Luther H. Tyson, Administrator of the Estate of Luther Tyson, dec'd, Appellant, vs. Uriah Bowden, Appellee, 8 Fla. 61

PEARSON, J., delivered the opinion of the Court. This was an action of replevin brought by Luther II. Tison, administrator of Luther Tison, deceased, for the recovery of eleven slaves named in the writ. At the first term of the Court after the commencement of the action, the defendant by his counsel moved that the same be dismissed. At the hearing of said motion, a writ of retorno habmdo issued from the Circuit Court of Leon county in favor of Daniel Lingo, under a judgment of said Court against Luther IL Tison in his individual capacity, was read in support of the same.

It was admitted that the slaves for whose recovery this suit was commenced in Du-val county, are the same eleven slaves which were seized by Driah Bowden, sheriff, by virtue of the aforesaid writ, issued to him as one of the sheriffs of the State of Florida from the Circuit Court of Leon county. On argument of the motion, the Court below dismissed the suit, on the ground that the action of replevin will not lie in such a case. Thereupon an appeal was taken to this Court. For the appellant, it has been contended that Luther H.

Tison, administrator of Luther Tison, deceased, is a distinct and different person in law from Luther H. Tison named in the writ of return, and that, under the replevin act of Florida, the action of replevin will lie in all cases which do not come within the exceptions named in the act itself, and that the facts do not bring this case within the exceptions.

On the other hand, it is maintained that every case oí replevin is embraced in the alternative, first, when goods or chattels shall have been wrongfully taken; “ second, when goods or chattels shall be wrongfully detained,” and that the slaves in question being taken under a legal precept designating them by name, sex and age, and, when detained, being in the custody of the law, this case comes under neither of these alternatives.

" Whenever any goods or chattels shall have been wrongfully taken, or shall be wrongfully detained, an action of replevin may be brought for the recovery thereof and for the recovery of the damages sustained by reason of such, wrongful caption or detention in the Circuit Court or other Court having jurisdiction in the county in which such property may be found.” The difficulty which presents itself at the threshhold, as regards the claim of the appellant to bring this action is, that we are not able to perceive how it can be that the slaves were either wrongfully taken “ or wrongfully detained ” by the sheriff.

The evidence is that they were taken by the sheriff in his official capacity, in fulfillment of tke exigencies of the writ, commanding him. in the name of tbe State to take these specific slaves and cause them to be returned to Daniel T. Lingo. The admission that the slaves sued for in this action are the slaves mentioned in Lingo’s writ of retorno habendo^ is an admission that they were not “ wrongfully taken ” by the appellee. Nor can we decide that they were wrongfully detained by him when replevied out of the sheriff’s hands.

They were in transitu for delivery to Lingo, to whom they had been adjudged by the Circuit Court of Leon county. In the hands of an officer of the Court, by a rightful taking, they were in the custody of the law — a sufficient answer to the allegation that they were wrongfully detained. But it is contended that the facts of this case do not bring it within either of the exceptions mentioned in the 2d and 3d articles of the 1st

section of the act, and that the “ mention of these exceptions is an exclusion of all others.” We apprehend, however, that it does come within the inhibition laid down in the comprehensive clause with which

article third concludes. That clause is as follows : “Nor shall a replevin lie for such goods or chatties at the suit of any other person, unless he shall have the right to reduce into his possession the goods taken.” If, as it appears to the Court, these slaves, when seized by the sheriff, passed into the custody of the law, then neither the defendant in the execution nor any other person, had a right to reduce them into his possession ; and, wanting this “ right,” the plaintiff cannot claim the benefit of either of the exceptions set up in his behalf.

Besides, as it has been argued by the opposite counsel, articles 2 and 3 were rather designed to limit and restrain than to extend the privileges given by

article 1st. If, then, the latter does not sanction this suit, much less can either of the former. Our attention has been called to several cases reported, where the action of replevin has been sustained against the sheriff to recover property levied upon by that officer in virtue of executions placed in his hands. We apprehend that, on examination, all such cases will be found to be cases where the property levied upon was not subject to the execution, and in this respect distinguishable from the cause now before the Court.

