Shearick v. Huber

• Decision Date: 22 May 1813
• Citation: 6 Binn. 2
• Parties: SHEARICK v. HUBER.
• Court: Pennsylvania Supreme Court

6 Binn. 2

SHEARICK v. HUBER.

Supreme Court of Pennsylvania.

May 22, 1813

IN ERROR.

Replevin lies against the Sheriff's vendee, to recover the possession of chattels wrongfully taken in execution and sold.

THIS was an action of replevin brought to September 1806 by Huber the plaintiff below against Shearick, for a quantity of wheat, which had been levied on by virtue of an execution issued at the suit of Peter Sailer against Henry Lutz, and sold by the sheriff to Shearick. Huber claimed under a bill of sale from Lutz prior to the execution; and the wheat had been sold by the sheriff while growing, and was taken by Huber from the ground, after it was reaped.

After the action had been depending a considerable time in the Common Pleas of Dauphin county, and put at issue the defendant in December 1807 moved the court to quash the replevin; but the motion was rejected, and the judgment of the court on that point was the error now assigned.

Laird and C. Smith for the plaintiff in error, argued that the case was within the act of 3d April 1779, by which all writs of replevin granted for any owner of goods levied or taken in execution by any sheriff, are irregular, erroneous and void, and may at any time after the service be quashed upon motion by the court to which they are returnable; 1 Smith's Laws, 470; that the sheriff's vendee stood in the sheriff's place, and was included within the protection of the act; and that as in case of a reversal of a judgment, there was no restitution of goods sold under execution, according to Hoe's case ^[a] , and Manning's case ^[b], so by analogy, if a replevin could not prevent the sale and delivery to the purchaser, no error in the proceeding should justify its being used to unravel the sale. The owner's remedy was trespass against the sheriff.

Elder and Hopkins contra. 1. The motion was out of time, because the party by pleading waived his right to quash. 2 Dall. 142. 1 Browne's Rep. 95. 2. The object of the Act of 1779 was to prevent any hindrance to the sheriff in the execution of the writ; not to prevent the legality of the sale from being subsequently questioned, in any and every mode which the injured party might adopt in the case of a private wrong. Trespass and trover lie every where both against the sheriff and his vendee, if the execution has been levied on goods not belonging to the defendant. 1 Bay. 317. Shaw v. Tunbridge ^[c] Bloxham v. Olden ^[d] , Cooper v. Chitty ^[e] , Cro. Eliz. 824. Cro Jac. 50; and in this state, as well as in some others of the states, replevin lies wherever one is in possession of the goods of another tortiously. Addison's Rep. 301. Pangburn v. Patridge, ^[f].

TILGHMAN C. J.

There is no doubt but replevin is the proper form of action; for although in England this action has been generally confined to cases of goods distrained for rent, yet with us, it has been used in all cases, where chattels in the possession of one person have been claimed by another. The motion to quash was founded on an act of assembly passed 3d April 1779. The preamble recites that writs of replevin had of late been granted for goods " taken in execution, and for fines and penalties legally incurred and due to this commonwealth, to the delay of public justice, and to the great vexation of the officers concerned in taking and levying the same." It is then enacted that all writs of replevin granted or issued for any owner of goods, & c. " levied, seized or taken in execution, or by distress or otherwise, " by any sheriff, constable, collector of taxes, or other officer, acting in their several offices, under the authority of the state, are irregular, erroneous and void, and that all such writs may and shall at any time after service be quashed upon motion, by the Court to which they are returnable, & c.

No judgment can be executed if the defendant or any other person is permitted to...