74 N.J.L. 379 | N.J. | 1907
The opinion of the court was delivered by
This is an. action of replevin. The goods were not actually taken by virtue of the writ, but were left in the possession of defendant pursuant to section 143 of the District Court act. Pamph. L. 1898, p. 610. At the trial it appeared that after this suit was begun a levy had been made by the sheriff of Passaic under an execution against the present plaintiff. The state of the case fails to show when the execution was delivered to the sheriff, and as far as is disclosed, he obtained no lien prior to the day of the levy.
The trial judge nonsuited the plaintiff upon the ground that the sheriff was legally entitled to the possession of the
Our statute authorizes the defendant to retain possession of the chattels upon giving bond, and in that case directs that, if the plaintiff recover, the jury shall find the value of-the goods and chattels as well as the damages of the plaintiff, and the plaintiff shall have judgment thereon in damages as well for the value of the goods and chattels as for taking and detaining them. These provisions have been adopted in section 127 of the District Court act. Pamph. L. 1898, p. 605. Section 143 of that act is adopted from the supplement to the Replevin act of June 13th, 1890. Gen. Stat., p. 2770. It authorizes the issue of the writ without a bond from the plaintiff where immediate delivery of the property is not required. Upon judgment awarding the possession to the plaintiff an order may be made as part of the judgment directing the proper officer to deliver the property in accordance with the judgment. Nothing is said in this section
It must be remembered that the levy by the sheriff does not change the property in the goods. If it did, there could be no valid levy under a second execution or a distress warrant. Newell v. Clark, 17 Vroom 363 (at pp. 372, 373). The sheriff by his levy acquires only a special and qualified title, and the title of the defendant in execution is not wholly divested. As against the defendant in execution, or one claiming under him, or a subsequent mortgagee, or an officer having a later execution, the sheriff can recover damages only to the amount of his lien. Newell v. Clark, ubi supra.
Cases in other jurisdictions are cited in 24 Am. & Eng. Encycl. L. (2d ed.) 518, 525.
Whether under section 143 a judgment is limited to the award of possession and damages for the detention, or whether an alternative judgment may be rendered for the value of the goods and chattels as in actions governed -by section 127, need not now be considered. The plaintiff was entitled to have the suit proceed under section 143, and if he prevailed, it was in the power of the court to protect the special property of the sheriff by requiring security of the plaintiff before issuing-the order to put him in possession.
The nonsuit was wrong, and the.judgment must be reversed and the record remitted for a new trial.