The opinion of the Court was drawn up by
Whitman C. J.The oxen alleged to have been converted by the defendant to his own use, were never actually in his possession. He merely said to the person having them in custody, and who was alleged to be the debtor in the precept, which the defendant had in his- possession for service, that he was ordered to attach them as his property, and must do so, and that he did attach them ; and thereupon the alleged debtor procured-a person, not being the plaintiff, to give a receipt for them, stipulating to deliver them to the defendant, as usual in cases of attachment of personal property on mesne process. It does not appear that the defendant ever returned them as attached on his precept. If he liad, in the case of Boynton v. Willard, 10 Pick. 166, Mr. Justice Wild, in delivering the opinion of the Court, even in the case of the return by an officer of an attachment of property, says, “ we think, therefore, that it cannot be maintained, as a proposition universally true, that the return of an attachment of personal property conclusively proves the taking, so as to subject the officer to an action of trespass.” It is undoubtedly true, as laid down in the elementary works cited, that the slightest, actual interference, disturbing another in his enjoyment of the possession of his property, unlawfully, is a trespass. But the defendant in this case never for a moment disturbed the possession of the person having the oxen in custody.
The plaintiff relies mainly upon the authority of the cases of Bristol v. Burt, 7 Johns. 254, and Phillips & al. v. Hall *328& al. 8 Wend. 610, as supporting the action. In the former, a customhouse officer had placed armed men near a store, in which the plaintiff’s goods were stored, and forbade the removal of them ; and caused them, against the will of the plaintiff, to be detained for months. This was clearly a tortious conversion. The customhouse officer had taken them under his own control, and had excluded the owner from any exercise of dominion over them. There could be no doubt in such case, that trover would well lie against the defendant, the customhouse officer, he having no justifiable cause for the interference. In the latter case, the owner of goods in a store had been induced to procure receipters for them, who undertook to have them forthcoming or to pay a certain sum, being the amount necessary to discharge a debt due from one not the plaintiff, as whose, the defendant, an officer, had claimed a right to attach them. The owner had undertaken, of course, to indemnify the receipters. The Court held that, being so bound, he was entitled to recover of the officer the amount, which the receipters were under obligation to pay him.
The case at bar is very distinguishable from either of these; from the first, as the defendant here never interrupted the possession of the plaintiff, or his agent, for a moment; and from the last, inasmuch as the plaintiff did not procure the receipters and was not, so far as appears, liable to them in any event. It was the debtor, named in the process, who had procured the receipters, and who, for aught that appears, was alone answerable to them for any loss arising from their liability. And it was his possession alone, if of any one, which had been disturbed. The plaintiff’s rights were in nowise affected to his injury. The oxen remained where he had placed them; and he could at any time resume his actual possession of them. They were, according to the testimony of his witness, at his control. To allow him, under such circumstances, to recover the value of them, or the amount for which the receipters stood responsible, would be to allow him to keep his oxen, and yet to recover pay for them of the defendant.
*329But, as the law in Massachusetts, before separation, and in Maine, ever since, has been holden to be, even receipters for goods attached, not claiming property in themselves, may, in defence, show, that the same were not the property of the person as whose they were attached, and that they had been reclaimed, and taken possession of by the rightful owner. Hence the receipters in this case were in no danger of being rendered liable, even if they had been procured by the owner of the oxen; and so no damages could have accrued to him, he not having been divested of the possession of them. Learned v. Bryant, 13 Mass. R. 224. The consideration for their undertaking would have utterly failed.
Plaintiff therefore, according to the agreement of the parties, must become nonsuit.