
    James Woodbury et al. versus Daniel Long.
    The plaintiff contracted to make some pew pannels for J, who was building a meetinghouse, to be paid for in cash on the delivery of them. The plaintiff made the pews and brought them to the meetinghouse, and deposited them there, but J was not there, being absent from town, but only his workmen. Beldy that the pannels were not delivered but still remained the property of the plaintiff, and were not liable to attachment as the property of J.
    
      A tortious taking, is, in an action of trover, proof of a conversion.
    If the goods of the plaintiff are attached as the property of J, the plaintiff may maintain trover against the attaching officer, without proving any demand, even where the goods are so situated as that the officer might have fairly supposed them to be the property of J.-
    This was trover for the pannel work of sixty-six pews, which the defendant, as a deputy sheriff of the county of Es sex, had attached as the property of John Johnson, first at the suit of James Homer, and secondly at the suit of a committee of a religious society in Amesbury.
    At the trial, before Morton J., the following facts appeared in evidence. In the spring of 1826, Johnson made a contract with the committee of the religious society above mentioned, to build and finish a meetinghouse for an agreed sum, and to furnish all the materials. The house had been raised, covered, and enclosed by boarding up the lower windows, hanging a coarse door by which to enter, and on which was put a lock for the purpose of shutting up the house when the workmen left it. The pews in question were made, and the materials furnished, at Lowell, by the plaintiffs, with whom Johnson had contracted for them at a certain price. After they were finished, Johnson proposed to the plaintiffs, that if they would transport the pews to Amesbury and deliver them there, he would give them an order on the committee, and that on the delivery of the pews at Amesbury they should receive their pay. This proposition was acceded to, and Johnson drew his order on the committee for the value' of the pews at Lowell, which was delivered to one of the plaintiffs, and which he carried with the pews to Amesbury. When the pews arrived there, the committee refused to accept the order and objected to the pews as not being so good as they had contracted for with Johnson. The pews were left in the meetinghouse by the plaintiffs, and were piled up together, separate from the other lumber and materials in the house, by Johnson’s workmen, he not being present, but out of the town, when they were left.
    At the time the defendant attached the pews, which was on December 5, 1826, he also attached a quantity of nails, and some window sashes ; the window sashes being piled up at the side of the house, and the nails being chiefly in casks. There were, at the time, boards and other materials upon which Johnson’s carpenters were at work. At the time of the attachment Johnson was absent from Amesbury. After the pews were attached, they were removed, with some of the other property attached, to a barn at a small distance, where they remained at the time this action was commenced. It was proved that the defendant, after this action was brought, had declared that he was indifferent how the case turned, for the committee had agreed to indemnify him for making the attachment.
    No demand of the pews having been made by the plaintiffs, it was contended, on the part of the defendant, that the action could not be supported, because, from the place in which the property was found, the defendant must have supposed the pews to be Johnson’s property, and therefore acted in conformity with his duty in making the attachment. But the judge instructed the jury, that if there had not been a delivery of the pews by the plaintiffs to Johnson or his agent, and an acceptance of the pews on his part, the property remained in the plaintiffs, and they were entitled to recover against the defendant without a previous demand.
    The jury found a verdict for the plaintiffs, and the defendant excepted to the above instructions. If they were wrong, a new trial was to be granted ; otherwise judgment was to be rendered on the verdict.
    
      Oct. 15 th.
    
    
      Stearns, for the defendant,
    insisted, that as there was no evidence of a demand, there was no proof of a conversion,
    Although a wrongful taking is said to be evidence cf a conversion, yet, in order to make it such, the taking must.be knowingly wrongful. But in the present case the defendant had good reason, from the situation of the pews, to suppose that they belonged to Johnson, and therefore was not guilty of a conversion in attaching them. He cited Cooper v. Chitty, 1 Burr. 31; 2 Wms’s Saund. 47 e, 47 f, note; 3 Dane’s Abr. 195; Solomons v. Dawes, 1 Esp. R. 83; Bond v. Ward, 7 Mass. R. 127; Israel v. Etheridge, Bunb. SO; Tinkler v. Poole, 3 Wils. 146; S. C. 5 Burr. 2657; Bayly v. Sunning, 1 Lev. 173.
    
    
      Hoar and Glidden, contra,
    
    cited M'Combie v. Davies, 6 East, 538; Baldwin v. Cole, 6 Mod. 212.
    
      April term 1830,
   Parker C. J.

afterward drew up the opinion of the Court There is no doubt but that the property in the pannels of the pews was in the plaintiffs. They were t® become the property of Johnson only on delivery, and at the delivery they were to be paid for. They were transported to the place of delive ry, but were not paid for or delivered, but remained, until the attachment, the property of the plaintiffs.

The attachment was a tortious act, which in itself was a conversion, according to well settled principles of law and uniform practice. Actions against sheriffs, &c. v'ho have attached property not belonging to the debtor, have been either trespass, or trover, or replevin, as the owner might elect; trespass or replevin more frequently than trover, but the latter is quite usu al. And what objection can there be to this form of action . It is more advantageous to the officer, in regard to damages, than trespass, and it is less troublesome than replevin. A dictum of Lord Mansfield, in 1 Burr. 31, is cited, which is, that if the owner brings trover, he admits that the taking was rightfui, and goes only for a subsequent conversion, which must be proved by demand and refusal, or in some other way. This has not been understood to be the law, certainly not in our practice; and it is contrary to the principles laid down in the elementary books. We apprehend that the meaning of Lord Mansfield was, not that a tortious taking is not a conversion, but that the plaintiff in such case choosing to bring trover instead of trespass, will have no right to damages for the mere taking ; so that if the goods were returned before the commencement of the suit, he can recover nothing, having waived his right to recover for the trespass or mere taking, by the form of his action. And this explanation reconciles cases which otherwise will be contradictory. Upon principle, as well as authority and practice, a tortious taking of another’s chattel is a conversion ; it is the exercise of an act of ownership, an ap propriation of another’s property, which is synonymous with conversion.

In 2 Esp. N. P. 580, the law is laid down thus :— “ When the taking of the goods has been tortious, an actual conversion to the party’s own use is not necessary to maintain this action.” It would have been more correct to say, that where there has been a tortious taking, there has been a conversion. This principle is affirmed in the case of Tinkler v. Poole, 3 Wils. 146; S. C. 5 Burr. 2657; Chapman v. Lamb, 2 Str. 943.

The objection that the pew pannels were so intermingled with other articles belonging to the debtor, that the officer.could not distinguish them, and therefore had a right to take them, and so is not liable to any action, is not sustained by the evidence. They were placed by themselves, and the officer took them at his peril, as in other cases.

Judgment according to verdict. 
      
      
         See Shumway v Rutter, ante, 443.
     