Commissioners' decision. superior court of Denver. neither at common law nor under the statute was | What, if any, permission or favor did you there a sufficient levy, as against one who had extend to them, the defendants, in regard to previously contracted with the owners for the wheat, and it was immaterial that he was informed the control of the property? Answer. None; of the attempted levy before the wheat was de- I did not say anything about the control of livered to him. the property. I notified them. Q. Did you ever see this grain, Mr. Dorsey? A. No, Appeal from sir." Appellee further states that he made a demand for the wheat, but that appellants On September 1, 1884, suit was begun by denied having any wheat belonging to CrisEmma P. Vonach in a justice's court of Arap-man and Tanner. John Crisman, one of the ahoe county, to recover from John Crisman defendants in the original case, was sworn and J M. Tanner the sum of $145. On as a witness in behalf of plaintiff, and stated September 4th a writ of attachment was is- that he sold the wheat that Dorsey had levied sued in that case, and delivered to the appel- upon; that the principal part of it was sold lee for execution. The formal evidence of to defendants; that of the wheat which was the execution of the writ is contained in the attached he delivered about 330 bushels, return indorsed thereon in the following lan- which was of the value of 60 cents per guage: "Executed the within writ, Septem- bushel. On cross-examination, he testified ber 4, 1884, by levying upon and taking into that but two stacks were levied upon under my possession four stacks of wheat; also by the writ; that at the time the levy was made leaving a copy of this writ with John Cris- the papers were served; and he told appellee man and J. M. Tanner, defendants herein. that the threshing-machine was to be there [Signed] SAMUEL C. DORSEY, Constable." the next day, and that he calculated to thresh; On September 27th judgment was entered in that Dorsey said he would serve the papers, favor of the plaintiff in that action for the but that he had told the plaintiff in the case sum of $155 and costs. After the issuance that he would not stay and watch the stacks and service of the attachment writ as above of wheat, unless he was paid handsomely for stated, John Crisman, one of the defendants it. The witness further said that nobody therein named, delivered the property, or stayed to watch the wheat after levy was some part of it, to the appellants. After the made; that it remained in his charge, and that rendition of judgment by the justice, ap- of Tanner; that when he sold the wheat to his pellee demanded the delivery of the prop-| father, Obed Crisman, he told him nothing erty by the appellants, and upon their re- about the levy. Obed Crisman, one of the fusal to deliver the same instituted an ac-appellants, testified in behalf of the plaintiff, tion in justice's court to recover the value thereof. In that suit judgment was rendered in favor of appellants for costs, and thereupon an appeal was perfected to the superior court of Denver. A trial was had in that court, May 18, 1885, which resulted in a judgment in favor of appellee for the sum of $198 and costs, from which judgment this appeal was taken. in substance, that he got wheat, but was very much mixed up, so that he did not know when the wheat was coming in, or exactly whose wheat it was; that it was coming in from the Platte Land Company, which company owned the land; that there were three teams hauling, and it was stated to him that the wheat was from section No. 35, but until he settled he didn't know exactly how the Upon the trial the plaintiff introduced in wheat stood. When the agent of the land evidence the summons, affidavit, and attach-company came down, he told him that the ment bond, and the writ of attachment, to- wheat coming from such teams was his gether with the returns indorsed upon the wheat,-the rent wheat of the farm. When process. To further maintain the issues, the other wheat came, John Crisman had a oral testimony was introduced by plaintiff as part. "Question. Do you recollect being to the manner of the execution of the writ called upon by Mrs. Vonach? Answer. Yes, by him, and the circumstances under which sir. Q. Did you have any conversation with the property subsequently came to the pos- her? A. Some; yes, sir. Had a talk with session of the appellants. Appellee stated her. Q. Did she talk about this wheat being in this behalf that when the writ was placed attached? 