ZANE'S EXORS. verʃus COWPERTHWAITE, Sheriff.
T
HIScaufe had been argued in the laft Term by Lewis and Ingerʃoll for the Plaintiff, and Rowle and Bowie for the Defendant ; and now the CHIEF JUFTICE ftated the queftion, and delivered the opinion of the Court, in the following manner:
M‘KEAN, Chieƒ Juʃtice.– In this cafe the Executors of Zane had iffued a Fieri ƒacias againft Joʃeph Wharton, to which the prefent Sheriff made return, that he had levied to the value of the Plaintiff's demand, on fpecial goods, enumerated in a certain fchedule. In confequence of this return, a Diʃtringas, directed to the Coroner
was iffued againft the Sheriff, to compel a fale of the goods ; and the queftion that now awaits the determination of the Court, is, whether a Diʃtringas, under thefe circumftances, will lie?
The cafe has been well argued ; but we are furprized that fo few authorities are to be found upon the fubject. In fearcing the books of Precedents, indeed, we have remarked, that the Diʃtringas uniformly runs againft A.B. nuper vice-comes; though with this diftinction, that, in fome inftances, it commands him to be diftrained ‘till the late Sheriƒƒ has paid it over to the preʃent Sheriƒƒ. In 6 Mod. 295. Lord C. J. Holt fays, that after the Sheriff has made his return, “ levied on fpecific goods, ” the regular mode of proceeding is to iffue a Venditioni Exponas ; that where he has returned “levied to the value,” he is bound to fell without further procefs; and that it ufual to iffue a Vend. Exp. when the Sheriff continues in office but a Diʃtringas when he has left it. In the clofe of the fame cafe, however, it is likewife the Sherriff, who made the return, is in office. This we mention for the fake of the practice; for, it is certain, that by the Fi. ƒa. the Sheriff has authority to fell the goods upon which he has levied ; the Venditioni only giving, by act of Affembly, an additional authority in the cafe of Lands.
But we have enquired into the practice of the Courts upon this occafion; and , we find, that it has been the practice of the Common Pleas, and in feveral inftances, of the Supreme Court, to iffue a Diʃtringas to the Coroner, where the Sheriff has made a return of goods levied to the value: We are, therefore, of opinion that, in fuch a cafe, a Diʃtringas will lie.
A ʃecond point, however, was made in this caufe. It appears that a Replevin for the goods in queftion, had iffued to the Coroner, and, that by virtue of the writ, he had taken them out of the pofeffion of the Sheriff ; fo that the Sheriff was unable either to produce them, or to proceed to a fale.
The Replevin was highly irregular; an action of Treʃpaʃs being the proper remedy for a wrongful levy; for, by an act of Affembly, it is exprefsly declared, the goods taken in execution fhall not be replevied. 2 State Laws 194.
We think, therefore, that as the Replevin would have been fet afide upon motion in the Common Pleas ; and as the goods were taken from the Sheriff under colour of law, it would be hard to iffue a Diʃtringas againft him, without a previous application to the Court, and its being thereupon awarded. For this reafon alone.