De Witt v. Morris

13 Wend. 496

• Court: New York Supreme Court
• Decided: May 15, 1835
• Status: Published

Opinion

By the Court,

Nelson, J.

The writ of replevin described the property to be taken in the following words : “Goods and chattels, to wit, about four hundred tons of iron ore, commonly called bog ore.” Under this writ the sheriff replevied 720 tons. The writ is defective, in not being more specific in the description of the chattels to be taken, 2 R. S. 523, § 6; but that question cannot now arise. The sheriff should have refused to execute the writ. Assuming it regular, what number of tons was the sheriff authorized to replevy under it? About four hundred tons clearly does not mean seven hundred and twenty tons, nor does it mean five hundred tons, ft may be construed tornean more than 400, but the sheriff would have been justified in limiting thequantity taken to an amount not exceeding that number, and this would have been not only the safest, but I think the soundest interpretation of the terms of the writ. All over four hundred and fifty, at most, was taken without any authority, and the sheriff, and the party if he directed, or co-operated with him, are individually responsible. Any number of tons over 450 would be aboutfive-hundred, instead of about four hundred, and ought not to have been taken, because not coming within the description. If the ore had been identified in the writ, so as to have enabled the officer to replevy it without regard to the quantity of tons mentioned, quantity might have been rejected as surplus-age. But the only identification is by the number of tons, and the ¡authority of the officer must be thereby determined. It follows, from the above view, that both inquisitions returned in the case are erroneous, and must be set aside. The first, which was taken under the 2 R. S. 531, l 53, assessing the damages by reason of the detention, and the second, taken under section 55, assessing the value of the property. These inquisitions were found upon the assumption that 720 tons had been rightfully taken and delivered to the plaintiff, under the writ.

The plaintiff, on the inquest of value, offered to shew, in mitigation, that soon after the property was replevied, the defendants took and converted to their use the greater part of the ore. This evidence was objected to, and overruled. The shériff, I think, erred.. Under the former law, upon a return of elongata to the writ of retorno hdbendo, a capias in withernam issued to take the beasts of the plaintiff. When the plaint issued out of the county court, there was an inquest held by the sheriff, to ascertain the truth of the elloignment before the capias issued. In the higher courts, the return of the officer was deemed satisfactory. Gilbert on Repl. 80. Now, if it had appeared, by the inquest, or the sheriff's return, that the property was in fact in the possession of the defendant, or had been returned to him, it is manifest no capias in withernam could issue. The only object of this writ would have been already complete, and the only damage unsatisfied would be that of detention. So the equivalent remedy by assessment of value must be subject to the samé modification. All that can be required to make the defendant whole in this case is the value of the quantity not retaken by him, and damages for detention. Besides, the action being, in many cases, a substitute for trespass, de bonis asportatis, the rule in that action, which allows evidence of the restoraration of the property in mitigation of damages, is strictly applicable.

Inquisitions set aside, with costs to abide the event; and let writ of inquiry issue, to assess both value and damages at the same time, in pursuance of 2 R. S. 531, § 53, 55.