4. Mrs. Vonach came to see me in his hands he went to the farm on which three times. I believe she did not make her Crisman and Tanner, the defendants, lived, business known at all the first two trips. I and levied on four stacks of wheat, which did not know her. She was simply inquiring were on the land occupied by them. He about John Crisman, where he lived, etc. further states that a copy of the writ was On the first two trips she was there, there served upon the defendants, and that he told was a conversation in regard to when John them that he would levy on the stacks of would be in, and where he lived. Q. Did she wheat, and that his instructions were to ask you about delivering the wheat? A. No, leave them on the ground; that he was in-sir; neither of the first trips. The third structed to make the levy, and notify the de- time she came in she made her business fendants. He also stated that he did not caution them about the property; that Crisman said he was going to thresh; that he thought he told Crisman he could not be there to keep him from threshing. "Question. known. Q. What did she say then about an attachment? A. She first said that John Crisman was owing her for rent on a farm called the Hughes Farm,' that he farmed two years before. I told her I knew very ceeding regularly instituted, but that the process itself should be so executed as to constitute a valid attachment. By the process which was issued to the appellee, and under the authority conferred by which he was act well about that crop, for I backed him up,- | ment.” To create the lien, it is manifestly furnished teams and seed. I did not know essential that there should be not only a prothat he owed anything on it, but if he did she better see John Crisman. Before she left she told me either that she had levied or was going to levy on it. I would not be positive, but it is my impression she said she had levied on some Crisinan wheat and Tan-ing, he was required to attach so much of the ner's. Q. Do you recollect what you said to personal estate of the defendant therein named her in reply? A. I told her it was my as should be of value sufficient to satisfy the wheat. I had furnished the seed, and fur- amount of the debt and costs. He was furnished the money to carry on the farm, and ther required to secure the estate so attached, they were indebted to me under the promise or to so provide that the same might be liathat I was to have the wheat when milled. ble to further proceedings thereupon, accordQ. Was this before or after the delivery of ing to law, etc. This was the mandate of the share of John Crisman? A. This talk the process, from which the authority of the was on the same day. She either said she appellee in the premises was derived. Sechad levied or she was going to. Q. It was tion 2002, Gen. St., relating to attachments before the wheat had been delivered? A. issued out of justices' courts, provides that No; there was some wheat delivered. This "the writ of attachment shall be addressed English Company's team was hauling in to any constable of the proper county, and wheat, and there were two loads. Q. The shall require him to attach the goods, chatshare of John Crisman was delivered after-tels, stocks, or interests in stocks, rights, wards, was it not? A. Yes; his was deliv- credits, moneys, and effects of the defendant ered afterwards." It further appeared from the testimony of this witness that he held a paper signed by John Crisman, of which the following is a copy: "($500) Denver, April 1st, 1884. Five months after date I promise to pay to O. Crisman $500 in wheat and oats, value received. [Signed] JOHN CRISMAN." He also testified that he furnished the money to buy the farming implements and the seed; that he paid the expenses of cutting and threshing the wheat; and that he realized from the wheat above such expenses from $70 to $80. When the plaintiff rested his case the defendants moved for judgment. The motion was denied, and thereupon the cause was submitted to the court. Brown & Putnam, for appellants. F. A. Williams, for appellee. in his county, not exempt by law from execution, or so much thereof as will satisfy the plaintiff's claim, to be stated in the affidavit, and the probable costs of the action." Section 2005 provides that "the writ of attachment shall be directed to the constable of the County in which the suit is commenced, and shall require such constable to serve a copy of the writ upon the defendant, and to attach and safely keep so much of the personal property of the defendant within his county which is liable to be taken in execution as may be sufficient to satisfy the plaintiff's demand, (the amount of which shall be stated in the writ in conformity with the affidavit for the attachment,) unless the defendant deposits with the justice the sum of money mentioned in the writ, or give the plaintiff security, to be approved by the justice by the undertaking of at least two suflicient sureties, in an amount sufficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been attached." Such are the requirements of the writ itself, and the provisions of the statute under which it is issued. PATTISON, C., (after stating the facts as above.) The sole question presented by this record is whether the writ of attachment issued in the action brought by Emma