Hotchkiss v. M'Vickar , 12 Johns. 403 ( 1815 )

Spencer, J.,

delivered the opinion of the court. It is toolaté to- question the construction which has been uniformly given; to the statute of 29 Car. II. ch. 3. s. 16., which enacts, fe that no writ of fi. fa., or other "writ of execution,, shall bind the property of the goods Of the party against whom' such- writ of execution is sued forth, but from the time that such writ shall be delivered to the sheriff,” &c. That cons true tian has been;, that the statute being Wade to protect purchasers, does not alter the. few, as bet-weep the- parties ;- and the common law, prior to the statute," Was, that the fi, fa, had relation to its teste, and bound the defendant’s goods from "that time 5 so that if the defendant had afterwards sold.,them, though bona fide, and for a valuable consideration, they were still liable to be taken ’ in execution. (2 Tidd's Pr. 914, 915., and the note, 7 T. R. 21., and the case Of Parson v. Gill, in the notes. 1 Saund. 219. (f.) 10 Vin. Abr. 566. Comb. 145. 2 Eq. Cas. Abr. 381.) To remedy the Unjust effect of -the relation of a fi. fa. -to its testé; which produced great mischief to purchasers, the statute was, passed. Our .statute (1 R. L. 501. s. 6.) is substantially & transcript of the British statute. . -

The goods in question -were then bound by-the execution, in the plaintiff’s hands, at the time the defendant, took them away. . * ■ ' .

The only remaining inquiry is this; can- the pfeWtiff, -who. hever . levied on the goods, maintain, an action for the conversion of them, When they were, in. fact, taken tpi'tiously by the'defendant before the plaintiff received the, exec ution, on-the ground that they were bound by the -execution in consequence of the teste .being prior to-the defendant’s taking them ?

To entitle a párty to-maintain trover, two things: Are necessary-': 1st, Property in the pfem-tiff;. and, 2d. Á wrongful- conver|jopr by the d.efenfjaht. The-plaintiff’s property mAyWs general,., oí special. A carrier, bailee, or the person who finds a chattel, has, in regard to his possession, sufficient property to entitle him to maintain the action. A sheriff who has seized goods on a fi. fa., may maintain this action against any person who takes them away, and converts them, before a sale. (2 Saund. 47.)

I have not met with a case which shows that an action of trover can be maintained by a sheriff, for goods tortiously taken out of the possession of the party, against whom the execution issued, before the execution cdmes to the hands of the sheriff, and where he has never levied on the goods. It has been repeatedly held, that neither before, nor since the statute, the words “ bound from the delivery of the writ to the sheriff,” alter the property, of the goods; but it continues in the defendant until the execution is executed. This construction was given by Lord Hards-, wicka to the statute, in Lowthal v. Tonkins, (2 Eq. Cas. Abr. 381.) This, also, was Lord EllenboroagK’s opinion in Payne v. Drew, (4 East, 536, 537.)

If the goods are rescued, the sheriff may return that they arex rescued,'and he will not be liable. (1 Ventr. 52, 1 Brownlow, 132.) This shows that the property did not vest in him; indeed* the execution creates the lien, for the benefit of the creditor; and the sheriff is the mere minister of the law, to procure for the creditor, satisfaction of the debt; and to this end, the sheriff is invested with the right, after he has found the property and levied on it, to hold possession until a sale ; and if that possession is violated, he may maintain trespass or trover.

It has been uniformly held in this court, that an actual levy of a f.fa. was necessary. Thus, in Devoe v. Elliot, (2 Caines, 143.) it was decided, that where a sheriff has levied an execution, in due time, he may complete the same by sale, but cannot levy-after the return day. So again, in Bliss v. Ball, (9 Johns. Rep. 132.) a levy was considered an essential requisite. The reason given by Chitty, (1 Chit. Pl. 151.) why a sheriff, carrier, factor, &c., may maintain trover, in consequence of their special property in goods taken out of their possession, is quite satisfactory, and reasonable. It is because they are responsible ever to their principal.

In the present case, the plaintiff, as we have seen, cannot be considered as having the general property; and, in my judgment, he never had a special property. In such a Gas<?, that species of property ean alone arise from possession.

The execution, I agree, had a retrospective operation. The goods, in this case, being bound from the teste, gave the sheriff a right to reduce the goods to possession, if he could have levied on them; but he could not find them. Would the sheriff be liable to the party in whose favour the execution was, under the facts in this case ? X conceive, most clearly, not; and it seems to me, that consideration furnishes a decisive criterion; for if the sheriff is not liable to the plaintiff in the execution, oui bona is he prosecuting this action ? Not to protect himself from any liability over, but to. gain to himself something which, for aught I see, would be his own, when recovered.

On the principle, therefore, that a levy was necessary to constitute a special property in the plaintiff, in the goods, and: that no levy has ever been made, the defendant is entitled to. judgment.

Judgment for the defendant..