Stewart v. Wells & Johnson
New York Supreme Court
This was an action of replevin, tried at the Washington circuit in June, 1847, before John Willard, circuit judge. It was proved that one Trumbull was a deputy of the defendant Wells, who was sheriff of the county of Washington, in 1842, and that Trumbull advertised for sale, as deputy of Wells, the property of the plaintiff.
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This was an action of replevin, tried at the Washington circuit in June, 1847, before John Willard, circuit judge. It was proved that one Trumbull was a deputy of the defendant Wells, who was sheriff of the county of Washington, in 1842, and that Trumbull advertised for sale, as deputy of Wells, the property of the plaintiff. The advertisement stated that the personal property in question had been seized and taken by virtue of an execution against George Stewart, issued out of the supreme court, (which personal property was described therein,) and that such property would be sold on the 12th…
1Opinion of the Court
By the Court, Paige, P. J.
The principle is well established that a mere levy upon personal property, by an officer, where it is not authorized by law, is, without either a sale or removal, a trespass. After the seizure under the execution the goods are, in judgment of law, in the possession of the officer; and the person with whom they are left is regarded as his servant. (Wheeler v. McFarland, 10 Wend. 322; S. C. 26 Id. 467, 484. 6 John. 196. 20 Id. 465.) Replevin lies in all cases where trespass de bonis asportatis will lie. (10 Wend. 322, 349. 7 John. 142. 20 Id. 467.) Replevin lies…
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