place. If, for example, one has received property to be returned on demand, and declines to return it, the property is not changed by the demand and refusal, but the owner may still replevy the goods; and if, in the meantime they have largely increased in value, it would seem that he should be entitled to that increase, if he fails to recover the goods. The rule seems to be, however, that if he treats the demand and refusal as a conversion, his injury is measured by the value at that time; but he might, no doubt, make a subsequent demand, and rely upon a failure to respond to that as his grievance.' reasonable time thereafter for replacing it. Baker v. Drake, 53 N. Y. 211; Mathews v. Coe, 49 N. Y. 57; Devlin v. Pike, 5 Daly, 85; Page v. Fowler, 39 Cal. 412. See Weymouth v. Chicago, &c., R. R. Co., 17 Wis. 567; Meixell v. Kirkpatrick, 33 Kan. 282; Seymour . Ives, 46 Conn. 109. But in most cases where the circumstances are not such as to warrant exemplary damages, a just indemnity will consist in the value of the property at the time of the conversion, with interest thereon to the time of trial. Greeley v. Stilson, 27 Mich, 153; Winchester v. Craig, 33 Mich. 205; Ripley v. Davis, 15 Mich. 75; Dalton v. Laudahn, 27 Mich. 529; Allen v. Kinyon, 41 Mich. 281. See Brink v. Freoff, 40 Mich. 610; Yater v. Mullen, 24 Ind. 277; .Keaggy v. Hite, 12 Ill. 99; Otter v. Williams, 21 Ill. 118; Turner . Retter, 58 Ill. 264; Jefferson . Hale, 31 Ark. 286; Ryburn Pryor, 14 Ark. 505; Sledge v. Reid, 73 N. C. 440; Thomas v. Sternheimer, 29 Md. 268; Herzberg 0. Adams, 39 Md. 309; Polk's Admr. v. Allen, 19 Mo. 467; Kennedy v. Whitwell, 4 Pick. 466; Fowler v. Gilman, 13 Met. 267; Greenfield Bank . Leavitt, 17 Pick. 1; Pierce v. Benjamin, 14 Pick. 356; Sargeant v. Franklin Ins. Co., 8 Pick. 90; Johnson v. Sumner, 1 Met. 172; Barry v. Bennett, 7 Met. 354; Hurd v. Hubbell, 26 Conn. 389; Cook v. Loomis, 26 Conn. 483; Robinson v. Hartridge, 13 Fla. 501; Vaughan v. Webster, 5 Harr. 256; Lillard v. Whittaker, 3 Bibb, 92; Thrall. Lathrop, 30 Vt. 307; Hayden v. Bartlett, 35 Me. 203; Tenney. State Bank, 20 Wis. 152; Carlyon Lannan, 4 Nev. 156; Neiler v. Kelley, 69 Penn. St. 403; Whitfield . Whitfield, 40 Miss. 352; Newton, &c., Co., v. White, 53 Geo. 395; Sturges & Keith, 57 Ill. 451; Bloch v. Sweeney, 63 Tex. 419. Cases of conversion of notes, or choses in action. Benjamin, &c.. Co., v. Merch. Bank, 63 Wis. 470; Powell v. Powell, 71 N. Y. 71; State v. Berning, 74 Mo. 87; Ray . Light, 34 Ark. 421; Penn man Winner, 54 Md. 127; Moody v. Drown, 58 N. H. 45. See Daggett . Davis, 53 Mich. 35, as to stock certificate without indorsement. Cases of mortgaged chattels, or chattels in which one has a special property. Becker v. Dunham, 27 Minn. 32; Fowler Haynes, 91 N. Y. 346; White . Allen, 133 Mass. 423; Rosenweig Frazer, 82 Ind. 342; Cole v. Dalziel, 13 Ill. App. 23. 1 Burk . Webb, 32 Mich. 173. See Third National Bank v. Boyd, 44 Md. 47. 