The opinion of the court' was delivered by

— The case shows that" defendant took thé horse from the possession of the plaintiff. Actual possession of personal property is sufficient to maintain trespass against any person but the legal owner, and according to some authorities, even if the possession is illegal — and according to all, if the possession is under an assertion or color of right. — 1 Chitty, 168. — 1 Swift, 53Í.

*625The plaintiff then, acting as an officer, and attaching the horse as the property of Willson, and taking if from the' possession of Clark into his own keeping, until the trespass complained of, is entitled’ to recover against a stranger.

The next question is, whether the defendant was justified in taking the horse from the plaintiff by any previous act or doing of his. If the property had been Willson’s, then the question would have been, whether it was necessary for the defendant,when he made the- attachment, to have removed the property from Clark’s, in whose possession it was- found,' in order to perfect the lien as against the subsequent attachment made by the plaintiff — ¿-both parties being .deputy sheriffs — the same as if it had been attached and left in the possession of the debtor. But as the horse was not the property of Willson, the debtor, but of Clark, no right or lien was acquired by either attachment; and as the defendant, when he made the attachment, did not’ take possession of the property, his attachment was a perfect’ nullity — it was not everi a trespass. Clark asserted his claim to the property; and his adding that he would not put it out of the way, nor dispose of it, for two or three days,was not a relinquishment of his claim.- The plaintiff after-wards, by attaching and taking the horse away, was a trespasser, although under claim of right, and as such, was liable in law to Clark, the owner, for the value of the horse. — • Therefore, only by Clark, or by process of law against Clark,could the horse be lawfully taken from the plaintiff. It is not perceived that there was any manner of'right in-the defendant to take it from the plaintiff; and can it affect the case that the defendant, after the trespass, advertised'and sold the horse on" the execution against Willson,- and that, pendihg the advertisement of sale, at the request of the defendant, Clark kept the horse and re-delivered it at the sale ? It is not in the case that-Clark relinquished his claim to the property which had been’ before asserted to both' plaintiff and defendant ;■ and on what principle can it, in law, be an extinguishment of his right and property in the horse — having given warning to all concerned of his ownership ? The suit of trespass in favor of Clark against the plaintiff, going on in- the mean time, ■ and a recovery, and afterwards payment of the judgment by the plaintiff, seem to ' have no bearing in- the case other than as a public declaration by him that he persisted in his claim to the horse; and, if *626known to the defendant, might have been a further warning to him not to convert the horse by a sale. The recovery in that case was no rule of damages in this; but the value of the horse, and the ground of the plaintiff’s claim, as before mentioned, was his liability to Clark. The payment of the judgment since does indeed place the equity of the case very strongly with the plaintiff, for now Clark’s claim is extinguished; and by no possibility can the defendant be liable to him; and the plaintiff having paid for the property, it would be unjust that the defendant should retain the avails of it, or the creditor, for whom he acted; so that the effect of the plaintiff’s recovery in this suit will be to leave all parties in statu quo, save the costs.

Judgment of the county court is reversed.

dissenting. — The decision now made recognizes the right of the plaintiff to recover the value of the property sued for. It is on this ground that I would express my dissent to the judgment just pronounced, though I am not fully satisfied that a right of recovery exists to any extent. Clark, it is true, has recovered for the property against the plaintiff; but as the present defendant was no party to that action, and does not even appear to have had notice of it, he is not affect-. ed by it. He has the same defence as if that suit had not yet been instituted. It is therefore competent for the defendant to insist on the invalidity of Clark’s right; and if it shall appear that he was not entitled to recover the value of the property against the plaintiff, neither is the plaintiff so entitled as against the defendant.

The trespass committed by the plaintiff did not divest the interest of Clark in the horse. He had a right to re-take it, o<r suffer the possession to be restored. And in either event, his right to recover for the property itself would cease, and he would be limited to proper damages for the taking and temporary detention. It may be admitted, however, that he was not bound to receive back the property, but was at liberty to renounce it, and take to his remedy against the plaintiff for a full satisfaction. Hence the question arises, whether here was such a regaining of possession by Clark as should produce the effect just stated. He was absolute owner of the property, and any intermeddling with it by either of these parties, without his assent, was a mere trespass. I therefore consider, that his subsequent possession of the horse should be deemed a possession *627in the character of owner. I look upon his stipulation to keep it for the defendant, and ultimately to turn it out for sale on execution, as a voluntary and void stipulation. Nothing appears in the case to give it validity. “ If by mistake, or otherwise, the real owner receives his own property on deposit, his obligation to return it is extinguished, unless another person has acquired, as against him, some right, interest, or lien, which he is hound to respect.” — Story on Bailments, 37.

It may be said, and probably with truth, that Clark did not intend, by his transactions with the defendant, to abridge his remedy against the plaintiff for the previous trespass. But whatever his intention may have been, it does not appear that the defendant was made acquainted with it. And to save the right of Clark, as he afterwards asserted it, it was at least necessary, as I think, that explicit notice of his intention should have been given, and that his consent to the sale of the horse should be negatived. So long as the proceedings of the defendant with the property appear to have been had with the assent and approbation of Clark, they are not subject to be avoided b.y him in this circuitous and indirect manner. If he would treat one of the attachments as a trespass, destructive of his interest in the property, he must not lend his assistance to carry the other into effect. I am thus led to regard the transaction between the defendant and Clark as a virtual restoration of the property, so far as the plaintiff was concerned ; and at the same time, as an ostensible acquiescence by Clark in the defendant’s attachment of the horse as the property of Willson. According to this view of the subject, the plaintiff was not liable to Clark, except for the mere taking of the horse, and a very short detention of it. And for a portion only of that liability (if for any part of it) has the plaintiff a remedy over upon the defendant.

The equity of the case may seem to be with the plaintiff, since he must sustain a loss, unless he can be indemnified in this action. But if the defendant has paid over the proceeds of the sale to the creditor in the execution, he may be exposed to equal or greater inconvenience. I will only add that 1 consider the plaintiff’s loss to have been incurred unnecessarily. It was laid down by Prentiss, J., in Sanderson vs. Caldwell, 2 Aik. 203, and may be assumed as the better opinion in this state, that a judgment for damages, in trespass de bonis aspor-*628tatis, does not change the title of the property, without a satisfaction of the judgment. And if such is the general rule, it was most emphatically true as- between Clark and the plaintiff; because, at the time of recovering judgment, Clark had the horse in his own possession. Till a satisfaction of that judgment, he had the same legal right to dispose of the horse, .by gift, sale, or otherwise, as before the action was commenced. I therefore conclude, that after Clark had turned out the horse to be sold by the defendant, and especially after the sale had taken place, the plaintiff was not compellable to satisfy Clark’s judgment against him; but that he might have been relieved against it by some appropriate process.