Hall v. Tuttle, 2 Wend. 475

Hall v. Tuttle

2 Wend. 475 | N.Y. Sup. Ct. | 1829

By the Court, Sutherland, J.

It is well settled, as a general rule, that replevin will not lie for goods taken under a regular and valid judgment and execution, the goods being in the possession of the defendant in the execution at the time of the levy. Goods taken in execution are in the custody of the law, and it would be repugnant to sound principles to permit them to be taken out of such custody, when they are found by the officer in the possession of the defendant in the execution. (14 Johns. R. 87. 15 id. 402. 19 id. 32. 5 Mass. R. 283. Willes’ R. 672, note b. 2 Strange, 1184. 1 Chitty’s Pl. 160. 1 Sch. & Lef. 320. Com. Dig. Replevin D. 3 Black Com. 148. Marshall v. Davis, 1 Wendell, 109.) This rule, however, was held in Clark v. Skinner, (20 Johns. R. 465,) not to apply to the case of the goods of a master or principal taken under an execution against his servant or agent while in his possession. Chief Justice Spencer and Judge Woodworth put their opinions solely on the ground that the chattels were in that case to be deemed as taken from the actual possession of the plaintiff, (who was not the defendant in the execution,) the possession of the servant or agent being the possession of the master or principal. Judge Platt, however, held that the rule was applicable only to cases where the defendant in the execution was plaintiff in replevin, and that a stranger, whose property is wrongfully taken on an execution against another person, while in his manual custody, may maintain the action.

*479It is admitted by the demurrer in this case, that the plain. tiff was the true owner of the property in question, and entitied to the actual possession thereof at the time of the original levy by the defendant; and that subsequently to such levy, James Hatch, the defendant in the execution, delivered the property into his actual possession, where it remained when it was taken by the defendant. Whether Hatch was the servant or bailee of the plaintiff does not appear; nor is it material. He had but a temporary possession of the sloop, which the plaintiff had a right at any time to terminate. It would seem that upon the principles established in Skinner v. Clark, the plaintiff might have maintained this action, even if the sloop had not been put into his actual possession subsequent to the levy. Having the general property and the right to immediate possession, I do not perceive why he could not have maintained trespass against the sheriff upon the original taking. (1 Chitty, 187, 167. 11 Johns. R. 286. 2 id. 46. Dougl. 40. 1 Ld. Raym. 733. 5 Burr. 2631.) The sheriff levies at his peril, if the property does not belong to the defendant in the execution.* But the true owner having obtained the peaceable possession of the property subsequent to the levy, the second taking by the sheriff was clearly a trespass, and replevin will well lie.

Judgment for plaintiff in demurrer.

Sed vide 1 Burr. 20 ; 1 Black. R. 65 ; 1 T. R. 475.