16 Wend. 335 | Court for the Trial of Impeachments and Correction of Errors | 1836
The following opinions were delivered:
In this case, the plaintiff brought an action of replevin for a span of horses which belonged to Jacob Coon, and which were taken by the defendant from the actual possession of Coon on an execution against him. The general question, whether the receiptor of goods, taken in execution, has such a special property in the goods as will enable him to maintain an action of replevin, or any other action in his own name, against a mere wrong doer, who takes the goods out of his actual possession, was the one principally discussed upon the argument. 11 have no doubt whatever as to the right of the receiptor to bring an action of tresspass in such a case 0 in his own name, in which he may recover whatever damages he will be liable for to the officer to whom the receipt is given.1 Any possession, even without right, is sufficient to maintain an action of trespass against a mere stranger who, without any pretence of claim from or under the real owner, violates such possession ; but the law appears to be settled, that to maintain replevin, the plaintiff must not only have the possession, but he must also have either a general or special property in the goods replevied. Hence, it has always been held that a plea of property in a stranger was a good plea, either in abatement or in bar, in an action of replevin. It was so decided by the supreme court of this state in the case of Harrison v. McIntosh, 1 Johns. R. 384, and such has been the established rule of law upon the subject for more than a century. See Bacon’s case, Cro. Eliz. 475; Presgrave v. Sanders, 1 Salk. Rep. 5; Com. Dig. tit. Pleader, 3 K. 11, 12. Either a general or a special property in the goods is therefore necessary to entitle the party
Whether the receiptor of goods taken on execution, or any other bailee or mere depositary of goods, who has no lieirtKereon or any other interest therein than what arises from his liability to the officer or owner for the safe keeping and return of the goods, has such an interest therein as will entitle him to maintain either replevin or trover for the taking of the goods from his possession by a mere stranger, claiming no right under the general owner or the officer, is a question which does not appear to be very well settled in this country. The cases cited upon the argument show that different opinions prevail in the states of New Hampshire, Massachusetts, Pennsylvania, and New York on this subject; and the same difference of opinion appears to have existed in England at a former period. The case referred to by Sir William Jones from the year books, 21 Hen. 7. 14 b. appears to be one in which an action of replevin was sustained by such a bailee, for the taking of the goods out of his possession; but Mr. Justice Story in his learned commentary upon the law of bailments supposes
As property seized upon execution is in the custody of the law until it is sold, or the execution is otherwise satisfied, the officer cannot legally do any act which shall have the effect to divest him of the constructive possession thereof and the right to reduce it into his immediate possession, so that if a second execution is put into his hands no new levy is necessary to give the creditor an immediate lien upon the property. In/ the present case, therefore, as the second execution was® levied upon the property in the actual possession of Jacobi Coon, the general owner, and the constructive possession was' in the officer who had levied upon it by virtue of the first execution, Miller, the receiptor, had not such a possession, coupled with his special interest in the preservation of the property, as to authorize him to bring an action of replevin, and thus to defeat the lien of the last execution. If he sustained any injury by the second levy, or was likely to sustain any on account of his liability upon the receipt, he might either have brought an action of replevin in the name of the officer who had the constructive possession, or an action upon the case in his own name. So that in one way or the other, his rights would have been fully protected without defeating the rights of the junior creditor as to the surplus, if any there should be.
