Pollard v. Stovall ( 1882 )

Chalmers, J.,

delivered the opinion of the court.

Mrs. Pollard, in an action of replevin against one Wilson, obtained judgment in a justice’s court, fora mule, from which judgment Wilson at once took an appeal to the Circuit Court. The animal was in the custody of the sheriff, Stovall, and a contest arose between the parties, litigant as to who Was entitled to the custody of the mule pending this appeal; and the sheriff, being about to deliver it to Wilson, who offered to give a bond for its forthcoming (which Mrs. Pollard did not offer to do), the latter, in order to prevent the delivery to Wilson sued out before another justice the present writ of re-plevin against the sheriff and sought, through a constable, to get possession of the property.

The sheriff refused to surrender the mule, and upon a trial of the case the court below «ruled that this action could not be maintained, and gave judgment for the sheriff. From that judgment the present appeal is prosecuted.

The action of the court below was correct. Independently of the statute prohibiting the bringing of replevin for the recovery of the property in custodia legis, it is manifest that a party at whose suit property has been seized by an officer, cannot bring another suit to take the property out of his possession. The officer is his agent as well as the agent of the law in holding the property; and if he is guilty of any breach of duty in relation to it, is liable to'the power of the court in that suit, or to an action upon his official bond in an independent proceeding. The sheriff was right in refusing to surrender the mule to the constable, and the court below rightly gave judgment for the sheriff.

Affirmed.