Hart v. Hyde

if an office*' attach goods, and afterwards sell the same oft an execution, and-' the purchaser take the receipt5 of a third person in whose possession they are’ for the same,* trespass may be sustained-against the officer, if the propertywar not liable to attachment. A cooking stove'is protected' from* attachment as a’necessary article of house-hold' furniture. To deprive the general owner of chattels of tlie action of trespass by reason* of a possesson of another, it must appear that the former has parted-with- the* right of possession for a specific time.

CASfr STATED'. This was an action of trespass, brought to recover the! value of a cooking, stove and pipe, which had been levied* upon and sold under an execution- in favor of Hyde against Hart. H-yde was'the purchaser of the stove at the Sheriff’s sale. The stove had previously been; Used; by Hart as a cooking stove, & was his only stove-. About three months-previous to the attachment, Hart had temporarily suspended house-keeping, and placed the stove’ in the- possession’ of one Lewis, who was to keep it, and pay a reasonable rent for the use of it-, until it should be called for by Hart. When the stove was attached on mesne’ process, Lewis receipted it to the officer, and retained the1 possession- and* us e of it, until it Was sold on the execution, when he also receipted it- to Hyde, and still' continued in- the use and possession of it. The stove had not been removed at any time,, nor in any manner disturbed; but Lewis retained1 the occupancy of it, after, as before the levy and- sale: Subsequently to the sale, but before the commencement of the suit, Hart called- on Lewis for the stove, who declined: delivering it up to him-. Hart then brought an- action of trespass against Hyde, before a Justice- Court, and recovered judgement- the- 3d day of March, 1832, for $12,-9 cts. damages, and his cost. An appeal was entered to-’ the County Court; but without taking the opinion of the-Court below, a verdict was taken for the plaintiff for the’ value of the stove, with liberty to the plaintiff to move to; enter a non-suit, if this Court should be of opinion, that the plaintiff could not recover in this form; of action-. It is also agreed, that if the Court should be of the opinion that the plaintiff ought to recover in this action, the damages shall be assessed at #12,09, with interest from- the 3d March, 1332. 1st, Does the sale of a chattel by the Sheriff, on execution, constitute such a transfer of the* property as will enable the plaintiff to sustain tre-pass ? The plaintiff contends that the sale by the Sheriff on execution is a perfect transfer of the property to the purchaser. Had the plaintiff taken the property from Lewis after the sale, he would have been a trespasser. 2d, Was the possession of Lewis, in the first instance, the possession of Hart ? Lewis was the bailee^of Hart, and his possession was the possession of Hart. The stove was placed in his possession for safe-keeping, and Hart had the right to the actual possession at any time; and is unlike the cases where the property had been rented for a definite period. 3d, A cooking stove is such an~article as is protected by the statute. — ® Ch. Rep. 68, Crocker vs. Spencer. This case pre» sents the questions, whether the mere levy of an execution upon a personal chattel, without injuring it, removing it, or changing the possession of it, is such an act as of itself amounts to a trespass, vi etarmis; whether the plaintiff had such a possession as would enable him to bring the action; and whether under the circumstances, the stove was exempt from attachment. As to the first point, the acts for which trespass lies, may be the taking aivay the personal chattel from the owner or possessor; the destroying it, or the doing some damage to it. In this case, there was no damage to the stove — none complained of. — No actual force was exercised : the law itself can imply none, without an actual disturbance or detention of the article, in the use and occupancy of it, by the owner or possessor. No direct and immediate injury resulted to the owner. At most, only indirect or consequential injury could accrue to him. So that trover or case only, and not trespass, could lie for the act here complained of. The simple act of a peaceable entrance into another’s house, even by an officer,'and the writing out on the execution a certificate of a levy upon any personal chattel in the house, without removing, detaining, or even touching it, is not such an act as will subject him to the action of trespass. The subsequent bona fide purchase of the stove at the sale by Hyde, was not a wrongful conversion of it. A bona fide purchaser of a chattel, at a vendue sale, is not a trespasser, though the property have been wrongfully taken and sold. Trover only, and not trespass, can be bro’t in such case, for the recovery of its value. In the second place, an actual or constructive possession of the chattel is necessary to enable the owner to maintain trespass for taking. — 4 T. R. 489, Ward vs. Macauley et al. — 4 B. & A. 590, Croft et al. vs. Allison. The action of trespass is founded on possession, of trover upon property. In this case the plaintiff had not the possession.— Hart had parted with the possession of the stove to Lewis, and was receiving rent for it. Although Hart was at liberty to call for the stove when he pleased, he cannot be considered as having a constructive possession, before a demand was made. The case is distinguished from that of a servant, or carrier, or a mere bailee, with remuneration for keeping, or carrying, in these instances, the owner is not supposed to have parted with the possession, and can maintain trespass for taking. The possession of a mere bailee, carrier, or servant, is not coupled with any interest in the chattel. In this case, the possession of Lewis was coupled with a direct and exclusive interest in the stove, until demanded by Hart, and he would have been held accountable to Hart for an injury done to it. It matters not that the possession was not given for a specified time.' •Lewis’ possession of the stove was as exclusive, and his interest as direct, previous to a demand by Hart, as if he had taken it for a definite length of time. Hart then could maintain trover only for the taking of the stove from Lewis previous to its having been demanded. As to the third point, a cooking stove is not exempt from attachment except when actually appropriated to the use designed for it. — 2 Chip. R. 68, Crocker vs. Spencer.