Berry v. Chamberlain

• Citation: Berry v. Chamberlain, 53 N.J.L. 463, 23 A. 115 (N.J. 1891)
• Decision Date: 15 June 1891
• Court: New Jersey Supreme Court
• Parties: BERRY v. CHAMBERLAIN

23 A. 115

53 N.J.L. 463

BERRY

v. CHAMBERLAIN.

Supreme Court of New Jersey.

Nov. 7, 1891.

(Syllabus by the Court.)

Case certified from circuit court, Union county; before Justice Van Syckel.

Action of replevin by Berry against Chamberlain, certified up for instructions as to the law applicable to the facts.

Argued before Beasley, C. J., and Van Syckel, Knapp, and Garrison, JJ.

Frank Bergen, for plaintiff.

Garret Berry, for defendant.

BEASLEY, C. J. From the statement of the case before us it appears that the essential facts to which this court is asked to apply the law are these, viz.: The defendant purchased, at a sale made by a constable acting under an execution issued out of the court for the trial of small causes, the chattels enumerated in this writ of replevin. Previous to that sale, and immediately after the levy by the constable, the plaintiff in this case served upon that officer a written claim to the property seized and now replevied; and had also applied, in due time and form, to a justice for a venire to try his right to the goods. The verdict in that procedure being against him, and the property having been sold by the constable, and having been purchased by the defendant, as already stated, the plaintiff, after his defeat as claimant, has now had recourse to the present action. It is manifest that the sole question to be answered is whether the verdict just referred to, as between the plaintiff, as claimant, and the defendant, as purchaser by force of the execution, is conclusive, or, on the other hand, is open to contestation. It is apparent that the subject belongs entirely to the domain of statutory interpretation. It has no affinity, either in method or effect, to the proceeding at common law, instituted by the sheriff when he found the title to the property levied on by him under execution was in doubt, for the verdict that he took on such occasions was altogether of his own seeking, and had no other operation than to lay ground for an opinion whether he should retain or surrender the chattels in dispute. All the authorities bold that such inquests were traversable, and that they did not in any degree affect the title to the property. Therefore this part of the ancient practice is so entirely aside of the subject to be considered that it is not necessary to further advert to it. The statutory arrangement that was put in force in the present instance is that which proceeds from the fifty-ninth and sixtieth sections of the act constituting courts for the trial of small causes. The provision is to the effect that when the property levied on is claimed by any person other than the defendant, by notice in writing delivered to the constable, the latter shall delay his sale for ten days, so that, within that period, such claimant may apply to a justice for a venire to summon a jury of six lawful men as jurors to try the right of such claimant to said property. The provision further declares that it shall be lawful for such justice to issue "such venire," and direct a return thereof to be to him made, and to proceed therein as in other cases of trial by jury; and it then proceeds in these words, viz.: "The verdict of such jury shall protect the said constable from any action for taking and seizing such property, or delivery thereof to the claimant; and, if the said property shall be found to belong to the said claimant, the said constable shall proceed no further with the same; but, if it shall he found to belong to the defendant, he shall proceed to dispose of the same as is directed in such process; and the costs attending such trial shall be taxed by the said justice as in other cases, and shall be paid by the plaintiff at whose suit the said property was taken and seized, if the said claimant obtain a verdict in his favor, and by said claimant if the verdict is found against him."

Looking into these several provisions of the act, it becomes clearly manifest that the course of proceeding here delineated constitutes, with respect to every essential relating either to form or substance, a trial at law of the subject upon which it operates. There is here appointed an actor and a reus,—the claimant being the former, and the plaintiff in execution the latter; and the claimant being required to file his claim and to notify the plaintiff of the time and place of trial. The title is the issue, for the...