
    Hugh Mulholm v. John Cheney.
    IN September, 1793, on a warrant from a justice of the peace, on a judgment against one Wright, the constable had a horse delivered to him in execution by Wright. Cheney becoming security for the safe keeping and delivery of the horse, the constable left him in possession of Wright, till he should be demanded for sale, which, it was expected would be in about three weeks. In the mean time, Wright paying part of the debt, the plaintiff stayed the sale; and Wright, in the presence of Cheney, who made no objection, delivered the same horse, then in the inclosure of Cheney, who lived on Wright’s plantation, to Mulholm, to indemnify him against a debt for which he was security for Wright. In the end of February, 1794, the constable, being directed by the justice to make sale, called on Wright for the horse, who did not deliver him, but pretended he had paid the debt. At the March court in Pittsburgh, the constable called on Cheney for the horse. Cheney pointed out the horse as a boy was leading him to water; and took him by the halter, and delivered him to the constable.
    
      Mulholm brought replevin for the horse. And now a motion was made to quash this replevin, on the ground, that it was brought for property taken in execution.
    
      Brackenridge, for the motion.
    Replevin, at common law, lay only for goods taken by way of distress for rent. It certainly lies not for goods taken in execution; for that would render the process of law void; and there would be, in the language of Hudibras, “No end to the everlasting suit.” Even in the case of a third persons goods, taken in execution, in order to prevent collusion to defeat executions, trespass, and not replevin, must be brought.
    Our proceedings in replevin, are founded on our act of assembly.
    An act of assembly has declared all writs of replevin issued for any owner of goods taken in execution, or by distress, by any sheriff, county lieutenant, constable, or collector of public taxes, to be irregular, erroneous, and void; and has directed that it shall be quashed; and that the court shall award treble costs to the defendant, and may order an attachment against the clerk who knowingly made out, the writ. This must extend to third persons, for, as to parties to the execution, the law was unnecessary, for the common law made such replevin irregular. This act must mean something more. It appears from the journals of the assembly, that it was the intention of the legislature to prevent replevins by third persons, for goods taken in execution. For, when the first section was under consideration; a motion was made to restrain the prohibition to parties to the execution, by adding, after the words “owner of goods taken in execution or by distress,” the following words, “being the defendant in the action, or person incurring the fine.” This motion was negatived; and against this negative, there was a solemn protest, “that it left officers at full liberty, under the pretence of executing the laws, greatly to oppress the people; left their property very insecure; and was highly dangerous to their rights and liberties.”
    
      
      1 St. L. 59. Dall. 156.
    
    1 St. L. 795.
    
      It is better, if property of a third person be found in the possession of the person against whom the execution is, that he who gave the trust suffer, than that, by collusion, the process of law be defeated.
    
      Ross, for the plaintiff.
    I will not contend, that, if the property of a third person were taken in execution by a sheriff or constable, the owner could bring a replevin against the sheriff or constable, while the property was in the possession of the officer, but that he could against the vendee of the officer.
    The affidavits shew, that this horse is not to be considered as a horse taken in execution; but as taken by a private individual, from a bona fide transferree and possessor. The execution was against Wright. The horse was left in the custody of Wright. Cheney was security to the constable, that Wright would deliver the horse to him. The lien of the execution on the horse was then dissolved; and the constable could look only to the security. The sale of the horse to Mulholm, by Wright, in the presence of Cheney, is to be considered as the sale of the constable; for it is the sale of his bailee. This is not a horse taken in execution; the lien was gone. It would be dishonest, to suffer an innocent purchaser to be defrauded. The return day of the execution was past. Cheney was no constable, and did not take the horse as a constable. It is not against a constable that the suit is brought. This is a proceeding for a penalty of treble costs.
    
      
      Journ. 27th March, 1779.
    
      1 Wils. 44. 2 T.Rep. 596.
    
      The court took time to consider, and next term delivered their opinion.
    1 S.. L. 795.
    2 Str. 1184. 5 Com. Dig. 436. Bul. Ni. Pri. 53. Dall. 157.
   President.

Were the act, declaring replevins void, to be understood as restraining only third persons, whose goods were found in the possession of him against whom the execution was, it would be less exceptionable. But it is contended, that it extends to all owners: and this, surely may deprive an innocent owner of a specific, summary remedy, for a wanton act of oppression by an officer, the more odious, as it is under the colour of public authority; though he would have this remedy against any other but an officer.

It may, indeed, be said, that, in order to prevent collusion with debtors, by fraudulent transfers, there may be reasons of policy for refusing to extend to the case of goods taken into the custody of the law by execution, &c. a remedy, which seems originally to have been confined to the single case of distress for rent, and, confiding in the virtue of officers, rather than of individuals, for leaving any transgression to the ordinary remedy of an action of trespass. And, indeed, from the defendant in replevin’s power, by setting up a claim of property, to retain the goods, an action of replevin may be a not more specific remedy, than an action of trespass.

But, notwithstanding, as no value may compensate the pretium affectionis of the thing taken; as a warrant to take the goods of A. will not justify taking the goods of B.; and an officer acting without authority is but an individual; as we ought not to suppose, that the legislature intended to countenance trespasses; and it is the duty of courts to extend remedies; I have a strong reluctance against adopting the construction contended for of this act, as a general prohibition, and I would not admit this construction, if I could exclude it.

The law of England states generally, that replevin does not lie for goods taken in execution; yet (excepts for a reason which is given for it, that goods are only replevisable, when taken by way of distress, and which does not apply here, where replevin lies for any claim of goods), I do not know, that this is not understood only of a replevin brought by him against whom the execution is; for that is the case of the only replevin of this kind, that I have observed, where this can be ascertained.

Journ.Assem. 17th February 1, 27, 31, March, 1779.

If it be the meaning of the law of England, that replevin for goods taken in execution is only prohibited, when brought by him against whom the execution is, such may also be the meaning of the act of assembly.—Acts are sometimes made in affirmance of the common law. And I am informed, that, at the passing of this act, there was occasion for such an explicit declaration, by act of assembly; for, at that time, many actions of replevin had been brought by persons, whose goods were taken for taxes and militia fines. This law was made on the spur of the occasion, and in the servor of a revolution. The assembly might have been unwilling to admit any amendment, which might suggest an evasion of payment of a public tax; and may have determined, making the words as general as the expressions in the English books, to leave their construction, as in England, to the courts. A law so made, and restraining a remedy, will be narrowed as much as possible in the construction.

If the sheriff or officer be doubtful, as to the property; he may call on the plaintiff to shew him property, and indemnify him; or he may hold an inquest, to find whether it be the property of the defendant, or not.

But it is not necessary to give any opinion on this point: for we are of opinion, that this is not the case of goods taken in execution; and therefore, that the plaintiff take nothing by his motion. The horse was not taken out of the hands of the constable. The constable delivered him to the owner, and having thus enabled him to impose on others, he must look to him or his security. 
      
       It has been said, that even an act of parliament to make a man judge in his own cause would be void. Hob. 87. There was therefore no occasion for an act of assembly forbidding any member of a court of justice to sit in judgment while his own cause is upon trial. Yet such an act there is, 1 St. L. 33.
     