Thus too where goods were stolen from a stage coach, it was held, that they were well alleged in the indictment to be of the goods or chattels of the stage coachman, although he was the mere servant of the owner of the coach, and not answerable for the goods.

A special property may also be founded upon a responsibility for, or an interest in, the possession of chattels. Thus he, to whom goods are delivered merely to keep and redeliver upon request, has a special property in them. 21 H. 7, 14 pl. 23, where it is said the point had often been decided. Jones on Bailment, 112.

That a sheriff, who has seized goods upon mesne process, or upon execution, an agister of cattle, a carrier, factor, consignee, pawnee, trustee, &c. have a special property, admits of no doubt. 11 H. 4, 17 pl. 39; 48 E. 3, 20 pl. 8; 2 Saund. 47; 6 John. 195; 12 John. 403.

But a mere servant has not a special property in goods. Thus where a servant was employed in a shop merely to sell goods, he was held not to have a special property in them. Nor has a shepherd, who is employed to tend sheep, any property in the sheep. The reason is, because the law considers the goods and the sheep as much in the actual possession of the owner, as if the servant were not with them, and the servant is not responsible for them. If the goods or the sheep are taken away by a stranger, it is no injury to the servant, because he has no interest in the possession. But if a servant undertakes specially to be accountable for goods committed to his custody, he at once exchanges the character of a mere servant for that of a bailee, and has a special property.

Thus it seems that any person, who has an absolute or a special property, in a personal chattel, and a right to reduce it to immediate possession, has in law such a possession as will enable him to maintain an action to vindicate his right of possession, and this is what the law denominates a constructive possession. And any individual, who has a particular interest in the possession of such chattel, whether such interest be founded upon the evidence of title which possession affords, as in the case of a finder of lost goods, or on a right to the use of the chattel, as in the case of a hirer, &c., or on some responsibility for it, as in the case of a sheriff, &c., has what the law denominates a special property, and may maintain an action, whenever that special property is unlawfully invaded.

It now remains to compare the facts in the case before us with these principles. Huntington having seized the mare upon execution, delivered her to Poole and took his promise in writing to redeliver her on demand. Did this contract impose any responsibility upon Poole? That it did is not to be doubted. The extent of his responsibility is immaterial. It is enough that he was responsible for the safe-keeping and redelivery of the mare. This according to the principles to be deduced from the books gave him a sufficient interest in the possession to enable him to maintain this action. But it is said that Huntington had a special property in the mare; that two persons cannot have

severally a special property in a chattel, and that therefore, Poole would not have a special property in her. It is for those who hold this doctrine to show why two may not have severally, a special interest in a chattel, as well as two may have severally, one the general, and the other a special property in it at the same time. The reason is certainly not very obvious. It is true, that there are but two species of property in a chattel, absolute and special; but it by no means follows from this, that two cannot have severally a special property in it. There can be but one absolute owner of a chattel, but it seems to us very clear that several persons may have, severally, a special interest in it. Thus in the present case, when Huntington had seized the mare he immediately became responsible both to the debtor and creditor, and thereby acquired a special property in her, and when he delivered her to Poole for safe-keeping he did not part with his special property; but the moment that Poole became responsible for the safe-keeping and redelivery of her, he also acquired a special property in her, perfectly subordinate to and not at all inconsistent with, the special property of Huntington. If then the mare was unlawfully taken by the defendant, it was an injury both to Huntington and to Poole, and either may maintain an action: but a judgment in favor of one will be a good bar to an action by the other. Flanders had the general property, but not the right of possession; he could therefore maintain no action. Huntington's right of action was founded upon his special property and right of possession; Poole's upon his special property and actual possession. If Poole is to be considered as a mere servant, he must be held responsible to Huntington only as a servant. For it would be repugnant to every principle of justice to hold him responsible as a bailee while we allow him only the rights of a mere servant. But a mere servant is not responsible for goods forcibly taken from him, and if Poole is to be considered as employed in that character it would seem to be a good defence to any action Huntington may bring against him, that the mare was taken by force from him by the debtor or any other person without his fault. But this would undoubtedly be contrary to the understanding of the parties and might defeat the very object of the contract. It is therefore the opinion of the court that the plaintiff had a sufficient interest in the mare to enable him to maintain this action, and thus this objection cannot prevail.

