Baltimore, Chesapeake & Atlantic Ry. Co. v. H. Klaff & Co.

Schmucker, J., delivered the opinion of the Court, This appeal presents the single question whether the owner of personal property can maintain a replevin for it after it has been levied on by the Sheriff under an attachment, against a third person, which is still pending. The question arises under the following circumstances. The appellee, as plaintiff below, instituted the present replevin suit, in the Baltimore City Court, to recover possession of certain chattels which were on board the appellant’s steamer, Pocomoke, at her wharf in Baltimore City. The chattels were taken from the boat by the Sheriff under the replevin and delivered to the plaintiff.

The appellant appeared to the action and pleaded non cepit, property in a third person, and that the goods when replevied were in possession of the Sheriff of Dorchester County who had seized them under a pending attachment. ³⁵⁸ The case was tried before the Court without a jury. There was evidence at the trial tending to show the following facts. The goods in controversy were shipped on March 17th, 1905, per the steamer Pocomoke by one Orinoff from Cambridge to Baltimore consigned to the appellee. As the boat was leaving her wharf at Cambridge the Sheriff of Dorchester County came on board and levied on the goods under an attachment by way of execution on a judgment rendered by a Justice of the Peace of that county against Orinoff.

The goods were attached as per schedule and the writ was also laid in the hands of the captain of the boat as garnishee. The Sheriff allowed the goods to remain on board the boat and went along with them to Baltimore City. On the arrival of the boat at Baltimore the goods-were taken by the Sheriff of that city under the writ of replevin in the present case. There was also evidence tending to prove the value of the goods and that they had never been the property of Orinoff but were owned by the appellee.

At the close of the evidence the appellee, as plaintiff, and the appellant, as defendant, each offered one prayer. The plaintiff’s prayer asked the Court to declare, as matter of law, that if it found frbm the evidence that, at the time of the issuing of the writ of replevin in this case, the plaintiff was entitled to the possession and the right of possession of the goods seized under the writ, he was entitled to a verdict for the goods replevied together with such damages as the Court should find that he had sustained by reason of their detention. The Court granted that prayer. The defendant’s prayer, which was rejected, asserted the proposition that as the evidence showed that the goods replevied had prior to the replevy been attached and scheduled by the Sheriff of Dorchester County while the defendant’s boat was lying at Cambridge and the attachment had been laid in the hands of the captain of the boat and he had been returned as garnishee and the schedule of the goods had been returned in the case in which the attachment had been issued, the verdict must be for the defendant.- ³⁵⁹ The ruling of the Court on these two prayers presents the question whether the goods in question, being in custodia legis by virtue of their attachment, were liable to be replevied under the writ issued in this case.

The appellee does not deny the accuracy of the general proposition of law that property in custodia legis cannot be replevied but he contends that cases like the present, where the property of the plaintiff has been attached under a writ running against a third party, constitute a recognized exception to the proposition. In support of his contention he relies upon Clark v. Skinner, 20 Johns (N. Y.) 465, and a number of more recent cases in the Courts of last resort of many States, and also upon the statement made on page 500 of vol. 24, Am. & Eng. Ency. of Law, 2 ed., that “by the great weight of authority however, which in some j urisdictions is recognized by statute, it is held that where in process running against the property of one person the property of another is taken the latter may maintain replevin therefor even though the property was in possession of the attachment or execution debtor or a third person at the time of its seizure.” We have examined many of the cases appearing on the appellee’s brief and of those cited in the Encyclopaedia in support of the statement there made. Those cases undoubtedly show that in many if not the majority of the American States the exception contended for by the appellee is now recognized and upheld, but our predecessors in this Court have been clear and emphatic in maintaining the opposite