By the Court,
Dickinson, J.In instructing the jury to find as in case of nonsuit, there is error; but we do not regard it of such character as authorizes us to reverse the judgment, if the record shows, as it does in this instance, that the final judgment is right.
Blackburn, for the plaintiff in error, presented a petition for re-consideration, which was overruled.That replevin cannot be maintained against an officer, who has the custody and possession of property, under a valid execution, is clear. In such case, the property is already in custody of the law, and cannot be replevied out of it. If the party desired to try the right, the statute prescribes the mode. If the officer was a trespasser, he could be sued, or the party could follow the property into the hands of a purchaser. Replevin was certainly not the proper remedy to obtain possession of the property, or damages for its loss or detention. We can discover no error in the proceedings of the court.
Judgment affirmed.