King v. Fearson

14 F. Cas. 520, 3 D.C. 255, 3 Cranch 255

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1827
• Status: Published

Opinion

CRanch, C. J.,

delivered the opinion of the Court, (Thruston, J., absent.)

In 2 Wheaton’s Selwyn, 1055, b. it is said that trover will lie by a sheriff against a person who takes away goods, which have been seized by the sheriff in execution, before they are sold. Wilbraham v. Snow, 2 Saund. 47; Barker v. Miller, 6 Johns. Rep. 195. But a landlord who has distrained goods cannot maintain trover for them; for he had, at common law, a power to detain the goods as a pledge only, and although, by statute, he is authorized to sell, yet he has not any property. Moneaux v. Goreham, 2 Selw. N. P. 1335. And it is stated in Wheat. Selw. 1050, and Stark, on Ev. part 4, p. 1481, that property, either absolute or special, is necessary to maintain trover. Possession, with claim of property, is primd facie evidence of property against a stranger having no color of right, (Wheat. Selw. 1056,) but neither possession nor special property will maintain trover against the general owner. Stark, part 4, p. 1482, 1488. Holliday v. Camrell and White, 1 T. R. 658.

We are therefore of opinion that a new trial ought to be be granted, or a non-pros entered.