The questions whether the sale of the teas was conditional, and whether, if it was, the delivery of them was a waiver of the condition, were properly questions for the jury. But as they are referred to the court, we must decide them upon such means of judging as the parties have furnished. These means are the memorandum handed to the buyers by the sellers, the evidence as to the cuátom in such cases, and as to the other acts of the parties, as stated in the report of the judge. And we are of opinion, on this evidence, that the sale was conditional, and that the delivery was not a waiver of the conditions of the sale.
The remaining question is, whether this action can be maintained.
It was contended for the defendant, that the buyers’ possession, as it was lawfully obtained, rendered the goods liable to seizure on execution by their creditors, and that such seizure gave the creditors a right paramount to that of the plaintiffs. But the contrary is the settled law of this commonwealth. Hussey v. Thornton, 4 Mass. 405 ; Marston v. Baldwin, 17 Mass. 606 ; Smith v. Dennie, 6 Pick. 262. Whether a bona fide purchaser, to whom the buyers might have sold the goods, while in their hands, could have held them against the plaintiffs, is a question not raised in this case. That is an open question, on which no opinion is intimated.
It was also contended for the defendant, that this action will not lie, because the plaintiffs made no demand, before suing out their writ. Whether it is meant that a demand should have been made on the buyers, or on the defendant *260does not clearly appear on the report. But we are of opinion that a demand, either upon the one or the other, was not a prerequisite to the maintenance of the action. A paity, in order to maintain replevin, trespass or trover, must have actual possession, or the right to immediate possession, at the time of bringing the action. If, therefore, the plaintiffs’ right to possession, at that time, depended on their having demanded of the buyers a return of the teas, this action was prematurely commenced. We are of opinion, however, that the possession of the buyers, under the delivery which was made to them, was the constructive possession of the plaintiffs, and that they might have retaken the teas at any moment, unless the buyers, before the plaintiffs should have so done, had performed the conditions of the sale.
No demand on the defendant was necessary before serving the writ on him. The argument for him was, as we understood it, that the teas were lawfully in the buyers’ possession, amongst their other goods, and that he had no means of knowing, and no reasons for suspecting, that they were not a part of their property; and that he is not liable to an action of replevin, until after he has had an opportunity to give up the property, on demand. But a wrongful intent need not be shown in order to sustain ah action of trespass, replevin or trover. The defendant was directed, by his precept, to seize the property of Davis, Brown & company, and he seized the property of the plaintiffs. For this act he is clearly liable in an action of trespass, trover or replevin, at the plaintiffs’ election. Dalt. Sheriff, 145, 146; 6 Scott, N. R. 727. And there is no special hardship in the case ; for by the common law an officer may legally take an indemnity of a creditor, who requires him to seize specific goods, against all damages that he may suffer by suits of others who may prove to be the true owners of the goods. This indemnity against unlawful acts is’ allowed to officers, in such cases, contrary to the general rule of law. Arundel v. Gardiner, Cro. Jac. 652 ; Train v. Gold, 5 Pick. 380.
The only case, we believe, in which, jy the English law. *261an officer is not liable in trespass (and of course, in this state, in replevin without a demand) for seizing property that does not belong to the judgment debtor, is that of a seizure of goods after the owner has committed a secret act of bankruptcy, and before a commission has issued. See 15 Petersd. Ab. (Am. ed.) 81, note ; Stanley v. Gaylord, 1 Cush. 547.
Judgment for the plaintiffs.