
    Benjamin Gardner versus Daniel Dutch.
    A being possessed of a quantity of coffee in bags, of which a certain part, contained in a certain number of bags not distinguished by marks, nor in any manner separated from the rest, was the property of B, a creditor of A caused the whole to be attached as the property of A. B replevied from the sheriff the quantity owned by him; and issue being joined on B’s property, and a verdict found for him, he had judgment.
    Replevin for seventy-six bags of coffee, containing 8991 pounds. The defendant pleaded property in Timothy Wellman and Benjamin Hopes, and avows the taking, &c., on the 4th of June, 1810, as a deputy sheriff, &c., by virtue of a writ of attachment, at the suit, of Gamaliel Hodges against the said Wellman 8f Hopes. The pleadings closed in an issue to the country upon the plaintiff’s property in the goods replevied This issue was tried at the sittings here after November term, 1810, before Sewatt, J., and a verdict was taken for the plaintiff, subject to * the opinion of the Court, upon objections on the part of the defendant to certain evidence admitted at the trial; and whether this action lies in the case proved at the trial.
    The objections to the admission of the evidence having been waived by the defendant’s counsel in the argument, it will not be necessary to state that evidence, further than to show the ground of the other objection, taken at the trial, and insisted on in the argument.
    The plaintiff produced at the trial the receipt of Wellman fy Ropes, dated March 17, 1810, which was proved to have been then given by them to the plaintiff, upon his adjusting his accounts of a voyage performed for them in the schooner Liberty, then recently arrived from La Güira; which receipt was expressed to be “ for seventy-six bags of coffee, containing, as per invoice at La Güira, &c., being his adventure on board said schooner from La Güira, and which we hold subject to his order at any time he may please to call for the same.”
    It was also in evidence that the plaintiff became entitled, in the course of the said voyage, to the amount of 828 dollars 80 cents, which he received in Tonningen in his interest, and part of the cargo shipped there for La Güira; and that of 544 bags of coffee, purchased at La Güira, with the proceeds of the cargo brought thither from Tonningen, according to the account and invoice made by the Spanish merchant at La Güira, 8991 pounds of coffee, the contents of seventy-six bags, were shipped there for the account of the plaintiff, with the cargo brought in the said schooner; the whole of which, on his arrival at Salem, the plaintiff delivered to the said Wellman $/■ Ropes at their store, and afterwards took of them the above-mentioned receipt for his seventy-six bags. These were never distinguished by any particular marks, or by a separation of them in any manner from the rest of said coffee; some part oi which, previously to the said attachment, had been shifted into hogsheads, and several bags the said Wellman &/■ Ropes had dis posed of for their own use, which had been removed * from the said store. But the defendant, in making the said attachment, took all that remained there, that is, thirty hogsheads, three barrels, and three hundred and ninety-six bags of coffee.
    It was further proved or admitted that, until the said attachment, the said Wellman fy Ropes had continued doing business at their said store, and in good credit; that they then failed, and became insolvent; and that since the service of this replevin, a quantity of the said coffee, taken by the said attachment, had been seized and levied upon, to satisfy an execution sued out in behalf of the United States against the said Wellman 8f Ropes.
    
    Upon this evidence, the jury were directed, by the judge who sat in the trial, to return a verdict for the plaintiff, if they believed that said receipt had been given ■bona fide; that, according to the tenor thereof, seventy-six bags, containing 8991 pounds of coffee,, belonging to the plaintiff, had been deposited by him, and intrusted in the care of the said Wellman Ropes; and that the same remained with them and in their store, intermixed with and making a part of the said, coffee attached and taken by the defendant.
    At the last November term, the cause was argued by Story against the verdict, and by Putnam in support of it.
    
      Story. In this case, the single question is, whether the plaintiff had a sole property in the goods replevied, at the time of the replevin ; for if he had only an undivided interest, it is settled that replevin does not lie.  We contend that he had only an undivided interest, supposing, upon the facts reported, any interest to be made out.
    By the report, it is clear that there was no division or designation of the plaintiff’s property, or of that of Wellman Ropes. The whole cargo formed one mass; and the right of the plaintiff was, at most, but an interest in common. If any part of the cargo had been lost or damnified, it would have fallen proportionally on him. Yet by the present action, if maintained, he would save to * himself the exclusive right to elect a particular parcel, and would throw upon the attaching creditors the loss, as well of these goods, as of those seized at the suit of the United States. In a contest between creditors, certainly, an in justice of this nature ought not to be permitted.
    In the case of confusion or intermixture of goods, so that the several portions cannot be distinguished, if the intermixture be by consent, the proprietors have an interest in common, in proportion to their respective shares.  The doctrine of the civil law agrees herewith ;  and the same role is laid down by Rracton. 
      
    
    
      Putnam for the plaintiff.
    The question has been correctly stated, and we contend that, after the settlement of the voyage, the property of the plaintiff was, to every essential purpose, separated from that of the other owners. Upon the refusal of Wellman 8f Ropes to deliver the plaintiff his seventy-six bags of coffee, the latter could have maintained trover for them.
    
      It is true that, in case of joint property in a single chattel, the whole must bo seized, and the interest of the debtor therein sold ; but the same reason does not apply where the several proportions can be distinguished, and are capable of a separation, as was the case here; and it was the duty of the defendant, when making the attachment, to leave the seventy-six bags, which were allowed on all hands justly to belong to the plaintiff. If the defendant hoped to prevail on these facts, he should have pleaded the general issue of non cep it. At any rate, the objection to the plaintiff’s recovery is merely technical, and on such grounds the verdict ought not to be disturbed.
    The cause stood continued for advisement until this term; and now,
    
      
       2 Mass. Rep. 509, Hart vs. Fitzgerald.
      
    
    
      
       2 Black. Comm. 405, cites 1 Vern. 217, Jeffreys vs. Small. — Inst. 2,1, 27, 28
    
    
      
       1 Brown's Civil Law, 243, note 13.
    
    
      
      
        Lib. 2. ch 3, § 2
    
   The Court

observed that, if the plaintiff was, in fact, tenant in common of the chattels with Wellman Of Ropes, he could not maintain replevin for his undivided share. But he was not tenant in' common. Though the bags belonging to him had no distinguishing marks, he might have * taken the number of bags and the quantity of coffee, to which he was entitled, by his own selection, while they remained in the hands of Wellman & Ropes; and the defendant,- as a deputy sheriff, could not change the rights of third parties. Then, if a return were to be ordered, the defendant would still be accountable to the plaintiff for the proceeds. Thus the whole case resolved itself into a question as to the form of the action,

Judgment on the verdict. 
      
      
         [And see Damon vs. Osborn, 1 Pick. Rep. 476. — But see Austen vs. Craven, 4 Taunt. 644. — White vs. Wilks, 5 Taunt. 176. — 1 Marsh. 2. —Busk vs. Davis, 2 M. & S. 397. — 1 Marsh. 258. — 5 Taunt. 622.—Zagury vs. Furnell, 2 Camp. 240. — Shepley vs. Davis, 5 Taunt. 617. How could any one portion of the coffee be taken, as belonging to the plaintiff rather than another? Had not each, before a division by mutual consent, an interest in every part of it ? How, then, could either insist that, in any part in particular, he had an exclusive property ?— Ed.]
     