The action cannot be maintained against the defendant, who held it as sheriff, and by virtue of an order commanding him to takeit into his custody. (9 Con. R. 140; 6 Mass. 421; 8 Mass. 246.)
A demand and refusal of the property should be shown, to maintain the action. (3 Mass. 288; 12 Wheat. 64; 6 Condensed Rep. 439; 5 Wend. 572.)
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Murray, Chief Justice, concurred.
OPINION
HEYDENFELDT, Judge
The appellant's counsel insists, that holding the property by a seizure, made by virtue of his office as sheriff, the defendant was not liable to be sued for it by another claimant; but the authorities cited will be found to apply to cases of technical replevin. The 2d chapter of the Practice Act very clearly contemplates that there may be more than one claimant to property, and as many suits as there are several claimants. (See Laws, 535.)
Nor can I conceive upon what sound principle a party should be denied the right of action for his property, and the right of recovery against any one, whether a sheriff or not, unless it be held by legal process against himself.