To ascertain the precise questions which arise upon this bill of exceptions in relation to the issues to be tried by the jury, it is necessary to look into the pleadings and see what those issues were. The declaration was in the usual form, alleging the taking of a span of horses of the plaintiff; to which declaration the defendant pleaded three several pleas in bar: first, non cepit; secondly, property in Jacob Coon; and thirdly, property in Jacob Coon, with an avowry or justification of the taking of the property under a regular judgment and execution against him in the hands of the defendant as a constable, To the pleas of property in J. Coon, the plaintiff replied that the horses were not the property of Coon,
Upon the plea of non cepit, the plaintiff failed; as the property was taken in the possession of Coon, and therefore was not taken from the acjtual possession of the receiptor ; and as the constructive possession was at that time in the officer who held the first execution, and not in the plaintiff, the special interest in the preservation of the property as receiptor, was not sufficient to entitle him to recover upon any constructive possession. He also failed upon the issue joined upon the last replication, for the same reason. Although I cannot agree with the supreme court that the receiptor has no interest in property delivered to
In the case of Collins v. Butts, 13 Wendell, 144, I had occasion to look into the law, which has reference to the rights and liabilities of a receiptor of goods levied upon by execution. I came to the conclusion that the receiptor, in that case, was not to be deemed a mere agent or servant or naked bailee, but that he could maintain either trespass or trover against any person, but the sheriff, who should take the goods from him. The decision of that case, however, did not turn on that point, but upon a question of set-off. It became necessary incidentally to inquire into the rights of the receiptor, in explanation of my views as to his right to make the set-off contended for in that case. The question, therefore, whether a receiptor is to be regarded as a mere servant, agent or bailee, is an open question, not decided in that case, and is now distinctly presented for our consideration in the case at bar.
It has been held in a variety of cases, that a sheriff or constable in virtue of a levy has a special property in the goods or chattels levied upon, and can maintain trespass, trover or replevin, against any person who shall take them, not only from his own possession, but from the possession of the receiptor. Palmer v. The People, 10 Wendell, 165. Ladd v. North, 2 Mass. R. 516. Bond v. Padelford, 13 id. 394. The sheriff has in fact, no property in the chattel levied upon, either general or special; he has no right to sell it at private sale, nor to exercise any of the powers over it, which one, having a property in it, may exercise; his control or power over the chattel is of a peculiar character, perfectly sui generis, which the law has given him as an executive officer, in order that the judgment of the court shall be enforced or carried into effect, and that the
It cannot be denied, that a receiptor may sometimes be regarded as a mere servant, without any right of action ; as where the sheriff levies on a flock of sheep, and applies to a farmer to keep them, and the farmer .agrees to keep them, without any positive obligation or promise that he will redeliver them on any particular day; here the farmer is as the mere servant or naked bailee of the sheriff and is responsible only for fraud or gross neglect which is evidence of fraud. But if the farmer gives a receipt, therein promis
Jones, in his treatise on Bailments, 54, says, “ It is almost needless to add, that a mandatary as well as a depositary, may bind himself by special agreement to be answerable even for casualties.” Judge Story, in his excellent treatise on Bailments, page 22, says, if a depositary should specially contract to keep safely, he might be liable for ordinary negligence, although the law would otherwise hold him liable only for gross negligence. Upon this ground, South-cote’s case, 4 Co. R. 83, b. 1. Inst. 89. a, b, may perhaps be maintained to be good law ; and is not liable to the objection made against it in Coggs v. Bernard. If, indeed, it proceeded upon the ground asserted by Lord Coke, that a bailment upon a contract to keep and to keep safely is the same thing, it is certainly not law, and was overruled in Coggs v. Bernard. But from the report it would seem, that the bailment was there to keep safe ; and if so, then upon the special contract the party might have been held responsible, although he could not otherwise be so held by the general law. This was the doctrine maintained by all the judges in the case of Coggs v. Bernard, which case proceeded mainly upon that ground; and in a later case, Kettle v. Brumsdale, Willes’ R. 118, 121, the same distinction was adopted by the court; and it was held, that if a depositary should accept to keep safely, he would be responsible for losses by robbery or theft, although not otherwise responsible upon the general principles of law. And again, in page 48, he refers to the saying of Lord Coke, “for if goods are delivered to one to be kept and to be safely kept, it is all one in law.” Hence he concludes that if goods are delivered to a man to be safely kept, and after-wards those goods are stolen, this shall not excuse him, be-
