The charge of the judge was correct on both its branches. The levy by the sheriff and the taking a receiptor, changed the possession of the goods in contemplation of law; it was a conversion of them to the use of the defendants. To maintain trover or trespass de bonis asportatis, evidence of an actual forcible dispossession of the plaintiff is not necessary; any unlawful interference with the property, or exercise of dominion over it, by which the owner is damnified, is sufficient to maintain either action. This is abundantly settled by numerous cases in relation to the action of trover. 1 Chitty Pl. 151, 2, 3, and cases there cited. Bristol v. Burt, 7 Johns. R. 254. 6 Mod. 212. 4 Term R. 260. 6 East, 538. 6 Bac. Abr. 677. Reynolds v. Shuler, 5 Cow. 325, where all the cases are collected. Trover and trespass are concurrent remedies for most illegal or tortious takings. 1 Chitty Pl. 169. 3 Willes, 336.
In Gibbs v. Chase, 10 Mass. R. 125, the plaintiff, as deputy sheriff, had levied an execution upon a quantity of timber as the property of one Robbins ; after such levy the defendant, also an officer, seised and sold the same timber under process against one Ordway, as his property, and forbid the plaintiff from selling or intermeddling with it; but the timber was not actually removed from the place where the plaintiff left it; it was held that this was a tortious disturbance of the legal possession of the plaintiff for which trespass would lie. The court say, “ He who interferes with my goods and without any delivery by me, and without my consent undertakes to dispose of them, as having the property general or special, does it at his peril, to answer me the value in trespass or trover ; and even a subsequent tender of the goods, will not excuse him, if I choose to demand the value.”
But the recent case of Wintringham v. Lafoy, 7 Cowen, 735, was in all its circumstances, essentially like the case at bar. and trespass de bonis aportatis was there sustained. The defendant in that case was a constable, and by virtue of an execution against one Gallis, had levied upon certain articles *614of jewelry in the store occupied by him, which the plaintiff1 proved belonged to him. The defendant made an inventory, and said he would remove the goods unless security was given that they should be set forth coming to answer the execution; security was accordingly given, and the articles were not removed, but left in the store in the same condition as the officer found them. The action was sustained on the ground that the dominion which the defendant undertook to exercise over the property, by levying upon it, and exacting security for its forth coming, constituted him a trespasser, he having no legal authority to intermeddle with it. That case is decisive upon this point, and establishes the doctrine that where the taking or intermeddling is tortious either trover or trespass de bonis asportatis may be maintained.
It was not a case for nominal damages. If the plaintiffs were entitled to recover at all, they had indemnified the individuals who became security to the officer for the goods, and the sureties had been prosecuted ; and we are to intend that they either have been, or will be compelled to pay the value of the goods to the sheriff, for the benefit of those of the defendants who were plaintiffs in the execution. In Edson v. Weston, 7 Cowen, 278, it was held that a receiptor to the sheriff (as a surety of this description is commonly termed) was a naked bailee, and was responsible only for gross negligence ; and the property having been taken out of his possession by a paramount title, to wit, an execution levied upon it before it came to the defendant’s possession, it was decided that he was ' not responsible. But 1 apprehend it would be gross negligence in a bailee of this description, to leave the property in the possession and under the control of the person from whom it had been taken, and if it was wasted or sold, he would be responsible ; such is this case. Such a defendant would be estopped from denying the right of the party to the property. He could not set up a title to it in a third person. If taken £ om him by act of law, or perhaps by force, he may not be responsible on the ground that he is a naked bailee. A receiptor of chattels has no property in them.; he cannot maintain trover for them in his own name; he is but the servant or agent of the sheriff; 7 Cowen, 294, and cases there cited; still *615his promise is founded on a good and sufficient consideration; it is obligatory upon him, and may be enforced. The plaintiffs in the execution having prosecuted the receiptor, it is not for them to allege that they cannot recover ; and if the receipt-i i . , „ . . , . or is made to pay, he can undoubtedly resort to the indemnity given to him by the present plaintiffs.
The claim set up by the plaintiffs to other and distinct parcels of the personal property which once belonged to the defendant in the execution, though unfounded and even fraudulent, would not deprive them of their right of action, or diminish the amount which they were entitled to recover for the property actually belonging to them, and which was illegally taken by the defendants. The goods in question were not mingled with the other property; the goods were in the store; the other property was lumber and lying out doors. The cases referred to have no application. 7 Mass. R. 123. 3 Johns.
Cas. 84.
New trial denied.