P. Vonach against John Crisman and J. M. Tanner was sufficiently executed. To sustain the finding and judgment of the trial court, the proposition must be established The requirements of the process, and the that, by virtue of the attachment writ, and duty imposed upon appellee in the premises, his proceeding under it, appellee was vested being defined, the inquiry which naturally with a special property in the wheat levied arises is, how are these requirements to be upon, and that it was charged with a valid met by the officer, and how is this duty to be and subsisting lien, subject to which the ap- discharged? In the determination of this pellants acquired possession of the property. question attention is called-First, to the The determination of this question necessa- provisions of the statute relating to the exerily involves the examination and considera-cution of attachment process; second, the eletion of the law relating to the execution of attachment process. mentary principles of law bearing upon the question contained in the text-books, and, third, the decisions of the courts. The office of a writ of attachment is clearly and well defined. "At common law, as Section 2007, Gen. St., provides that "the well as under our statutes, it is a proceeding constable to whom the writ is delivered shall to create and enforce a lien. It is a remedy execute the same without delay, and, if the for the collection of an ordinary debt, by deposit be not made or the undertaking preliminary levy upon the property of a given as hereinbefore provided, then as foldebtor to conserve it for eventual execution lows: (1) Personal property, capable of after lien shall have been perfected by judg-manual delivery, shall be attached by taking * ** * the same into the custody of the constable. | assert his power and control over the prop(2) Debts, credits, and other things in ac-erty, so that it cannot probably be withdrawn tion, which are not capable of manual de- or taken by another without his knowing it." livery, shall be attached by leaving with the At section 290 he says that the writ of atperson owing such debts, or with tachment in its action upon tangible property his agent, a copy of the writ of attachment," has no value or efficacy, except as a means etc. The meaning of the language of the of keeping the property until under the final section quoted is clear and unmistakable. process in the case it can be sold, or be made Under it, it is the duty of the officer to exe- available to satisfy the plaintiff's demand. cute the writ of attachment by taking per- Hence the first duty of the attaching officer sonal property "capable of manual delivery" is to retain possession of the property. See, into his custody. The nature of the prop- also, Wade, Attachm. §§ 164-166. Waples erty required to be taken into custody is on Attachment, p. 288, says: "If under the clearly disclosed by the language of the sec-operation and authorization of a statute the tion. All personal property, capable of man- sheriff may leave attached property in the ual delivery, must be taken into custody; hands of defendant, it is always only as that is, into the care and possession of the agent that the latter holds. He cannot, unofficer. Manifestly, within the meaning of der any statute, have legal possession inthis section, all chatteis-all tangible per- dependent of the sheriff and of the court, sonal property--is capable of manual delivery. after attachment, without destruction of the The kind of property which is not capable of entire effect of the act of seizing under the manual delivery, within the meaning of the writ. He must hold under the sheriff, be statute, is as described in the second subdivis- amenable to the orders of the sheriff, so that ion of the section. Tuch property consists of the latter may always be enabled to obey the debts, credits, and other things in action. In court when mandates are issued concerning other words, it is choses in action, as distin- the property. There cannot be even conguished from tangible property or chattels. structive custody, unless the sheriff or other Under the section cited, it is clear that the writ officer immediately under the court has actof attachment can only be executed as to per-ual control so as to be really the legal custosonal property which is capable of manual dian." See, also, Ror. Jud. Sales, §§ 1002, delivery by taking it into custody, and that within the meaning of the statute all personal property subject to attachment, except choses or things in action, is capable of manual delivery. The fact that the property to be attached consists of bulky articles, difficult of removal, does not excuse the failure of the officer to take possession. To do this it may not be necessary to remove the prop-stacks of wheat. It appears that he had been erty from the place in which it is found. Nevertheless it is incumbent upon him to do whatever may be necessary