But the defendant further contends, that Huntington having kept the mare more than five weeks without taking any step to complete the levy, the attachment so far as respected other creditors of Flanders was dissolved, and cites the case of Caldwell v. Eaton [5 Mass 399] in support of this objection. Our statute relative to the seizure and sale of goods upon executions is precisely like that of Massachusetts, and we see no reason to doubt that the construction of their court upon the statute in the case just mentioned is correct. We are not however prepared to say that the sheriff can in no case with the consent of the debtor keep the goods more than four days before sale without dissolv

ing the attachment with respect to other creditors, provided he proceeds within the four days to fix and advertise the time and place of sale. When the sheriff seizes goods upon execution he should immediately within the four days proceed to advertise them for sale, and should sell them as soon after the expiration of the four days as can be conveniently done. If he does not do this, other creditors have a right to consider the attachment as dissolved, and to take the goods from his possession. The verdict in this case must therefore be set aside and a new trial be granted.1

APPEAL from the Superior Court of Law of Davidson County, at the Fall Term, 1851, his Honor Judge Ellis presiding.

This is an action of trover for a horse, and was tried on the general issue. The plaintiff was deputy sheriff, and had a fieri facias on a judgment in favor of one Hoffman against one Horne, by virtue of which he seized the horse. He did not, however, take the horse out of the possession of Horne, and the latter sold it to the defendant a few days afterwards, and, upon demand by the plaintiff, the defendant refused to give the horse up. The counsel for the defendant insisted that the action would not lie, because the plaintiff did not keep the possession of the horse, but left it with Horne, from whom the defendant purchased ; and, also, because the defendant, if liable at all, was liable at the suit of the sheriff, and not of the plaintiff. But the court instructed the jury that upon these facts the plaintiff was entitled to recover; and after a verdict and judgment against him, the defendant appealed. Gilmer and Miller, for the plaintiff.

No counsel for the defendant.

RUFFIN, C. J. Although a sheriff may have trover, or trespass for goods seized in execution, which are taken by another, yet his deputy cannot. The reason why the sheriff has the action is, that the debtor is discharged and the sheriff becomes liable to the value of the goods, and therefore the law vests the property in him. Wilbraham v. Snow, 2 Saund. 47. But the law charges the deputy with no duty to the creditor. If he make defaults in serving the execution, he cannot be sued for it, but his principal only. On the contrary, when he takes goods on execution the sheriff becomes answerable for their value to the creditor, and hence the property vests in the sheriff and not in the deputy. It was suggested that the deputy held as the bailee of the sheriff, and thus

1 Thayer v. Hutchinson, 13 Vt. 504 accord. So in a case of replevin. Miller v. Adsit, 16 Wend. 335.

had a special property. He, however, is not a bailee, in the sense of having a possession of his own, but he is merely the servant of his su perior and holds for him. The plaintiff, therefore, has no property in

the horse, and cannot have this action.

PER CURIAM.

Judgment reversed, and venire de novo.1

1 "It has been supposed, to be sure, that a 'special property' was necessary in order to maintain replevin or trover. But modern cases establish that possession is sufficient, and an examination of the sources of our law proves that special property did not mean anything more. It has been shown that the procedure for the recovery of chattels lost against one's will, described by Bracton, like its predecessor on the Continent, was based upon possession. Yet Bracton, in the very passage in which he expressly makes that statement, uses a phrase which, but for the explanation, would seem to import ownership, — Poterit rem suam petere. The writs of later days used the same language, and when it was objected, as it frequently was, to a suit by a bailee for a taking of bona et catalla sua, that it should have been for bona in custodia sua existentia, it was always answered that those in the Chancery would not frame a writ in that form.

"The substance of the matter was, that goods in a man's possession were his (sua), within the meaning of the writ. But it was very natural to attempt a formal reconciliation between that formal word and the fact by saying that, although the plaintiff had not the general property in the chattels, yet he had a property as against strangers, or a special property. This took place, and, curiously enough, two of the earliest instances in which I have found the latter phrase used are cases of a depositary, and a borBrooke says that a wrongful taker has title against all but the true owner.' In this sense the special property was better described as a 'possessory property,' as it was, in deciding that, in an indictment for larceny, the property could be laid in the bailee who suffered the trespass.

rower.

66

I have explained the inversion by which a bailee's right of action against third persons was supposed to stand on his responsibility over, although in truth it was the foundation of that responsibility, and arose simply from his possession. The step was short, from saying that bailees could sue because they were answerable over, to saying that they had the property as against strangers, or a special property, because they were answerable over, and next that they could sue because they had a special property and were answerable over. And thus the notion that special property meant something more than possession, and was a requisite to maintaining an action, got into the law.

