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on the execution, he could not be a trespasser; and that the plaintiff ought to have brought trover, or assumpsit for the proceeds of the sale of his share. But it was answered and resolved by the whole court, that although the sheriff might seize the whole, yet that le ought to have sold but the share of the judgment-debtor ; the subsequent abuse of his authority made him a trespasser ab initio; and the other part-owner, in such a case, might maintain either trover or trespass, at his election.

The Solicitor-General, and Shaw, for the plaintiff.
W. Sullivan, for the defendant.

GARDNER v. CAMPBELL.
SUPREME COURT OF NEW YORK. 1818.

(Reported 15 Johns. 401.] This was an action of replevin, for taking certain goods and chattels of the plaintiff. The defendant pleaded to the declaration, which was in the ordinary form,

1. Non Cepit.

2. An avowry, setting forth that the defendant, on the 31st of December, 1817, was under-sheriff of the county of Cortlandt, on which day a fi. fa. directed to the sheriff of Cortlandt was issued out of this court against the plaintiff, at the suit of Aaron Benedict, for a debt of $3,132, and $14.43 damages and costs; that the writ was delivered to the defendant to be executed, who thereupon, and before the return day thereof, levied upon the goods in question, continued in possession of them until the twelfth of January, 1818, and sold them on the tenth of January to satisfy the execution.

3. An avowry, stating the execution and levy, and that the defendant continued in possession of the goods until the twelfth of January, 1818.

4. A cognizance, as bailiff of the sheriff of Cortlandt, setting forth the execution, levy, and sale.

The plaintiff pleaded, —

1. To the first avowry, that before the taking of the goods and chattels mentioned in the declaration, and while the fi. fa. was in the defendant's hands, to wit, on the seventh of January, 1818, he settled with the defendant as to the fi. fa., and found that there was due and owing thereon $734.04, including sheriff's fees, which the plaintiff tendered to the defendant, and which the defendant accepted in satisfaction and discharge of the execution.

2. A similar plea to the second avowry.

3. To the first and second avowries, that on the seventh of January, 1818, one Barney, at the request of the plaintiff, tendered and paid to the defendant, the sum of $734.04, being the amount then due

SCER, J., delive court withos, a demurrer; and as to settlement

and owing on the execution, including sheriff's fees, which sum the defendant accepted, and gave a discharge in full satisfaction of the execution.

4 and 5. To the cognizance, the plaintiff pleaded a settlement with, and payment to the defendant, by himself, and by Barney, at his request, as in his first and third pleas.

To the second plea the defendant replied, denying a settlement and payment of the amount due on the execution ; and as to the first, third, fourth, and fifth pleas, there was a demurrer and joinder. The cause was submitted to the court without argument.

SPENCER, J., delivered the opinion of the court. The first objection to the pleas is that they admit the original caption to be lawful, and that wlien that is the case, replevin does not lie.

In the case of Hopkins v. Hopkins, 10 Johns. Rep. 372, this court adopted the well known and ancient principle, that when a person acts under an authority or license given by the law, and abuses it, he shall be deemed a trespasser ab initio ; but the action is grounded on a tortious taking; and the Six CarpentersCase, 8 Co. 146, recognizes a distinction between the actual and positive abuse of a thing taken originally by authority of the law, and a mere nonfeasance, such as a refusal to deliver an article distrained.

The conclusive objection to all the pleas is, that confessedly the defendant took the plaintiff's goods under and by virtue of an execution ; and they are, in the language of this court, in Thompson v. Button, 14 Johns. Rep. 86, in the custody of the law, and it would be repugnant to sound principles to permit them to be taken out of such custody when the officer has found them in the possession of the defendant in the execution, and taken them out of his possession.

The pretence set up here is, that the execution was paid and satisfied. Whether it was or not, makes no difference in the principle. If the fact be true, the plaintiff is not without his redress; be cannot be al. lowed to set up that fact to devest the sheriff's possession ; the goods were lawfully taken by the defendant, and replevin is not the appropriate remedy. If it were allowed, the execution of the writ of fieri facius might, in all cases, be delayed or eluded.

Judgment for the defendant.

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CHAPMAN v. ALLEN.
KING'S BENCH. 1632.

(Reported Cro. Car. 271.) ACTION of trover of five kine. Upon not guilty pleaded, a special verdict was found, that one Belgrave was possessed of those five kine, and put them to pasturage with the defendant, and agreed to pay to him twelve pence for every cow weekly as long as they remained with him at pasture; and that afterwards Belgrave sold them to the plaintiff, and he required them of the defendant, who refused to deliver them to the plaintiff, unless he would pay for the pasturage of them for the time that they had been with him, which amounted to ten pounds : afterwards one Foster paying him the said ten pounds by the appointment of Belgrave, he delivered the five beasts to Foster; and if super totam materiam he be guilty, they find for the plaintiff, and damages twenty-five pounds; and if, &c. then for the defendant.

JONES, Justice, and myself (absentibus cæteris justiciariorum), conceived, that this denial upon demand, and delivery of them to Foster, . was a conversion, and that he may not detain the cattle against him who bought them until the ten pounds be paid, but is inforced to have his action against him who put them to pasturage. And it is not like to the cases of an innkeeper or taylor ; they may retain the horse or garment delivered them until they be satisfied, 1 Com. Dig. 211, but not when one receives horses or kine or other cattle to pasturage, paying for them a weekly sum, unless there be such an agreement betwist them. Whereupon rule was given, that judgment should be entered for the plaintiff.