to take the property into custody. After the levy of the process, the possession of the property should be his. It should be subject to his dominion and control. His possession must be exclusive. His dominion cannot be shared with the defendant. The effect of the levy must be to place the property in custodia legis. It cannot be held adversely to the court or to the officer. The officer must be clothed with the indicia of ownership. The effect of the steps taken by him must be to charge the property with a lien, and create a special property therein, which will enable him at all times to protect and maintain his possession, and hold the property subject to the or-owners. der of the court until the attachment shall be dissolved. The provisions of the statute cited will admit of no other construction. 2. Attention is now called to the elementary principles of law relating to the levy of attachment process, as laid down in the text books. Drake on Attachment, § 256, declares that "an officer in attaching personalty must actually reduce it to possession, so far as under the circumstances can be done." He further says that the custody should be such "as will enable the officer to retain and 1003. In the light of these elementary principles, the evidence fails to disclose the requisites of a valid levy. Appellee states that upon the day the writ of attachment was issued to him he went to the farm occupied by defendants, and served copies of the writ upon him, and notified them that he would levy upon the expressly instructed by the plaintiff in the suit to levy the attachment, and leave the property where he found it. No one was present when the levy was made, except the defendants themselves. He did not take the property into custody. He exercised no dominion over it. He did not forbid the defendants from interfering with it. He placed no one in charge of it. The defendants declared it to be their intention to thresh the wheat on the following day, but nothing was done by appellee to prevent them from doing so. The property was left upon the farm occupied by defendants, and remained in their actual possession and under their control. There was nothing to indicate that the property had passed from the possession of its The levy was merely formal,—a "pen and ink" levy. The property was never in the custody of the law. 3. If there was no valid attachment of the property in question, when tested by the requirements of the statute and the elementary principles of the law, it remains to be seen whether, upon an examination of the authorities, any case can be found upon which to predicate the sufficiency of the execution of the writ, either as against the original defendants therein or the appellants. In the consideration of this branch of the case the * Attention is now called to the authorities bearing upon this question. The nature of the inquiry in this connection is clearly stated in Waples on Attachment, p. 289: "If, upon his own responsibility, the sheriff leaves property which is susceptible of actual manipulation and removal, * * taking his receipt therefor, such officer would be answerable to the attachment plaintiff for thus destroying the lien, should it thus be destroyed. Whether or not it would be depends entirely upon the legal capacity in which the defendant holds possession. Is his arrangement such that he cannot sell his property free from incumbrance; cannot de under surveillance of the sheriff? If so, he cannot set up that the lien is gone; and, if third persons have knowledge of such arrangement, they are also estopped." In this case there was no arrangement with the at contention of the appellee that appellants | quired the property free from incumbrance. had notice of the attachment may be dis- Mere notice that a writ of attachment had iscussed. Before citing the authorities, a re-sued, or of the pendency of the action, could view of the evidence bearing upon the rela- not be sufficient; for the reason that it is tion of the appellant Crisman to the property well settled that no lien is created by the ismay aid in arriving at a final conclusion. It suance of the attachment writ; that such lien appears that John Crisman, one of the de- can only be created by a valid levy. It is fendants in the original action, was the son not the writ, but the levy of the writ by the of the appellant Obed Crisman; that Obed actual seizure of the property, which constiCrisman claimed that the wheat in question | tutes the attachment. belonged to him. The wheat which came to his possession was threshed from two of the stacks upon which the levy was attempted to be made. What became of the Tanner wheat does not appear. The recovery was confined to the Crisman wheat. It appeared that of that there were 330 bushels, of the value of 60 cents per bushel; the judgment was for $198. From the undisputed evidence of this appellant, it appears that under an arrangement with his son