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India & London Assur. Co., 15 C. B. 365, and Law v. London Policy Co., 1 Kay & Johns. 223, cited in Loomis v. Eagle Ins. Co., 6 Gray, 396 ; Connecticut Ins. Co. v. Schaefer, ubi supra; Rawls v. American Ins. Co., 27 N. Y. 282 ; Provident Ins. Co. v. Baum, 29 Ind. 236. The value and permanency of the interest is material only as bearing on the question whether the policy is taken out in good faith, and not as a gambling transaction. If valid in its inception, it will not be avoided by the cessation of the interest. The mere fact that the assured himself has no interest in the life does not avoid or annul the policy.
We think that the second ruling was correct, and that the fact that the assignee had no insurable interest in the life does not avoid the assignment. It is one circumstance to be regarded in determining the character of the transaction, but is not conclusive of its illegality.
Decree for the defendant Allen.
NOTE. — In this chapter are collected cases illustrating the rights which may be had in personal property by persons other than the owners. The principal heads under which these rights may conveniently be classed are (1) Taking on Judicial Process; (2) Distraint ; (3) Vendor's Lien ; (4) Bailment; (5) Finding. The law of Vendor's Lien is best dealt with in connection with Sales ; and the subject of Distress is omitted.
TAKING ON JUDICIAL PROCESS.
(Reported 2 Rolle, 16. 561, pl. 4.] PER CURIAM. If a searcher searches certain stuffs, and unpacks them and puts them in the dirt, whereby they are damaged, although the search was legal, yet the abuse of this authority will make him a trespasser ab initio.
WILBRAHAM v. SNOW.
KING'S BENCH. 1670.
(Reported 2 Saund. 47.] TROVER, upon special verdict. The case was this ; the plaintiff, being sheriff, seized goods in execution by virtue of the writ of fieri facias ; and afterwards, and before they were sold, the defendant took and carried them away, and converted them to his own use ; for which the plaintiff brought his action. And on the first argument it was adjudged that the action well lies ; and that the plaintiff, being sheriff, has such a property in the goods, by seizing them in execution, that he may maintain an action of trespass or trover at his election ; and judgment was given for the plaintiff nisi, etc., but it was not moved afterwards.
Sympson, for the plaintiff.
of Ayre v. Aden in Moor. 737; Cro. Jac. 73; Dalt. Office of Sheriffs, case 2, fol. 19, which case was adjudged as reported in those books, against the report of Yelverton, 44, and the Roll is in Easter 44 Eliz. Roll. 318.
SHORLAND V. GOVETT,
King's BENCH. 1826.
(Reported 5 B. & C. 485.] TRESPASS for breaking and entering the plaintiff's dwelling-house, and remaining there a long time, to wit, for six hours, and until the plaintiff, in order to obtain the quiet and peaceable possession of his house, paid to the defendant £119 10s. 9d. of lawful money. As to breaking and entering the house, and making a noise therein, and renaining there for the space of time in the declaration mentioned, pleas, first, not guilty ; second, actio non, because before the said time, when, to wit, on, &c., Sir W. T., bart., sued out of the court of our lord the king, before the king himself at Westminster, a certain writ of fi. fa. directed to the sheriff of Somersetshire, commanding him to cause to be levied of the goods and chattels in his bailiwick of J. H., R. S., and the plaintiff, as well a certain debt of £200, which the said Sir W. T. had then lately recovered against them in his said Majesty's said court; as also £10 which in the same court were awarded to the said Sir W. T. for his damages, &c., which said writ was delivered to the said sheriff, who inade his warrant to R. S., and the defendant then and at the said time when, &c., being a bailiff of the said sheriff, and thereby by virtue of the said writ commanded them, &c., which said warrant afterwards and before the return of the said writ, and before the said time, when, &c., to wit, on, &c. was delivered to the defendant so being such bailiff, to be executed in due form of law, by virtue of which said writ and warrant the defendant afterwards, and before the return of the writ, to wit, at the said time when, &c., peaceably entered the said dwelling.house in order to levy the debt and damages aforesaid, according to the exigency of the writ, and on that occasion, and for that purpose stayed and continued in the said dwelling-house for the said space of time in the declaration mentioned, being a reasonable time in that behalf. And this, &c. Third plea to the trespasses in the introductory part of the second plea mentioned, stated the issuing of a fi. fa. indorsed to levy £110 158. besides poundage, &c., and a warrant to defendant to levy ; that defendant, in obedience to the warrant, peaceably entered in order to levy, and did levy the said last-mentioned sum, together with poundage, &c. Replication to the second plea, that the writ and warrant, in that plea mentioned, were respectively indorsed to levy a much less sum than the debt and damages in that plea mentioned, to wit, £110 15s., besides poundage, &c., and that shortly after the defendant entered into
the dwelling-house, in which, &c., and whilst he stayed and continued therein as in the second plea mentioned, and before the said writ and warrant were fully executed, the defendant, under color and pretence of the said writ and warrant, extortionately and unlawfully demanded, exacted, and received of and from the plaintiff a much larger sum of money, to wit, £3 10s. more than he was entitled to levy upon the goods and chattels of the plaintiff, under and by virtue of the said writ and warrant, and according to the direction indorsed thereon as aforesaid ; which said sum of £3 108., together with the further sum £116 0s. 9d., amounting in the whole to a large sum, to wit, £119 10s. 9d., being the amount then and there claimed by the defendant by virtue of the said writ and warrant, the said plaintiff was forced and obliged to pay for the purpose in the declaration mentioned. And this, &c. Similar replication to the third plea. Demurrer and joinder.