2 If the property is largely increased in value by the action of the wrong doer himself, as, for instance, where he takes heavy articles a long distance Effect of Judgment. It was decided in Adams v. Broughton' that judgment in trover or trespass for the value of the property vested the title in the defendant; and this decision has been followed in this country to some extent.' But the present English rule is, that it is not the judgment alone, but judgment and the satisfaction thereof, that passes the title to the defendant; and this may be said to be the accepted doctrine in this country at the present time. The title by relation vests as of the time. when the conversion took place; but this relation is not effectual for all purposes; it could not render a third party a trespasser *upon the rights of the defendant for anything [*459] done by him intermediate the conversion and the judg 5 ment; and if, after conversion, the plaintiff has sold his interest in the property, the purchaser will not be affected by the suit, and the plaintiff will be entitled to recover nominal damages only, since, by the sale, he has disabled himself from passing title to the defendant. And in neither trover nor trespass will the title be changed if the recovery was only for an injury to the property, or for a temporary use, and not for the value. Justification under Process. When an interference with the property of another is justified under legal proceedings, it is to market, it seems he should be 'Stra. 1078; S. C. Andrews, 18. ers v. Moore, Rice, (S. C.) 90; Bogan v. Wilburn, 1 Speers, 179; Floyd v. Browne, 1 Rawle, 121; Marsh v. Pier, 4 Rawle, 273; Fox v. Northern Liberties, 3 Watts & S. 103; Merrick's Estate, 5 W. &. S. 9; Curtis v. Groat, 6 Johns. 168; Fox v. Prickett, 34 N. J. 13. Brinsmead v. Harrison, L. R. 6 C. P. 584. Lovejoy v. Murray, 3 Wall. 1; Elliott v. Hayden, 104 Mass. 180; United Society v. Underwood, 11 Bush, 265; S. C. 21 Am. Rep. 214; Smith v. Smith, 51 N. H. 571; Hyde v. Noble, 13 N. H. 494; Bell v. Perry, 43 Iowa, 368; Bacon v. Kimmell, 14 Mich. 201; Atwater v. Tupper, 45 Conn. 144; Thayer v. Manley, 73 N. Y. 305. 5 Bacon v. Kimmel, 14 Mich. 201. See ante, 95, 96. Brady . Whitney, 24 Mich. 154. important to know the position the party justifying occupies in respect to them. In some particulars the rules of protection are somewhat different as respects the several cases of magistrate, ministerial officer and party, or complainant, and they will therefore be given separately. The Officer. For the purpose of interfering with one's pos session of chattels, the ministerial officer is always supposed to be armed with legal process, which he can exhibit as his authority. There may be a few special cases in which this would not be necessary to his justification. Such a case would be that of a thief caught flagrante delicto, with the stolen property in his possession. No doubt the officer might take the thief without warrant, and he might also take the stolen property, and retain it for identification and evidence of ownership. So, in making arrest for a supposed felony, the officer might take from the person arrested whatever was supposed to have been the instrument in committing the crime, or whatever would probably be impor tant to be used in evidence on the trial. So, doubtless, under proper statute or municipal by-law, implements of gaming found in actual use in violation of law, might be seized. These cases suggest others, but they cannot be numerous. In general, the officer must seek protection behind process. The process that shall protect an officer must, to use the cus tomary legal expression, be fair on its face. By this is not meant that it shall appear to be perfectly regular, and in [*460] all *respects in accord with proper practice, and after the most approved form; but what is intended is, that it shall apparently be process lawfully issued, and such as the officer might lawfully serve. More precisely, that process may be said to be fair on its face which proceeds from a court, magistrate, or body having authority of law to issue process of that nature, and which is legal in form, and on its face contains nothing to notify or fairly apprise the officer that it is issued without authority.' When such appears to be the process, the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it." 1 Cooley on Taxation, 559, 562. 