
    Brownell versus Manchester et al.
    
    A deputy sheriff having attached goods, carried them into Rhode Island, and dehv ered them to a bailee, taking his receipt, and the bailee put them into the hands of another person for safe keeping. Held, that the officer might maintain trespass, and recover damages, to the value of the goods,against mere strangers who took them away from the keeper in Rhode Island.
    Trespass for taking and carrying away nineteen sheep and one swine, the property of the plaintiff. Plea, the general issue.
    The plaintiff, a deputy sheriff of the county of Bristol, attached the sheep and swine on the 9th of January, 1821, on a writ in favor of Jonathan Peckham against Lawton Case, and removed them into the State of Rhode Island, where he delivered them to Jonathan and John Peckham, taking their receipt for them. They delivered them for safe keeping to Isaac Peckham, who lived in Rhode Island ; and he retained possession of them until the 3d of March, 1821, when they were taken by the defendants, who had notice of the attachment. The defendants, within six hours after they had taken them, delivered them to Case. Jonathan Peckham obtained judgment in his suit against Case, at the March term 1821 of the Circuit Court of Common Pleas.
    At the trial in the court below, Williams J. instructed the jury, that the plaintiff, by his servant, Isaac Peckham, retained possession sufficient to entitle him to recover against mere strangers, as the defendants appeared to be, and that the damages should be the full value of the chattels at the time when they were taken by the defendants. The jury found a verdict for the plaintiff accordingly, and the defendants filed their exceptions' to these instructions.
    
      M. Morton, for the defendants.
    A sheriff has no authority, m general, to act out of his county, and the legislature could not give him power to act without the Commonwealth. As soon as these chattels were carried out of the Commonwealth, the attachment was dissolved ; the possession of the officer was then wrongful, and so no possession, and he became a trespasser ab initia. Isaac Peckham, who had the actual pas session, was not the servant of the plaintiff, because the plaintiff had no rightful possession after the removal of the chattels. There was not such a possession in the plaintiff as will enable him to maintain an action of trespass. 1 Chit. Pl. 167; 2 Saund. 47 a, et seq; Ward v. Macauley, 4 D. & E. 490; Smith v. Milles, 1 D. & E. 480; Knap v. Sprague, 9 Mass. Rep. 258; Warren v. Leland, ibid. 265; Ayer v. Aden, Yelv. 44; Ladd v. North, 2 Mass. Rep. 516; Thurston v Mills, 16 East, 274. As the chattels were in a few hours delivered by the defendants to the owner, who might himself have taken them from Peckham, the plaintiff is entitled, at most, to nominal damages only.
    
      W. Baylies, for the plaintiff.
    The removal of the chattels was not a dissolution of the attachment, but the special property in them continued in the plaintiff. Ladd v. North, ubi supra. By the common law a man might have impounded his distress m any county ; and although by the statute of Marlbridge he is forbidden to remove it out of the county in which it is taken, yet, if he should, it would not make him a trespasser.
    
    But if the attachment was dissolved, the plaintiff had such a possession as will enable him to maintain this action against the defendants, who were wrongdoers, acting without any authority from the owner of the chattels or from the law. Hoyt v. Gelston, 13 Johns. Rep. 151; Graham v. Peat, 1 East, 244; Harker v. Birkbeck, 3 Burr. 1563; Lambert v. Stroother, Willes, 221; 2 Saund. 47; Catteris v. Cowper, 4 Taunt. 547; 1 Chit. PL. 168 et seq.
    
    
      
       Gilbert on Distresses, 49, 50.
    
   The opinion of the Court was delivered at April term 1823, at Taunton, by

Parker C. J.

There is no question but that the plaintiff may maintain this action of trespass, if his special property in the goods continued after their removal within the State of Rhode Island. The cases cited by the defendants’ counsel show only that possession in the plaintiff is necessary to main tain trespass ; but the legal possession may be in one who has not the actual keeping of the goods, so as to entitle him to the action of trespass. Where the person, who has the custody merely, is the servant of him who commits the goods to his care, the lawful possession is in him who has the general or special property. It has even been decided, that the servant in such case cannot himself maintain trover for the goods, if taken out of his possession ; and the reason given is, that the special property remains in the master. If goods committed to a carrier are wrongfully taken from him, the owner may have trespass. 4 D. & E. 490. If trespass be done to goods m the hands of a bailee, trespass lies for the bailor. 2 Rol. Abr. 569, Trespass, P 5. A constructive possession is sufficient, 1 D. & E. 480.

Then the inquiry is, whether the special property of the plaintiff was determined on the goods being carried into the State of Rhode Island ; and there is no pretence for this, for the officer had the contract of his bailee to redeliver them when they should be wanted ; and if they were brought to him when he should want them to satisfy the execution, they would be considered as holden from the time of the attachment. There seems to be no difference, as to the authority of the officer over the goods, between carrying them just over the line of an adjoining State, and carrying them into an adjoining county ; for he has as much authority in the one place as the other. Then, supposing them to be in the custody and possession of the plaintiff when taken by the defendants, as they may be legally held to be, the taking was a trespass for which the defendants must be answerable in damages.

Judgment according to the verdict. 
      
      
        Ludden v. Leavitt, 9 Mass. Rep. 105; Bond v. Padelford, 13 Mass. Rep. 395. Contra, Poole v. Symonds, 1 N. Hamp. R. 289. See also Burrows v Stoddard, 3 Conn. R. 160; Dillenback v. Jerome, 7 Cowen, 294; Mitchell v Hinman, 8 Wendell, 667
     