
    Lyman Sawyer versus Calvin Merrill et al.
    
    It an officer, having attached goods of a debtor, suffers them to remain intermingled with other goods of the debtor, and makes claim to the whole, so that another officer, having a writ against the same debtor, cannot distinguish which have been ittached, the latter officer will be justified in attaching the whole.
    It is not a ground for a new trial, that the judge, after having summed up the cause, instructed the jury, on motion of counsel, upon a point arising out of the facts in Uie case but not previously suggested, such course of proceeding being a matter within the discretion of the judge; but if the losing party might have produced material evidence on such point, in case it had been earlier presented, he has a remedy by petition for a new trial.
    Trespass for taking certain articles of household furniture, the property of the plaintiff. Trial before Morton J., upon the general issue.
    
      The defendants admitted the taking, and it was agreed, that at the time of the alleged trespass, the general property in the articles was in Norman Smith. The plaintiff, to prove a special property in himself, produced a writ in favor of one Whitaker against Norman Smith, dated December 16, 1825, upon which the plaintiff, as a deputy sheriff, had returned an attachment of the chattels on the same day. The defendants introduced a writ in favor of Rodney Smith, one of the defendants, against Norman Smith, dated December 17, 1825, upon which Merrill, the other defendant, had returned an attachment of the same chattels with many others. Both of these writs were regularly entered and judgment rendered in favor of the respective plaintiffs. Merrill, soon after he attached the property, sold it by public auction.
    It appeared that the articles claimed to be attached by the plaintiff, remained in Norman Smith’s house with other similar property liable to attachment, at the time when the defendants made their attachment. The plaintiff alleged, that when he attached the property, he made a. list of the articles, and put it into the hands of a keeper, who was a witness on the trial, and who testified that he then had such a list, though he had since lost it. When the defendants were taking the articles in Smith’s house and were about to remove them, the plaintiff and the witness claimed them as having been attached by the plaintiff, and forbade the defendants’ taking and removing a single article; but the defendants proceeded, notwithstanding this objection, and removed the goods.
    After the judge had ended his charge to the jury, the defendants’ counsel moved to have them instructed, that if they were satisfied that the articles claimed by the plaintiff, were so intermingled with other property of Norman Smith liable to attachment, that the defendants could not distinguish what had been attached from what had not, and if they were satisfied that the plaintiff made a general claim of the whole without designating the articles which he had attached, so that the defendants could have no means of knowing which had been attached and which not, then that the de fendants were justified in attaching the whole. This mo tian was objected to by the plaintiff’s counsel, because this point had not been stated during the trial, and he had had no opportunity to comment upon it and upon the evidence relative to it. But the judge gave the plaintiff’s counsel permission to make any comments which he might think necessary upon it, and if he chose, to examine his witnesses relative to it; but this he declined doing, alleging that liis witnesses had left town. The plaintiff then contended, that as the defendants were taking the whole property in the house liable to attachment, and persisted in doing so after they were forbidden, it was not necessary for the plaintiff to inform them which articles he had attached; but the judge instructed the jury in the manner stated in the defendant’s motion.
    
      Sept. 25th.
    
    
      Sept. 26th.
    
    A verdict was returned for the defendants; but if these instructions were wrong, a new- trial was to be granted.
    Dewey, for the plaintiff,
    referred to Davis v. Mason, 4 Pick. 156.
    
      Ashmun, contra,
    cited Bond v. Ward, 7 Mass. R. 123; Gordon v. Jenney, 16 Mass. R. 465.
   Per Curiam.

The instruction to the jury was in itself correct. It was in the power of the plaintiff to designate which articles he had attached, but he refused to do so and claimed the whole ; so that the defendants were obliged to take the whole, in order to obtain a lien on those which "had, not been attached. The same principle applies here as in the case of a stranger’s goods intermixed with those of the debtor.

The objection is however rather to the time than to the matter of the instruction. It is said the plaintiff had not an opportunity to comment on the point made by the defendants, and to produce counteracting evidence ; and there may have been ,some inconvenience in the course pursued; for though probably no further evidence remained to be adduced, yet it is to be expected that all the material points will be suggested before the judge begins to sum up. But the judge may think of some point which the counsel did not, or vice versa ; and if it is based on the facts in the case, stating it to the jury will not be a ground for a new trial. It is a matter within the discretion of the judge. If evidence could have been given which would have shown the suggestion to be of no force, the party may have the benefit of it utpon a petition for a new trial; so that no injury will be done. In the case referred to, of Davis v. Mason, the openng ai ; closing of the argument was considered to be a matter of right; but here the course of proceeding was discretionary, and as no injustice appears to have been done, a new trial cannot be granted.

Judgment according to verdict. 
      
       See Lewis v. Whittemore, 5 N. Hampsh. R. 364.
     