
    Hotchkiss, Sheriff, &c. against M‘Vickar.
    a sheriff cannot for goods tortiously taken out of the possession of the rw , Against whom the exe^1ttj°nth(fsa-jeiivery’of the °autSd"uretdf statute*lof the goods of the from°therdeuveexe%iontothe alter ’the Pro-goods; but before and since defendant execute*?111'011
    THIS was an action of trover, for a fishing net, tried at the Columbia circuit, in 1814, before Mr. Justice Van Ness.
    , , . , , On the 6th of July, 1814, and long previous, the net was the «77 ° 1 _ _ property of Garret Claw, against whom a writ of iieri facias i l J ’ o j j issued the 7th of July, 1814, on a-judgment against him, in fa-your of John P. Beeknian. On the 6th of July, the day previous to the delivery of the writ to the deputy sheriff, the defendant, without the leave of the plaintiff, took away the net from the place where it had been left by Claw. The execution was tested in May term, and returnable in August term, 1814. The defendant had applied to Claw for leave to take the net, which he refused, observing, that he had given a judgment bond to Beekman.
    
    mi i The deputy sheriff, on receiving the execution, went in search of the net, and learning that the defendant had taken- it, demanded it of him, by virtue of the execution against Claw, The defendant admitted that he had taken the net, but refused to deliver it to the sheriff.
    A verdict was taken for the plaintiff, subject to the opinion of the court on the aboyé case. J
    
      Vanderpool, for the plaintiff.
    1. The property was bound from the teste of the execution; and the defendant, being a wrong-doer, cannot assert any right against the sheriff. The rule of the common law, except as to bona fide purchasers, remains the same as before the statute of 29 Car. II. ch. 3. s. 16. That statute was njade to protect bona fide purchasers only. As to all other persons, the execution binds the property from the teste óf the writ.
    
    2. Then, can the sheriff, before actual possession, maintain trover for the goods of the defendant, wrongfully taken away ? To maintain trover, an absolute or general property in the goods is sufficient, though the plaintiff has never had the actual possession. If a person has the right of possession, the law implies possession. As it respects Claio, the debtor, the sheriff had the absolute property against all the world. In regard to a bankrupt, it was held," in Fowler v. Down,
      
       that he had a right against every body,, .but. his assignees and that it was not competent to a third person to dispute the bankrupt’s title. The assignees may- maintain .trover for,goods, of the, bankrupt, taken by a sheriff on execution, subsequent to the act of bankruptcy, and prior to the commission and assignment; for the property is held.to be in the assignees, by relation, from the time the act of bankruptcy was committed. The gist of this action ; , j> \ :' . ■ 1 is the wrongful conversion. 1 ■ ‘ ~ ‘
    
      Bronk, contra,
    'It is an established principle, that to main.tain .¿rover, the plaintiff, must have the actual possession, or right to possession, as well as. the right-.of property.
      A sheriff who receives án execution; does not thereby acquire an absolute or general property in the goods of the debtor, but merely a special property by the seizure; and he stands on the same ground, as to his right -of action-, as a factor,. consignee, or,trustee..
    In Jackson v. Catlin, it is said -that the sheriff-may-ma-intain ' r . ; 7. 1 trover, or trespass, on account oi the special property he acquires in the goods by the seizure, In Heyl v. Burling,
      
      , the. court Said that, in this action, there rriust.be the right of property-atid.-possession, or right of possession-,, in the-plaintiff. Possession,must accompany the special property. The plaintiff must have -an interest in the goods; arising either from the right of property, or -possession. The sheriff, by the delivery of the execution to him, acquires no interest in the property of the defendant ; he acts-under the authority of .the writ-, and as-the agent of'the law to execute its. judgment. He can acquire no interest -or property in the goods of the debtor.,, Until he has made an actual seizure. It .is true, that by the. common law,. the goods of the debtor were bound.fr'om. the teste of- the execution, "and;by our statute, from the delivery, of the writ to the, sheriff, . But -because the property of the debtor -is so bound, it does not follow, that ■ the sheriff acquires an. interest in them before, seizure. The- lav/ gives him only a right to-seize those goods,. , In Payne v. Drew,
      
