RECEIPTOR HAS NO PROPERTY IN THE GOODS, being merely the sheriff's servant, but his promise to redeliver them is founded upon a sufficient consideration, and may be enforced.

STRANGER WHOSE GOODS ARE LEVIED ON, FRAUDULENTLY CLAIMING OTHER GOODS of the defendant in execution, is not thereby debarred from recov ering full damages for the illegal taking of the goods actually belonging to him.

TRESPASS de bonis asportalis, for a stock of goods. At the trial at the circuit it appeared that the goods were levied on by the sheriff while in possession of the present plaintiffs, on an execution in favor of two of the defendants against one Phillips. The plaintiffs claimed under a transfer from Phillips, which the defendants insisted was fraudulent. At the time of the levy, the defendants offered to leave the goods unmolested if the plaintiffs would turn out or show them other property of Phillips, which the plaintiffs refused to do, claiming to have bought all of Phillips' personalty, including certain lumber piled near the store. On demand of the sheriff, the plaintiffs procured two persons to receipt to him for the goods in the store, and to promise to redeliver them or pay the amount of the execution, and the sheriff left the goods as he found them. The plaintiffs indemnified the receiptors and remained in possession, selling the goods as their own in the course of trade, so that only a small portion remained on hand at the trial. The defendants sued the receiptors shortly before the trial. It further appeared that after the levy, other goods of Phillips, which the plaintiffs claimed at the time of the levy, had been levied on and sold on another execution, and bought by one of the plaintiffs as agent of the plaintiff in that execution. The defendants insisted that trespass would not lie, because there had been no actual removal, or if so, that only nominal damages could be recovered, and that the plaintiffs could not recover also, because of their fraudulent claim to other property of Phillips, which prevented a levy thereon. The judge left the question of the bona fides of the sale and transfer by Phillips to the plaintiffs, to the jury, upon evidence which it is unnecessary to state. He instructed them, also, that the levy and taking of the receipt changed the possession in contemplation of law, and if the transfer to the plaintiffs was fair, they could recover the full amount expressed in the receipt, they having indemnified the receiptors. As to the plaintiffs' claim to Phillips' other property, his honor said that it was material only on the point as to the bona fides of the transfer of the goods in the

store, and did not, if that transfer was fair, prevent a full recovery. Verdict for the plaintiffs for the full amount claimed, and motion for a new trial, founded on exceptions to the instructions.

J. A. Collier, for the defendants, claimed: 1. That the plaintiffs ought not to recover more than nominal damages at furthest, because the property remained in their possession and the defendants could never obtain it, the only ground for a full recovery in trespass being, that upon such recovery and payment of the verdict, the property vested in the defendauts: 13 Mass. 225; Cow. Tr. 667, 669; 9 Mass. 258; 7 Cow. 278. 2. That the liability of the plaintiffs to the receiptors, and of the latter to the defendants, could not be urged, because the receiptors or the plaintiffs might show that the goods were not the property of the defendant in execution: 7 Cow. 294; Id. 670, n; 9 Mass. 204.

J. A. Spencer, for the plaintiffs, cited 7 Johns. 254, 302; 10 Id. 172; 10 Mass. 125; 1 Cow. 322; 5 Id. 323, and 7 Id. 294, to the point that either trespass or trover would lie in a case like this.

By Court, SUTHERLAND, J. The charge of the judge was correct on both its branches. The levy by the sheriff and the taking a receiptor, changed the possession of the goods in contemplation of law; it was a conversion of them to the use of the defendants. To maintain trover or trespass de bonis asportatis, evidence of an actual forcible dispossession of the plaintiff is not necessary; any unlawful interference with the property, or exercise of dominion over it, by which the owner is damnified, is sufficient to maintain either action. This is abundantly settled by numerous cases in relation to the action of trover: 1 Chit. Pl. 151, 152, 153, and cases there cited: Bristol v. Burt, 7 Johns. 254 [5 Am. Dec. 264]; 6 Mod. 212; 4 T. R. 260; 6 East, 538; 6 Bac. Abr. 677; Reynolds v. Shuler, 5 Cow. 325, where all the cases are collected. Trover and trespass are concurrent remedies for most illegal or tortious takings: 1 Chit. Pl. 169; 3 Willes, 336.

In Gibbs v. Chase, 10 Mass. 125, the plaintiff, as deputy sheriff, had levied an execution upon a quantity of timber, as the property of one Robbins; after such levy, the defendant, also an officer, seized and sold the same timber under process, against one Ordway, as his property, and forbid the plaintiff from selling or intermeddling with it; but the timber was not

actually removed from the place where the plaintiff left it; it was held that this was a tortious disturbance of the legal possession of the plaintiff, for which trespass would lie. The court say: "He who interferes with my goods, and without any delivery by me, and without my consent undertakes to dispose of them, as having the property general or special, does it at his peril, to answer me the value in trespass or trover; and even a subsequent tender of the goods will not excuse him, if I choose to demand the value."

But the recent case of Wintringham v. Lafoy, 7 Cow. 735, was in all its circumstances essentially like the case at bar; and trespass de bonis asportatis was there sustained. The defendant in that case was a constable, and by virtue of an execution against one Gallis, had levied upon certain articles of jewelry in the store occupied by him, which the plaintiff proved belonged to him. The defendant made an inventory, and said he would remove the goods unless security was given that they should be set forth coming to answer the execution; security was accordingly given, and the articles were not removed, but left in the store in the same condition as the officer found them. The action was sustained on the ground that the dominion which the defendant undertook to exercise over the property, by levying upon it, and exacting security for its forthcoming, constituted him a trespasser, he having no legal authority to intermeddle with it. That case is decisive upon this point, and establishes the doctrine that where the taking or intermeddling is tortious, either trover or trespass de bonis asportatis may be maintained.

