Page:Harvard Law Review Volume 9.djvu/168

140 I40 HARVARD LAW REVIEW, In the case of confusion of goods the principle is equally dis- tinct. This is clearly expressed by the court, in the case of Wilson V. Lane (33 N. H. 466), as follows: — "The question arose in this country as early as 1810 in the case of Bond V. Ward (7 Mass. 123), and it was held by Parsons and the court, that 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 demand of his goods and a refusal or delay of the officer to redeliver them. In Shumway v. Rutter (8 Pick. 443), it was again held that, when the owner of chattels suffers them to be mixed with those of another person so that they cannot be distinguished, an officer will not be liable to an action of trespass for attaching them as the property of such other person. . . . The doctrines of these cases were fully recognized here in the case of Lewis v. Whittemore (5 N. H. 364), where it was held that it was the duty of the officer to attach the goods of the debtor? notwithstanding they were mixed with the goods of the plaintiff; and he had a right to take and hold the whole until the plaintiff identified his goods and demanded a re-delivery. The sheriff cannot be treated as a trespasser for doing what he has a right to do." Recognition of the general principle governing these cases is thus shown in the opinion in Roberts v. The Stuyvesant Safe- Deposit Company: *' It is no doubt true that a bailee for reward, such as the defendant was, may excuse himself for a failure to deliver the property to the bailor when called for by showing that the property was taken out of his custody under the authority of valid legal process, and that within a reasonable time he gave notice of the fact to the owner," citing Bliven v. H. R. R. Co., 36 N. Y. 403; W. T. Co. V. Barber, 56 N. Y. 544; Van Winkle v, U. S. M. S. S. Co., 37 Barb. 122; Livingston v. Miller, 48 Hun, 232; Stiles V. Davis, i Black. loi. But the same case shows that where there has been original neglect of duty on the part of the company, in allowing goods of a depositor to be removed on invalid process, the fact that the same goods were subsequently levied upon under valid process will not so cure such neglect that it may be offered in excuse by the company. " The rule in such cases seems to be that when a bailee is sued by the owner for the conversion or negligent loss of the property bailed, it is not a defence or bar to the action to show that, after it went into the pos-