dissenting. I cannot agree with my associates in the view they have expressed in the disposition of this case, with regard to the liabilities of a Sheriff levying.pro*81cess That an officer who seizes the property of B, under and by virtue of a writ against A, becomes thereby a trespasser, I understand to be a cardinal principle, old as the common law, asserted by all elementary writers on this subject, and affirmed by an unbroken current of English and American decisions, whenever the question has been in issue. It would seem unnecessary, at this day, to cite authorities in support of such a proposition. Nor am I aware of any well considered cases, which hold a different doctrine, even under the qualifications stated in the foregoing opinion, to wit; where such property of B is in possession of A, and he is exercising acts of ownership over it. The levy must be made at the absolute risk of the officer, and the law very justly holds him responsible'for any excess of his authority, providing, however, in most States, for his indemnity in doubtful cases, where he is required by the creditor to execute the writ. The utmost effect, in my judgment, which could be given to the fact, that the debtor was in possession of and exercising acts of ownership over the property seized, belonging to another would be to allow the circumstance to be shown in mitigation of damages. And even that, I think, would be improper, unless it appeared that the officer had used due, or at least some diligence, to ascertain whether the debtor in fact owned the property, or had the exclusive right of possession. Since it might properly be considered in aggravation of damages if the officer knew, at the time of the seizure, that the property was not that of the Defendant in the writ; as we held, in an analogous case, with regard to exempt property, in Lynd vs. Picket et al., 7 Minn., 184.
If this were now to be considered an open question, and to be settled upon considerations of justice, expediency, or pub-lie policy, I cannot but think the weight of argument would be strongly against the view adopted in the opinion of a majority of the Court. The inconveniences which will be suffered from the adoption of such a rule will, I think, be far greater than the counter! alancing advantages, and ought not to be imposed upon the people, except by the plain and unmistakable requirements, of law. In the varied social and commercial relations of life, it is evident that a large portion *82oí community bold, and more or less exercise acts of owner ship over property ot others, in which the possessors, for the time being, have no leviable interest. To hold that property, so situated, may be seized in the hands of the debtor, at the will of the officer, and that the real owner can have no redress until after a demand and refusal, would be to reverse all our preconceived ideas of the'sacred rights of property, and cause the most grievous inconvenience. A loans or hires his horse or carriage to B, and the sheriff, by virtue of process against the latter, and without inquiry as to the ownership of the property, but simply because lie finds it in possession of the debtor, levies upon, and, of course, takes possession of the property. A is subjected to the necessity of searching for his property wherever he can find the officer, and making a demand for what has been thus taken without authority of law, and if delivered up, the officer incurs no liability. If would seem to be no answer to the wrong inflicted on the debtor, by the interference with the prosecution of his business, or on the owner by the seizure of his property, to say ?hat the former should not have sought, nor the latter granted, the temporary possession of the property. Whether the use of the property be conceded to the debí or as an act of friendship, or in some of the ordinary channels of business, the rights of the owner should bo no more prejudiced by the limited or qualified possession of the debtor than had such possession not been granted. And it would ilL comport with either the friendly or business relations of society to have each manso narrowly watching the affairs of his neighbor, as would be necessary under the view here adopted, in order-to render property secure from seizure, loaned for however temporary a purpose. The absolute right of property is not subordinate, but superior to, and resting on. a higher basis than that of the officer or creditor, in pursuing his debt. The latter must be done without interference witli any rights save those of the debtor, and which the writ authorizes the officer to reach. The writ only authorizes the sheriff to levy upon the property of the Defendant therein — not upon that which may be in his possession. And when the officer goes beyond the terms of his authority, and levies upon the property of another, though *83found iu the debtor’s possession, I can see no principle on which he can claim immunity from the unauthorized act, unless it be that the owner is a wrong doer in suffering his property to be found in the hands of the. debtor.
That, the doctrine stated in the opinion of the Court was not tbs law in this State at the time the levy in the case at bar was made, and not until the year 1862, is entirely clear to my mind, by reference to chap. 41 of Sess. Laws of that year, p. 99. See. 2 of that act provides that “ any person having a claim to any property in the possession of the Defendant, in attachment or execution, levied upon by the sheriff, &c., by-virtue of a warrant of attachment or execution, shall not have any right of action against such sheriff, &c., for the value of the same, or for damages for the taking, detention, or conversion thereof, unless he or his agent shall give notice, in writing, to such sheriff, &c., so seizing the same, of his claim to such property, before the day of sale thereof, nor shall such person have any right of action against such officer, for taking any such property, or for detaining the same previous to such notice. Provided, That if such sheriff, &c., has any notice or knowledge that the property so attached or levied upon belongs to any person other than the Defendant, in the attachment or execution, he shall be liable to the party injured although the notice aforesaid may not be served upon him.”
That this statute is in derogation, and not declaratory of the common law, will not, I think, be disputed, and therefore that the law in this State was not as above stated, until the passage of this act. "Whatever may be thought of the policy of such provision, it is doubtless within the scope of legislative action, and must now be accepted as the law of the State.
The doctrine finds as little support in authority as sound reason. So far as I have been able to discover, the decisions of the courts of one State only — those of California — distinctly recognize it, and in the cases cited, Danmiel vs. Gorham, 6 Cal., 43, and Riley vs. Scammell, 12 Cal. Rep., 73, the principle is merely stated in the opinion of the Court, unsupported by any reasoning, to show upon what grounds so wide a departure from the established practice of courts was based. The case of Bond vs. Ward, 7 Mass., 123, holds that “ if the *84goods 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 for taking them, until notice, and a demand of his goods, and a refusal or delay of the officer to redeliver them.” And in Ward vs. Shumway, 8 Pick., 443, the statement of the syllabus is, that “ where the owner of chattels suffers them to be mixed with those of another jierson, so that they cannot be distinguished, an officer will not be liable to an action of trespass, (nor, it seems, to any action) for attach, ing them as the property of such other person.” The ruling in these cases was not only made upon a different state of facts from that presented in the case at bar, but upon a different (though, perhaps, somewhat analogous) principle from what is claimed as here applicable — that of confusion of goods, which applies to articles, which, from their nature, cannot be distin. guished, as grain, &c. The limitations to the right of the officer in levying process, as expressed in the syllabus of those cases, as above quoted, seem to me clearly to show, that the Court did not intend to decide the broad principle laid down by the majority of the Court in this case.
I think a new trial was improperly allowed, and that the order granting it should be reversed.