
    Rufus Shumway et al. versus Micah M. Rutter.
    In the case of a sale of chattels boná fide and for a valuable consideration, slight evidence of a delivery is sufficient; and if the vendee, with the consent of the vendor, obtains possession before any attachment or second sale, the transfer is complete, witlnut a formal delivery.
    Thus where furnituré in a tavern was sold and the vendee took a lease of the house and went to live there and used the furniture in common with the vendor, who had occupied the house under a previous lease, and who continued to live there and keep the tavern, and afterwards the vendor removed to another house, carrying the furniture with him and using it as his own, and it was there attached as his property, it was held, that there was sufficient evidence of a delivery, to make the sale complete.
    Where the owner of chattels suffers them to be mixed with those of another person, so that they cannot be distinguished, an officer will not be liable to an action of trespass (nor, it seems, to any action) for attaching them as the property of such other person.
    But if after the attachment, such owner points out his goods to the officer and demands a redelivery of them, and the officer notwithstanding sells them, the sale will be a conversion.
    If such owner exhibits to the officer a bill of-sale of articles of the same kind with others attached by him, with which they were intermixed so as to be undistinguishabie, the officer will be justified if he selects and gives up the least valuable articles corresponding with the bill of sale.
    Trover for divers articles of household furniture attached by the defendant, a deputy sheriff, as the property of Jacob Shumway.
    The articles formerly belonged to Jacob Shumway, and were in a house in Shrewsbury, owned by one Eager and occupied by Jacob S. The property having been attached by Eager, the plaintiffs, in order to aid Jacob S., satisfied the debt due to Eager, and purchased the furniture, at an appraisement, taking a bill of parcels of it for their indemnity.
    The sale was bond fide and for a full consideration. At the same time a lease of the house was executed by Eager to the plaintiffs, but Jacob S. continued to occupy it for four or five months, and then removed, taking the furniture with him, to Sudbury, where he commenced keeping another public house, and where he purchased additional furniture. There was no delivery of the furniture at the time of the sale ; which was made at the distance of about two miles from the house in Shrewsbury ; nor was there any contract by which Jacob S. was to have the use of the furniture.
    To prove a delivery of the furniture, the plaintiffs called two witnesses, F. Nichols and Lucy Newton.
    Nichols testified, that the property was given up to the plaintiffs at the house which was leased to them ; that Rufus Shumway came there and said that he had paid for the property; that this took place within a month after the attachment made by Eager. On cross-examination, Nichols said that the property was not moved after Eager’s attachment was given up ; that no person was present at the time of the above conversatian, which took place in the bar-room, except Rufus and the
    witness ; that nothing more was done or said upon the subject of giving up the property, to the knowledge of the witness, and that Jacob continued to use the furniture exactly as if nothing had occurred.
    Lucy Newton testified that she lived at the house of Jacob, when Eager attached the property. Rufus came there in April, and stayed until October, and used part of the property which was attached, just when he wished. It remained in the house as it had done, until Jacob removed to Sudbury On cross-examination, she said that Rufus lived at the house of Jacob, in the room called No. 2, and had his wife and two children there ; that there were some articles of furniture in that room, which he used ; that he brought very little furniture with him, but he brought a bed; and it appeared from her testimony, that the property now in question was used indiscrim inately, as well by Jacob as by Rufus, during the time that Rufus lived at the house. She testified that she never perceived any difference in the ownership or possession of the property, between the slate of things before Rufus came there, and while he remained there, and after he went away ; that from the time of the attachment by Eager until Jacob’s removal to Sudbury, Jacob kept the tavern himself, and used and treated the properly in all respects as his own.
    
