ENGLISH v. DALBROW, 1 Miles 160

Per Curiam. This case does not fall within the act of assembly. In replevin the writ should issue against the person Slaving at the time the actual possession of the goods claimed ; and the act of assembly is framed in reference to this known state of the law. It is adapted to the circumstance of an officer of law, having goods in his custody by legal process, being made the defendant in the replevin. Such a writ the 2d

section declares to be “ irregular, erroneous and void,” and directs it to be quashed. That the act applies to such defendants only, is, if possible, rendered more plain by the provisions of the 3d section, which requires the court, besides quashing the writ, to award treble costs to the defendant. This would be absurd as respects a defendant standing as Dal-brow does in relation to the subject of controversy, but eminently just to the officer, whose discharge of duty is sought to be prevented by the replevin. This

section also invests the court with discretionary power to order an attachment against any prothonolary or clerk who grants the writ of replevin, knowing the same to be for goods or chattels taken in execution, &c.

Where the writ issues against a public officer, such as the sheriff, whose name and functions are necessarily well known to the proi honotary, the fact of his being made defendant would be sufficient to put tire prothonolary on inquiry, and if he neglected so obvious a duty, an attachment would be his proper desert; but where the defendant is a private individual, and the writ is directed to the sheriff himself for execution, it would be pragmatical in the prothonolary to inquire about it.

Had the legislature contemplated a case of the latter description as embraced by the act, it would have been unwise to clothe the courts with even this discretionary power. It has been stated by the plaintiff’s counsel that his design was not to interfere with the regular course of proceeding by the sheriff under the fieri facias, but to suffer the replevin to remain in his hands unexecuted, until after the sale of the wagon, and then direct it to be taken from the sheriff’s vendee. There is no doubt replevin will lie against the sheriff’s vendee to recover goods wrongfully taken in execution and sold.

Shearick v. Huber, 6 Binn. 4, is an authority for this. But it is equally certain that to effect this purpose the sheriff’s vendee must be made the defendant, otherwise the sheriff would be a trespasser. Although, therefore, we do not interfere with the writ of replevin, we do not see that it can be of the least benefit to the plaintiff On a sale of the wagon to a third person, the sheriff will deliver it to the purchaser, and if the plaintiff desires to contest his right to retain it, he will be under the necessity of procuring a writ against him. Rule discharged.