
    Sharp vs. Whittenhall.
    It is not universally true that replevin will lie where trespass de bonis may bu brought. Per Cowen, J.
    The proceeding by replevin being partly in rem, the plaintiff must show a right to have delivery of the property at the time of issuing the writ.
    In replevin against an officer for seizing and selling the plaintiff’s mare on a fi. fa. against a stranger, it appeared that, intermediate the seizure and sale, the officer levied upon the mare in virtue of a second fi. fa. against the plaintiff, and that this levy was in force when the action was commenced. Held, therefore, that it could not be maintained; though otherwise as to trespass or trover.
    
    Replevin, for taking a mare, tried at the Chenango circuit, in April, 1841, before Monell, C. Judge. The summons was served on the 18th of July, 1840, and the declaration alleged the taking to have occurred on the 17th. The plaintiff, Christopher D. Sharp, was in possession of the mare on the 13th of March, 18401 and on that day the defendant, a deputy sheriff, acting under a fi. fa. against George Sharp, seized her, but she was not then removed. On the 17th of July following the defendant sold the mare and she was bid in by one M’Koon, who, together with the defendant, took her away. In the meantime—viz. on the 15th of July, 1840—another fi. fa. was placed in the defendant’s hands against Christopher D. Sharp and George Sharp jointly ; in virtue of which the defendant levied on the mare upon the 17th of July, 1840, just previous to the sale. It clearly appeared that the first seizure was tortious, George Sharp having no interest in the mare. The plaintiff insisted that, this being so, replevin would lie • and that the defendant could not hold under the second levy. The judge decided otherwise; and, a verdict having been rendered for the defendant, the plaintiff now moved for a new trial on a case.
    
      J. A. Spencer, for the plaintiff.
    
      S. Beardsley, for the defendant.
   By the Court, Cowen, J.

The learned judge was clearly right. The plaintiff has mistaken his remedy. He was no doubt entitled to bring trespass for the first taking; but he waited till the defendant had acquired a title by the second levy, or at least a right to hold and sell the mare under the second execution. The second levy was in force when the writ of replevin was sued out and served. It differs not the case, that an irregular sale had been made in virtue of the first. The irregularity might have been rectified had not the mare been taken by the writ.

In order to maintain replevin, the plaintiff must show a right to have delivery of the property at the time of the issuing of the writ. (Wheeler v. Train, 3 Pick. 255, 258.) The proceeding is partly in rem, and unlike trespass or trover, which seeks damages only. It is not therefore universally true that replevin will lie where trespass de honis may be brought.

Some other points are made by the plaintiff’s counsel, but they are clearly untenable.

New trial denied.  