      There was no evidence of any symbolical delivery, or of any actual delivery of the whole or any part, unless it is to be inferred from the facts above stated.
    The jury found that the plaintiffs went to the house, after they had the lease, and with the intent to take possession, and that they took possession of the furniture by the permission of Jacob, under the bill of sale. But the defendant objected, that the evidence would not warrant the finding of the jury.
    At the time when the defendant attached the furniture at Sudbury, Jacob represented the whole property attached, as belonging to himself. A great variety of furniture other than that afterwards claimed by the plaintiffs, and of the same description as a part of the property claimed by them, was, at the time of the attachment, in the possession of Jacob, and all of it was indiscriminately mingled together, and was all attached at the same time. Afterwards, when the plaintiffs claimed the property sued for, the defendant desired Rufus to designate the articles claimed by them. Rufus replied, according to the testimony of one witness, that he could not select all the articles ; according to the testimony of others, he replied that he could not distinguish his property. The bill of sale was however shown to the defendant, and he desired Rufus to designate the articles belonging to the plaintiffs, but Rufus could not distinguish them from the other furniture in Jacob’s possession. Jacob was also requested to point out the property which belonged to the plaintiffs, but he said that he could not identify it. The defendant contended, that the plaintiffs could not maintain this action, by reason that their property, if they had any, was thus intermingled with the property of the debtor.
    The jury found a verdict for the plaintiffs ; and they settled the question of fraud in their favor.
    If there was sufficient evidence of a delivery, and if the plaintiffs could maintain the action, notwithstanding they could not designate their property, the verdict was to stand ; otherwise the plaintiffs were to become nonsuit.
    Merrick, for the defendant,
    insisted that there was not sufficient evidence of possession being taken by the plaintiffs. Lanfear v. Sumner, 17 Mass. R. 110; Lamb v. Durants 12 Mass. R. 54; Smith v. Bennie, 6 Pick. 262; Bailey v. 
      Ogden, 3 Johns. R. 399; Patten v. Clark, o Pick. 50. Beaumont v. Crane, 14 Mass. R. 400; 3 Stark. Ev. 1190, 1191. These articles of furniture would be considered as in the possession, order and disposition of Jacob Shumway, within the meaning of the statute of 21 Jac. 1, c. 19, if that statute were in force here. Collins v. Forbes, 3 T. R. 316; Storer v. Hunter, 3 Barn. & Cressw. 368; Tooke v. Hollingworth, 5 T. R. 215; Com. Dig. Bankrupt, D 19, note e; Chesterfield, Manuf. Co. v. Dehon, 5 Pick. 7.
    
      
      Sept. 29th.
    
      Where the plaintiff’s goods are so intermingled with those of the debtor, as not to be distinguishable, trover will not lie against the officer until the plaintiff points out his goods' and makes a demand of them ; according to the remark of Parsons C. J. in Bond v. Ward, 7 Mass. R. 123. The officer may demand a bond of indemnity where he has reason to doubt the ownership of the property to be attached ; but where he has no cause of suspicion, he is not to require such a bond. That the goods here were so intermingled as to be incapable of being distinguished, was owing to the fault of the owners ; and policy demands that the officer should be protected. Marshall v. Hosmer, 4 Mass. R. 60 ; Perley v. Foster, 9 Mass. R. 112.
    
      J. Davis and Allen, contra,
    
    cited in regard to delivery, Bartlett v. Williams, 1 Pick. 288; Rice v. Austin, 17 Mass. R. 197; Chaplin v. Rogers, 1 East, 192; Hodgson v. Le Bret, 1 Campb. 233; Anderson v. Scott, ibid. 235, note; Codman v. Winslow, 10 Mass. R. 146.
    The dictum of Parsons C. J. in Bond v. Ward,
    
    relied on by the defendant, is not supported by adjudged cases ; there must be a wilful intermingling of the goods. Here however there was notice and a demand, and by aid of the bill of sale, the officer might have -separated most of the articles belonging to the plaintiffs. The doctrine of a confusion of goods applies to articles, the portions of which, from their nature, cannot be distinguished, as corn, gold cast into a crucible, &<> but not to articles of furniture. 2 Bl. Com. 405 ; 3 Dane’s Abr. 117. The circumstance that the plaintiffs could not distinguish every article will not prevent them from maintai ling trover. Buller’s N. P. 35; 3 Dane’s Abr. 188, 189.
    
      
      Oct. 5th.
    
