
    
      Lisher vs. Pierson.
    Previous to the amendment of the statute relative to replevins, the sheriff, on a writ or plaint in replevin, had no right to take possession of the goods where a claim of property was interposed, until after a trial of such claim on a writ de proprietate probanda; now he may do so, but he must within two days summon a jury to try the validity of such claim.
    Where, therefore, the sheriff, on a plaint in replevin, after a claim of property and before trial of such claim, removed goods from the store of the defendant to an adjoining store belonging to other persons, it was held, notwithstanding the removal, no deliverance having been made, that the claim was in season, and that, on interposing it, the defendant was entitled to the possession of the property until the claim was tried and found against him; and that the sheriff was liable as a trespasser.
    
    
      This was an action of trespass, tried at the Oneida circuit in October, 1830, before the Hon. Nathan Williams, one of the circuit judges.
    About the first day of August, 1827, a deputy of the defendant, who at the time was sheriff of Oneida, proceeded to the store of the plaintiff, a fancy dry-good merchant in Utica, to execute two plaints in replevin. The plaintiffs in the plaints, or their agents, accompanied the deputy, and selected such articles as they claimed to be the property of the plaintiffs, and the goods thus selected were about to be removed to an adjoining store kept by Messrs. Hurlburt and Brownell, when Lisher, the plaintiff in this cause, proposed that they be removed into the back-room of the store occupied by himself, and said they should be there with the same rights and privileges as if removed to the store of Hurlburt & Brownell, saying that he did not wish to excite observation by having the goods carried into the street. The proposal was accepted, and the goods removed into the back-room. The plaintiff went to obtain legal advice, returned, forbade the taking of the goods and claimed them as his property, and shortly thereafter a written claim of property was served upon the deputy, who caused inventories to be taken of the goods which had been seized, had the goods placed in boxes, nailedup, and removed to the store of Hurlbert & Brownell for safe keeping *until trial could be had. The plaintiff gave in evidence the two plaints in replevin, bearing date first day of August, 1827, upon each of which was endorsed a return by the sheriff, that by virtue thereof he had taken the goods specified in an inventory, and had summoned the defendant, &c.; which return bore date 21st September, 1827, and on which day the plaints appeared to have been filed in the Oneida clerk’s office. The defendant gave in evidence writs de proprietate probanda in each case, tested the 14th June, 1828, with an inquisition annexed, date 19th July, 1828, finding that the goods were not the property of Lisher ; which writs were filed on the 5th February, 1829. The judge charged the jury that if the deputy had permission from the plaintiff to remove the goods into the back-room, and to use it for that purpose in the same way as he would any other store, the removal of the goods into the room was a dispossession of the plaintiff, the same as if they had been removed into another store ; that the claim of property, if not made until after the plaintiff was dispossessed, was not valid ; and that the claim which was made after the removal of the goods into the back room was too late. The jury found for the defendant. The plaintiff asks for a new trial.
    J. A. Spencee, for the plaintiff.
    S. Beaedsley, for the defendant.
    
      
      In delivering the opinion in this case, Mr. Justice Sutherland referred to the case of Daniels v. Ball & Brown, decided in this court several years since. That was an action of trover, for a quantity of pantaloons, left by one Bostwick with a person of the name of Hooker, to sell on commission. Daniels, representing himself as a creditor of Bostwick, who, he stated, had absconded on a promise of indemnity, induced Hooker to deliver up to him 47 pairs of pantaloons, for which he gave a receipt as for so much property belonging to Bostwick. The pantaloons, after Daniels had thus become possessed of them, were taken from him by Ball and Brown, under the pretence of process against Bostwick. Daniels sued them in trover, and although no authority for taking the property appeared, the judge who presided at the circuit was of opinion that sufficient evidence of title had not been shown in Daniels, or rather that by the evidence the property in the pantaloons had been shown out of him, directed a ?ionsziit, which was set aside by this court; upon which occasion the following opinion was delivered by Mr. Justice Woodworth : “ It seems that trover will lie on a bare possession against a stranger. The finder of goods may maintain it; a special property being sufficient for that purpose. Strange, 505. 1 Mod. 3. Bull. N. P. 33. In such a case a defendant may show property in a third person, and that he attached them as the goods of such third person. 15 Johns. R. 207. But I apprehend this cannot be done by a defendant who has no right or claim ; in that case the plaintiff’s possession must prevail. Here Hooker, the bailee of the goods, parted with his possession to the plaintiff, and although he may be liable to Bostwick, he could not take possession from the plaintiff. Nonsuit set aside, and new trial granted.”
    
   By the Court,

Nelson, J.

The question is whether the action of trespass can be maintained on the ground that dispossession and deliverance was made of the goods after claim of property, under the 4th section of the replevin act. 1 R. L. 93. This section provides, that if the defendant or possessor shall claim property in the thing whereof deliverance is sought, (by replevin,) and the sheriff or deputy having due notice shall proceed to make deliverance and dispossess such defandant before the claim of property shall be inquired into or tried according to law, such sheriff, among other things, shall be answerable to the defendant in trespass, &c.

