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J. W. Saunders v. C. R. Jordan
Campbell, J.,
delivered the opinion of the court.
It is much to be regretted that it has repeatedly been decided by this court that replevin may be brought against a sheriff who has seized goods and chattels under execution or attachment. It is unfortunate that third persons claiming property seized under process have not been confined to the interposition of a claim as provided by the statute for the trial
[430] of the right of property. Replevin against a sheriff for goods and chattels levied under execution is, in effect, a mere trial of the right of property; and, since it is conceded that a claim may be interposed and a trial of the right of property be had, notwithstanding an indemnifying bond was given to the sheriff, it is not perceived why replevin may not be brought in such case, which has the effect merely to test the right of the plaintiff to the property as against the process in the hands of the sheriff; and so it has been held. Swain v. Alcorn, 50 Miss. 320. It follows that the special plea is not a bar to the action, and that the demurrer to it was improperly overruled.
It is claimed that the demurrer should be extended to the declaration, because replevin will not lie for a chose in action. It is undoubtedly true that it may be found impracticable, generally, to execute the writ of replevin by taking a chose in action, because of non-access to it; but as the terms “goods and chattels ” used in our statute, § 1528 of the Code, are broad enough to embrace choses in action, there seems to be no reason why replevin may not lie as well for a chose in action as for any other “ goods and chattels.” In this case all difficulty is removed by. the identification of the warrant, and its delivery to the officer executing the writ of replevin.
A right to the possession of the thing sued for is sufficient to maintain replevin ; and, although it is not averred that the warrant which is payable to the order of Shattuck was indorsed by him, it may be that the plaintiffs are entitled to the possession of it. Judgment accordingly.