   Parker. C. J.

delivered the opinion of the Court. We think that the case reported furnishes competent evidence of a delivery, and sufficient to support the verdict on that point. The transfer being bona fide and for a valuable consideration, slight evidence of a delivery would be sufficient; as is proved by the principle adopted of a symbolical delivery ; and whether there is a formal delivery or not, if the vendee obtains possession by consent of the vendor, before any attachment or «econd sale, the transfer is complete.

In this case, the vendees took a lease of the house in which the furniture was. Nothing was wanting on the former trial, but evidence of an entry under the lease, to prove a delivery or possession. On this trial that defect has been supplied so that the salé was perfect.

But the vendor was allowed to re-possess himself of the furniture and remove it into another house in another town and county, and to use and claim it as his own, without any contract with the vendees. This circumstance necessarily created suspicion and difficulty. Persons dealing with the vendor, who >n his own name occupied a public house with this furniture m it, would naturally consider him the owner, and would probably trust him on that account. If the statute of James were in force here, there is no doubt but that the furniture w'ould be deemed the vendor’s ; for he bad the entire order and disposition of it. But that statute is a branch of the bankrupt system, and is not applied, even in England, except in cases affected by that system. There was a similar provision in the bankrupt law of the United States.

With us, the possession and use of chattels by the yen dot, after a perfect transfer, is only evidence of fraud, and may be explained to be consistent with the fairness of the sale.

But the difficulty of this case now, as before, arises from the intermingling of the chattels sold to the plaintiff and those after-wards purchased and put into the house by the vendor. If the owner of a part can distinguish and point out io the officer what belongs to him, the officer would be a trespasser if he should take it. But he is obliged to attach the goods of the debtor, notwithstanding they may be so mixed ; and it is the business of the owner, who has allowed them to be so confused, to separate his own from the debtor’s.

In this case, it was Jacob Shumway the debtor, who caused the mixture ; but he was placed in a situation to do this by the vendees. They do not lose their property thereby, if they can prove it. They may, after an attachment, identify their goods, give notice to the officer and demand a re-delivery of them; but until they do that, the officer is not in fault, and cannot he considered a trespasser.

But the question arises, whether the plaintiffs shall lose their property altogether, because they were unable to distinguish it from other articles of the same description owned by the vend- or. If there were a fraudulent collusion between the vendor and vendees to embarrass the sheriff and prevent him from attaching the property of -the debtor, this consequence might follow ; but on the .supposition of an honest inability to distinguish, it would be harsh. There is nothing in the case to justify us in taking the ground, that their conduct was collusive.

The officer was not a trespasser in taking the goods, as he was bound to take the goods of the debtor. But could he sell them without being liable for their value ? In the action of trover, proof of property and of conversion is sufficient. The proof is clear that property of the plaintiffs was taken. This taking, under the circumstances, may not have been a conversion. But the officer was made to know, that divers of the articles were claimed by the plaintiffs, and the bill of sale was shown to him before he sold. He chose to sell the whole, having it in his power to require indemnity, and probably taking it. Finding that there were many articles of the same kind, he would have been justified, under the circumstances, in selecting from the whole quantity in his hands, enough to correspond with the bill of sale ; and if he retained the most valuable, no fault could have been found with him.

He should have set aside as many articles as appeared by the bill of sale to belong to the plaintiff and sold the residue ; for he had notice of the claim, and the evidence of property' was shown to him. In the case of Bond v. Ward, which has been cited, it was held that no action lies against the attaching officer, under such circumstances, without a demand and refusal ; that is, he cannot be a trespasser or liable in trover without such demand. This applies to the taking. If he aclis, knowing the property to be the plaintiffs’, the sale is a conversion.

Judgment according to verdict 
      
       See Long on Sales, (Rand’s edit.) 115, 116, and cases cited in note: Wheeler v. Train, 3 Pick. (2d edit.) 257, and note 1.
     
      
       See Lewis v. Whittemore, 5 N. Hamp. R. 366; Holbrook v. Hyde, 1 Vermont R. 286; Treat v. Barber, 7 Connect. R. 275; Ryder v Hathaway, 21 Pick. 298; Sawyer v Merrill, 6 Pick. 478.
     