— The jury would have been authorized by the evidence introduced in the case, to have found the goods in-question to be the property of the plaintiffs, at the time they were taken by the defendant’s deputy; they had been pre*428viously Iéft with Gerrish to be sold, the avails to be accounted for, or the goods returned on demand. The boots were in a case by themselves, two pair having been sold, and the cover of the case removed. The brogans • belonging to the plaintiff were the only ones in the store, and they together with some shoes of the plaintiffs were in drawers and on shelves with shoes belonging to Gerrish. . The officer who made the attachment, and the creditors’ attorney, who directed it, had no means of distinguishing the goods of the plaintiffs from those of Gerrish at the time of the taking, excepting from information derived from Gerrish, the plaintiffs not being present. No goods, which Gerrish pointed out as not belonging to him were ■ taken; and he testified, that at the time, he had the impression that he owned those belonging to the plaintiffs, by virtue of the receipt which he gave to the plaintiffs, when he received them, and that he did not think or state to the contrary, when they were taken. The officer acted under an honest but mistaken belief, that he took nothing which did not belong to Gerrish. There is no evidence tending to show, that both parties, and all those concerned in the property previous to and at the time of the taking, did not conduct in good faith touching the goods.

An officer is not protected in taking property belonging to one against whom he has no precept, unless the owner has so conducted, in reference to it, that he has forfeited his legal rights. An action may be maintained against the officer by the owner without any previous demand or notice. It is no defence that he acted under a mistake. He, as a public officer, can avail'himself of his own mistake, no more, than could a private individual. Hobart v. Haggett, 3 Fairf. 67 ; Lothrop v. Arnold, 25 Maine R. 136., But a previous demand upon the officer may be necessary for the maintenance of an action, when the plaintiffs’ goods are so intermingled with those of the debtor, as not to be distinguishable. Bond v. Ward, 7 Mass. R. 123. It is only under such a condition of the property that the officer may be regarded by the law, as without Ipult, though guilty of no moral wrong. If the confusion be by *429consent of, or without the fault of either party, the proprietors would have an interest in common, in proportion to their respective shares. But if the mixture were caused by one party without the consent of the other, knowingly and wrongfully, and it were impossible to distinguish what had belonged to one, and what the other, the one who had caused the confusion would under the common law forfeit the portion, which was previously his. Shumway & al. v. Rutter, 8 Pick. 443 ; 2 Blacks. Com. 405 ; 2 Kent’s Com. 364 (2d Ed.) ; Lupton v. White, 15 Vesey, 442; Hart v. Ten Eyck, 2 Johns. Ch. 108. “ But,” Chancellor Kent remarks, “ this rule is carried

no farther than necessity requires; and if the goods can be easily distinguished, and separated, as articles of furniture for instance, then no change of property takes place.” In Shumway & al. v. Rutter, the Court say, “ if the owner of a part can distinguish and point out to the officer what belongs to him, the officer would be a trespasser if he should take it.”

It is not necessary, that the property should be so distinctly marked, that an officer, by his own minute observation, would be able to perceive that it did not belong to the same individual, in order to make him liable; if such were the law, ho would be excused for taking cattle belonging to a stranger, when found in the same herd with those, against whom he had a precept, but it must be such a confusion, and the character of the articles must be such, that they are not distinguishable by those, who from their interest or situation, have full opportunity of making and pointing out the distinction, if one exists.

In the case at bar, the boots could not be considered as intermingled with those of Gerrish, so that they could not be distinguished as easily as any two parcels of goods, which are found in shops ; the brogans were the only article of the kind in the shop; and the shoes although in the same drawers or on the same shelves with other shoes belonging to Gerrish, still it does not appear from the evidence, that they were not distinguishable therefrom. The case presents nothing, which discloses, that the plaintiffs, or Gerrish, or others, might not have made and pointed out a clear distinction at the time. After the *430plaintiffs were informed of the taking, they satisfied those interested in the attachment, that the goods were theirs, so far, that they did not insist upon retaining them as legally holden. The mistake of the officer did not arise, from a confusion of the goods, as the term is understood in law, but it arose from the omission of Gerrish to inform him what goods belonged to the plaintiffs, on account of an erroneous impression in reference to the plaintiffs’ legal rights, he supposing, that the goods in question were his, under the receipt which he had given therefor, when they were not.

It is insisted, that the plaintiffs had waived the right to commence and maintain the action by his agent, Gerrish, who did not point out these goods as not belonging to him, when they were taken by the defendant. Gerrish was the agent of the plaintiffs to sell the goods for them, and the evidence exhibits no other agency. He could not by virtue of that authority have surrendered these goods to the officer, to be attached as his, and consequently the simple omission to assert the plaintiffs’ ownership could have no greater effect to the prejudice of the owner. Neither is it certain that the plaintiffs themselves waived their rights, by what is shown to have taken place, when they called upon the creditors’ attorney, as it is contended that they did. They called upon the attorney, exhibited their receipt from Gerrish, and claimed the goods, then in the custody of the officer, at considerable distance from the place, where he had left them; and offered to take them where they then were, if they should be given up ; and would send their messenger for them. The attorney declined to give them up, for want of power from the creditors ; but said he would write to his clients for instructions. This he did, and received authority to give up the goods, but no communication of this was proved to have come to the plaintiffs’ knowledge, and it does not appear that the attorney wrote by his request; and it is difficult to perceive how, by these facts, he relinquished any rights before existing. His offer to take the goods could have no effect, so long as he was not permitted to take them. >

The facts relied upon by the plaintiffs, we think, should have *431been submitted to the jury, as there was evidence, from which the jury might have found the trespass to have been committed ; and there was nothing in the proof adduced by them, which conclusively showed, that they had waived their right to maintain the action. Exceptions sustained, and nonsuit taken off.

