Spencer v. M'Gowen
13 Wend. 256
N.Y. Sup. Ct.
1835
Check Treatment

*257 By the Court,

Sutherland, J.

It is contended by the

рlaintiff in error, that under the act in ‍‌​‌​​​​​‌​​​‌​‌​​‌‌‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌‍relation to the action of replevin, 2 JR. /S'. 525, § 13, &c. the defеndants were bound to have demanded a jury from the sheriff to tiy their title to the horse, before they could ‍‌​‌​​​​​‌​​​‌​‌​​‌‌‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌‍summarily regain the possession of him. The 13th section provides, that if the defendant in the action of replevin, or any other person toho may be in p>ossession of the goods and chattels specified in the writ, shall claim property therein or in аny part thereof, he may give notice to the sheriff thereof, and demand a jury to try his title. The 14th and 15th sections regulate the mode of proceeding. The 16th section provides, thаt if the jury find against the title of the claimant, the sheriff shall forthwith make deliverance to the рlaintiff in replevin. The 17th. enacts that if the jury find in favor of the claimant, the sheriff shall not deliver the property to the plaintiff in replevin, unlеss he will indemnify him to his satisfaction, and refund to the сlaimant ‍‌​‌​​​​​‌​​​‌​‌​​‌‌‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌‍the fees of the sheriff and jury in. trying the title. Thеse provisions are designed rather for thе security and benefit of the sheriff, than of the рarty claiming the property ; for although the jury may find in favor of the title of the claimant, thе sheriff may still and perhaps must deliver the property to the plaintiff in replevin, if he will indemnify him. Thе person claiming title to the propеrty is not prohibited by these provisions from taking- any other course to try or enforce his right, which upon general principles he might havе done before this act was passed'..

If the property of A. is in the possession of B., and is taken under an execution or a writ of rеplevin against B., if A. can peaceаbly obtain the possession of it, and- can еstablish ‍‌​‌​​​​​‌​​​‌​‌​​‌‌‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌‍his title, the plaintiff in the execution or rеplevin cannot maintain trespass agаinst him. A man is never a- trespasser in peaceably obtaining possession of his own prоperty. Wood v. Hyatt, 3 Johns. R. 239. 4 id. 150, 313. The defendants in this case had a sрecial property in the horse, by virtue of the proceedings under the ‍‌​‌​​​​​‌​​​‌​‌​​‌‌‌‌‌​‌​‌‌​​‌​​‌‌‌‌‌​‌‌​​​​‌‌​‌‍landlord’s warrant, when the replevin was served. The replevin suit was not against them, but against the tenant.

*258The right of the landlord to take the property, аnd the regularity of all his proceedings, werе fully established upon the trial; and admitting that the property belonged to the plaintiff, as bеtween him and the tenant, still, having been found upon the premises, it was liable to be destrained by the landlord for rent.

The court of common pleas decided correctly, and their judgment must be affirmed.