Spencer v. M'Gowen

13 Wend. 256

• Court: New York Supreme Court
• Decided: January 15, 1835
• Status: Published

Opinion

By the Court,

Sutherland, J.

It is contended by the

plaintiff in error, that under the act in relation to the action of replevin, 2 JR. /S'. 525, § 13, &c. the defendants were bound to have demanded a jury from the sheriff to tiy their title to the horse, before they could summarily regain the possession of him. The 13th section provides, that if the defendant in the action of replevin, or any other person toho may be in p>ossession of the goods and chattels specified in the writ, shall claim property therein or in any part thereof, he may give notice to the sheriff thereof, and demand a jury to try his title. The 14th and 15th sections regulate the mode of proceeding. The 16th section provides, that if the jury find against the title of the claimant, the sheriff shall forthwith make deliverance to the plaintiff in replevin. The 17th. enacts that if the jury find in favor of the claimant, the sheriff shall not deliver the property to the plaintiff in replevin, unless he will indemnify him to his satisfaction, and refund to the claimant the fees of the sheriff and jury in. trying the title. 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 prohibited 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'..

If the property of A. is in the possession of B., and is taken under an execution or a writ of replevin against B., if A. can peaceably obtain the possession of it, and- can establish his title, the plaintiff in the execution or replevin cannot maintain trespass against him. A man is never a- trespasser in peaceably obtaining possession of his own property. Wood v. Hyatt, 3 Johns. R. 239. 4 id. 150, 313. The defendants in this case had a special property in the horse, by virtue of the proceedings under the landlord’s warrant, when the replevin was served. The replevin suit was not against them, but against the tenant.

The right of the landlord to take the property, and the regularity of all his proceedings, were fully established upon the trial; and admitting that the property belonged to the plaintiff, as between him and the tenant, still, having been found upon the premises, it was liable to be destrained by the landlord for rent.

The court of common pleas decided correctly, and their judgment must be affirmed.