession. And that, although it may bo true that the general property carries with it, ¡prmiafaoie, a right to immediate possession in most cases, and consequently is equivalent to actual possession, that in this case, this prvmafaeie possession is repelled by evidence that the plaintiff had in fact parted with his right to immediate possession.

It is very true that, in some cases, the general owner of personal property may neither be in the possession of it, nor entitled to the possession of it, at the time the trespass is committed: and, it is equally true, that, when such is the case, the general owner cannot maintain trespass for such injury, (1 Ch. Pl. 169; Hume vs. Taffs, 4 Blackf. 136): as, for instance, whore the property is in the hands of a bailee for hire, for a time which had not expired, when the trespass was committed. Because, as the general owner in such case, has, by contract, vested in the bailee a special property, coupled with actual possession, the bailee’s right is good, even against the general owner for the time being. 'The inference, arising from the general ownership, of possession, is rebutted, and only exists in reversion; and, consequently, as there is neither actual possession, nor a right to possesskm in the general owner, he cannot maintain trespass. But, where .the general owner merely permits another gratuitously to use his chattel, such owner may maintain trespass against a stranger for an injury done to it, whilst thus held. 1 Ch. Pl. 174.

In the case of Long vs. Bledso, 3 J. J. Marsh. 307, the facts were, that the plaintiff’ loaned his mare to a neighbor, against whom an execution issued, which was by the sheriff levied upon the mare, whilst in the possession of the defendant in execution. Under this state of case, the question arose whether the plaintiff (the general owner) was so possessed of the property, at the time of the levy, as to entitle him to maintain trespass. And it was *465held, “that the possession of the loanee was, in legal contemplation, the possession of the lender.”

Tliia decision is directly in point, and is sustained upon this sensible ground that, when the actual possession of goods is in the bailee, and is held by him as a mere gratuity, and not upon contract, under which he has acquired rights beneficial to himself, and which he may assert, for the time being, even against the general owner, as such gratuitous possession is merely at the sufferance of the general owner, it may, at any time, be terminated by- him, and is considered in legal effect his. So that, upon this ground alone, there was no sufficient ground for granting a new trial.

Finding no error in the judgment and decision of the Circuit Court, let it be affirmed.