T. R. Strong, J.
This is an action of trespass, commenced before the code, for the taking by the defendant, of a quantity of flour, the property of the plaintiff. The defendant, at the time of the taking, was sheriff of the county of Cayuga, and took the flour from the possession of one Baker, under and by virtue of a writ of replevin, issued in a suit in favor of one Brown against Baker, directed to him, and requiring him to take the property. The writ is not set forth in the case, but it is stated that it required the defendant to take the flour, “ as the property of the said John G. Brown.” I understand from this statement of the writ, not that the command was in those words, but that the writ recited, in the ordinary form, a complaint by the plaintiff therein, of the taking of his flour, describing it, and then commanded the sheriff, if security should be given &c., to cause the same flour to be replevied. (2 R. S. 523, § 6. Yates’ Pl. 539.) It is not material, however, in which of these forms the requirement to take the property was, as there is not, in my opinion, any substantial difference between them. The question in the case to be decided is, whether the present defendant is liable as a trespasser, to the present plaintiff, [358]*358the owner of the flour, for taking it as sheriff in obedience to the writ; or in other words whether trespass can be maintained by the owner of goods against a sheriff, for taking them under and pursuant to a writ of replevin against another person having the goods in possession.
In Hallett v. Byrt, (Carthew, 380,) which was an action of trespass for taking three cows, the defendant pleaded specially, setting up a justification under a precept in replevin. The plaintiff demurred, assigning for cause, that the plea amounted to the general issue, and the demurrer was sustained for the reason stated, and also because a prescription relied upon in the plea as authorizing the process of replevin was void. In respect to the first cause, Holt, Oh. J., said, “ If the defendants had admitted a bare possession &c., that would have been a sufficient color for the defendants to justify specially under the precept for replevin, because the cows were especially mentioned in the precept, and they were commanded to take them, and therefore they might justify the taking &c., although the property was not in that person who brought the replevin. And no action of trespass will lie against the defendants (the officers) for taking goods or chattels, by virtue of a replevin, unless he who hath possession claims a property when the officers come to demand them, and they take them notwithstanding such claim of property, and this special matter must come in by way of replication by the plaintiffs. And so there is a difference between a replevin and other process of law, with respect to the officers, for in the first case, viz : in the replevin, they are expressly commanded to take that in specie, but in writs of execution the words are general, viz : to levy of the goods of the party, and therefore it is at their peril if they take another man’s goods, for in that case an action of trespass will lie.” In Shipman v. Clark, (4 Denio, 446,) which was an action of trespass for taking timber &c., the defense at the trial was, that the timber was taken under a writ of replevin in favor of Clark against one Scott, and delivered by the sheriff to Clark, &c. who drew it away. Bronson, Oh. J., says : “ On an execution against the goods of A. the officer acts at his peril if he [359]*359j takes the goods of B. But in replevin, where the command of the writ is to replevy and deliver certain specified chattels, the process may be a sufficient protection to the officer, though he take the chattels from the possession, and they be the property of one who is a stranger to the writ. (Hallett v. Byrt, Carthew, 380.) But in such a case, the process can be no justification to the plaintiff in the replevin, or to those who act under his authority, in removing the goods. It would be strange indeed, if a man could sue out a writ against A. and take the goods of B. with impunity. The pei'son whose goods are taken is not confined to a claim of property before the sheriff, but may have the usual remedy by action, or retake the goods without process if he can do it peaceably. (Spencer v. McGowan, 13 Wend. 256.) In Stimpson v. Reynolds, (14 Barb. 506.) which was an action of trover for flour, and the defense was that it ivas taken by the defendant as sheriff, under a writ of replevin, the court refused to set aside a report of a referee in favor of the plaintiff, on the ground that it did not appear that the property taken was the identical property described in the writ, and also expressed the opinion after a brief discussion of the point, that if it had been made to appear, the defendant would not “ have been shielded or protected by the process in taking the property of the plaintiff, who was in no way a party to the action.”
No other case has been cited by the counsel, or has come to my notice, in which the question now presented has arisen. The counsel for the plaintiff, in his elaborate and learned printed argument, and Justice Wright in Stimpson v. Reynolds, say there is no other case on the point, in the books. It will be observed, that it was not necessary to pass upon the question in either of the cases referred to. The question is therefore entirely open, in respect to authority.
