Allen v. Crary

10 Wend. 349

• Court: New York Supreme Court
• Decided: May 15, 1833
• Status: Published

Opinion

By the Court,

Sutherland, J.

The only question in this case is, whether replevin will lie against a plaintiff' in an execution, by whose direction it is levied upon specific articles of property, which prove not to belong to the defendant in the execution, but are the property of a third person. Replevin will lie for any tortious or unlawful taking of the property of another; it will lie where trespass de bonis asportutis can be sustained. Roth these points were adjudged in Pangburn v. Patridge, 7 Johns. R. 140, and Dunham v. Wyckoff, 3 Wendell, 280, and cases there cited. To maintain trespass or trover, evidence of an actual, forcible dispossession of the plaintiff is not necessary ; any unlawful interference with the property of another or exercise dominion over it, by which the owner is damnified, is sufficient to maintain either action. Philips v. Hall, 8 Wendell, 613, and cases there cited. 7 Cowen, 735. 10 Mass. R. 125. 6 Wendell, 368. A sheriff is a trespasser who levies upon goods and chattels which are not the property of the defendant in the execution ; he acts at his peril in - such cases; his process only authorizes him to seize the defendant’s' property, Chapman v. Andrews, 3 Wendell, 242 ; and if the plaintiff in the execution direct the levy to be made, he is also a trespasser, 1 Campb. 187. The officer in such a case, is his servant or agent, and trespass or replevin would lie against either of them. The evidence in this case shows a regular levy by the officer.

Motion for new trial denied.