Page:Dakota Territory Reports.djvu/65

 passer; in no event can the proceeds of any sale of the goods be applied to his benefit If the goods be forfeited and condemned for acts of the owner, it is no fault of the trespasser and he cannot be held responsible for it. If the officer fails to take proper care of the goods, he is responsible to the owner and not to the trespasser. So far as the trespasser is concerned, the goods are, to all intents and purposes returned to the owner when they are delivered to the officer. When the trespasser thus delivers the goods, his liability is fixed and determinate; he has no power to increase or diminish it by exercising any control over the goods, nor can it be increased or diminished by the acts or omissions of officers of the law rightfully holding the goods for the owner, and it is believed that no reputable authority can be found directly controverting this doctrine.

The case of Kaley v. Shed, 10 Met. 317, is a strong case very nearly in point. The jury were instructed that if defendant intended in good faith to return the goods according to the demand, but before a reasonable time had elapsed, they were attached and taken from the defendant into the custody of the law, the measure of damages would be the injury sustained by the plaintiff by the taking and detention of the goods to the time of the attachment, and that the defendant would not be liable for any portion of the value of the goods, although it might not be shown that the goods ever after went to the use of the plaintiff.

On appeal, held correct, Shaw, C. J., delivering the opinion of the court, and among other things remarking: "the property was in the custody of the law, by legal process, which the defendant could not resist or control. * * * The plaintiff's case assumes that the goods were his property, they were attached as his * * they are laid up in the custody of a responsible officer for his use, to be delivered on demand. In no event could the defendant claim them."

As bearing more or less, directly on the question at issue, we cite: Kaley v. Shed. 10 Met., 317; Higgins v. Whitney, 24 Wend., 379; Curtis v. Ward, 20 Conn., 205; Prescott v. Wright,