It is a consideration entitled to no small weight against the right of action, that often as property has been seized under a writ of replevin issued therefor which belonged to, or was claimed by, some other person than the parties, no case can be found in which a recovery against the officer who served the [360]*360writ, as a wrongdoer, has been permitted. The fact is a striking testimony to the prevalence of an opinion among the profession, ever since the action of replevin has existed, that no liability is incurred by the officer by acts done by him in obedience to the process.
There would be a flagrant inconsistency, in holding that an officer of the law may be liable in tort, for taking property which by law he was commanded to take, when he kept strictly within the limits of his process, in compelling the commission of a wrong and enforcing' a responsibility for it: but I do not see why this doctrine would not be involved in the maintenance of the action. The property taken was specified in the writ; the writ contained a command to take it, which was absolute and unqualified; no direction was given to the sheriff to inquire into the right of property before seizure; no means are provided by the statute for such an inquiry, except on a claim of property being interposed; and I know of no authority for such a proceeding in any other case/ The proceedings in the action of replevin, are almost wholly regulated by statute, and if such an authority in the sheriff had been contemplated by the legislature, some reference would have been made to it, in the form prescribed for the writ, or in some provision for the exercise of the authority. Not only is there no such provision, but the statute in terms commands the sheriff, upon the receipt of the Avrit with the affidavits and bond, to “ forthwith proceed to execute the Avrit, by delivering possession of the property named therein to the plaintiff,” &c.
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T. R. Strong, J.
This is an action of trespass, commenced before the code, for the taking by the defendant, of a quantity of flour, the property of the plaintiff. The defendant, at the time of the taking, was sheriff of the county of Cayuga, and took the flour from the possession of one Baker, under and by virtue of a writ of replevin, issued in a suit in favor of one Brown against Baker, directed to him, and requiring him to take the property. The writ is not set forth in the case, but it is stated that it required the defendant to take the flour, “ as the property of the said John G. Brown.” I understand from this statement of the writ, not that the command was in those words, but that the writ recited, in the ordinary form, a complaint by the plaintiff therein, of the taking of his flour, describing it, and then commanded the sheriff, if security should be given &c., to cause the same flour to be replevied. (2 R. S. 523, § 6. Yates’ Pl. 539.) It is not material, however, in which of these forms the requirement to take the property was, as there is not, in my opinion, any substantial difference between them. The question in the case to be decided is, whether the present defendant is liable as a trespasser, to the present plaintiff, [358]*358the owner of the flour, for taking it as sheriff in obedience to the writ; or in other words whether trespass can be maintained by the owner of goods against a sheriff, for taking them under and pursuant to a writ of replevin against another person having the goods in possession.
In Hallett v. Byrt, (Carthew, 380,) which was an action of trespass for taking three cows, the defendant pleaded specially, setting up a justification under a precept in replevin. The plaintiff demurred, assigning for cause, that the plea amounted to the general issue, and the demurrer was sustained for the reason stated, and also because a prescription relied upon in the plea as authorizing the process of replevin was void. In respect to the first cause, Holt, Oh. J., said, “ If the defendants had admitted a bare possession &c., that would have been a sufficient color for the defendants to justify specially under the precept for replevin, because the cows were especially mentioned in the precept, and they were commanded to take them, and therefore they might justify the taking &c., although the property was not in that person who brought the replevin. And no action of trespass will lie against the defendants (the officers) for taking goods or chattels, by virtue of a replevin, unless he who hath possession claims a property when the officers come to demand them, and they take them notwithstanding such claim of property, and this special matter must come in by way of replication by the plaintiffs. And so there is a difference between a replevin and other process of law, with respect to the officers, for in the first case, viz : in the replevin, they are expressly commanded to take that in specie, but in writs of execution the words are general, viz : to levy of the goods of the party, and therefore it is at their peril if they take another man’s goods, for in that case an action of trespass will lie.” In Shipman v. Clark, (4 Denio, 446,) which was an action of trespass for taking timber &c., the defense at the trial was, that the timber was taken under a writ of replevin in favor of Clark against one Scott, and delivered by the sheriff to Clark, &c. who drew it away. Bronson, Oh. J., says : “ On an execution against the goods of A. the officer acts at his peril if he [359]*359j takes the goods of B. But in replevin, where the command of the writ is to replevy and deliver certain specified chattels, the process may be a sufficient protection to the officer, though he take the chattels from the possession, and they be the property of one who is a stranger to the writ. (Hallett v. Byrt, Carthew, 380.) But in such a case, the process can be no justification to the plaintiff in the replevin, or to those who act under his authority, in removing the goods. It would be strange indeed, if a man could sue out a writ against A. and take the goods of B. with impunity. The pei'son whose goods are taken is not confined to a claim of property before the sheriff, but may have the usual remedy by action, or retake the goods without process if he can do it peaceably. (Spencer v. McGowan, 13 Wend. 256.) In Stimpson v. Reynolds, (14 Barb. 506.) which was an action of trover for flour, and the defense was that it ivas taken by the defendant as sheriff, under a writ of replevin, the court refused to set aside a report of a referee in favor of the plaintiff, on the ground that it did not appear that the property taken was the identical property described in the writ, and also expressed the opinion after a brief discussion of the point, that if it had been made to appear, the defendant would not “ have been shielded or protected by the process in taking the property of the plaintiff, who was in no way a party to the action.”
