The decision was rendered upon the hypothesis that the property was in custodia legis, and followed what was erroneously supposed to be the rule laid down in Parks v. Wilcox, 6 Col. 489.

Since this decision by the district court, however, the precise question involved has been adjudicated by this tribunal. The rule has been established, that replevin will lie in any state court of competent jurisdiction, in favor of one who is the owner of goods which had been seized by the sheriff, or any other officer, upon a writ against a third person, where the suit in which the writ issued has been brought in any other of the courts of the state. The decision proceeds upon the principle that the taking by the officer is without authority, and wrongful, and that the process will afford him no justification if the proof establishes that he had taken property which did not belong to the person against whom the process runs: Wilde v. Rawles, 13 Col. 583.

Under this authority, it is evident that the decision of the court, holding that it was without jurisdiction, was erroneous, and that the case must be reversed for further proceedings.

REED, C., and RICHMOND, C., Concur.

Per CURIAM. For the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded.

Replevin against Officer.*

OFFICER, REPLEvin against, by Stranger to WRIT. — This topic has received considerable attention and discussion in the note to Kellogg v. Churchill, 9 Am. Dec. 105-107, where all of the early and many of the late cases are collected and cited. The general rule is there deduced, that a stranger to a writ of execution may in all cases maintain replevin against the officer to recover his goods levied upon as the goods of the execution debtor, no matter from whose possession the goods were taken. Some of the earlier cases, however, noted a distinction maintaining that if the goods levied upon were taken from the possession of the execution defendant, they were not subject to replevin by a stranger to the writ claiming them as his own. This distinction, it seems, was never applied in cases of attached property, and it has ceased to exist, either by virtue of statute or adjudication, in any case, whether of attachment, execution, or mesne or final proecss, except in

878.

REFERENCE TO MONOGRAPHIC NOTES

Officers, justification of, by process: 21 Am. Dec. 190-209.

Officers, liability of, for acting under an unconstitutional statute: 64 Am. Dec. 51–55. Officers, liability of, for loss of moneys while in their custody: 67 Am. Dec. 365

Officers, liability of, for misconduct in execution of process: 46 Am. Dec. 513–517. Officers, liability of sureties on successive bonds of: 10 Am. St. Rep. 843-860. Officers, liability of, to action by private individuals for non-performance of public duty: 90 Am. Dec. 726-732; 83 Am. Dec. 563-566.

Officers, military, liability of, to civil action: 42 Am. Dec. 54-58,

one or two of the states of the Union. Thus the rule is still maintained in New Hampshire, that replevin does not lie against an officer by a stranger to the writ to recover goods claimed by him as his own, but taken on a valid execution as the property of the judgment debtor; and this, whether the goods were taken from the possession of the judgment debtor, or otherwise: Kittredge v. Holt, 55 N. H. 621.

The general rule may now be stated to be, that if an officer, either by mis. take or design, levies on goods not the property of the defendant named in his writ of execution or attachment, or if the property, for any reason, is not liable to be taken on the writ, replevin will lie against him, at the instance of the injured party, no matter from whose possession the goods were so taken. This rule is sustained by an unbroken line of authority in nearly every state of the Union, with the notable exception already mentioned.

The rule in cases involving the levy of an execution may be thus broadly stated: Replevin for personal property may be maintained by the owner against an officer taking the same under an execution against a third person: Jones v. Ward, 77 N. C. 337; Churchill v. Lee, 77 N. C. 341; Raiford v. Hyde, 36 Ga. 93; Brown v. Bissett, 21 N. J. L. 267; Tison v. Bowden, 8 Fla. 70; 71 Am. Dec. 101; Stone v. Bird, 16 Kan. 488; Hilton v. Osgood, 49 Conn. 110; Gimble v. Ackley, 12 Iowa, 27; Shea v. Watkins, 12 Iowa, 605; Smith v. Montgomery, 5 Iowa, 370; Tuttle v. Robinson, 78 Ill. 332; Yorborough v. Harper, 25 Miss. 112; Saunders v. Jordan, 54 Miss. 428; Swain v. Alcorn, 50 Miss. 320; State v. Booker, 61 Miss. 16; Hadley v. Hadley, 82 Ind. 75; Louthain v. Fitzer, 78 Ind. 449; Whitney v. Swensen, 43 Minn. 337; Bouldin v. Alexander, 7 T. B. Mon. 424; Schars v. Barnd, 27 Neb. 94; Williams v. Eikenberry, 25 Neb. 721; 13 Am. St. Rep. 517; Otis v. Williams, 70 N. Y. 208; Bullis v. Montgomery, 50 N. Y. 352; Wyatt v. Freeman, 4 Col. 14. Replevin may be maintained for goods seized by a sheriff on an execution against their former owner, on proof that plaintiff had possession of them, coupled with an interest, and notwithstanding the legal title and right of possession may have been in a third person: Johnson v. Carnley, 10 N. Y. 570; 61 Am. Dec. 762. So replevin lies against an officer by a person not having the actual possession of the goods when taken, provided he has at the time the general property and a right of immediate possession, and is a stranger to the execution: Chinn v. Russell, 2 Blackf. 172. If a sheriff levies an execution upon the goods of another than the execution defendant, the goods being present and in the control of the latter, where they are allowed to remain after the levy upon his delivery bond without surety, the owner may maintain replevin for them against the sheriff: Hadley v. Hadley, 82 Ind. 95.