he had furnished the seed and the farming implements, and had paid the expenses of carrying on the farm, and the expense of threshing the wheat, with the agreement and understanding that he was to have the wheat when it was milled. Underliver it, if sold; cannot administer it except this agreement it is manifest that as between him and his son be was entitled to the possession of the wheat. He had performed the contract on his part, and the delivery of the wheat by the son was made pursuant to the agreement. It is true that the written evi-tachment debtors that they should hold under dence of the contract is contained in the written memorandum, a copy of which is set forth in the foregoing statement of facts. This memorandum, however, is signed by the son alone, and cannot be considered as the only evidence of the arrangement. It is clear that the wheat in controversy was raised from the seed furnished by appellant; that the expenses of sowing, harvesting, and threshing had been paid by him; and that it was the very wheat which was to be deliv- The principal authority relied upon by apered to him in consideration of the money pellee is Richardson v. Rardin, 88 Ill. 124. În advanced by him. Whatever was the nature that case it was held that "where a constable of the contract, therefore, between the father in actual view of the property, levied upon a and son, whether he is considered as inter- large crib of corn, indorsing the levy on the ested in the raising of the crop, or a pur- execution, the defendant in execution being chaser of the wheat, it is clear that at the present getting a load of corn, and where the time of the attempted levy nothing remained constable notified him of the levy, and forto be done to consummate the contract, ex-bade his further interfering with the corn, cept the delivery of the wheat. Manifestly, and at the time nailed boards across the crib therefore, as between Obed Crisman and the to secure the corn, and then gave notice in attaching creditor, the party first acquiring the hearing of several persons near that he actual possession of the property could hold had levied on the corn, and that it must not it as against the other. If, then, the prop- be disturbed, that as his act, but for the writ, erty was actually in the custody of the law, would have been a trespass, the levy was notwithstanding the failure of the officer to good, and sufficient publicity was given of comply with the mandate of the writ, and if it." The facts upon which the foregoing dethe appellants had notice thereof when the cision was based were in no sense parallel property came to their possession, then the with the facts of the case at bar. În that judgment should be affirmed. But if, on the case, in the presence of the defendant named contrary, the property by virtue of the proceed-in the writ, and of the claimant of the propings was not actually in the custody of the law, if there was not in fact a valid attachment, then the information given by the attaching creditor that she intended or had in fact levied upon the wheat, could not have affected the rights of appellant, and he ac appellee. On the contrary, it expressly appears that they were not disturbed in their possession at all. The property continued in their possession, and was held adversely to the court. There was no valid attachment. See Wade, Attachm. §§ 166, 270; Crawford v. Newell, 23 Iowa, 453; Adler v. Roth, 2 McCrary, 445; Thompson v. Baker, 74 Me. 48; Bagley v. White, 4 Pick. 395; Weston v. Dorr, 25 Me. 176. erty, the officer not only made a formal levy, but he reduced the property to actual possession, and exercised dominion and control over it. He warned the defendant and the claimant that they must not interfere with the corn. He nailed up the crib in which it If thest PER CURIAM. For the reasons stated in versed. (13 Colo. 41) OMAHA & GRANT SMELTING & REFINING MEASURE OF DAMAGES-LICENSE. 1. In an action for the conversion of ore taken was kept. The subsequent purchaser notent upon seizure and possession. only had notice of the formal levy, but to requisites of a valid levy are absent, then obtain possession of the corn he was com- the attachment is void. If this conclupelled to remove the obstacles placed by the sion is correct, then it logically follows that officer himself to secure its possession. In appellee had no lien upon the property in Havely v. Lowry, 30 Ill. 446, it was held question,-no special property upon which a that, if a delivery bond is not executed, the right of action against appellants could be officer must, to affect the rights of third per-predicated. The information given by Mrs. sons, take the property into his possession. Vonach to Obed Crisman could not render See Logsdon v. Spivey, 54 Ill. 104; Davidson valid that which was void. Notice to him v. Waldron, 31 Ill. 120. In Rix v. Silk- could not supply appellee's omission of the nitter, 57 Iowa, 262, 10 N. W. Rep. 653, it steps necessary to the effective execution of was held, in effect, that a levy under which the writ. The judgment should be reversed. the officer did not have actual control of the personal property levied upon with power of REED and RICHMOND, CC., concur. removal was incomplete as to the subsequent chattel mortgagee having notice of the attempted levy. In Shephard v. Butterfield, 4 the foregoing opinion the judgment is reCush. 