No other case has been cited by the counsel, or has come to my notice, in which the question now presented has arisen. The counsel for the plaintiff, in his elaborate and learned printed argument, and Justice Wright in Stimpson v. Reynolds, say there is no other case on the point, in the books. It will be observed, that it was not necessary to pass upon the question in either of the cases referred to. The question is therefore entirely open, in respect to authority.
It is a consideration entitled to no small weight against the right of action, that often as property has been seized under a writ of replevin issued therefor which belonged to, or was claimed by, some other person than the parties, no case can be found in which a recovery against the officer who served the [360]*360writ, as a wrongdoer, has been permitted. The fact is a striking testimony to the prevalence of an opinion among the profession, ever since the action of replevin has existed, that no liability is incurred by the officer by acts done by him in obedience to the process.
There would be a flagrant inconsistency, in holding that an officer of the law may be liable in tort, for taking property which by law he was commanded to take, when he kept strictly within the limits of his process, in compelling the commission of a wrong and enforcing' a responsibility for it: but I do not see why this doctrine would not be involved in the maintenance of the action. The property taken was specified in the writ; the writ contained a command to take it, which was absolute and unqualified; no direction was given to the sheriff to inquire into the right of property before seizure; no means are provided by the statute for such an inquiry, except on a claim of property being interposed; and I know of no authority for such a proceeding in any other case/ The proceedings in the action of replevin, are almost wholly regulated by statute, and if such an authority in the sheriff had been contemplated by the legislature, some reference would have been made to it, in the form prescribed for the writ, or in some provision for the exercise of the authority. Not only is there no such provision, but the statute in terms commands the sheriff, upon the receipt of the Avrit with the affidavits and bond, to “ forthwith proceed to execute the Avrit, by delivering possession of the property named therein to the plaintiff,” &c. There is no force in the position that the command in the Avrit is limited to the property of the plaintiff therein, by the direction to take it as his property. An affidavit of property Avas required, to authorize the Avrit, and the plaintiff had by compliance Avith the lavr, entitled himself to have the specific property, before the officer of the law was called upon to execute the process. The sheriff Avas to take the goods as the property of the plaintiff; Avhether they ay ere in fact the plaintiff’s, or not, he Avas not to inquire. That question had been determined, so far as the issuing and execution of the Avrit Avas concerned.
It is a familiar principle, sustained by numerous authorities, [361]*361that process from a court or officer having jurisdiction to issue such process, which is regular on its face, is a perfect protection to a ministerial officer, for acts done in obedience to it. (Savacool v. Boughton, 5 Wend. 170. Sheldon v. Van Buskirk, 2 Comstock, 473, 477.) This principle appears to be decisive of the question under consideration. Viewing the mandate of the writ as imperative and unconditional, the strongest considerations upon which the principle referred to, of protection to ministerial officers, can rest in any case, exist and require protection to the defendant in this. It would be intolerable to require the sheriff to act, and hold him responsible for his action, to a third person who might prove to be the owner of the property. But whether the sheriff might or not, inquire into the title to the property of the plaintiff in the writ of replevin, and justify himself for declining to execute the writ, by showing that the plaintiff was not the owner, he was not bound to take that burthen and responsibility upon himself, but might obey the writ and rely upon that for his protection.