In cases where the property attached is owned by a stranger to the writ, the same rule prevails as in like cases of levy under execution, and may be stated to be, that property which has been attached can be taken out of the hands of the attaching officer by a writ of replevin sued out by a third person, a stranger to the writ, who claims to be entitled to the property and the pos session thereof: Hopkins v. Drake, 44 Miss. 619; Wheeler v. Dixon, 51 Miss. 550; Brown v. Chickopee Falls Co., 16 Conn. 87; Angell v. Keith, 24 Vt. 371; Willis v. Reinhardt, 52 Ark. 128; Foss v. Stewart, 14 Me. 312; Heidenheimer v. Sides, 67 Tex. 32; Anchor Milling Co. v. Walsh, 20 Mo. App. 107; Wan gler v. Franklin, 70 Mo. 659; Samuel v. Agnew, 80 Ill. 553; Caldwell v. Arnold, 8 Minn. 265. The rule is thus well stated in Gross v. Bogard, 18 Kan. 288: Replevin can be maintained against an officer for the recovery of personal property which he holds by virtue of a previously existing order of delivery, provided the plaintiff in replevin was not a party to the first action or first AM. ST. REP., VOL. XXV.-17

order of delivery. The same rule prevails as to property held under an order of delivery as to that held under an execution, attachment, or any other mesne or final process; and the person against whom the writ runs is the only one who may not assert his rights to the property in an action of replevin against the officer. So replevin is the proper remedy when property has been seized by an officer, and is being held under a writ, and is about to be sold, when an injunction will not lie to restrain the officer by one who claims to be the owner of the property levied upon: Richards v. Kirkpatrick, 53 Cal. 433. The cases all agree that the owner of personal property seized under an attachment or execution against the property of another may maintain replevin against the officer having it in possession, without making demand on him previously to the institution of the action, if the property was taken from his possession: Stone v. Bird, 16 Kan. 488; Shea v. Watkins, 12 Iowa, 605; Ledley v. Hays, 1 Cal. 160; Harpending v. Meyer, 55 Cal. 560; Dickson v. Randal, 19 Kan. 212. Thus a married woman who purchases personal property from her husband or any other person in good faith, and for a good and sufficient consideration, is the owner of the property, and may maintain in her own name an action of replevin therefor against an officer who levies on the same under an execution to satisfy her husband's debt without first making demand of the officer therefor: Dickson v. Randal, 19 Kan. 212. So where property is in the possession of an agent of the owner, and is levied on by an officer under an execution against a third party, and is then turned over by the officer to such agent, to hold as his custodian, the owner need not make demand before bringing replevin against such officer and custodian: Tuttle v. Robinson, 78 Ill. 332. Where the property is found by the officer in the actual custody of the party named in the execution, the levy thereon gives the officer a lawful possession, and a demand is then a necessary prerequisite to a suit in replevin against the officer; but when the property is found in the custody of a stranger to the writ, the officer's possession under his levy is wrongful, and no demand is then necessary: Stone v. O'Brien, 7 Col. 458; Tuttle v. Robinson, 78 Ill. 332. An officer who in good faith levies on the property of a stranger to the writ, honestly believing it to belong to the defendant named therein, is not liable in exemplary damages to the owner of the property wrongfully seized: Heidenheimer v. Sides, 67 Tex. 32. The measure of damages against the officer in the action of replevin brought against him by the owner of the goods in such case is the actual damages caused by their seizure and detention, under the circumstances of the case: Schars v. Barnd, 27 Neb. 94; Anchor Milling Co. v. Walsh, 20 Mo. App. 107.

It seems that when personal property is jointly owned by several different persons, replevin will not lie by one to recover goods levied upon as belonging to another of the owners. Thus replevin cannot be maintained by one copartner for partnership goods, in the hands of an officer under an attach. ment against another copartner's interest therein: Hacker v. Johnson, 66 Me. 21; and it has been decided that replevin will not lie against an officer for specific personal property in his custody under a lawful writ commanding him to levy on that identical property: Griffith v. Smith, 22 Wis. 646; 99 Am. Dec. 90.

The owner of personal property held by an officer under a writ of replevin in another case, to which the owner was not a party, may maintain crossreplevin against the officer for its possession: Davis v. Gambert, 57 Iowa, 239; Reiley v. Haynes, 38 Kan. 259; 5 Am. St. Rep. 737.

In Michigan, at least, replevin can be maintained by a mortgagee against

an officer attaching the goods as the property of the mortgagor, while in the latter's possession, after demand upon the officer and a refusal by him to surrender the goods: Wood v. Weimar, 104 U. S. 786.

