Cluley v. Lockhart

59 Pa. 376, 1869 Pa. LEXIS 26

• Court: Supreme Court of Pennsylvania
• Decided: November 5, 1869
• Status: Published

Opinion

The opinion of the court was delivered, January 5th 1869, hy

Agnew, J.

The single question presented by this ease is whether the value of the oil taken and removed by the defendants below under a claim of title after the lien of the execution had attached, but before the actual levy, can be recovered by the sheriff in an action of trespass vi et armis de bonis asportatis. The sheriff had by his writ only a right to levy, but no actual possession. He was not an owner, but armed merely with a power, and therefore can maintain no action founded upon an injury done to the possession: Lewis v. Carsaw, 8 Harris 84. The lien of the execution which gives but a right to demand the property cannot be enforced in this form of action. The court below was right in instructing the jury that as to the oil removed before the levy this action would not lie, and the judgment is therefore affirmed.

Affirmed.