I concur in the opinion of the court, that the judgment of the court below must he reversed, for the error committed on the trial, by the admission of -the appraisal as evidence, and in the instructions of the court thereon.
But I do not concur in the opinion of the court, that replevin cannot be maintained against the sheriff who holds property by virtue of another writ of replevin, to which the person seeking to replevy from the sheriff, is not made a party. In other words, I hold that the real owner of property, entitled to the possession, may maintain replevin against the officer who has taken the property from such owner’s possession, by virtue of a writ of replevin issued in a cause to which he is not a party. That none but the parties and their privies are affected by the writ, and that the immunity of the officer afforded by his writ does not in such cases extend to the abridgement or preclusion of the rights of persons who are strangers to it.
I had intended to give my views at length, and my reasons for dissenting from my brethren herein, but have been unable to find time and opportunity. The only authorities which counsel have been able to produce in point, to support the doctrine here established, are, Shipman vs. Clark, 4 Denio, 446; and Hallett vs. Birt, Carthew, 380, cited by Chief Justice Bronson in Shipman vs. Clark. Since this case was decided, I have examined the case in Carthew, and I do not •think it reaches to the extent claimed by Chief Justice Bronson.
*101Upon general principles, it is said this doctrine would be sustained, even were there no authority adduced in its support. But while, upon general prinei-pie, an officer is entitled to every reasonable and requisite protection in the execution of legal process, it is equally clear, upon general principle, that no person should be deprived of his property or possessions without due process of law. Due process of law is that process which gives to the party to be affected by it, his day in court. ' But if third parties may institute process between each other, and seize, or cause the officer to seize my property, and take it from my possession, without giving me'a day in court, is not my property taken from me without - due process ? Am I not a stranger to the process by which the officer seizes and claims to hold my property ? I have no day in court. I cannot appear in the action and defend my rights.
It is no answer to say, that my remedy is upon the party who has wrongfully sued out the writ. The sheriff has taken the property from my possession and claims to hold it, and, so far as I am concerned, without any process; and if the plaintiff will give bail, such as the defendant (perhaps á confederate) will accept, he will deliver it over to him, to be disposed of beyond the reach of recaption. I cannot now pursue this subject further, but will merely remark that, while I am willing so to construe the law as to afford all reasonable and necessary protection to officers acting under process, I cannot so far extend that protection as to divest the citizen of his property without process, to which he is either a party or privy.