SKINNER v. UPSHAW.

Nisi Prius. 1702.

[Reported 2 Ld. Raym. 752.] The plaintiff brought an action of trover against the defendant, being a common carrier, for goods delivered to him to carry, &c. Upon not guilty pleaded, the defendant gave in evidence, that he offered to deliver the goods to the plaintiff, if he would pay him his

hire; but that the plaintiff refused, &c., and therefore he retained them. And it was ruled by Holt, Chief Justice, at Guildball (the case being tried before him there) May 12. 1 Ann. Reg. 1702, that a carrier may retain the goods for his bire; and upon direction, the defendant had a verdict given for him.

KRUGER v. WILCOX.

CHANCERY. 1755.

(Reported Ambl. 252.] This cause coming on for further directions, the case was: Mico was general agent in England for Watkins, who was a merchant abroad, and at different times had received considerable consignments of goods, and upon the balance of account was in disburse. Afterwards Watkins consigned to him a parcel of logwood, for which he paid the charges, &c. Watkins coming to England, Mico said, as he was here, he might dispose of the goods himself : Watkins accordingly employs a broker to sell them, and Mico tells the broker, that Watkins intends to sell them himself, to save commission; and Mico gave orders to the warehouseman, to deliver the goods to that broker. The broker sells them, and makes out bills of parcels to Watkins; and opens an account with Watkins, but takes no notice of Mico.

After the goods were sold, Mico begins to suspect Watkins' circumstances, and resorts to the broker, to know whether he has opened an account with Watkins.

The great question in the cause was, Supposing Mico had a lien on these goods and produce, so as to be entitled to retain them for the balance of the account; whether he has not parted with that right?

After argument at the bar, Lord Chancellor adjourned the cause to the 27th, and desired the four merchants, who were examined in the cause on the different sides, might attend in court, in order to be consulted by him upon the point. And accordingly this day they attended, viz., Mr. Alderman Baker and Bethell, Mr. Willetts and Fonereau ; and after having asked them several questions, upon the custom and usage of merchants relating to the matter in doubt, bis Lordship gave his opinion with great clearness, as follows:

LORD HardwICKE, Chancellor. This is a case of bankruptcy, in which this court always inclines to equality : yet if any person has a specific lien, or a special property in goods, which is clear and plain, it shall be reserved to him, notwithstanding the bankruptcy.

Question is, whether in this case, Mico is intitled to a specific lien, and consequently a preference in point of satisfaction out of the money arising by sale of these goods?

Two things are to be considered:

1st. What lien a factor gains on goods consigned to him by a mer. chant abroad? and whether Mico gained such lien in this case ?

2d. If he did, whether he has done anything to part with it?

As to 1st. All the four merchants, both in their examination in the cause, and now in court, agree, that if there is a course of dealings and general account between the merchant and factor, and a balance is due to the factor, he may retain the ship and goods, or produce, for such balance of the general account, as well as for the charges, customs, &c., paid on the account of the particular cargo. They consider it as an interest in the specific things, and make them articles in the general account. Whether this was ever allowed in trover at law, where the goods were turned into money, I cannot say ; nor can I find any such case. I have no doubt, it would be so in this court, if the goods remained in specie; nor do I doubt of its being so, where they are turned into money.

To the 2d question. I am of opinion Mico has parted with his right, and that it is for the benefit of trade to say be has.

All the merchants agree, that although a factor may retain for the balance of an account, yet if the merchant comes over, and the factor delivers the goods up to him, by his parting with the possession he parts with the specific lien. Such is the law of the land as to retainers in other cases.

Question. Whether this case amounts to the delivery up of the logwood to the principal? I think it does. Mico suffers Watkins to employ a broker; and tells the broker, that Watkins intends to sell them himself, to save commission. Mico gives orders to the warehouseman to deliver the goods to the broker. The broker sells them, and makes out bills of parcels to Watkins, and takes no notice of Mico. It amounts to the same thing, as if Mico had delivered the goods in specie to Watkins.

It is safer for trade to hold it in this manner, than otherwise ; for by that manner of acting, Mico gave Watkins a credit with other people (for the sale was public, and by that the goods appeared to be Watkins'), which would not have been the case if Mico had retained for the balance of his account.

It is better to allow that which is the public notorious transaction, than that which is secret. Suppose an action had been brought by Watkins against the broker, for money had and received, the broker could not have defended himself by saying, So much is due to Mico.

The merchants have admitted, that the specific lien as to the customs, charges, &c., does continue ; even the law would have allowed it, if the goods had remained in specie ; the goods being sold, makes the case stronger. But that is not now before me, being determined by his late Honor the MASTER OF THE Rolls, and acquiesced in by the parties."

1 “It was certainly doubtful, before the case of Krutzer and Wilcocks, whether a factor had a lien, and could retain for the balance of his general account.'” Per LORD MANSFIELD, C. J., in Green v. Farmer, 4 Burr. 2214, 2218.

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