William Johnson

“ We say nothing of the rights or remedies of the defendant in attachment against the plaintiff: the question here is, whether the sheriff, under such circumstances, is not warranted by his writ in proceeding to act. How can he undertake to decide the question of liability between the parties; or what security has he against the plaintiff, should he act erroneously in not pursuing the exigences of his writ? No question of property is here raised between him and the defendant; for the levy and detention and plea, all affirm the property to be in the defendant in attachment. ”

“ On the plea that the goods, when attached as the property of this plaintiff, were in fact in possession of the sheriff under the attachment against R. M. Livingston, and the levy made thereon two days previous. But what cause of action does this make out for this plaintiff? If they were the property of another, he has nothing to complain of: and if they were his, there was the attachment against himself to justify the taking. A previous attachment, as the right of another, could not divest his interest ”

“ This plea, therefore, makes out no cause of action.
3. On the plea of a discontinuance of record; but this is obviously and radically insufficient, since the date of the discontinuance is expressly subsequent to the institution of the suit. This is admitting that there was no cause of action at the time of its institution. It does not raise the question whether a subsequent unlawful act may not make the sheriff a trespasser ab initio; nor whether replevin may not be brought for unlawful detention as well as unlawful taking; since in either case the cause of action must precede its institution. ”