Several exceptions were taken to the rulings of the court of common pleas, none of which appear to us to be well founded. Whether the plaintiff was the sole owner of the boots alleged to have been converted by the defendant, or whether he owned them in common with Brooks, from whose possession they were taken by the defendant, is a question not raised by the exceptions; for if they were owned in common, the rulings of the court and the instructions to the jury were sufficiently favorable to the defendant. It is true that the defendant was authorized to attach and take possession of the property ; but he had no right to sell the whole property on execution. This subsequent abuse of his authority made him a trespasser ah initio, as was decided in Melville v. Brown, 15 Mass. 82. The defendant could not justify his proceedings on the ground that the plaintiff’s property was so mingled with Brooks’s, that it was impossible to distinguish what belonged to the plaintiff. The doctrine laid down by the court, in Ryder v. Hathaway, 21 Pick. 298, 305, is decisive on this point.
It is clear, from the evidence reported, that the plaintiff was either the owner of the whole property taken, or was owner in common with Brooks; and in the latter case, it is clear that the defendant had no right to sell the plaintiff’s share, and that the sale was a tortious act amounting to a conversion.
Exceptions overruled.