Shipman v. Clark

4 Denio 446

• Court: New York Supreme Court
• Decided: May 15, 1847
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

On an execution against the goods of A., the officer acts at his peril if he take the goods fff B. But in replevin, where the command of the writ is to replevy and deliver certain specified chattels, the process ms y 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 plaintiif 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 person 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. McGowen, 13 Wend. 256.)

The plaintiff was in possession of the timber, and that was prima facie evidence of title. It was not enough for the defendants to show the writ of replevin against Scott. They must meet the question of title. The fact that the timber had been taken from lands in dispute between Mrs. Clark and Scott amounts to nothing, without showing that Mrs. Clark owned the land.

New trial granted.