from other sources that it is not a valid writ, some holding that he will not,28 other courts holding that he will be.29 We have sufficiently discussed this matter and expressed our views, and refer the reader to a former section." 30 31 Aside from any such questions, there are some other very important considerations which enter into the matter of his liability when acting under a writ. An officer can justify himself only by a strict compliance with his process or authority. If he transcends the limits of his authority, he becomes a trespasser from the beginning. It is held, however, that this rule should not be applied except where there has been a clear and substantial violation of rights; 32 that a mere omission or neglect of duty will not give occasion for the application of the rule.33 But, clearly, an officer who carelessly and roughly handles property seized under a writ so as to injure and break it, is a trespasser.34 And so does a sheriff become a trespasser by levying upon the property of a third person not a party.35 The common-law principle that a man's house is his 28 Grace v. Mitchell, 31 Wis. 533, 11 Am. Rep. 613. 29 Henline v. Reese, 54 Ohio St. 599, 56 Am. St. Rep. 736, 44 N. E. 269. 30 Ante, sec. 177. 31 Boston etc. R. R. Co. v. Small, 85 Me. 462, 35 Am. St. Rep. 379, 27 Atl. 349; Brock v. Stinson, 108 Mass. 521, 11 Am. St. Rep. 390; Ross v. Philbrick, 39 Me. 29; Brackett v. Vining, 49 Me. 356; Smith v. Gates, 21 Pick. 55; Williams v. Ives, 25 Conn. 568; Dehm v. Hinman, 56 Conn. 320, 15 Atl. 741. 32 Paul v. Slason, 22 Vt. 231, 54 Am. Dec. 75. 33 Waterbury v. Lockwood, 4 Day, 257, 4 Am. Dec. 215. 34 State v. Devitt, 107 Mo. 573, 27 Am. St. Rep. 440, 17 S. W. 900. 35 Bishop v. McGillis, 80 Wis. 575, 27 Am. St. Rep. 63, 5 N. W. 779; Charles v. Haskins, 11 Iowa, 329, 77 Am. Dec. 148; Van Pelt v. Littler, 14 Cal. 194; Horan v. People, 10 Ill. App. 21; Turner ▼. Sisson, 137 Mass. 191; Lammon v. Feusier, 111 U. S. 17, 4 Sup. Ct. Rep. 286. castle, and that it shall be free from forcible intrusion, applies, in the absence of statute to the contrary, to the execution of civil process, and does not authorize an officer to force open the outer door of a dwelling. 36 36 State v. Beckner, 132 Ind. 371, 32 Am. St. Rep. 257, 31 N. E. 950; 2 Freeman on Executions, sec. 236; Snydacker v. Brosse, 51 Ill. 357, 99 Am. Dec. 551; Curtis v. Hubbard, 1 Hill, 336; Curtis v. Hubbard, 4 Hill, 347, 40 Am. Dec. 292. § 580. What wrongs may be done to personal property. § 582. Wrongful appropriation of personalty-The wrong of con version. § 583. Same-What constitutes conversion-Illustrative cases. § 584. Same-Specially of bailee's liability. § 585. Same-Officer making levy and sale. § 589. Property subject to conversion. § 590. Detention or conversion of removable annexations to land- § 591. Things annexed to realty by agreement-When fixtures § 592. § 593. Same-Rights of innocent purchasers. § 594. Annexations or construction of buildings on land of another by mistake. 595. Property of another taken by mistake or trespass and converted into different form-Rights of parties. § 596. Injury to personalty by negligence. § 597. Confusion or commingling of goods. 579. Personal Property Defined. The term "personal property," as generally understood, has reference to the right or interest which one has in things personal. But personal property is distinguishable from things personal as the latter is used sometimes in connection with chattels real. The essential idea of personal property is that of property in a thing (1111) movable or separable from the realty, or of perishability, or possibility of brief duration as compared with the owner's life in a thing real.1 The great bulk of personal property has no connection with land. But there are certain kinds of property classed as personal, which by reason of the relation to real property deserve special mention in this connection, viz., things annexed to realty, by agreement, things a part of realty classed as ferae naturae, but capable of separation by agreement of parties, so as to change its character, and things produced by land through the work of man-fructus industriales. It is not within the province of this work to consider in detail the substantive character of these classes of property, nor the rights of owners and possessors, only so far as it may be necessary in the discussion of the injuries that may be done. § 580. What Wrongs may be Done to Personal Property. In the consideration of rights of property at common law the rights of an owner were not of so much consequence as were the rights of possession, in many instances the one who had the right to the immediate possession being regarded as the true owner, the right of ownership being protected often through the medium of rights of possession. The complicated theories which grew up under the common law with respect to the possession of realty had their influence upon the subject of personal property. We see traces of the idea that the one who may have a right to the immediate possession of personal property, has the right to resort to the possessory remedies, in the form of allegation adopted and followed in the petition of replevin under our codes: Defendant is entitled to the imme 1 Bouvier's Dictionary, 327; 2 Blackstone's Commentaries, 14. diate possession of the following property, etc. In American jurisprudence, however, in all judicial proceedings the tendency is to regard the rights of the real party, or the real owner, although there are still those who have possessory rights whose right and duty it is to take whatever action may be necessary to protect the property. In the discussion of the wrongs or injuries to personal property, the language of a learned English writer is particularly forceful: "It must be remembered that although forms of action are no longer with us, causes of action are what they were and cases may still occur where it is needful to go back to the vanished form as the witness and measure of subsisting rights. The sweeping protection given to rights of property at this day is made up by a number of theoretically distinct causes of action. The disturbed possessor had his action of trespass (in some special cases replevin); if at the time of the wrong done the person entitled to possess was not in actual possession his remedy was detinue, or, in the developed system, trover. An owner who had neither possession nor the immediate right to possession could redress himself by a special action on the case, which did not acquire any technical name."2 The injuries which may be done to personal property are: 1. Abuse or damage to the same while in possession of the legal owner, or when in the temporary custody of another. This may be by (a) trespass, or (b) by careless or negligent acts of another. And 2. By an unlawful taking, in the first instance, or by an unlawful detention where the property came into possession lawfully in the first instance, or by unlawfully converting them to one's own use. The wrong of trespass has already been considered 2 Pollock on Torts, 417. |