Barker v. Miller — 6 Johns. 195

Majority

p. 195

Barker and Knapp against Miller.

ALBANY,

August, 1810.

Headnote

in an action of anSOfficer' goods^ndcTan execution, against a third person, for taking; them away; it was held that the possession of the officer by virtue of the execution, was sufficient to enable him to maintain trespass or troverj and that jifqoC (if the seizure by virtue of thf^exerntion was sufficient, without producing the judgment

IN error, on certiorari, from a justice’s court.

The return stated, that Miller sued Barker and Knapp. Barker was personally served with the summons, and

p. 196

Knapp by a copy. Barker appeared, but Knapp did not. ]\faiier declared against both defendants ; for that he be» ing a constable, and possessed of certain articles of furniture, to the amount of 25 dollars, which he had seized oni an execution, against James Caswell, the defendants took and converted them. Barker appeared and pleaded by attorney. Issue was joined before the justice. The plaintiff produced two executions, by virtue of which he had seized the property. This proof .was objected to, unless he also produced the judgment; but the proof was admitted. The plaintiff proved, that he had seized the property, and left it with Caswell; and that the defendants had taken it away, after being forbidden. The justice gave judgment for the plaintiff, for 4 dollars and 19 cents.

The plaintiff below brought trespass against strangers, for taking goods out of his possession; and it was sufficient for him to show, as against them, that he had taken the goods into his possession, by process of execution. The possession so acquired, was enough to maintain trespass or trover against a third person, for taking them away without right or authority. (Wilbraham v. Snow, 2 Saund. 47.) After the seizure under the execution, the goods were, in judgment of law, in possession of the constable, as against a wrongdoer ; and Caswell, with whom he had left the goods for safe-keeping, was no more than his servant. (7 Term Rep. 12. Grose, J.) Proof of the seizure was enough without producing the judgment. The rule that the officer must show a judgment does not apply, when sued in trespass by a stranger.

This being the only point, or error, stated by the plaintiff in error, the judgment below, which appears to be only against the defendant below who appeared, must be affirmed.

Judgment affirmed.