Dunham v. Wyckoff

[281] By the Court,' Savage. Ch. J. By the pleading it is admitted that at the time of the taking, the property was in the plaintiff, and the possession in Griswold, the defendant in the execution; and the question is, whether replevin lies'? Since the case of Pangburn v. Patridge, (7 Johns. R. 142,) it has been settled that replevin lies where trespass de bonis asportatis will lie. The plaintiff must have property general or special, and possession either actual or constructive. In Thompson v. Button, (14 Johns. R. 84,) Chief Justice Thompson lays down the broad proposition, that as a general principle, it is undoubtedly true, that goods taken in execution are in the custody of the law, and cannot be taken out of such custody when the officer has found them in and taken them out of the possession of the defendant in the execution. In Clark v. Skinner, (20 Johns. R. 467,) Mr. Justice Platt has shewn very conclusively, that that proposition is correct only as between the defendant in such execution and the officer; and in such a case, it was applied in Gardner v. Campbell, (15 Johns. R. 401.) A variety of cases are stated by Mr. Justice Platt, in which an action of trespass would be a very inadequate remedy. The case of Thompson v. Button, was decided upon the principle of Pangburn v. Patridge, and was a case where the property taken by virtue of the execution was taken from the possession of the plaintiff in the replevin, and not from the possession of the defendant in the execution. The same principle laid down in Pangburn v. Patridge was recognized in the late cases of Marshall v. Davis, (1 Wendell, 199,) and Hall v. Tuttle, (2 Wendell, 475.) {The plaintiff having the property in the goods in question, had the constructive possession ; for the property draws to it the possession/ The plaintiff therefore had the right to take possession afpleasure, and could have sustained trespass ; and replevin and trespass in such cases are concurrent remedies." The plaintiff is entitled to judgment on the demurrer with leave to the defendant to amend on payment of costs.