       all the cases on the subject are. examined by Hord Ellenborqugh,-, who-delivered the opinion of the court of K. B. that though -the delivery of the/, fa, binds: the goods of the debtor, 'yet the pro-, perty in the goods is - not divested "out of him,-, until execution e'xecuted. A subsequent execution, first levied-, will defeat a.. prior execution first delivered to the sheriff. In Bliss v. Bull, it was decided, that if a sheriff sells property after the return day of the execution, without a previous seizure, he i^ a trespasser. But how can he be considered a trespasser, if he was vested with such a special property, by the delivery of the fi.fa. to him, that he could maintain trover ?
    Again, an action is given to the sheriff only, for his indemnity, and because he is liable over to the plaintiff, in the execution. But if the sheriff, in this case, returns nulla bona, would he be liable ? If not, he is not damnified, and cannot, therefore, have any right of action. As soon as the.goods are seized, the sheriff may have the amount endorsed on the execution, and will be so far discharged. But, in this case, could he make such an en-. dorsement ?
    Again, a sheriff cannot sue for property which he cannot levy upon ; and he cannot levy an execution after the return day. In trover, the defendant may bring the goods into courts, if they aré susceptible of it. And, suppose the defendant had brought the net into court, could the plaintiff levy on it, or seize it, by virtue of the execution, after the return day ?
    The cases under the bankrupt laws of England, depend on the. peculiar provisions of those laws.
    
      Vanderpool, in reply.
    I go on the ground of the common law, as it existed before the statute; for all the cases agree that, as between the sheriff and the party, the common law has not been altered by the statute, which protects bona fide purchasers only. By the common law the goods were bound from the teste of the execution, and the sheriff might take them out of the hands of a bona fide purchaser,  If so, must not the property or right off1 possession be in the sheriff before seizure? mi . . i T . *ii r i 1 his title to the possession commences with the teste oí the execution, by relation. In Rorke v. Dayrell, Lord Kenyon says, that, “ as by the common law, abridged as it is by the statute of frauds, the property of the debtor’s goods is bound by the delivery of the writ to the sheriff; there then remains no property in the debtor.” The case of Payne v. Drew, was that of two contending creditors, and the maxim of vigilant ibus, non dormientibus, leges subveniunt, applied. That case is clearly distiiiguisliable from the present, the party. - which is between the sheriff ¡ . J'/
    A personhaying the special property,, without the actual pas*, session, may maintain trover against a mere stranger, or tort feasor.
    
    
      Trover is, in fact, a special action on the case; and:who is-it that óbiéets to the’pfeintiff’s title to maintain this action? Not avW# fide purchaser, but a.mere, wrong doer, 9. trespasser. ,'
    
      
       1 Saund. 219. f. note. 10 Vin. Ab. 567. Execution. (A. a) s. 14, 15, 16. Comb. 145. 2 Shower, 485. 12 Mod. 5. Ld. Raym. 252. 2 Tidd's Pr. 914.
    
    
      
       2 Saund. 47. a. note (1). Gordon v. Harper, 7 Term Rep. 18.
    
    
      
      
         1 Bos. & Pull. 44-47.
      
    
    
      
      
        Cooper and others v. Chitty and others, 1 Burr. 20—33.
    
    
      
      
         7 Term Rep. 9. 3 Lev. 309. Chitty's Pl. 150.
    
    
      
      
        1 Chitty's pl. 151. 2 Saund. 47 a. note 1.
    
    
      
       8 Johns. Rep. 548.
    
    
      
      
        1 Caines' Rep. 18.
      
    
    
      
       4 East 214.
    
    
      
       4 East, 523.
    
    
      
      
        Schermerhorn v. Volkenburgh, 11 Johns. Rep. 529. Barker v. Miller, 6 Johns. Rep. 195. 2 Saund. 47. a. 2 Tidd's Pr. 925.
    
    
      
      
        Ante, 162. Sandford v. Roosa.
      
    
    
      
       9 Johns. Rep. 132.
    
    
      
       3 Burr. 1363. 7 Term. Rep. 53.
    
    
      
      
        Anonymous, Cro. Eliz. 174. Borcher v. Wiseman, Cro. Eliz. 440.
    
    
      
      
        4 Term Rep. 402-411.
      
    
    
      
       See the observations of Lord Ellenborough on this dictum of Lord Kenyon, in 4 East, 541. (Payne v. Drew.)
      
    
    
      
       1 Chitty's pl. 151. 2 Saund. 17. c. 2 Roll's Abr. 569. Fowler v. Doun, 1 Bos. & Pull. 44. per Eyre, Ch. J. 7 Term. Rep. 9-13.
    
