JABEZ KELLOGG vs. DAVID C. CHURCHILL

This was replevin for a mare, waggon and harness.

The cause was submitted to the decision of the court upon the following facts.

The defendant, being a deputy of the sheriff of this county, and having in his hands an execution in favor of one Bellows against Isaac Morey, took the articles mentioned in the plaintiff’s writ from the possession of Morey, by virtue of the said execution; and it was agreed, that if the court should be of opinion that the action, could not under these circumstances be maintained, the plaintiff should become nonsuit.

Phelps, counsel for the plaintiff.

(1) 15 John,. Rep. 403.

(2) 14 John oS.

(3) 15 John. 401.

Though at common law, replevin was extended from cases of distress for rent to all cases of a tortous taking of personal property; yet such property,if taken under process of law, was always deemed an exception to the general principle. Gilbert on Dist. 44, 161.—2 Stra. 1184.—1 Barnard,s Rep. 110.—Willies 672 and note.—1 Scho. & Lef. 327.—3 Mass. Rep. 304.—5 ditto 285. Isley et al. vs. Stubbs. Such a taking was not considered tortous, because by a legal officer and by virtue of a legal precept;# or probably a better reason was, that the property when so taken went into the custody of the law, eventual indemnity to the real owner was not endangered, and by permitting a replevin, “ the ex-edition of the writ oí fieri facias might in all cases be delay- « ed or eluded.’Yl) \ / In Thompson vs. Betton(2) and Gardner vs. Campbell (3) it is remar]iecp that replevin will lie for property taken on exe* cution, by a person who was not the judgment debtor and who had actual possession of the property when seized. But whether this rests upon a statute or on common law princi-pies, is not stated; though in 5 Mass. Rep. 280, a similar practice appears there to be founded on express statute. It is unnecessary to settle the law here upon that point, as the property m the present case was taken from the actual possession of the judgment debtor. Under such circumstances, this defendant could reclaim possession of the property even against another officer, seizing it under a subsequent precept. 15 Mass. Rep. 465, Gordon vs. Jenny.

Plaintiff' nonsuit.