Gardner v. Campbell , 15 Johns. 401 ( 1818 )

Spencer, J.

delivered the opinion of the court. The first objection to the pleas, is, that they admit the original caption to be lawful, and that when that is the case, replevin does not lie.

In the case of Hopkins v. Hopkins, (10 Johns. Rep. 372.) this court adopted the well known and ancient principle, that when a person acts under an authority or license given by the law, and abuses it, he shall be deemed a trespasser ah initia; but the action is grounded' on a tortious taking; and The Six Carpenters' case, (8 Co. 146.) recognises a distinction between the actual and positive abuse of a thing taken originally by authority of the law, and a mere nonfeasance, such as a refusal to deliver an article distrained.

The conclusive objection to all the pleas, is, that conibssedly, the defendant took the plaintiffs goods, under and by virtue of an execution; and they are, in the language of this court, in Thompson v. Button, (14 Johns. Rep. 86.) in the custody of the law, and it would be repugnant to sound principles to permit them to be taken out of such custody, when the officer has found them in the possession of the defendant in the execution, and taken them out of his possession.

The pretence set up here is, that the execution was paid and satisfied. Whether it was or not, makes no difference in the principle. If the fact be true, the plaintiff is not without his redress; he cannot be allowed to set up that fact to devest the sheriffs possession; the goods were lawfully taken by the defendant, and replevin is not the appropriate remedy. If it were allowed, the execution of the writ of fieri facias might, in all cases, be delayed or eluded.

Judgment for the defendant.