   Spencer, J.,

delivered the opinion of the court. It is toolaté to- question the construction which has been uniformly given; to the statute of 29 Car. II. ch. 3. s. 16., which enacts, fe that no writ of fi. fa., or other "writ of execution,, shall bind the property of the goods Of the party against whom' such- writ of execution is sued forth, but from the time that such writ shall be delivered to the sheriff,” &c. That cons true tian has been;, that the statute being Wade to protect purchasers, does not alter the. few, as bet-weep the- parties ;- and the common law, prior to the statute," Was, that the fi, fa, had relation to its teste, and bound the defendant’s goods from "that time 5 so that if the defendant had afterwards sold.,them, though bona fide, and for a valuable consideration, they were still liable to be taken ’ in execution. (2 Tidd's Pr. 914, 915., and the note, 7 T. R. 21., and the case Of Parson v. Gill, in the notes. 1 Saund. 219. (f.) 10 Vin. Abr. 566. Comb. 145. 2 Eq. Cas. Abr. 381.) To remedy the Unjust effect of -the relation of a fi. fa. -to its testé; which produced great mischief to purchasers, the statute was, passed. Our .statute (1 R. L. 501. s. 6.) is substantially & transcript of the British statute. . -

The goods in question -were then bound by-the execution, in the plaintiff’s hands, at the time the defendant, took them away. . * ■ ' .

The only remaining inquiry is this; can- the pfeWtiff, -who. hever . levied on the goods, maintain, an action for the conversion of them, When they were, in. fact, taken tpi'tiously by the'defendant before the plaintiff received the, exec ution, on-the ground that they were bound by the -execution in consequence of the teste .being prior to-the defendant’s taking them ?

To entitle a párty to-maintain trover, two things: Are necessary-': 1st, Property in the pfem-tiff;. and, 2d. Á wrongful- conver|jopr by the d.efenfjaht. The-plaintiff’s property mAyWs general,., oí special. A carrier, bailee, or the person who finds a chattel, has, in regard to his possession, sufficient property to entitle him to maintain the action. A sheriff who has seized goods on a fi. fa., may maintain this action against any person who takes them away, and converts them, before a sale. (2 Saund. 47.)

I have not met with a case which shows that an action of trover can be maintained by a sheriff, for goods tortiously taken out of the possession of the party, against whom the execution issued, before the execution cdmes to the hands of the sheriff, and where he has never levied on the goods. It has been repeatedly held, that neither before, nor since the statute, the words “ bound from the delivery of the writ to the sheriff,” alter the property, of the goods; but it continues in the defendant until the execution is executed. This construction was given by Lord Hards-, wicka to the statute, in Lowthal v. Tonkins, (2 Eq. Cas. Abr. 381.) This, also, was Lord EllenboroagK’s opinion in Payne v. Drew, (4 East, 536, 537.)

If the goods are rescued, the sheriff may return that they arex rescued,'and he will not be liable. (1 Ventr. 52, 1 Brownlow, 132.) This shows that the property did not vest in him; indeed* the execution creates the lien, for the benefit of the creditor; and the sheriff is the mere minister of the law, to procure for the creditor, satisfaction of the debt; and to this end, the sheriff is invested with the right, after he has found the property and levied on it, to hold possession until a sale ; and if that possession is violated, he may maintain trespass or trover.

It has been uniformly held in this court, that an actual levy of a f.fa. was necessary. Thus, in Devoe v. Elliot, (2 Caines, 143.) it was decided, that where a sheriff has levied an execution, in due time, he may complete the same by sale, but cannot levy-after the return day. So again, in Bliss v. Ball, (9 Johns. Rep. 132.) a levy was considered an essential requisite. The reason given by Chitty, (1 Chit. Pl. 151.) why a sheriff, carrier, factor, &c., may maintain trover, in consequence of their special property in goods taken out of their possession, is quite satisfactory, and reasonable. It is because they are responsible ever to their principal.

In the present case, the plaintiff, as we have seen, cannot be considered as having the general property; and, in my judgment, he never had a special property. In such a Gas<?, that species of property ean alone arise from possession.

The execution, I agree, had a retrospective operation. The goods, in this case, being bound from the teste, gave the sheriff a right to reduce the goods to possession, if he could have levied on them; but he could not find them. Would the sheriff be liable to the party in whose favour the execution was, under the facts in this case ? X conceive, most clearly, not; and it seems to me, that consideration furnishes a decisive criterion; for if the sheriff is not liable to the plaintiff in the execution, oui bona is he prosecuting this action ? Not to protect himself from any liability over, but to. gain to himself something which, for aught I see, would be his own, when recovered.

On the principle, therefore, that a levy was necessary to constitute a special property in the plaintiff, in the goods, and: that no levy has ever been made, the defendant is entitled to. judgment.

Judgment for the defendant..  