The distinction, in reference to the principle referred to, between an execution which goes against the property generally of the defendant, without specifying any particular property, and a writ of replevin, which describes the property, is stated in the case in Carthew, and is very obvious. In the case of an execution, the sheriff must see to it that he takes only the property of the defendant; his authority is limited to that; but in the case of a writ of replevin, the property to be taken is distinctly pointed out.
It is urged on the part of the plaintiff, and it constitutes the chief argument of the learned justice who delivered the opinion in the case of Stimpson v. Reynolds, in support of the liability of the sheriff, that a contrary doctrine would be in hostility to general principles in respect to the right of property and remedies for its infringement. But as much so, in every case where the party at whose instance process is issued is not protected, is the rule making the process a protection to the officer executing it. Take the case of. an attachment issued by a jus[362]*362tice of the peace without the preliminary proof to confer jurisdiction ; an execution without any judgment; and similar cases; the party who procured the process is a trespasser, but no remedy is allowed against the officer who served it. The argument is of as much force in the cases supposed, as in the present and like cases. That in the former the injured party is a defendant in the process, and in the latter not, makes no difference; a trespass lias been committed on the rights of each, and on general principles one is entitled to the sárne remedy as the other. The right and propriety of extending protection to the officer is the same in each. Injustice may sometimes result to individuals from shielding the officer, as where the party obtaining the writ is pecuniarily irresponsible, but on the whole, justice is best promoted b.y granting the protection.
The entire absence of any provision in the statute for an indemnity to the sheriff for the taking of the property, confirms the position that no liability is thereby incurred by him. Ample security for the benefit of the party is provided for, by requiring a bond to the sheriff to prosecute the suit to effect, and for a return of the property, if the defendant recover, and a return be adjudged, and for the payment of all such sums of money as the defendant may recover; but none is required for the benefit of the sheriff. (2 R. S. 523 § 26, 527, § 32.)
When a claim of property in the goods is made by a defendant, or any other person who may be in possession, and the jury to be called thereupon by, the sheriff sustains the claim, the sheriff must not deliver the property to the plaintiff, unless the plaintiff “ shall indemnify the sheriff to his satisfaction for delivering the property,” &c., not taking it. (2 R. S. 525,.§§ 13 to 17.) In Spencer v. McGowan, (13 Wend. 256,) it is said by Sutherland, J., “.These provisions are designed rather for .the security and benefit of the sheriff, than of the party claiming the property ; for although the jury may find in favor of the title of the claimant, the sheriff may still, and perhaps must, deliver the property to the plaintiff in replevin, if he will indemnify him.- The person claiming title to the property is not pro[363]*363hibited by these provisions, from taking any other course to try or enforce his right, which upon general principles he might have done before this act was passed.” The learned justice, in Stimpson v. Reynolds, after referring to the sections of the statute last cited, and those remarks upon them, inquires, “ Why provide for making the officer secure, if in all cases the process in replevin is a protection to him'?” I admit, that from this portion of the statute, thus construed, no inference may be drawn that the legislature contemplated the sheriff might be liable for delivering the goods to the plaintiff after a claim of title was interposed; but if they did that would not be sufficient to create a liability if none in fact existed. I do not however think it clear that the construction referred to is correct. An indemnity is to be given, although the person who claims property in the goods is the defendant. What liability to the defendant would be incurred for which the sheriff would need indemnity1? Tibose provisions may have been designed, like that for security in the first instance, for the benefit of the defendant—to afford him further security—and if so the statute is consistent. It is not denied that these provisions do not affect the right of the owner to pursue any other, remedy to which he is entitled on general principles independent of them, but on general principles the officer is protected by his process valid on its face.
The present case does not call for the decision of any question as to the liability of a sheriff for delivering goods after a claim of property is made, as in this case there was no such claim.
It is supposed by the counsel for the plaintiff, that because the owner of the property might have retaken it from the sheriff, if he could do so peaceably, he might enforce his right to it by action against the sheriff. But this is a mistake. This position is fully answered in Spencer v. McGowen, before cited. The law fully recognizes the owner’s right, and if he can, without force, obtain the property, will not hold him a wrongdoer for taking it; but it withholds from him an affirmative remedy by action against a ministerial officer, allowing him [364]*364an action only against other persons concerned in, or who instigated the taking. The judgment must be affirmed.
[Monroe General Term,
September 3, 1855.
Selden, J., concurred.
Johnson, J., dissented.
Judgment affirmed.
Selden, Johnson and T. R. Strong, Justices.]