, 1892-03-08
SHERIFF'S SEIZURE.
AN INTERESTING CASE FROM
KING COUNTY,

McGraw, appellant.
No. 322-The respondents who were do
ing business IN the city of New York. sold
certain iewelry and other merchandise to
one George G. White. who was CARRYING or
the business of a iaweljar II, Seattle IN efbie
state, The goods were delivered On Octo
ber 31st and November 4th and 9Th. 1890
and by the contract of sale, White was
given q credit of fonr months with the
privilege Of having the Indebtedness IN
January 1, 1891, at discount of six pei
cent, Soon after the delivery of the mer-
chandise to him, White confessed iudg.
ment in a large amount in favor of other
creditors to whom he had been for some
time indebted Executions were issued
upon the iudgments. and nlaced in the
hands of appellant who was sheriff of
King county, and were by him levied upon
the entire stock of goods then iu possession
Of White, including those purchased from
respondents, Having heard Of the seizure
of the goods, the respondents demanded
the possession of them from appellant,
which demand not being complied with
thew instituted this action, under the stat
ute to recover the possession of the pron-
erty. They sought to disaffirm the sale on
the ground Of fraud, and claimed that it
was induced by false and frauduIent ren-
yency, which were relied on by them. and
that, at the time of the purchase he was
hopeIessly insolvent, and unable to paw his
debts, knew himself to be So but concealed
the fact from respondents, and that he pur-
chased the goods without any intention of
ever paying for them and for the purpose
OF cheating respondents out of their value.
1t is conceded that the vendor of goods
sold upon credit may, as between himself
and the yendee, rescind the sale for fraud
on the part of the latter, and recover the
goods by replevin from the fraudl mt Yendee
but it is contended by appellant Unat this
action will not lie against a sheriff for
goods in his custody under valid writ.
Numerous authorities are cited to sustain
the proposition, and there is no doubt that
such was the rule at common law. The
officer was regarded as the mere minister
of the court, and chattels in his possession,
as in the custody of the court, and thew
could only be taken upon its order, or by
its permission. And any interference with
them without such permission was looked
upon as an infrin cement of the preroga-
tive of the court and was regarded as a
contempt. Wells on Replevin Sec. 243
But the rule is not applicable generally to
all cases where an officer undertakes to
execute process 1t only applies when the
seizure is rightful, and upon a valid and
sufficient writ. And, Notwithstanding
many cases to the contrary, we think the
doctrine is now well established, that if an
officer, through mistake or design,
seizes property upon writ Of
execution or attachment, not belonging to
the defendant in the writ, or not subject to
seizure though belonging to the defendant,
he becomes a trespasser, and the goods
may be taken from his possession by re-
plevin, or the owner may sue him in
trespass or trOver at his election, Wells
on repleYin, section 245 and cases cited.
Cobbey on replevin, section 300. Dawson
ct al vs.. Baum, Washington Territory,
465.
Under such circum stances the property
so taken cannot strictly be said to be in the
custody of the law, for by the law, the
officer is commanded to take and hold the
property of the defendant only, And un-
der such mandate, seizure of the goods
of stranger to the writ is plain violation
of legal duty and the process, though
regular and valid upon its face, can afford
the officer no justification.
In this state we have no common law ac-
tion of replevin. That action has been abb
rogated and the statutary action common
Iy called "claim and delivery'' under the
codes of the various states has been substi-
tuted in its stead. And whatever may be
the common law, doctrine it would seem
that, under our statute, an action to recoy-
er the possession of personal property can
be maintained by the owner Of goods taken
by sheriff under writ of execution or at
tachment in an action to which he was not
party defendant. 1t is provided in sec
ton 143, code of 1881, (section 256, HilI's
code) that when delivery is claimed, an
affidavit shall be made by the plaintiff or
some one in his behalf, showing, among
other things, "that the same has not been
taken for tax, assessment, or fine pursu-
ant to a statute, or seized under an execu-
ton, or attachment against the property of
the plaintiff; or, if so seized that it is by
law exempt from such seizure"
This language plainly implies that in all
cases where the property has not been
seized under an execution or attachment
against the property Of the plaintiff him
self, he may recover its possession from an
officer who may have seized it. Any other
construction would render that portion of
the affidavit meaningless.
But the learned counsel for appellant in
sists that special remedy is provided for
the recovery of property levied upon or
attached, and that remedy is therefore ex-
elusive. See Code 1881, p 93. And in sup
port of that contention our attention is
called to the case of Bernheimer VS. Martin,
66 Miss. 486. 1t appears, however, that this
decision is founded upon a statute of
Mississippi of 1880, which, while prescrib-
ing summary method of trying the rights
of property analogous to that provided by
our statute, expressly provides that replevin
shall not lie in such cases. Code Miss
Sec. 1858. The decision is no doubt in ac-
cordance with the law of that state but it
can have no authoritative force in this
state where the legislature has not seen fit
to make the particular remedy there refer
red to- exclusive. We prefer to adopt the
view expressed by the court in Dawson VS.
Baum, supra, that the plaintiff may have
a choice of either of the remedies provided
by statute, but that Judgment in one ac-
tion would be bar to relief in the other.
INT