A receiver of an insolvent national bank acquires no right to property in the custody of the bank which it does not own as against the owner thereof, and he may maintain replevin therefor in the state court: Corn Exchange Bank v. Blye, 101 N. Y. 303. So replevin may be maintained by the owner against a receiver seizing property to which the debtor never had title: Hills v. Parker, 111 Mass. 508; 15 Am. Rep. 63.

The rule is well settled that replevin against an officer for the wrongful seizure of plaintiff's goods under an attachment or execution against another can be brought in any court of competent or concurrent jurisdiction within the state, and need not be brought in the court out of which the writ issued: Johnson v. Jones, 16 Col. 138; Wilde v. Rawles, 13 Col. 583; Samuel v. Agnew, 80 Ill. 553; Ramsden v. Wilson, 49 Iowa, 211; Ross v. Hawthorne, 55 Miss. 551. And if a party claiming goods seized under a writ against another issued out of one federal court was not a party to that suit, he may maintain replevin in another federal court against the officer making the levy: Seaton v. Higgins, 50 Iowa, 305. It would seem to be well established by the overwhelming weight of authority, that, notwithstanding the decision in Freeman v. Howe, 24 How. 451, to the contrary, replevin will lie in a state court against a United States marshal to recover goods seized by him on attachment, or execution, or on mesne or final process issued from a United States court, when the goods belong to some other person than the defendant named in the writ. The basis for the rule is the fact that property thus unlawfully taken and detained by such officer is not in the custody of the law, no matter from what court his process issued: Gilman v. Williams, 7 Wis. 329, 76 Am. Dec. 219; Ward v. Henry, 19 Wis. 76; 88 Am. Dec. 672, and note 675; Bruen v. Ogden, 11 N. J. L. 370; 20 Am. Dec. 593; Davidson v. Waldron, 31 Ill. 120; 83 Am. Dec. 206; Howe v. Freeman, 14 Gray, 566; Carew v. Matthews, 41 Mich. 576; Cooper v. Tompkins, 43 Mich. 406; Heyman v. Covell, 44 Mich. 332; 38 Am. Rep. 272. The broad rule announced in Freeman v. Howe, 24 How. 450, reversing Howe v. Freeman, 14 Gray, 566, that replevin would in no case lie in a state court against a United States officer who holds property by virtue of a levy made under process issued by a federal court, has in no case, so far as we have been able to discover, been followed, when the party claiming ownership of the goods as against the officer, was a stranger to the writ under which they were seized. This rule has, however, been followed by some state courts, under remonstrance, when replevin was sought to be maintained by the defendant in the action in which the process issued, as in Lewis v. Buck, 7 Minn. 104; 82 Am. Deo. 73; Booth v. Ablessan, 16 Wis. 460; 84 Am. Dec. 711.

ROLLINS v. MCHATTON.

[16 COLORADO, 203.]

INSURANCE BENEFIT SOCIETY-CHAnge of BENEFICIARY.

The benefi

ciary named in an insurance certificate issued by a benefit society may be changed by the member, when power to make the change is conferred by the charter and by-laws, and also recognized in the contract of insur

ance.

INSURANCE-BENEFIT SOCIETY - DEATH OF BENEFICIARY BEFORE Assured.

Where the beneficiary named in an insurance certificate issued by a mutual benefit society dies before the insured member, no interest in the fund vests in the beneficiary, and her surviving son inherits no part of the fund by virtue of his relationship. INSURANCE BENEFIT SOCIETY-CHANGE OF BENEFICIARY- Where a certificate of membership and insurance issued by a benefit society specifies the mode in which a change of beneficiary may be made, such mode must be strictly followed, to be valid, and when the certificate specifies that such change is to be made by an entry thereof on the records of the society, a mere delivery of the certificate by the assured, accompanied with oral declaratious in relation thereto, will not constitute such a compliance as will work a change of beneficiary. INSURANCE - BENEFIT SOCIETY — CHANGE OF BENEFICIARY JURISDICTION. Where the insured member in a mutual benefit society has in good faith attempted to comply with the mode prescribed for changing his beneficiary, but, owing to circumstances beyond his control, the change is not entirely consummated at the time of his death, equity will sometimes treat the substitution as complete. INSURANCE BENEFIT SOCIETY-INSURED HAS NO INTEREST IN FUND. — The insured member in a mutual benefit society has no interest in the fund. He simply has a power of appointment, which, if not exercised, becomes inoperative, and in no event does the insurance money become assets of the insured's estate.

EQUITABLE

APPEAL from a judgment of distribution. Charles K. McHatton held a certificate of membership and insurance in the Knights of Pythias, payable to Mattie E., his wife. She died before her husband. After her death, the certificate passed from her custody to that of her mother. Said McHatton subsequently procured it and delivered it to one R. P. Rollins, guardian of the minor son of himself and said Mattie E., with directions for said Rollins to hold it for the benefit of said son. No indorsement showing a change of beneficiary upon the records of the society, as required by the certificate, was ever made by McHatton. He paid his assessments and dues, and was a member in good standing at the time of his death. The certificate remained in the possession of Rollins until deposited in court subsequently to the death of McHatton, who had, after the delivery of the certificate to Rollins, married the appellee, Frances A. McHatton. The court ordered the