Mr. Justice Terry concurred.
Where the goods of a third person are mixed with the property, or in the apparent possession of the judgment debtor, a sheriff who levies upon them, supposing them to belong to the defendant in execution, is not liable as a trespasser ab initio. In order to charge him it is necessary to show a notice and demand of the goods, and a delay or refusal to deliver.
The Court below erred in instructing the jury that “the sheriff was a trespasser, and that they were to find the value of the goods.” This was virtually withdrawing the case from the jury, and assigning either as a conclusion of law, that the officer was primarily liable, or as a conclusion of fact from the testimony, that a demand and refusal had been proved, about which there was much contradictory evidence.
Judgment reversed and new trial ordered.