
    Shearick against Huber.
    Lancaster, Saturday, 22.
    session'of chattels ¡rcxlíutínínd sol<1Replevin lies against the Sheriff's vendee, to
    IN ERROR.
    nPHIS was an action of replevin brought to September 1806, by Huber the plaintiff below against Shearick, for a quantity of wheat, which had been levied on by virtue of an execution issued at the suit of Peter Sailer against Henry Lutz, and sold by the sheriff to Shearick. Huber claimed under a bill of sale from Lutz prior to the execution; and the wheat had been sold by the sheriff' while growing, and was taken by Huber from the ground, after it was reaped.
    After the action had been depending a considerable time in the Common Pleas of Dauphin county, and put at issue, the defendant in December 1807 moved the court to quash the replevin; but the motion was rejected, and the judgment of the court on that point was the error now assigned.
    
      
      Laird and C. Smith for the plaintiff in error,
    argued that the case was within the act of-3d April 1779, by which' all writs of replevin granted for any owner of goods levied or taken in execution by any sheriff, are irregular, erroneous and void, and may at any time after the service be quashed upon motion by the court to which they are returnable; 1 Smith’s Laws, 470; that the sheriff’s vendee stood in the sheriff’s place, and was included within the protection of the act; and that as in case of a reversal of a judgment, there was no restitution of goods sold- under execution, according to Hoe’s case 
      , and Manning’s case 
      , so by analogy, if a replevin could not prevent the sale and delivery to the purchaser, no error in the proceeding should justify its being used to unravel the sale. The owner’s remedy was trespass against the sheriff.
    
      Elder and Hopkins contra.
    1. The motion was out of time, because the party by pleading waived his right to quash. 2 Hall. 142. 1 Browne’s Rep. 93. 2. The object of the Act of 1779 was to prevent any hindrance to the sheriff in the execution of the writ; not to prevent the legality of the sale from being subsequently questioned, in any and every mode which the injured party might adopt in the case of a private wrong. Trespass and trover lie every where both against the sheriff and his vendee, if the execution has been levied on goods not belonging to the defendant. 1 Bay. 317. Shaw v. Tunbridge 
      
      ,Bloxhamv. Olden 
      , Cooper v. Chitty 
      
      , Cro. Eliz. 824. Cro. Jac. 50; and in this state, as well as in some others of the states, replevin lies wherever one is in possession of the goods of another tortiousty. Addison’s Rep. 301. Pangburn v. Patridge, .
    
      
       5 Rep. 90. b.
      
    
    
      
       8 Rep. 96. b.
      
    
    
      
       2 Bl. Rep. 1064.
    
    
      
       1 Burr. 26.
    
    
      
       1 Burr. 30.
    
    
      
       7 Johns. 143.
    
   Tilghman C. J.

There is no-doubt but replevin is the proper form of action; for although in England this action has been generally confined to cases of goods distrained for rent, yet with us, it.has been used in all cases, where chattels in the possession of one person have been claimed by another. The motion to quash was founded on an act of asSembly passed 3d April 1779. The preamble recites that "writs of replevin had of late been granted for goods “ taken “ in execution, and for fines and penalties legally incurred “ and due to this commonwealth, to the delay of public jus* “ tice, and to the great vexation of the officers concerned “ in taking and levying the same.” It is then enacted that all writs of replevin granted or issued for any owner of goods, &c. “ levied, seized or taken in execution, or by dis- tress or otherwise,” by any sheriff, constable, collector of taxes, or other officer, acting in their several offices, under the authority of the state, are irregular, erroneous and void, and that all such writs may and shall at any time after service be quashed upon motion, by the Court to which they are returnable, &c.

No judgment can be executed if the defendant or any Other person is permitted to take the goods out of the hands of the sheriff, after they are taken in execution. The sheriff is commanded by the writ of ft. fa. to make the money of the goods of the defendant, and bring it into Court. But he cannot make the money if the goods are not in his possession. There is no doubt therefore, but that the Court issuing the writ might by its own authority prevent the defendant in the action from impeding the execution by a replevin. Whether a third personvlhose goods were seized when in the possession of the defendant, might be also prevented, is a question which it is unnecessary to decide, as the act of assembly certainly comprehends the case.. The object of the act was to provide for the complete execution of the writ. No. person whatever can obstruct the sheriff’s sale by a replevin. The goods are in the custody of the law, and there they are to remain till the sheriff has sold them and delivered the possession to the purchaser. That being done, the object of the law is accomplished, and every man who has claims, is left to his usual remedy. There is no intimation in any part of the act, that the sheriff can transfer to the purchaser a better right than the defendant possessed; and it would have been most unjust if there had, for there can be no reason why one man’s goods should be applied without his consent to the payment of the debts of another. It is not questioned but that the person who claims the goods may support an action of trover against the sheriff’s Vendee. Why then may he not maintain a replevin? What advantage is it to the defendant to. be protected against a replevin, while he is left open to other actions? On the • other hand, it may be of use to thd plaintiff to have a remedy for the specific restitution of goods on which he may set a great value for causes peculiar to himself. Family pictures, and many articles of fumigare of little value in themselves, may be inestimable to th’e person who claims them. Upon the whole I am of opinion that inasmuch as the replevin in this case was not issued until after the sheriff had completely executed his oifice, it did not come within the scope of the act of assembly, and the Court was right in refusing to quash it. The judgment should therefore be affirmed.

Brackenridge J. concurred.

Judgment affirmed.  