It has been held, that replevin cannot be maintained by a receiptor, Perley v. Foster, 9 Mass. R. 114, upon the ground, that no one can maintain that action but he who has property in the goods, general or special, and possession, actual or constructive ; Thompson v. Button, 14 Johns. R. 84 ; Dunham v Wyckoff, 3 Wendell, 281; and consequently, as is urged, the receiptor, not having either, cannot maintain the action. It is settled law, that a receiptor can maintain trespass against any person, who tortiously or unlawfully takes away from him the chattels in his possession. Burrows v. Stoddard, 3 Conn. R. 160. It was conceded by the counsel in the case of Collins v. Butts, and expressly admitted and stated by the chancellor, upon authority, 13 Wendell, 143, that, in an action of trespass, a bare possession is sufficient to enable the plaintiff to recover against a wrong doer, who takes the property out of his possession without authority. Spencer J., in Hoyt v. Gelston, 13 Johns. R. 151, said, “ It is a general ‘and undeniable principle, 4W possession is a sufficient title to the plaintiff in an action of trespass vi et armis, against a wrong doer.” 1 East, 244. 3 Burr. 1563. Willes’ R. 221. Esp. Dig. 403. “ The finder of an article,” adds the judge, “ may maintain trespass against any person but the real owner, and a person having an illegal possession may support this action against any person, other than the true owner,” citing 1 Ch. Pl. 168; 2 Saund. 47, d. If a receiptor can maintain trespass, then can he maintain replevin. Ch. Justice Savage, in Chapman v. Andrews, 3 Wendell, 242, says, “ 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.” In that case, he adds, “ there was no tortious taking, which is necessary to maintain trespass or replevin.” See to the same point, Bruen v. Ogden, 6 Halst. Rep. 370. And again, in Dunham v. Wyckoff, 3 Wendell, 281, it was held, that if the plaintiff has the right to take possession of the chattel at pleasure, he can maintain trespass, and that replevin and trespass in such cases were concurrent remedies. See also
If the person who has taken the goods has a paramount title, that, is a good defence in trespass, or if he claims under'one'having a paramount title, he can in trespass plead that matter in full and perfect defence. Demick v. Chapman, 11 Johns. R. 132. Cook v. Howard, 13 Johns. R. 284. So in an action of trover, the same defence can be succesfully interposed. Kennedy v. Strong, 14 Johns. R. 131, 2.
It was objected on the argument, that the horses being taken from Jacob Coon’s possession, they were not taken? from, the possession of the receiptor, and so the receiptor1 could not maintain replevin. The evidence is, that Coon kept the horses for the receiptor, who had a right to take them away when he pleased. They were constructivelyu
One word as to the plain justice of this case, and the rights of the parties who are really interested therein. The suit is in form, Miller v. Adsit, but in substance Eliza Coon v. Edwin R. Ball. E. Coon obtained a judgment, on the 9th May, 1828, against Jacob Coon, for $201,12, and on the same day execution was issued thereon, a levy made by S. Coon the constable on the horses in question, and they wereádvertised to be sold; and on the 13th May, Miller receipted the property. Seven days after E. Coon had obtained her judgment, and the execution' was issued and levy made, and after the giving of the receipt, to wit, on the 16th May, 1828, E. R. Ball obtains a judgment against the same defendant for $51.17, on which judgment execution was issued on the 31st of the same month of May, and delivered to Adsit, who is the defendant in this suit, and who, on the 3d June thereafter, levied on-the same horses. That E. Coon is entitled to a prior right of satisfaction out of this property is not and cannot be questioned. It is not urged or pretended, that her judgment is not for an honest debt, nor but that the levy by S. Coon was bona fide, for the purpose of securing that debt, and not to protect the property of the debtor from his other creditors ; nor can it be alleged that her execution has become dormant in the officer s hands. We are therefore bound to consider the