"The error was made easier by a different use of the phrase in a different connection. A bailee was in general answerable for goods stolen from his custody, whether he had a lien or not. But the law was otherwise as to a pledgee, if he had kept the pledge with his own goods, and the two were stolen together. This distinction was accounted for, at least in Lord Coke's time, by saying that the pledge was, in a sense, the pledgee's own, that he had a special property in it, and thus that the ordinary relation of bailment did not exist, or that the undertaking was only to keep as his own goods. The same expression was used in discussing the pledgee's right to assign the pledge. In this sense the term applied only to pledges, but its significance in a particular connection was easily carried over into the others in which it was used, with the result that the special property which was requisite to maintain the possessory actions was supposed to mean a qualified interest in the goods." Holmes, Com. Law, 242–244.

"The property in the goods is that which most usually draws to it the right of possession; and the right to maintain an action of trover is therefore often said to depend on the plaintiff's property in the goods; the right of immediate possession is also sometimes called itself a special kind of property; Rogers v. Kennay, 9 Q. B. 592; but these expressions should not mislead the student. The action of trover tries only the right to the immediate possession, which, as we shall now see, may exist apart from the property in the goods. The action of trover tries the right of possession, and may

or may not determine the property. For strange as it may appear, there is no action in the law of England by which the property either in goods or lands is alone decided." Wms. Pers. Prop. (12th ed.) 31, 32.

See also Dicey on Parties, 346, 347, 352, 353, 358-360.

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MEASURE OF DAMAGES IN ACTION BY BAILOR OR BAILEE. "He who hath a special property of the goods at a certain time shall have a general action of trespass against him who hath the general property, and upon the evidence damages shall be mitigated; but clearly, the bailee, or he who hath a special property, shall have a general action of trespass against a stranger, and shall recover all in damages, because that he is chargeable over. See 21 Hen. 7, 14 b. acc." Heydon and Smith's Case, 13 Co. 67, 69.

CHESLEY v. ST. CLAIR.

SUPERIOR COURT OF JUDICATURE OF NEW HAMPSHIRE.

[Reported 1 N. H. 189.]

THIS was an action of trover for a horse, saddle, and bridle. The cause was tried here at the last term upon the general issue. The plaintiff, to maintain the issue on his part, proved that one Benjamin Hodgdon had bailed the articles mentioned in the writ, to him to ride to Dover. The defendant denied that Hodgdon had any interest in the article, and introduced evidence to show that the property was his own. Upon this the plaintiff called Hodgdon as a witness to prove that he, Hodgdon, was the lawful owner of the property. The defendant objected to the admission of Hodgdon as a witness on the ground that he, having bailed the property to the plaintiff, was interested in the event of the suit, but he was admitted, and the jury returned a verdict for the plaintiff.

J. Mason, for the defendant.

Ichabod Bartlett and James Bartlett, for the plaintiff.

RICHARDSON, C. J. The question is, whether in an action of trover, brought by the bailee of a chattel against a stranger, the bailor is a competent witness for the bailee to prove the general property in himself? There is such a privity between the bailor and the bailee of chattels that a recovery by one in an action of trespass or trover against a stranger for taking the goods is, in general, a bar to an action by the other. And a recovery by the bailee in trespass or trover against a third person operates as a transfer of the property or chattel to such third person. Solutio pretii emptionis loco habetur. It seems to follow that whatever may be recovered in such a suit by a bailee must be recovered to the use of the bailor, as much as if it were recovered upon a contract of sale of the chattel by the bailee with the assent of the bailor. And it has been held that a verdict in favor of the bailee may be used in evidence in an action by the bailor against the bailee. If this be law, it is clear that Hodgdon was an incompetent

witness.

It is very clear that a recovery by the bailee betters the situation of the bailor because it settles the question of property, and this has been held sufficient to exclude a witness.

There may be cases, however, in which the bailor will be a competent witness for the bailee. Thus if the goods are wrongfully taken from the bailee, and he obtains possession of them again, or if the bailor releases the property to the trespasser, and the bailee bring trespass to recover the damages he may have sustained by being deprived of the possession, as it seems he may, in such case there seems to be no reason why the bailor should not be a witness for the bailee, for it is clear that he can have no interest ir. the recovery.

In the present case as the object of the suit is to recover the value of the property, and as the only question between the parties is, whether the property belonged to Hodg don or the defendant, we are of opinion that Hodgdon was an incompetent witness for the plaintiff and that the verdict must be set aside, and a new trial granted.

See Little v. Fossett, 34 Me. 545; White v. Webb, 15 Conn. 302, 305; Harker v. Dement, 9 Gill, 7; Lyle v. Barker, 5 Binn. 457.