2 Parsons v. Lloyd, 3 Wils. 341; Ives v. Lucas, 1 C. & P. 7; Erskine v. Hohnbach, 14 Wall. 613; Lott v. Hub bard, 44 Ala. 593; Grumon v. Raymond, 1 Conn. 40; Thames Manufg. Co. v. Lathrop, 7 Conn. 550; Watson v. Watson, 9 Conn. 140; Neth e. Cro The word process is made use of in this rule in a very *comprehensive sense, and will include any writ, warrant, [*461] order, or other authority which purports to empower a ministerial officer to arrest the person, or to seize or enter upon the property of an individual, or to do any act in respect to such person or property which, if not justified, would constitute a tres fut, 30 Conn. 580; Brother v. Cannon, 2 Ill. 200; Shaw v. Dennis, 10 Ill. 405; Allen v. Scott, 13 Ill. 80; Hill v. Figley, 25 Ill. 156; Gott v. Mitchell, 7 Blackf. 270; Noland v. Busby, 28 Ind. 154; Brainard v. Head, 15 La. Ann. 489; Ford v. Clough, 8 Me. 334; Keller . Savage, 20 Me. 199; Tremont. Clark, 33 Me. 482; State v. McNally, 34 Me. 210; Caldwell v. Hawkins, 40 Me. 526; Judkins v. Reed, 48 Me. 386; Bethel v. Mason, 55 Me. 501; Nowell v. Tripp, 61 Me. 426; Seekins v. Goodale, 61 Me. 400; Colman . Anderson, 10 Mass. 105; Holden v. Eaton, 8 Pick. 436; Sprague v. Bailey, 19 Pick. 436; Upton v. Holden, 5 Met. 360; Aldrich v. Aldrich, 8 Met. 102; Lincoln v. Worcester, 8 Cush. 55; Hayes . Drake, 6 Gray. 387; Howard v. Proctor, 7 Gray, 128; Williamson v. Willis, 15 Gray, 427; Cheever Merritt, 5 Allen, 563; Underwood v. Robinson, 106 Mass. 296; Le Roy v. East Saginaw Railroad Co., 18 Mich. 233; Bird v. Perkins, 33 Mich. 28; Wood v. Thomas, 38 Mich. 686; Turner . Franklin, 29 Mo. 285; Glasgow v. Rowse, 43 Mo. 479; St. Louis Building, &c., Assn. v. Lightner, 47 Mo. 393; State v. Dulle, 48 Mo. 282; Walden v. Dudley, 49 Mo. 419; Blanchard v. Goss, 2 N. H. 491; Henry v. Sargeant, 13 N. H. 321; State v. Weed, 21 N. H. 262; Rice . Wadsworth, 27 N. H. 104; Keniston . Little, 30 N. H. 318; Kelley. Noyes, 43 N. H. 209; Beach . Furman, 9 Johns. 228; Warner v. Shed, 10 Johns. 138; Savacool v. Boughton, 5 Wend. 171; Wilcox v. Smith, 5 Wend. 231; McGuinty v. Herrick, 5 Wend. 240; Alexander v. Hoyt,7 Wend. 89; Reynolds v. Moore, 9 Wend. 35, 36; Coon v. Congdon, 12 Wend. 496, 499; Webber v. Gay, 24 Wend. 485; People v. Warren, 5 Hill, 440; Cornell v. Barnes, 7 Hill, 35; Bennett v. Burch, 1 Denio, 141; Abbott v. Yost, 2 Denio, 86; Dunlap v. Hunting, 2 Denio, 643; Patchin v. Ritter, 27 Barb. 34; Sheldon v. Van Buskirk, 2 N. Y. 473: Chegaray v. Jenkins, 5 N. Y. 376; State v. Lutz, 65 N. C. 503; Gore v. Martin, 66 N. C. 371; Loomis v. Spencer, 1 Ohio, (N. s.) 153; Moore . Alleghany City, 18 Penn. St. 55; Billings v. Russell, 23 Penn. St. 189; Burton v. Fulton, 49 Penn. St. 151; Cunningham v. Mitchell, 67 Penn. St. 78; State v. Jervey., 4 Strob. 