The learned judge who delivered the opinion of the supreme court in this case says, “ the defendant (the 2d constable) might no doubt have taken judgment retorno habendo and repossessed himself of the property on the execution.” This, to my mind, is not quite so clear. The property in the hands of the receiptor is in the custody of the law, or as some of the cases say, in the constructive possession of the 1st constable. Who has the better right to the property, the first or second constable? Can there be a doubt on this subject? The horses being in the legal possession of the first constable, or of his receiptor, the second constable had no right or authority to meddle with the property. What pretence of claim can he have to demand the judgment of the court that the horses should be taken from the first constable or his receiptor, and be delivered to him ? I do not understand by what rule of law it is, that the junior execution in this case has a right to demand and take property under levy upon the older execution; or how it is that the second constable has superior rights to the first constable, to the horses which the first constable had first levied upon. The learned judge proceeds, “ In that case, (i. e. in case of a judgment de retorno habendo,) he (the second constable,) must have sold it on his execution, and all beyond paying that debt and costs, (amount of second execution,) must have been returned to the defendant in the execution, or paid over to the other officer, (the first constable.) I cannot readily perceive from whence this power is derived, for certainly I know not any principle of law which authorizes the second constable to sell property under levy upon an older execution by the first constable ; there being no pretence that the older execution is dormant, or that the first constable has lost his lien on the property ; much more difficult is it for me to understand by what au
Th/e question in this case is whether the plaintiff, as receiptor off the property had, or had not, such an interest in it as would entitle him to maintain an action of replevin against a party who took the property after he had become liable for its delivery.
The reported cases furnish but one decision in the courts of this state, which has a bearing upon the present case, viz. that of Dillenback v. Jerome, 7 Cowen, 294, which has been rendered familiar to the members of this court during the discussion of this case. This decision, had, before the adoption of the revised statutes, was not based upon the law as acknowledged to exist in this state, but relies for its support principally upon the decision in the courts of Massachusetts, where it is held that a receiptor is but the naked bailee or servant of the officer ; and of course, if a just analogy prevails in their laws and practice, is responsible only for due care and diligence in the safe keeping of the property submitted to his care.
But, in the case of Dillenback v. Jerome, the learned chief justice observes ; “ The officer who levies upon goods may also maintain an action against any person who becomes responsible for the safe keeping and delivery of them on demand, or at a specific time and place.” Such is indeed the principle established in this state, so clearly, I believe, that I shall not be required to support it by authorities. An officer may not only maintain an action against a receiptor, but when the undertaking is such as in the pre
We are told in one of the Massachusetts cases, 14 Mass. R. 217, that “there is no third species of property;” and in Dillenback v. Jerome, 7 Cowen, 297, that “ property is either absolute or special.” But may not more than one person have a special property in the same thing, and may not such several persons have different qualities and degrees of interest ? The officer, as the agent of the law, directly responsible to the party in whose behalf his official powers are put in requisition, has a special property in that upon which he has rightfully levied, which entitles him to reclaim it when wrongfully taken from his own possession, or that of the defendant, with whom he may leave it; and the receiptor is so far the servant or bailee of the officer as to preserve to the direct agent of the law, that degree of special interest which will enable him to recover the property when wrongfully taken from the possession, actual or constructive, of his receiptor, and the latter shall neglect or refuse, or be incompetent, to procure its restoration. If the officer thus asserts and enforces his right against the aggressor, he has made his election of remedies, and the receiptor is released from his responsibility. If
I have briefly adverted to the adverse decisions, and have advanced those principles which I think ought to govern the case. I will now recur to the revised statutes, which cast some light upon the question, if they do not clearly decide it in the affirmative of my positions. “ When
On the question being put, Shall this judgment be reversed? the members of the court voted as follows :
In the affirmative—The President of the Senate, and Senators Armstrong, J. Beardsley, Beckwith, Downing, Fox, Griffin, J. P. Jones, Lacey, Lawyer, Loomis, Lounsberry, Mack, Maison, Powers, Sparker—16. ;
In the negative—The Chancellor, and Senators Hunter, Gansbvoort, Tracy, Wager, Willes—6.
Whereupon the judgment of the supreme court was reversed, and a venire de novo awarded.