15 Wend. 619 | N.Y. Sup. Ct. | 1836
By the Court,
The defendant in replevin, or any other person who may he in possession of the goods, may interpose a claim of property ; and the sheriff is required to summon a jury and try the validity of the claim before making deliverance. 2 R. S. 525, § 13—18. If the officer deliver the goods, to the plaintiff, contrary to the statute, he “ shall forfeit to the person malting such claim, two hundred and fifty dollars, besides being liable for all damages which such person may have sustained by such delivery.” (§ 18.) By the former statute the forfeiture of one hundred pounds was given to any person who should sue for the same, and the sheriff was also answerable to the defendant for the trespass. 1 R.L. 93, § 6.
An action founded on the present statute must, I think, be brought in the name of the person or persons malting the
If Colton can sue alone, there is no reason why another action may not be brought by Curtiss ■ and thus the sheriff will be subjected to two prosecutions for one injury. This is not a case for apportioning damages on the trial. 1 Chitty’s Pl. 53. The penalty is entire, and it cannot be recovered, half in one action and half in anothér. If the plaintiff cannot show a title to the whole, he must fail altogether.
It was urged on the argument that the plaintiff was in possession of the goods, and therefore he might sue alone. To this there are several answers. In the first place, possession alone gives no right to sue; and the claim of property, which •is the immediate foundation of the action, was a joint claim by the plaintiff and Curtiss. In the next place, the plaintiff did not attempt to make out a right» of action, by proving that he was in possession and claimed property in the goods —but on the ground that he was the defendant in replevin, and made the claim; and then the objection is that there were two defendants, and both claimed the property. But if exclusive possession alone would entitle the plaintiff to the action, he would still fail; for the fact of exclusive possession, or indeed of any possession in him, was not- proved. The
It was said that the non-joinder of Curtiss should have been pleaded in abatement. It is no doubt true, as a general rule, that in actions in form ex delicto, the omission of one of several persons who ought to join as plaintiffs can only be taken advantage of by plea in abatement, or by way of apportionment of damages on the trial. 1 Chitty’s Pl. 53. 1 Johns. R. 472. 6 id. 108. 8 id. 151. But there is, I.think, an obvious distinction between the common law actions of trespass and trover, for injuries to the property of tenants in common, and this penal action founded on á statute. The question here goes to the plaintiff’s title. He has no right other than such as has been conferred upon him by the statute, and that right must be established on trial. He must prove that he was in a condition to claim property in the goods, and that the claim was actually made ; until this appears, no right of action is established. In this case" the plaintiff did not show an individual, but a joint claim. He established a joint, and not a several right. In some actions, tenants in common cannot join; in others, where they may and ought to unite, if the defendant omits to plead in abatement, he may still claim an apportionment of damages on the trial, so that the party suing will recover no more than his just share or proportion ; but here the plaintiff must recover the whole penalty, or nothing. The penalty is entire, and'the plaintiff cannot recover half of it, and leave the other half for the person who united with him in the claim. In short, the plaintiff made out no title. The right of action was in him
New trial denied.