When this case was before the court upon demurrer, 2 Wendell, 345, it was decided that after claim of property *and notice, the sheriff could not remove the goods from the possession of the defendant, that is, in the language of the statute, make deliverance and dispossess him, until such claim be duly tried; and if he did, he was a trespasser. In Mitchell v. Hinman, 8 Wendell, 667, it was decided that if a claim of property was made to the sheriff before or at the time the defendant was summoned to appear and answer to the writ, it was in time, and the officer was bound to obey it and desist from dispossession or deliverance until such claim was tried. In that case the sheriff had disregarded the claim, because he had executed the writ before notice was given ; and it also appeared such execution had taken place in the absence of the defendants without their knowledge, and before summons. It was obvious, that to have sanctioned this construction of the 4th section of the act, would have been a virtual repeal of it. We therefore held that such claim and notice at the time of the summons was sufficient.

In this case the sheriff, it is contended, ceased from dispossessing the defendant after claim of property, and the only question supposed in the case is whether he is a trespasser for not returning the goods which he had already removed. Upon the facts, we consider the goods in the same situation in relation to the legal rights of the parties, as if they had been taken to the store of Hurlburt & Brownell, instead of the plaintiff’s counting room ; and yet we can not distinguish the case from the principle deliberately settled in Mitchell v. Hinman. The sheriff has no authority to hold possession of the goods replevied, upon claim of property, until the title to them is tried. The language of the statute and writ is, that he cause the goods or chattels to be replevied and delivered to the plaintiff. 1 R. L. 91, § 1, 2. The whole proceeding, in judgment of law, is one act, and may be denominated the execution of the writ. If anything further was necessary to establish the soundness of this position, it will be found in the fact that the writ de proprietate probanda is issued upon the return of the replevin, that the claim of property by the defendant is the cause why the officer cannot execute it, and it must be returned and filed ; and the better opinion is, there is an end of that suit. Ld. St. John v. Sanders, Dyer, 173, a. 6 Bacon’s Abr. 65. Gilb. 99. Vin. Abr. tit. Replev. let. F. 583.

*The form and return of the writ where the claim of property is found for the defendant, show that he has not been dispossessed. All the books agree that then the sheriff is to proceed no farther in replevying the property: see cases above cited. If the property be found for the plaintiff, and in the mean time it has been removed or secreted, the sheriff may return upon the writ an eloignment, and a capias in withernam will be granted, which is a sufficient security to him, and was intended to provide against the risk of the property remaining with the defendant. It would be unreasonable to permit the sheriff to hold the property which he might take into his custody while executing the replevin, after claim, until decided, because neither he nor the defendant can sue out the writ de proprietate probanda; that is under the control of the plaintiff. The consequence would be, that unless the plaintiff chose to take it out, the sheriff would be obliged to keep the property, of whatever description it might be, until the termination of the replevin suit, and both parties be deprived of the use or enjoyment of it.

It seems to me, therefore, that there is no medium in which the execution of the writ of replevin may stop between leaving the goods in the possession of the defendant and making deliverance to the plaintiff. If the sheriff has rightfully dispossessed the defendant, the plaintiff is entitled to them, and the sheriff has no authority to refuse deliverance. The terms of the writ, its object festinum remedium, and the security given, all show this ; and there is no case or dicta in the books countenancing the idea that the sheriff may detain them.

Was, then, the claim of the property made too late to entitle the defendant to the benefit of it 1 If the above conclusion is sound, then there is no distinction between this case and Mitchell v. Hinman, and all the reason for the decision in- that case applies to this. But admitting the sheriff might detain the goods so far as the plaintiff is concerned, we should come to the same result; otherwise the effect of such claim could always be evaded. An officer could in every case, by management, obtain possession of the property before the de fendant could know that the precept was in existence; and whether it remained locked up with him, or is delivered over to the plaintiff, #must be indifferent to the defendant. We cannot believe so important a provision of the statute may be easily defeated, and we are sure it cannot, under the construction given it in the above case. Nor is there any thing in it severe upon the officer; he should not remove the property until the defendant was summoned, and if no claim is then put in, the writ may be executed by deliverance to the plaintiff. This is the only notice which, in judgment of law, the defendant has of the replevin, and without it he would not be enabled to claim his rights. The statute, in terms, contemplates the summons at the time of the execution of the writ. 1 R. S. 91, § 1. The sheriff should then serve it, and the party would have the opportunity to put in his claim, if he chose, before dispossession or deliverance. It is now provided by statute, 2 R. S. 525, §13, that the sheriff may take possession, notwithstanding a claim of property; but the duty is very properly imposed upon him forthwith to summon a jury to appear and try the claim, within a time not exceeding two days.

New trial denied.  