Colton vs. Mott, 15 Wend. 619

By the Court, Bronson, J. The defendant in replevin, or any other person who may he in possession of the goods, may interpose a claim of property ; and the sheriff is required to summon a jury and try the validity of the claim before making deliverance. 2 R. S. 525, § 13—18.

If the officer deliver the goods, to the plaintiff, contrary to the statute, he “ shall forfeit to the person malting such claim, two hundred and fifty dollars, besides being liable for all damages which such person may have sustained by such delivery.” (§ 18.) By the former statute the forfeiture of one hundred pounds was given to any person who should sue for the same, and the sheriff was also answerable to the defendant for the trespass. 1 R.L. 93, § 6. An action founded on the present statute must, I think, be brought in the name of the person or persons malting the claim.

Independent of the express enactment to that effect, (2 R. S. 778, § 11,) there can be little doubt that the word person in this statuté would include all the individuals who might unite in asserting a right of property in the goods. The forfeiture as well as the damages are then given to the person or persons making the claim. The fact of making the claim is a part of their title or right to sue. The action is not given to the defendant in replevin, nor to the person in "possession of the goods, as such, but to the person making the claim.

It is true that no one but the defendant or possessor has a right to arrest the delivery of the goods: but the character of defendant or possessor does not by itself give a right to the action. There must be the additional fact that the defendant or possessor claimed the property. In this case the two defendants in the replevin suit made the claim; and it was a united or joint claim. They said to the sheriff, this is “ our property.” They are the persons to whom the action is given, and I think neither of them can sue alone.

If Colton can sue alone, there is no reason why another action may not be brought by Curtiss ■ and thus the sheriff will be subjected to two prosecutions for one injury. This is not a case for apportioning damages on the trial. 1 Chitty’s Pl. 53. The penalty is entire, and it cannot be recovered, half in one action and half in anothér. If the plaintiff cannot show a title to the whole, he must fail altogether. It was urged on the argument that the plaintiff was in possession of the goods, and therefore he might sue alone. To this there are several answers.

In the first place, possession alone gives no right to sue; and the claim of property, which •is the immediate foundation of the action, was a joint claim by the plaintiff and Curtiss. In the next place, the plaintiff did not attempt to make out a right» of action, by proving that he was in possession and claimed property in the goods —but on the ground that he was the defendant in replevin, and made the claim; and then the objection is that there were two defendants, and both claimed the property.

But if exclusive possession alone would entitle the plaintiff to the action, he would still fail; for the fact of exclusive possession, or indeed of any possession in him, was not- proved. The only evidence on this point is that given by Curtiss, who test0 xvhat he had told the deputy sheriff. • He said he had/ distrained the goods for rent, as bailiff for Colton. A distress for rent can now only be made by the sheriff or some other public officer, who'is to conduct the whole proceeding. 2 R. S. 501, <§> 3.

Whatever may have been the rule at .a former period, when the landlord might distrain himself, or appoint any private individual his bailiff for that purpose, goods dis-trained for rent are now in the custody of the laws; and the officer, not the landlord, has the legal possession. If any one could sue in this case on the ground of possession only, it would be Curtiss, and not the plaintiff. 7 Cowen, 294. It was said that the non-joinder of Curtiss should have been pleaded in abatement.

It is no doubt true, as a general rule, that in actions in form ex delicto, the omission of one of several persons who ought to join as plaintiffs can only be taken advantage of by plea in abatement, or by way of apportionment of damages on the trial. 1 Chitty’s Pl. 53. 1 Johns. R. 472. 6 id. 108. 8 id. 151. But there is, I.think, an obvious distinction between the common law actions of trespass and trover, for injuries to the property of tenants in common, and this penal action founded on á statute. The question here goes to the plaintiff’s title.

He has no right other than such as has been conferred upon him by the statute, and that right must be established on trial. He must prove that he was in a condition to claim property in the goods, and that the claim was actually made ; until this appears, no right of action is established. In this case" the plaintiff did not show an individual, but a joint claim. He established a joint, and not a several right.

In some actions, tenants in common cannot join; in others, where they may and ought to unite, if the defendant omits to plead in abatement, he may still claim an apportionment of damages on the trial, so that the party suing will recover no more than his just share or proportion ; but here the plaintiff must recover the whole penalty, or nothing. The penalty is entire, and'the plaintiff cannot recover half of it, and leave the other half for the person who united with him in the claim. In short, the plaintiff made out no title. The right of action was in him and another—not in him alone.

If the words of the statute had been in the plural number, giving the action in terms to the persons making the claim, it would hardly be contended that the plaintiff could sue alone; and yet such, beyond all doubt, is the legal effect of the provision. Where the claim is made by two, the action is given to both; and neither of them by himself answers the description, or can make out a title.” New trial denied.