Parker v. Walrod

By the Court, Sutherland, J. Trespass will not lie under the circumstances of this case. The right ofWalrod to take the wagon is not contested; at least the plaintiff pretends to no right to the wagon, and founds his action exclusively upon the taking of the whiffletrees and devices, which are conceded to have been his ; but having substituted his own for those which belonged to the wagon and were upon it when he took it, without the knowledge of the defendant, the defendant was not a trespasser for talcing them with the wagon. Suppose the case put by the counsel, that Parker had taken out the linch-pins belonging to the wagon, and had substituted others for them; or had changed one of the bottom [299] boards, or end boards, or had put in a new king-bolt, or any other change not so obvious as to attract the attention of the officer, can it be endured that he should be held liable as a trespasser for taking these things thus attached to the wagon by Parker himself or his servant, in their own wrong. They ought to be considered as incident to the principal thing the wagon; and having a right to take that, the officer cannot be a trespasser for taking them. The action of trover affords the party under such circumstances all the remedy which he ought to have. The officer must then have notice of the claim, and upon demand made, can restore what does not belong to him, without being subjected to the costs of a suit. The plaintiff below objected to the introduction and proof by the defendant of the attachments against Godfrey, in general terms. He did not specify the grounds of his objection. He did not object that the preliminary proceedings should be proved, in order to show the jurisdiction of the justice and the regularity of the attachment. The objection undoubtedly was, as the argument here is, that the attachment against Godfrey could afford no protection of justification for seizing the whiffletrees and devices which were admitted to belong to the plaintiff, and were taken from his possession. It is unnecessary to decide, therefore, whether under the circumstances of this case, it would have been necessary to have proved the preliminary proceedings, which were in the nature of a judgment, if the objection had been specifically taken. There are some nice distinctions upon this point. Vide 5 Burr. 2631, and 2 Johns. R. 46 ; Contra, 6 Johns. R. 195, 2 Saund. 47, n. 1, 7 Johns. R. 32, 8 Wendell, 447. The common pleas erred, and their judgment must be reversed.