Dissenting opinion by

— Not being able to agree with the other members of the Court, in the conclusion, to which they have arrived, upon this case, I deem it proper to state the grounds of my dissent. This action is trespass for boots and shoes, which the plaintiffs had left with one Gerrish for sale. The boots w’ere in a case, and at the time of the attachment, the cover of the case had been removed, and two pairs of them had been sold. The shoes had been taken out and placed in a drawer, and on the shelf, with other shoes belonging to Gerrish. The plaintiffs had another box of boots, in the store of Gerrish, but they were not taken, because he informed the officer, that they belonged to the plaintiffs. Gerrish states, that he had the impression, that those, which were taken by the officer belonged to him, and that the officer did not take any property, which was pointed out, as not belonging to him. He also testifies, that the officer could not distinguish the goods attached, from the rest of his stock, except from information derived from him.

The question arises in this case, whether an officer is liable to an action until a demand has been made upon him, for attaching the goods of a stranger, when intermingled, by his consent, with like goods of the debtor in possession of the latter, and the officer has no notice, that they belong to the stranger, or they cannot be distinguished upon due inquiry, from those of the debtor.

In the case of Bond v. Ward, 7 Mass. R. 123, Parsons C. J. says, “ Goulding’s (the debtor’s) furniture was in his actual possession, in his dwellinghouse; he, (the officer) ought therefore to have attached that furniture; and if he attached some furniture of other persons, which was in Goulding’s house and *432mixed with his, when the right owner claimed his part, the deputy sheriff might have restored it, without subjecting himself to an action by the ' plaintiff. And if the goods of a stranger are in the possession of a debtor, and so mixed with the debtor’s goods, that the officer, on due inquiry cannot distinguish them, the owner can maintain no action against the officer, until notice and a demand of his goods, and a refusal or delay of the officer to redeliver them.”

Ordinarily, where one interferes with the property of another, without his consent, he is liable to an action of trespass. But there are exceptions to this rule. In cases of an ownership of chattels, by tenants in common, the officer, having a precept against one tenant, may seize the whole chattel, and is not a trespasser, but he can only sell on execution the interest of the one against whom he has the precept. When the corn of the debtor is mingled with the corn of a stranger, and cannot be distinguished, an officer for attaching the mass, as the property of the debtor, is not liable to an action. And the same result must follow in all cases of confusion of property. Lewis v. Whittemore, 5 N. H. Rep. 364. The law does not require of officers what is impossible or unreasonable.

There is not the same difficulty of distinguishing furniture, or boots or shoes, belonging to one person, from the same kind of property of another, as exists in the case of corn ; but still the difficulty is intrinsically great. In one case, the officer is not considered in fault, because it is impossible to separate the property of the different owners. In the other, if he finds the property in the possession of the debtor, and has no knowledge of the intermixture, or cannot make the separation, by due inquiry, he would also appear to be without fault. It is unreasonable to consider him a trespasser in either case. The same principle, although in different degrees, applies to both; it is, that he conducts without fault. The law requires him to take the debtor’s property, and in doing so, he unavoidably takes that of a stranger with it.

Where the owner of property consents to have it placed with that of another, and his own conduct has induced the *433belief, that it belongs to the possessor, he ought to be required to make a demand for it, before commencing an action against an officer, who attaches it as the property of the possessor. In those communities where attachments are frequent, the owner must know, that his property is liable to bo taken with that of the possessor, and it is no great inconvenience to subject him to the trouble of demanding it. When whole stocks of goods are attached, usually some portions of them belong to persons, other than the debtor, and cannot be distinguished by due inquiry ; or the officer may have no reason to suppose they are not the debtor’s, and he ought not to be held a trespasser, while acting with fidelity, in the discharge of his official duty.

In Shumway et al. v. Rutter, 8 Pick. 443, reference is made-to the case of Bond v. Ward, without any disapprobation,. And it is said, by Parker C. J., that the principle of that caso,, applies to the taking, but if the officer sells, knowing the property to be the plaintiff’s, the sale is a conversion.

In Sawyer v. Merrill, 6 Pick. 478, it was decided, that if' an officer, having attached goods of a debtor, sutlers them to remain intermingled with other goods of the debtor, and makes claim to the whole, so that another officer having a writ against the same debtor, cannot distinguish which have been attached,, the latter officer will be justified in attaching the whole. The property was household furniture. The officer making the first attachment had a right to hold what he had taken, if the officer making the second one could have distinguished between what furniture had been and what had not been attached. It is said by the Court, that the same principle applies, as in the case of a stranger’s goods, intermixed with those of the debtor.. And such is the ground of the decision. The officer, making the second attachment, not being able to distinguish what had been previously attached, was justified in taking the whole. He was in no fault, and was not a wrongdoer. The case of Bond v. Ward, is supported by the doctrine, promulgated in the two cases last cited.

And in my judgment, as it appears that the plaintiffs eon*434sented to the mingling of their goods, with similar ones of the debtor, in his possession, and the deputy of the defendant had no notice, that any portion of them which he took was the property of the plaintiffs, or upon due inquiry, he could not distinguish them, that this action for the tailing cannot be maintained.

Mem__This and the next case, Eaton v. Elliot, were Cumberland cases, and were accidentally placed with those in Kennebec. The error was not discovered until after the Cumberland cases were printed.