425, it is held that an attachment is abandoned where the officer gives notice of the attachment, but takes no actual charge of the goods, either personally or by keeper, even as against a subsequent mortgagee having notice of the attempted levy. See, also, Nichols v. Patten, 18 Me. 231; Gower v. Stevens, 19 Me. 92; Flanagan v. Wood, 33 Vt. 332; Bryant v. Osgood, 52 N. H. 182. In Taintor v. Williams, 7 Conn. 271, it is held that "it is essential to the preservation of the lien created by the attachment of personal property that possession be taken and held, and when this is relinquished there is a termination of the lien, and the general owner is remitted to his property unincumbered. The reason of this is that possession of personal property is the only indicium of ownership, and the suffering of a debtor after service of an attachment to retain possession is prima facie proof that the attachment is fraudulent in respect of creditors. Personal property not in the actual posses-ing to defendant's place of business. sion of any one is in the constructive possession of the general owner." In Mills v. Camp, 14 Conn, 219, it is held that the rule requiring transfer of actual possession and actual removal of personal property in order to render the sale or attachment valid as against creditors is a rule of policy, and not of evidence, and therefore proof of the honesty of the transaction will not be sufficient to remove the legal effect of a failure to remove the property attached. from plaintiffs' mine, justification not being pleaded, evidence of title in a third person is inadmissible. most, but an entry under license of the govern2. An entry made on public mineral land is, at ment, and a subsequent sale to another person by the government, and the issue of a receiver's receipt for the price thereof, so divests the governand the licensee cannot set up his previous possesment of title that the license is eo instanti revoked, sion as adverse. 3. A purchaser of ore taken from a mine by a trespasser is guilty of conversion, though ignorant of the seller's want of title. 4. The measure of damages for such conversion is the value of the ore sold, less the cost of raising it from the mine after it was broken, and haul 5. A license to dig ore in a mine given by one tenant in common extends only to his own interest therein. 6. Evidence that a mine-owner, being informed that persons had entered on a mining claim conflicting with his under order of court, and were taking his ore, consented that another person should join them, does not establish a license to those already engaged in mining there. 7. It is proper to charge with reference to such alleged license that the owner must have consented that the persons claiming as licensees should enter through their own mine and take ore from his mine. 8. Under Gen. St. Colo. c. 18, § 9, providing that in the absence of an inconsistent provision in a deed it will carry the right to immediate possession of the land therein conveyed, parol evidence until the purchase money was fully paid is inadof an agreement that possession should not pass missible. After this examination of the statute, the text-books, and the authorities, it is clear that the judgment of the court below was against the law. To hold otherwise would, in effect, abrogate a positive legislative enactment, and warrant the substitution of a mere "paper 9. The fact that the plaintiffs, in an action for levy" for the actual seizure and continued converting ore taken from their mine, were not the owners of the whole mine, cannot be proved possession of the property. An attachment by the introduction of a complaint signed and verisuit is in its nature a proceeding in rem. tied by an agent of part of plaintiffs and another The property sought to be attached consti-party, in a suit to enjoin the same defendants from trespassing on the mine, though such a complaint tutes the res of the action. To give the court is admissible to impeach the testimony of the jurisdiction over it, the subject of the at- agent, if inconsistent therewith. tachment must be in the custody of the law. This is the office of the writ. If the property is not taken into custody, the process 10. The fact of agency cannot be proved by the declarations of the alleged agent alone. Commissioners' decision. Appeal from dis fails to perform its oflice. The lien sought|trict court, Lake county. to be created by the proceeding is depend Two suits, in the nature of actions in tro |