The first objection taken to the verdict is, that the possession of the property was in Roberts, and not in Green the constable. The cause of Dillinbeck v. Jerome, 7 Cowen, 294, is a conclusive answer to this objection, where it was holden that a receiptor is the mere agent or servant of the officer. But if the fact were conceded, that the possession was in Roberts, the objection is untenable. The first count in the declaration not only alleges that Green was in possession of the property, but that he was one of the defendants in the plaint The language of the act is, that if at *670any time hereafter, on a writ or plaint of replevin, the defendant in replevin, or possessor, shall claim property, &c. 1 R. L. 93, § 6. By the very terms of the statute, Green, as defendant, might interpose his claim of property against the execution of the plaint, until an inquiry was had into the right to the property. This view of the case also answers the objection that the evidence does not sustain the second and third count in the declaration, the second alleging possession in Green and Mitchell, and third in Mitchell; for although no joint possession is shewn in Green and Mitchell, nor separate possession in Mitchell, yet each count avers that they were the defendants in the plaint, and that fact is undeniable. This was enough to give effect to the claim of property by either of them, and to put the officer in fault.
It is said that neither Green nor Mitchell claimed to be owners of the property, but that the claim of both was under the execution. The benefits contemplated by this statute would be essentially abridged and its purpose defeated, if by construction we confine the right to set up this claim of property against the execution of the replevin to the absolute owner. This would leave, subject to the abuses specified in the recital to this section, every qualified interest in personal property. Such interest is entitled to the same protection as an absolute interest. It cannot be doubted, if, upon the inquiry before the sheriff’s jury, the defendants in the replevin had been able to shew that the horses were the property of Bliphalet Simmons, the defendant in the execution, the sheriff could not have made deliverance of them, or dispossessed the officer. The effect, then, of the claim of this qualified interest would have been the same as if made by the absolute owner, which affords a strong argument in favor of its allowance. It is at least clear, that any claim of property which would legally prevent the execution of the replevin, if made, is within the meaning of the statute and should be acknowledged by the sheriff.
The statute does not make the sheriff the judge of the nature or extent of the interest in the property claimed. If ‘‘the defendant in the replevin or possessor claim property in the thing whereof deliverance is sought,” whether they have any property or not in it is immaterial, the sheriff is bound to *671desist from dispossessing such persons, or from malting deliverance to the plaintiff, until the right to do the same is investigated and decided by the jury, under the writ de proprietate probanda.
It would be a virtual repeal of the statute to allow the objection that the claim of property was too late, inasmuch as the sheriff had taken the horses upon the plaint, and delivered them to the plaintiff therein before such claim was made. This very case illustrates the truth of the observation. The property was taken and delivered to the plaintiff before the defendants had any knowledge that such process was in existence. Upon such a construction of the act, it would be in the power of the officer, in nearly every case, to elude the claim of property. The case of Lisher v. Pierson, 2 Wendell, 345, decides, that after a claim of property made, the sheriff cannot dispossess the defendant; and if he does, he is liable to an action of trespass, and this appears to have been the settled construction of the statute. To give effect to this construction, the defendant must have an opportunity to make the claim before dispossession or deliverance take place, and to insure such opportunity, we are bound to say, that if the claim is set up at the time of the summons of the defendant to appear, according to the first section of the act, it is in time. The sheriff should not deliver the property to the plaintiff in the plaint or writ until after the summons is served upon the defendant; and if claim is made, he should desist from dispossessing him. This is carrying out the construction given to the act in Lisher v. Pierson, and is fully warranted by its terms and purposes. Indeed, without this construction the salutary provision of the 6th section would be nugatory.
The defendant’s counsel upon the trial offered to inquire of Green, one of the plaintiffs’ witnesses, how he testified upon the matters in question on a former trial of this cause. The judge refused to allow the inquiry, on the ground that the answer, to it might lay the foundation for a prosecution for perjury. It does not appear from the case whether the witness objected to the inquiry or not; if he did, the judge was right in, his decision, and I am inclined to think the defendant, to avail himself of the objection, ought to have shewn affirmatively *672that the witness did not object to answering the question. Be that as it may, all the material facts testified to by this witness were proved by nine others on the trial, and one of them a witness of the defendant. The facts were fairly submitted to the jury, and they have found in favor of the plaintiff. The only material fact in dispute was as to the demand upon the deputy sheriff for a trial of the right of property, and the testimony of all the witnesses for the defendant, except that of the deputy, is of a negative character, and does not therefore seriously contradict the positive evidence of nine witnesses on the part of the plaintiff, who heard the demand made.
New tral denied.