3 Wend. 240 | N.Y. Sup. Ct. | 1829
By the Court,
This case presents two questions: 1. Will replevin lie under the circumstances here disclosed: 2. Was Green a competent Witness ? The doctrine of this court I consider as settled, that replevin lies for such a taking as will sustain an action of trespass de bonis asportatis. Was the defendant guilty of any trespass ? Upon the facts found by-the jury, the deputy sheriff was a trespasser in levying on the goods ; but in that act the defendant was not concerned, either as a party to the execution or levy. The defendant received the goods as the servant or agent of the officer at the'request of the plaintiff; for though the plaintiff himself did not speak to the defendant to become the receiptor, yet Green did, who acted for the plaintiff and at his request, and the plaintiff assisted in carrying the goods to the defendant’s house. Would trespass lie under these circumstances ? I think not. There was no tortious taking which is necessary to maintain trespass or replevin. Either of these actions would lie against the deputy sheriff who made the levy, and trover perhaps might be maintained against the defendant after conversion. But the defendant did not become a trespasser by receiving the goods at the request of
t 2. Was Green a competent witness? The facts proved to shew his interest were, that the plaintiff and Green were partners in dressing cloth, and as such received the cloths in question, and were to have a stipulated compensation for dressing them. Upon this statement of facts, the witness was as much interested as the plaintiff, and should have been rejected. The judge decided that Green was interested. A release was then produced from the witness to the plaintiff from all claim and demand arising out of this suit, or the subject matter of it. He was then considered competent. But it seems to me there was an interest still remaining, arising out of the situation of those parties. Suppose the plaintiff’s title had failed; would not the plaintiff have had a claim against Green, either to contribute to the loss thus sustained on goods which they had divided, the title to the one half of which had failed, or to account to the plaintiff for the one half of the goods which he retained as a compensation for their joint services ? I am inclined to think he would haye had such claim; and this could only be removed by a release from the plaintiff to the witness.
I am of opinion, therefore, that Green was interested; but whether he was or not, the action of replevin does not lie upon the facts proved in this case.
A new trial must be granted; costs to abide the event.