Reeside v. Fischer

2 H. & G. 320

• Court: Court of Appeals of Maryland
• Decided: June 15, 1828
• Status: Published

Opinion

Archer, J.

delivered the opinion of the Court. This case, it is supposed by the counsel for the appellant, is within the rule established in Cromwell, et al. v Owings, 7 Harr. & Johns. 55; because, as is contended by them, before the execution of the writ of replevin, the goods were seized by the deputy marshal of the United States for the district of Maryland, in virtue of a fieri facias issued from the district court, and were by said officer held under the execution until the re» plevin was executed.

This case is brought up upon a case stated, and, like a special verdict, we are not at liberty to infer facts from the evidence therein stated, but the facts relied upon must be stated. Palmer v Johnson, 2 Wils. 163. 2 Tidd’s Pr. 808, 809.

That the goods replevied had been seized under a fieri facias, is apparent from the statement, but it is silent as to the time of seizure, or whether at the time of the replevin from the deputy marshal, the. goods were in his hands under the fieri facias. This might be all true, and still the goods not in the custody of the law., He might have sold them, and the purchaser may have left them in his hands, or the execution may have been countermanded,,and the property not in fact redelivered, so that it is by no means a necessary conclusion, as has been contended, that the goods were in custodia legis.

There appearing tó be no objection in the record to the legal title of the plaintiff, and as far as the statement shows, no legal impediment arising from the execution, the judgment of the Court below must be affirmed.

JUDGMENT AFFIRMED.