10 Wend. 318 | N.Y. Sup. Ct. | 1833
By the Court,
It does not appear what opinion was expressed by the court upon the several points raised for their decision; the inference would seem to be that they were all decided in favor of the defendant. An opinion will therefore be proper to be expressed upon them, in the order in which they were taken: 1. Where the action of replevin is brought by any person other than the defendant in the execution upon which the levy was made, the objection above taken is not tenable. This has been so decided, and the subject discussed in Clark v. Skinner, 20 Johns. R. 465, and Dunham v. Wyckoff, 3 Wendell, 280, and the cases there cited. 2. The liability of the sheriff for the acts of his deputy, when he acts colore officii, is too well settled to require the citation of an authority to support it. 3. The boards were in possession of the plaintiffs by agreement of Vaughan; as against him the plaintiffs were at liberty to resume actual possession, and remove the boards to their yard. Their rights were the same as if they paid the rent of the ground on which the boards were piled, or as if piled in their mill }Tard. The piling the boards on the canal bank, a short distance from the mill, was an arrangement for the mutual convenience of the parties tó it, and did not affect their rights in any degree. 4. From what has been said upon the preceding points the fourth point is also decided. In law and fact also, the possession was in the plaintiffs ; Vaughan had no right to remove the boards nor to exercise acts of ownership over them until the plaintiffs were paid. 5. Was the action prematurely brought 1 The defendant contends that he bad a right to all the-interest of Vaughan in the property, subject to the lien of the plaintiffs. It seems to me unnecessary in this case to discuss the general question whether a reversionary interest of one person in personal property may be sold by the sheriff while another person has the possessory interest; for it appears in the bill of exceptions that the whole value of the property levied on, was not equal to the
On the whole case, it satisfactorily appears that the plaintiffs, having a lien on the boards, had such a special property in them as to authorize an action to be brought by them; and that the defendant, by the levy, had, in contemplation of law, dispossessed the plaintiffs of their property, and therefore the action of replevin was well brought.
The judgment of the court below should be reversed, with costs to abide the event; venire ele novo to be awarded by Washington common pleas.