Killey v. Scannell

Hager, J.

— By the pleadings it appears this action was brought against the defendant to recover possession, or the valúe of certain personal property, which was seized by him as sheriff, under an attachment, in a suit against a person by the name of Wilson, who, at the time of levying the attachment, was in the possession of the property.

Prior to levying the attachment — which was done on the 19th day of February, 1857 — plaintiff in this action, by a contract in writing, had bargained and sold the property to Wilson, which was to be delivered to him on the 24th of the same month. Wilson, however, had paid a part of the purchase money agreed upon, and was in the actual occupancy and possession of the property at the time of levy.

There is no allegation or proof, on the part of this plaintiff, that he either gave notice of his claim to, or demanded the property in question of, the defendant before the commencement of this action. Wilson being in the possession at the time of the levy, and having, apparently, the control of tho property, was prima facie the owner. It was the official duty of the defendant, as sheriff, to levy on all property found in the possession of Wilson, as ostensible owner, and this property, under the proofs, was prima facie liable to be attached. If it was in fact the property of the plaintiff, or any other person, the real owner might have made his claim to it, and tried the question of title in a summary way, as authorized by our statute, or by an action of this kind.

Defendant having seized the property by virtue of his office and process, while in the possession of the party defendant mentioned in the writ, was entitled to notice and demand from the plaintiff before he can be held liable to an action for the possession or value. Neither is it necessary, as was contended on the argument, that, in order to make this defense, defendant should specially plead want of notice and demand. After defendant proved the possession was in Wilson at the time of the seizure, and justified under the process against him, the onus was on plaintiff to show affirmatively a proper demand and notice to entitle him to recover.

Report set aside, and new trial ordered.