Here the slaves seized by the sheriff were subject to the officer’s writ, and none others, and were rightfully taken by him. Were authorities necessary to show that goods, when law and become irrepleviable, several might be cited from “ rightfully” taken by the sheriff, go into the custody of the the adjudications of the New York Courts upon their statute, of which ours is in the main a copy. In the case of Thompson vs.

Button, (14 Johns., 84,) the Chief Justice, in declaring the opinion, said : “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 an officer has found them in and taken them out of the possession of the defendant in the execution.” True, the same court in Clark vs.

Skinner, (20 Johns. 468,) denies or limits the assertion of Comyns’ Digest, that “ replevin does not lie for goods taken in execution yet, to what extent? “ ‘By goods taken in execution,’ I understand, (says the Judge,) goods rightfully taken, in obediance to the writ, but if through design or mistake the officer takes goods which are not the property of the defendant in the execution, he is a trespasser, and such goods never were ‘ taken in execution’ in the true sense of the rule laid down by Baron Comyns.” The rule thus limited is quite broad enough to cover the present cause.

A still stronger case is that of Gardner vs. Campbell, (15 Johns. 401,) in which it washeld that “ replevin will not lie against an officer who, having levied upon and taken goods in execution, receives from the defendant the amount due on the execution, and then refuses to re-deliver the goods.” In delivering the opinion of the court, Spencer, J., said: “The conclusive objection to all the pleas is that, confessedly, the defendant (the sheriff,) took the plaintiff’s goods under and by virtue of the process of the Court, and they are, in the language of this court in Thompson vs.

Button, in the custody of the law, and it would be repugnant to sound principles to allow them to be taken out of such custody, when the officer has seized them in obedience to the exigency of the writ in his hands. The pretence set up 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. He cannot be allowed to set up that fact to divest the sheriff’s possession.

The goods were lawfully taken by the defendant, and replevin is not the appropriate remedy.” The consequences likely to spring from a different ruling, are well worthy of consideration.

Among these may be mentioned (as has been suggested,) a conflict between the jurisdiction of the circuit courts of Middle and East Florida ; the exposure of the sheriff and his securities to a judgment of damages and costs for acts performed in the plain discharge of his duty; the exposure of Lingo to a loss of property by the results of litigation to which he is-not a party; and finally, a harrassment of the original securities of Luther H. Tison by a suit on his replevin bond,, from which it is by no means certain that they could escape or be' discharged by any judgment rendered in this-cause.

The cases we have referred to are of execution for debt,. &c. Had they been of positive command to the sheriff for the delivery of property by plaintiff to defendant, aftertrial and solemn adjudication, we can easily imagine that the language of those enlightened courts would have been far more peremptory and decided, as they unquestionably should be on every principle of right reason.

To allow a defendant in such an execution, not only to defeat it, but reverse its action and have property ordered to be delivered by him to plaintiff restored and returned, and that through process used to commence a suit,would be unheard of. It would be changing the practice of the court in a very material respect, by giving superior efficacy and force to the institution and commencement of a suit over its end and termination. The case of Morris vs. DeWitt resembles this in some degree, decided by the Court of Appeals of New York.

There a quantity of iron ore was delivered to one of the parties on a writ of replevin, the other party sued out other writs by which it was re-delivered, and a motion was made to quash the last writs. The court say, “ the law has provided guards against abuses in practice under the writ of replevin. By the revised statutes, not only a bond with sufficient security must be given, but the plaintiff' must make affidavit of his title to the property replevied.

The defendant may have the question of property tried before the officer making replevin, and even after verdict against him, the plaintiff may still claim deliverance of the property by giving further security. Now all this is a very useless proceeding if the defendant in replevin can turn round and bring his action of replevin, and thus regain possession of the property which has been legally taken from him. If such a proceeding were permitted, there would be no end to suits, and the benefit of this action could never be realized.

The writs, however, cannot bo set aside as irregularly issued, for they are not returned, but they may be superseded and a rule for that purpose is granted.” — 5 Wend. 712. The writ here will be set aside. Such indeed we regard as the practical effect of the dismissal of the case, so that the process from Leon Circuit Court will proceed undisturbed. Let the judgment of the court below be affirmed with costs.