
    Miller v. Adsit, 16 Wend. 335.
    Not reported below. Opinion of Nelson, J., 16 Wend.335.
    
      Replevin. Receiptor of Goods to Sheriff.
    
    The case as stated, was as follows: “The property in question—was levied upon by virtue of a justice’s execution, and a third person became the receiptor to the officer, and left the horses with the defendant in the execution to pasture; subsequently, they were levied upon by another officer by virtue of a second justice’s judgment and execution, and taken away. The receiptor brought replevin in a Court of Common Pleas, and was non-suited. On writ of error,
   The Supreme Court affirmed the judgment of the Common Pleas, holding that the receiptor stood in the relation of surety to the defendant in the execution, and as such was not entitled to sustain the action. On error

The Court of Errors reversed both judgments; holding that replevin may be maintained by a receiptor of goods where he is bound to deliver them by a specific day, or pay the amount of the execution under which the levy was made; although the property be left by him in the possession of the defendant in the execution.

The Chancellor, Walworth, dissented, holding that the plaintiff in the case not having the actual possession, could not maintain replevin; but conceding that a receiptor has an interest in the property, and may maintain trespass against a wrong doer, who takes it from his actual possession; or case against any one who does an injury to the property.”

Judgment reversed ; 16 to 5.  