Thompson v. Button

Thompson, Ch. J.,

delivered the opinion of the court. This case comes before the court on a writ of error to the common *86 pleas of Washington county. The action was replevin, for articles alleged to have been taken by Thompson, the defendant below, who pleaded the general issue, and also avowed the taking, under and by virtue of an execution in his hands, as constable, on a judgment recovered by Samuel Morrison, against David Whitney, The judgmeut and execution are duly set forth in the avowry, with an averment that the goods were the property of the said David Whitney, the defendant in the execution. There is also a second avowry without any averment as to the right of property. To the first avowry issue is taken. To the second there is a general demurrer and joinder, judgment for the plaintiff below on the demurrer; and a verdict for the plaintiff upon the general issue; but no verdict appears to have been found particularly upon the issue as to the of property.

The first question is, whether this omission will render the judgment erroneous. The case of Hawks v. Crofton, (2 Burr. 698.) is very much in point to show that this omission is to be deemed matter of form, and does not vitiate the judgment. That was an, action of trespass, assault, and battery, to which the defendant pleaded not guilty, and non assault demesne, on which issue was joined. Upon the trial, the jury found the defendant, generally, guilty, and no verdict, particularly, on the other issue. The case came before the IC. B. on writ of error, and the judgment was affirmed. The court said, that where the intention of the jury is manifest and beyond doubt, the court will set right matters of form, and the mere act of the clerk; and the rule as laid down in Hob. 54. is recognised as correct, that though the verdict may not conclude formally and punctually in the words of the issue, yet, if the point in issue can be concluded from the finding of the jury, the court will work the verdict into form, and make it serve. The same rule is recognised by the supreme court oi Massachusetts, in Hodges v. Raymond, ( 9 Mass. Rep. 316 .) In the case before us, it is very evident that the jury would not have found the defendant guilty upon the general issue, if he had made out his justification, according to the avowry. The intention of the jury cannot, therefore, be mistaken; and the omission to enter a verdict applicable particularly to the second issue, is mere matter of form.

The next question is, whether the plaintiff below could *87 ~sustain an action of replevin, as the property was taken and held by the defendant, under an execution. rrhis execution, as appers by the record, was against David Whitney; and we are warranted, also, from the record, to assume, that the property was taken by the defendant below, out of the possession of Button, the plaintiff below, and not out of the possession of Whitney, the defendant in the execution. As a general principle, it is, undoubtedly, true, that goods taken in execution are 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, and taken them out of the posses~ sion of the defendant, in the execution. The utmost extent to which the case of Pangburn v. Patridge, (7 Johns. Rep. 142.) can be carried is to permit replevin to lie where an action of trespass might be brought. But if an officer, having an execu~tion against A., undertakes to execute it upon goods in the pos~ session of B., he assumes upon himself the responsibility of showing that such goods were the property of A. And if he fails to do this, he is a trespasser by taking them. The case, then, falls within the principle in Pangburn v. Patridge.

The judgment of the court below must, therefore, be affirmed»

Judgment affirmed»