John Baker versus James Fuller, 21 Pick. 318

Shaw C. J. delivered the opinion of the Court. This action is defended by Messrs. Dunn & Brewster, who claim to hold the property, by title paramount to that of the attachment made on the goods as the property of the Browns. The most important question is, whether Dunn & Brewster had acquired such a lien on the goods, that they could not be attached as the property of the Browns, who were the manufacturers, and once the acknowledged owners.

Had the goods come into the actual or constructive possession of Dunn & Brewster, undoubtedly they would have had a lien on them as factors, for their general balance, as well as for their particular advance. But the Court are of opinion, that the case does not show either an actual or virtual possession. The goods were delivered by the Browns to the wagoner at Providence, to be brought to Boston. But they were delivered to him with orders to leave them at the City tavern, and they were so entered on his waybill. No orders were given him, to deliver them to Dunn & Brewster.

Whilst in transitu, therefore, they were under the control of the consignors ; the carrier was their agent, and they had the constructive possession. Authorities were cited by the defendants to show, that when goods are consigned, a delivery to a common carrier, is in law a delivery to the consignee. This is no doubt so, where the goods are sent in pursuance of a previous order by the consignee.

But in this case, so far from a previous order from the consignees, they were sent by the consignors for their own account, subject to their own order, and there would be no change of legal possession, till some further act done or destination given to the goods by them, and before any such act done, the goods were attached. The new advance created no such lien, because no actual or constructive possession was obtained before the attachment. Sumner v. Hamlet, 12 Pick. 76. Several other questions were discussed respecting the evidence and the form of action.

It was contended that the action could not be maintained by the sheriff. For many purposes, the act of the deputy is deemed in law the act of the sheriff. Watson v. Todd, 5 Mass. R. 271. Trespass will lie against the sheriff for the official act of his deputy. Grinnell v. Phillips, 1 Mass. R. 530 ; Quincy v. Hall, 1 Pick. 357. The Court are of opinion, that the sheriff acquired such a special property in the goods, by the act of his deputy, that he might maintain an action on the case for the benefit of the attaching creditor.

The goods were merely deposited with the defendant, as an agent and keeper, and the attachment was not thereby relinquished, but the special property and right of possession remained in the sheriff, so as to preserve the attachment. And all the facts being set forth in the declaration, necessary to show the plaintiff’s right to recover damages, an action on the case may well lie. And the Court are also of opinion, that the giving up of the goods by Fuller to another person, under an adverse claim of title, was equivalent to a conversion.

But as the goods went into the hands of the assignees of the debtor, who had a right to hold them, subject only to the lien created by the prior attachment, the plaintiff can only recover by showing a demand made upon the defendant, with the execution of the attaching creditors, within thirty days of the rendition of the judgment. But such a demand is not averred in the declaration, and in that respect it is defective.

If the plaintiff would rely upon the consideration, that the defendant had disabled himself from delivering the goods, if the fact were so, it would not apply in the present case, because the plaintiff has not averred that fact in his declaration