304; McLean v. Cook, 23 Wis. 364; Orr v. Box, 22 Minn. 485. Such a writ, though based on a defective affidavit, issued by a court of general jurisdiction, within which are parties and subject matter, protects the officer serving it properly from action by a third person, claiming the goods, if the goods were liable to attachment in that suit. Matthews o. Densmore, 109 U. S. 216. See Philips v. Spotts, 14 Neb. 139. So where eight tax warrants were levied at once, and the taxes called for by three had been paid and those by the other five were illegal. Woolsey v. Morris, 96 N. Y. 311. So prima facie if the officer seizes property in the hands of a third person. Brichman v. Ross, 67 Cal. 601. The result of the suit does not affect the officer who has attached pass. 3 Thus, a capias ad respondendum, or any warrant of ar rest, is process; so is a writ of possession; so is any/execution which authorizes a levy upon property; and so is any authority which is issued to a collector of taxes and which purports to empower him to collect the tax by distress of goods. These are only illustrations of a class too numerous to be specified in detail. But the writ being found to be a lawful one, it next becomes necessary to the officer's protection that he proceed upon it according as the law directs. He cannot demand and secure the protection of the law while disregarding the commands laid upon him for the protection of the rights of others. By this is not meant that he shall obey to the letter every direction of the law, whether important or unimportant, and whether or not beneficial to any of the parties concerned. Many directions are given in legal proceedings which do not have specially in view the interests of parties; and where these fail of observance it is generally property under valid process. Lashus e. Matthews, 75 Me. 446; Grady v. Bowe, 11 Daly, 259. See Chipstead v. Porter, 63 Geo. 220. Nor the reversal of a judgment in case of seizure under execution. Smith v. People, 99 Ill. 445. In Vermont an exception to this rule seems to be made in tax cases, it being held that the tax bill and warrant in due form do not constitute protection to the collector without a showing that the antecedent proceedings were legal. Hathaway v. Goodrich, 5 Vt. 65; Collamer v. Drury, 16 Vt. 574; Downing v. Roberts, 21 Vt. 441; Spear v. Tilson, 24 Vt, 420; Shaw v, Peckett, 25 Vt. 423; Wheelock v. Archer, 26 Vt. 380. If an officer seizes goods of third persons on the ground that their title is fraudulent, he must show plaintiff to be a judgment creditor. Howard v. Manderfield, 31 Minn. 337; State v. Rucker, 19 Mo. App. 587. It is a trespass per se to seize A's goods on a writ against B without regard to probable cause. Holton. Taylor, 6 S. E. Rep. 15 (Geo.) 1 See McGuinty v. Herrick, 5 Wend. 240; Loomis . Spencer, 1 Ohio, (N. s.) 153. 2 Parsons v. Lloyd, 3 Wils. 341; Neth v. Crofut, 30 Conn. 580; Brother v. Cannon, 2 Ill. 200; Brainard . Head, 15 La. Ann. 489; State v. McNally, 34 Me. 210; State v. Weed, 21 N. H. 262; Warner v. Shed, 10 Johns. 133; Underwood v. Robinson, 106 Mass. 296. Lombard . Atwater, 43 Iowa, 599. Or a writ of right. Colman v. An. derson, 10 Mass. 105. 4 Thames Manuf. Co. v. Lathrop, 7 Conn. 550; Ives v. Lucas, 1 C. & P. 7; Hill. Figley, 25 Ill. 156; Gott e. Mitchell, 7 Blackf. 270; Watkins . Wallace, 19 Mich. 57. 5 Erskine . Hohnbach, 14 Vall. 613; Shaw v. Dennis, 10 Ill. 405; Noland v. Bushby, 28 Ind. 154; Kelley . Savage, 20 Me. 199; Caldwell v. Haw kins, 40 Me. 526; Nowell v. Tripp, 61 Me. 426; Clark v. Axford, 5 Mich. 182. |