The opinion of the court was delivered by
Bennett, J.It is quite probable, that this bill of exceptions presents questions not raised on the trial; but we must take the case, as made by the bill.
It seems the defendant attached the goods on a writ in favor of Moore & Belknap, while in boxes lying in Willard’s yard, and removed them from the yard into Willard’s house, and left them in his charge, to keep for the defendant. The court charged the jury, “ that if they believed the testimony in the case, the plaintiff was entitled to recover.” The only question in the case is, whether such facts were testified to on the trial, as detailed in the bill, as would warrant the charge.
It cannot be assumed, that the plaintiff was the owner of the goods described in the declaration. All we have upon this point is, that the evidence tended to prove it, and the jury have not found it. It is one thing to find, that evidence is given tending to prove a fact, and quite another thing to find such fact proved.
*431Neither can we assume, that the articles of property sued for were exempt from attachment and execution, on the ground that they were articles of household furniture belonging to the plaintiff, or used by him as such. They are doubtless appropriate articles for such use; but non constat, that they had ever been used for such purpose, or were intended by the plaintiff for such use. All we have is, that the plaintiff, being about to remove, boxed up the goods. If the plaintiff claimed, that these goods were exempt from the operation of the general law, subjecting property to attachment and execution, it was for him to show it. The court cannot intend it, as matter of law, or fact, from any thing, which appears in this bill of exceptions.
But it may be assumed, that there was a possession of the goods in the plaintiff prior to the attachment by the defendant. The bill states, that it appeared, “ that the plaintiff boxed up the goods and delivered them to John S. Willard, to keep for him.” This would be sufficient, to maintain trespass, or trover, against a wrong doer; but we cannot assume, that Willard had not a special property in the goods, as against the plaintiff. The fact, that the plaintiff informed Willard, when he delivered him the goods to keep, that he might hold them, until he indemnified him for a certain liability, which he had assumed for the plaintiff, does not necessarily show, that Willard acceded to it and received them as a security, but was proper evidence to go to the jury for them to pass upon. The evidence, no doubt, tended to prove a special property in Willard ; and if the case were made to turn upon this point, it should have been put to the jury, to find how the fact was. If a right vested in Willard, to hold the goods as a security, we think, that, upon this bill of exceptions, no fact can be assumed, which will warrant the court in holding, that Willard is concluded, as matter of law, from setting up this special property, as against the plaintiff. All that the bill finds is, that the evidence of one witness on the part of the plaintiff tended to prove, that he understood, that the liability incurred by Willard for the plaintiff had been discharged. It was not put to the jury, to find how the fact was.
It is true the bill finds, that no evidence was given tending to show, that Willard ever made any claim to the property. If he made no claim, at the time the property was attached, it might, as *432matter of law, conclude, or estop, Willard from setting up a special property against the officer, on the attaching creditors ; but it could have no such decisive effect in favor of the plaintiff. It could only be evidence, at most, tending to prove, that Willard’s lien did not in fact exist, and should have been, together with the other evidence, submitted to the jury, for them to have found, whether Willard had a special interest in the property, or not.
It does not appear from this bill of exceptions, that the property sued for was attached as the property of the present plaintiff. All that we have is, that it was attached by the defendant on a writ in favor of Moore & Belknap, and the writ is not made a part of the case. In this aspect of the case we could sustain the verdict, if we could assume, from the case itself, that Willard had not a special property in the goods. Upon such a construction, it would not be material, whether the property were exempt from attachment and execution, or not. If the property were not attached, as belonging to the plaintiff, the plaintiff might rely upon a prior possession, as against a stranger; but then we are met with another difficulty,— it not being put to the jury to find whether Willard had a special property, or not.
As we cannot assume, from this bill of exceptions, that the plaintiff had the possession of the goods, or the right of possession, when this suit was commenced, this action cannot be sustained. It is well settled, that the general owner cannot sustain trespass, or trover, when there is an outstanding possession in another, accompanied with a special property.
The result is, that, upon this bill of exceptions, the judgment of the county court must be reversed and the cause remanded.