Mulholm v. Cheney

Alleghany County Court of Common Pleas

Mulholm v. Cheney

1 Add. 301

CourtPennsylvania Court of Common Pleas, Alleghany County

DecidedSeptember 15, 1796

StatusPublished

This text of 1 Add. 301 (Mulholm v. Cheney) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mulholm v. Cheney, 1 Add. 301 (Pa. Super. Ct. 1796).

Pincite

Opinion

President.

Were the act, declaring replevins void, to be understood as restraining only third persons, whose goods were found in the possession of him against whom the execution was, it would be less exceptionable. But it is contended, that it extends to all owners: and this, surely may deprive an innocent owner of a specific, summary remedy, for a wanton act of oppression by an officer, the more odious, as it is under the colour of public authority; though he would have this remedy against any other but an officer.

It may, indeed, be said, that, in order to prevent collusion with debtors, by fraudulent transfers, there may be reasons of policy for refusing to extend to the case of goods taken into the custody of the law by execution, &c. a remedy, which seems originally to have been confined to the single case of distress for rent, and, confiding in the virtue of officers, rather than of individuals, for leaving any transgression to the ordinary remedy of an action of trespass. And, indeed, from the defendant in replevin’s power, by setting up a claim of property, to retain the goods, an action of replevin may be a not more specific remedy, than an action of trespass.

But, notwithstanding, as no value may compensate the pretium affectionis of the thing taken; as a warrant to take the goods of A. will not justify taking the goods of B.; and an officer acting without authority is but an individual; as we ought not to suppose, that the legislature intended to countenance trespasses; and it is the duty of courts to extend remedies; I have a strong reluctance against adopting the construction contended for of this act, as a general prohibition, and I would not admit this construction, if I could exclude it.

The law of England states generally, that replevin does not lie for goods taken in execution; yet (excepts for a reason which is given for it, that goods are only replevisable, when taken by way of distress, and which does not apply here, where replevin lies for any claim of goods), I do not know, that this is not understood [304]*304only of a replevin brought by him against whom the execution is; for that is the case of the only replevin of this kind, that I have observed, where this can be ascertained.

Journ.Assem. 17th February 1, 27, 31, March, 1779.

If it be the meaning of the law of England, that replevin for goods taken in execution is only prohibited, when brought by him against whom the execution is, such may also be the meaning of the act of assembly.—Acts are sometimes made in affirmance of the common law.

* And I am informed, that, at the passing of this act, there was occasion for such an explicit declaration, by act of assembly; for, at that time, many actions of replevin had been brought by persons, whose goods were taken for taxes and militia fines. This law was made on the spur of the occasion, and in the servor of a revolution. The assembly might have been unwilling to admit any amendment, which might suggest an evasion of payment of a public tax; and may have determined, making the words as general as the expressions in the English books, to leave their construction, as in England, to the courts. A law so made, and restraining a remedy, will be narrowed as much as possible in the construction.

If the sheriff or officer be doubtful, as to the property; he may call on the plaintiff to shew him property, and indemnify him; or he may hold an inquest, to find whether it be the property of the defendant, or not.

But it is not necessary to give any opinion on this point: for we are of opinion, that this is not the case of goods taken in execution; and therefore, that the plaintiff take nothing by his motion. The horse was not taken out of the hands of the constable. The constable delivered him to the owner, and having thus enabled him to impose on others, he must look to him or his security.

It has been said, that even an act of parliament to make a man judge in his own cause would be void. Hob. 87. There was therefore no occasion for an act of assembly forbidding any member of a court of justice to sit in judgment while his own cause is upon trial. Yet such an act there is, 1 St. L. 33.

Free access — add to your briefcase to read the full text and ask questions with AI

President.

Were the act, declaring replevins void, to be understood as restraining only third persons, whose goods were found in the possession of him against whom the execution was, it would be less exceptionable. But it is contended, that it extends to all owners: and this, surely may deprive an innocent owner of a specific, summary remedy, for a wanton act of oppression by an officer, the more odious, as it is under the colour of public authority; though he would have this remedy against any other but an officer.

It may, indeed, be said, that, in order to prevent collusion with debtors, by fraudulent transfers, there may be reasons of policy for refusing to extend to the case of goods taken into the custody of the law by execution, &c. a remedy, which seems originally to have been confined to the single case of distress for rent, and, confiding in the virtue of officers, rather than of individuals, for leaving any transgression to the ordinary remedy of an action of trespass. And, indeed, from the defendant in replevin’s power, by setting up a claim of property, to retain the goods, an action of replevin may be a not more specific remedy, than an action of trespass.

But, notwithstanding, as no value may compensate the pretium affectionis of the thing taken; as a warrant to take the goods of A. will not justify taking the goods of B.; and an officer acting without authority is but an individual; as we ought not to suppose, that the legislature intended to countenance trespasses; and it is the duty of courts to extend remedies; I have a strong reluctance against adopting the construction contended for of this act, as a general prohibition, and I would not admit this construction, if I could exclude it.

The law of England states generally, that replevin does not lie for goods taken in execution; yet (excepts for a reason which is given for it, that goods are only replevisable, when taken by way of distress, and which does not apply here, where replevin lies for any claim of goods), I do not know, that this is not understood [304]*304only of a replevin brought by him against whom the execution is; for that is the case of the only replevin of this kind, that I have observed, where this can be ascertained.

Journ.Assem. 17th February 1, 27, 31, March, 1779.

If it be the meaning of the law of England, that replevin for goods taken in execution is only prohibited, when brought by him against whom the execution is, such may also be the meaning of the act of assembly.—Acts are sometimes made in affirmance of the common law.

* And I am informed, that, at the passing of this act, there was occasion for such an explicit declaration, by act of assembly; for, at that time, many actions of replevin had been brought by persons, whose goods were taken for taxes and militia fines. This law was made on the spur of the occasion, and in the servor of a revolution. The assembly might have been unwilling to admit any amendment, which might suggest an evasion of payment of a public tax; and may have determined, making the words as general as the expressions in the English books, to leave their construction, as in England, to the courts. A law so made, and restraining a remedy, will be narrowed as much as possible in the construction.

If the sheriff or officer be doubtful, as to the property; he may call on the plaintiff to shew him property, and indemnify him; or he may hold an inquest, to find whether it be the property of the defendant, or not.

But it is not necessary to give any opinion on this point: for we are of opinion, that this is not the case of goods taken in execution; and therefore, that the plaintiff take nothing by his motion. The horse was not taken out of the hands of the constable. The constable delivered him to the owner, and having thus enabled him to impose on others, he must look to him or his security.

It has been said, that even an act of parliament to make a man judge in his own cause would be void. Hob. 87. There was therefore no occasion for an act of assembly forbidding any member of a court of justice to sit in judgment while his own cause is upon trial. Yet such an act there is, 1 St. L. 33.

Cite This Page — Counsel Stack

Bluebook (online)

1 Add. 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulholm-v-cheney-pactcomplallegh-1796.