It was not a case for nominal damages. If the plaintiff's were entitled to recover at all, they had indemnified the individuals who became security to the officer for the goods, and the sureties had been prosecuted; and we are to intend that they either have been or will be compelled to pay the value of the goods to the sheriff, for the benefit of those of the defendants who were plaintiffs in the execution. In Edson v. Weston, 7 Cow. 278, it was held that a receiptor to the sheriff, as a surety of this description is commonly termed, was a naked bailee, and was responsible only for gross negligence; and the property having been taken out of his possession by a paramount title, to wit, an execution levied upon it before it came to the defendant's possession, it was decided that he was not responsible. But I apprehend it would be gross negligence in a bailee of this description, to leave the property in the pos

session and under the control of the person from whom it had been taken; and if it was wasted or sold, he would be responsible; such is this case. Such a defendant would be estopped from denying the right of the party to the property. He could not set up a title to it in a third person. If taken from him by act of law, or perhaps by force, he may not be responsible on the ground that he is a naked bailee. A receiptor of chattels has no property in them; he can not maintain trover for them in his own name; he is but the servant or agent of the sheriff: 7 Cow. 294, and cases there cited; still his promise is founded on a good and sufficient consideration; it is obligatory upon him, and may be enforced. The plaintiffs in the execution having prosecuted the receiptor, it is not for them to allege that they can not recover; and if the receiptor is made to pay, he can undoubtedly resort to the indemnity given to him by the present plaintiffs.

The claim set up by the plaintiffs to other and distinct parcels of the personal property which once belonged to the defendant in the execution, though unfounded and even fraudulent, would not deprive them of their right of action, or diminish the amount which they were entitled to recover for the property actually belonging to them, and which was illegally taken by the defendants. The goods in question were not mingled with the other property; the goods were in the store; the other property was lumber, and lying outdoors. The cases referred to have no application: 7 Mass. 123; 3 Johns. Cas. 84. New trial denied.

Cited on the following points: That a receiptor is a mere servant or naked depositary: Butts v. Collins, 13 Wend. 147; Miller v. Adsit, 16 Id. 352. That a sale of property on another's land, and a direction to remove it, constitute such vendor a co-trespasser, where the property is afterwards removed, though he was not present at the time: Wall v. Osborn, 12 Wend. 40. That all persons directing or requesting another to commit trespass are co-trespassers, as in the case of an execution creditor requesting the sheriff to sell: Herring v. Hoppock, 15 Wend. 413. As to what is sufficient to constitute a cause of action in trespass de bonis asportatis: Brockway v. Burnap, 12 Barb. 351; S. C., 8 How. Pr. 192. That a levy on goods, without a removal, if not justified, is a trespass: Wheeler v. McFarland, 10 Wend. 324; Neff v. Thompson, 8 Barb. 213. Cited also in O'Donnell v. Kelsey, 10 N. Y. 420, as an authority on the subject of estoppels in pais. See on that point, Welland Canal Co. v. Hathaway, ante, 51, and citations in the note thereto

McCoy v. CURTICE.

[9 WENDELL, 17.]

OFFICIAL CHARACTER, GENERAL REPUTATION AS EVIDENCE OF.-The official character of all public officers may be established, at least prima facie, by evidence that they have been generally reputed to be and have acted as such, without production of their commissions.

SCHOOL DIRECTOrs and Trustees, being regular public officers, are within this rule.

POWER DELEGATED TO TWO OR MORE for a private purpose, must be executed by all, but in matters of public concern a majority may act if all are present.

WARRANT SIGNED BY TWO SCHOOL TRUSTEES for the collection of a tax is

good, and the presence of the third trustee at the previous proceedings will be presumed until the contrary appears.

ERROR from the common pleas, in an action of trover for a watch, to which the general issue was pleaded. The defendant justified the taking of the watch under a warrant issued to him as collector of a school district, signed by two persons as school trustees, commanding the collection of a tax assessed against the plaintiff and other taxpayers of the district, and gave evidence that the persons signing the warrant were generally reputed to be, and had acted as trustees, and that he was generally reputed to be, and had acted as collector. The plaintiff objected to this evidence as inadmissible, and to the warrant, because the erection of the district was not proved, and because the warrant was not signed by all the trustees, but the objections were overruled. The laying out and recording of the district were afterwards proved. Verdict for the defendant under the charge of the court, and the plaintiff sued out this writ.

S. J. Wilkin, for the plaintiff in error.

A. S. Benton, for the defendant in error.

By Court, SUTHERLAND, J. It is a general rule in relation to all public officers, that they may establish their official character by proving that they are generally reputed to be and have acted as such officers, without producing their commission or other evidence of their appointment. This is well established, as to all peace officers, sheriffs, constables, justices of the peace, etc: 4 T. R. 366; Poller v. Luther, 3 Johns. 431; Cow. Treat. 572, note m.; 6 Binn. 88; 9 Mass. 231 [Fowler v. Bebee, 6 Am. Dec. 62]; 7 Johns. 549; 9 Id. 125; 12 Id. 296; Wilcox v. Smith, 5 Wend. 231; 16 Vin. 113, 114. In Rex v. Jones, 2 Camp. 131, a

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