Dissenting opinion by
Wells J.— Not being able to agree with the other members of the Court, in the conclusion, to which they have arrived, upon this case, I deem it proper to state the grounds of my dissent. This action is trespass for boots and shoes, which the plaintiffs had left with one Gerrish for sale. The boots w’ere in a case, and at the time of the attachment, the cover of the case had been removed, and two pairs of them had been sold. The shoes had been taken out and placed in a drawer, and on the shelf, with other shoes belonging to Gerrish. The plaintiffs had another box of boots, in the store of Gerrish, but they were not taken, because he informed the officer, that they belonged to the plaintiffs. Gerrish states, that he had the impression, that those, which were taken by the officer belonged to him, and that the officer did not take any property, which was pointed out, as not belonging to him. He also testifies, that the officer could not distinguish the goods attached, from the rest of his stock, except from information derived from him.
The question arises in this case, whether an officer is liable to an action until a demand has been made upon him, for attaching the goods of a stranger, when intermingled, by his consent, with like goods of the debtor in possession of the latter, and the officer has no notice, that they belong to the stranger, or they cannot be distinguished upon due inquiry, from those of the debtor.
In the case of Bond v. Ward, 7 Mass. R. 123, Parsons C. J. says, “ Goulding’s (the debtor’s) furniture was in his actual possession, in his dwellinghouse; he, (the officer) ought therefore to have attached that furniture; and if he attached some furniture of other persons, which was in Goulding’s house and *432mixed with his, when the right owner claimed his part, the deputy sheriff might have restored it, without subjecting himself to an action by the ' plaintiff. And if the goods 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, until notice and a demand of his goods, and a refusal or delay of the officer to redeliver them.”
Ordinarily, where one interferes with the property of another, without his consent, he is liable to an action of trespass. But there are exceptions to this rule. In cases of an ownership of chattels, by tenants in common, the officer, having a precept against one tenant, may seize the whole chattel, and is not a trespasser, but he can only sell on execution the interest of the one against whom he has the precept. When the corn of the debtor is mingled with the corn of a stranger, and cannot be distinguished, an officer for attaching the mass, as the property of the debtor, is not liable to an action. And the same result must follow in all cases of confusion of property. Lewis v. Whittemore, 5 N. H. Rep. 364. The law does not require of officers what is impossible or unreasonable.
There is not the same difficulty of distinguishing furniture, or boots or shoes, belonging to one person, from the same kind of property of another, as exists in the case of corn ; but still the difficulty is intrinsically great. In one case, the officer is not considered in fault, because it is impossible to separate the property of the different owners. In the other, if he finds the property in the possession of the debtor, and has no knowledge of the intermixture, or cannot make the separation, by due inquiry, he would also appear to be without fault. It is unreasonable to consider him a trespasser in either case. The same principle, although in different degrees, applies to both; it is, that he conducts without fault. The law requires him to take the debtor’s property, and in doing so, he unavoidably takes that of a stranger with it.
Where the owner of property consents to have it placed with that of another, and his own conduct has induced the *433belief, that it belongs to the possessor, he ought to be required to make a demand for it, before commencing an action against an officer, who attaches it as the property of the possessor. In those communities where attachments are frequent, the owner must know, that his property is liable to bo taken with that of the possessor, and it is no great inconvenience to subject him to the trouble of demanding it. When whole stocks of goods are attached, usually some portions of them belong to persons, other than the debtor, and cannot be distinguished by due inquiry ; or the officer may have no reason to suppose they are not the debtor’s, and he ought not to be held a trespasser, while acting with fidelity, in the discharge of his official duty.
In Shumway et al. v. Rutter, 8 Pick. 443, reference is made-to the case of Bond v. Ward, without any disapprobation,. And it is said, by Parker C. J., that the principle of that caso,, applies to the taking, but if the officer sells, knowing the property to be the plaintiff’s, the sale is a conversion.
In Sawyer v. Merrill, 6 Pick. 478, it was decided, that if' an officer, having attached goods of a debtor, sutlers them to remain intermingled with other goods of the debtor, and makes claim to the whole, so that another officer having a writ against the same debtor, cannot distinguish which have been attached,, the latter officer will be justified in attaching the whole. The property was household furniture. The officer making the first attachment had a right to hold what he had taken, if the officer making the second one could have distinguished between what furniture had been and what had not been attached. It is said by the Court, that the same principle applies, as in the case of a stranger’s goods, intermixed with those of the debtor.. And such is the ground of the decision. The officer, making the second attachment, not being able to distinguish what had been previously attached, was justified in taking the whole. He was in no fault, and was not a wrongdoer. The case of Bond v. Ward, is supported by the doctrine, promulgated in the two cases last cited.
And in my judgment, as it appears that the plaintiffs eon*434sented to the mingling of their goods, with similar ones of the debtor, in his possession, and the deputy of the defendant had no notice, that any portion of them which he took was the property of the plaintiffs, or upon due inquiry, he could not distinguish them, that this action for the tailing cannot be maintained.
Mem__This and the next case, Eaton v. Elliot, were Cumberland cases, and were accidentally placed with those in Kennebec. The error was not discovered until after the Cumberland cases were printed.