E. Lawes, in support of the demurrer.
BAYLEY, J. It seems to me that this replication is bad, and that the defendant cannot be deemed a trespasser ab initio. In the cases cited from Rolle's Abr. and Cro. Car., where it is said that a sheriff is made a trespasser ab initio, by the neglect to return a writ, the expression is inaccurate. There, for want of the return, no complete justification was ever shown. The distinction is this, where there are facts alleged on the record, making out a good defence, but something added in the replication destroys that defence, the party is made a trespasser ab initio. But if the sheriff seizes goods under a writ where it is his duty to make a return, he never has a justification unless he discharges that duty; he must, therefore, allege that return in his plea. A bailiff not having the return of process is not bound to make such allegation, as appears by Girling's Case, which has been cited for the plaintiff. Here, then, the defendant had a good justification without showing a return. The answer given to it is, “ that before the writ and warrant were fully executed, the defendant demanded, exacted, and received a larger sum than he was entitled to levy:" Does that make him a trespasser with reference to the acts alleged in the count? Where the subsequent act is a trespass, the law assumes that the party did not enter for the purpose alleged in the plca, but for the purpose of committing the trespass. But here the subsequent act was not a trespass, nor can it be reasonably supposed that the original entry was for the purpose of the extortion. For these reasons I think that the defendant cannot, in this case, be considered as a trespasser ab initio, and that our judgment must be in his favor.
HOLROYD, J. If the allegations contained in this replication were sufficient to make the defendant a trespasser ab initio, the consequences to him would be very serious, for he would be liable to damages to the extent of the whole sum levied, and not merely the surplus exacted illegally. He is still liable for the extortion, although not for the sum which he was authorized to levy. The cases cited as to the necessity of a return by a sheriff are not applicable. In them, but for the return, the act would have been unlawful ab initio; instead of saying that the
more correct to say that the presence of the return was necessary in order to make his act lawful ab initio. The only question here is, whether the first resolution in the Six Carpenters' Case was correct, viz. that the parties were not trespassers ab initio, because the subsequent act was not a trespass. This replication does not show that the defendant held the goods longer than he was entitled so to do; but that he took £3 10s. more than he was authorized to levy. The whole money was paid at once, and until a part was paid the bailiff had a right to keep possession. It is not averred that the smaller sum was tendered and refused ; and perhaps even that, according to the doctrine in 8 Co. 146, might not have been sufficient.
LITTLEDALE, J. If the defendant were a trespasser ab initio there can be no doubt that the plaintitf would be entitled to recover the whole sum levied, just as if no justification at all had been pleaded. Considering the numerous instances of extortion that occur, there would unquestionably have been many actions of this nature had they been thought maintainable. It is contended, however, that such is the law according to the Six Carpenters' Case. Whether there is much good sense in that case it is unnecessary to say; for the decision of the present question it suffices to say, that in every instance put by Lord Coke there was a subsequent act of trespass, which made the party liable to be treated as a trespasser ab initio. Com. Diy. Trespass (C. 2), Dye v. Leatherdale, 3 Wils. 20; and Taylor v. Cole, 3 T. R. 292, all confirm Lord Coke's view of the case. Here no act of trespass subsequent to the entry and levy is shown ; the replication alleges the extortion to have been before the writ was fully executed. There are many statutes against extortion, but in none of them is it said that the party guilty of it is a trespasser; nor is he said to be so in any of the instances put in Com. Dig. tit. Extortion, or Trespass ab initio. I think, therefore, that this replication is bad.
Judgment for the defendant.
MELVILLE v. BROWN.
[Reported 15 Mass. 82.] The case was thus. There were two tenants in common of a chattel, and the sheriff, upon an execution against one of them, seized the chattel and sold the whole of it, and paid over the whole money to the judgment-creditor. The other part-owner of the chattel brought trespass against the sheriff'; and it was holden that the action well lay.
It was objected that, as the sheriff was authorized to seize the whole