nicipal action was clearly legislative. It became judicial only in case it imposed an additional burden upon the land of the abutting owners." This rule was subsequently approved by the same court in a case where the facts led to a different result. Sears v. Atlantic City, 73 Id. 710 (at p. 713). The facts of the present case do not require us to pass on the general question whether proceedings to vacate a highway may not be judicial in character. All that we need pass on is whether they are so in the present case. No highway is closed; the vacation of the gores is not shown even to make access to the prosecutors' property more inconvenient; as far as the case shows, land of the prosecutors which was formerly subject to the public easement is relieved therefrom. It is settled that the vacation of a street does not impair private rights, and in the absence of a statute giving damages, even a landowner who is injured is not entitled to compensation. Newark v. Hatt, 77 Id. 48 (at p. 51); 79 Id. 548, 550. The prosecutors were certainly not subjected to any additional burden and were not entitled to notice. The proceedings are affirmed, with costs. MARY FIGOLI, PLAINTIFF AND APPELLANT, v. SAMUEL HALPERN, TRADING, &c., AS NEW YORK FURNITURE COMPANY, DEFENDANT AND APPELLEE. Submitted July 1, 1915-Decided November 15, 1915. 1. Possession of personal property is prima facie evidence of ownership. 2. In a suit for damages for the conversion of several articles of household furniture taken from the possession of the plaintiff by the defendant, testimony that, prior to the conversion, the plaintiff offered to purchase of the defendant "some of the goods in question," without any other evidence tending to show ownership or right of possession in the defendant, will not justify a finding that the defendant had title or right of possession to all of the articles. 3. In an action for damages for conversion, where the plaintiff's evidence tended to show title in herself, and the defendant, by placing his defence on title in himself, puts in issue the ownership of the property, it is competent for the plaintiff to prove that by her purchase from a third party in possession she was a bona fide purchaser for value and without notice of the defendant's claim, and this she may do by the testimony of witnesses who were present and heard what was said when the parol contract of sale was made. On appeal from the District Court of the city of Hoboken. Before Justices GARRISON, TRENCHARD and BLACK. For the appellant, Pierson & Schroeder. For the appellee, Morris Umansky. The opinion of the court was delivered by TRENCHARD, J. The plaintiff sought to recover damages for the conversion by the defendant of several articles of household furniture taken by the defendant from the plaintiff's house. At the trial the plaintiff proved that, at the time of the conversion, she was in possession of the property. That was prima facie evidence of ownership. 38 Cyc. 2077. The plaintiff also testified that she bought the furniture of Frank De Bendito, whilst it was in his possession in another apartment of the plaintiff's house, and that she paid $50 therefor. The defendant then testified that prior to the conversion, the plaintiff offered to purchase of him "some of the goods in question." Without any other evidence tending to show ownership or right of possession in the defendant, the learned trial judge seems to have found that the defendant had title or right of possession to all of the articles, and rendered judgment for the defendant. Clearly, that was erroneous. The mere fact that the plaintiff had offered to purchase of the defendant some of the articles did not show, or tend to show, Town of Guttenberg v. Thomas. 88 N. J. L. that the defendant had title or right of possession to all of them. Since the case must be tried again it seems prudent to point out an error in the exclusion of evidence. As we have said, the plaintiff had produced evidence tending to show title in herself, and the defendant, by placing his defence on title in himself, put the ownership of the furniture in issue. It was therefore competent for the plaintiff to prove that her purchase from a third party in possession was a bona fide purchase for value and without notice of the defendant's claim. This the plaintiff offered to do by the testimony of witnesses who were present and heard what was said when the parol contract of sale was made. The trial judge overruled such offer. That, we think, was erroneous. The judgment below will be reversed and a awarded. new trial TOWN OF GUTTENBERG. IN THE COUNTY OF HUDSON, PLAINTIFF AND APPELLEE, v. ROBERT THOMAS, DEFENDANT AND APPELLANT. Submitted July 1, 1915-Decided November 15, 1915. Property of a municipal corporation, necessary and in actual use in the exercise of its proper municipal functions, cannot be lawfully seized by virtue of a writ of replevin, and having been seized, while in the physical possession of a custodian, by such a writ to which the municipal corporation was not a party, the corporation may replevy the property from the person to whom the officer has delivered it as soon as it is delivered. On appeal from the First District Court of Jersey City. Before Justices GARRISON, TRENCHARD and BLACK. For the appellant, Heyman & Heyman. For the appellee, Warren Dixon. 88 N. J. L. Town of Guttenberg v. Thomas. The opinion of the court was delivered by TRENCHARD, J. In this action of replevin the trial judge, sitting without a jury, rendered judgment for the plaintiff and the defendant appeals. At the trial it appeared that Hoffman Brothers furnished books for public records to the plaintiff, the town of Guttenberg. The town accepted the books and put them in use for municipal purposes, and then did not pay for them; but why it did not pay the evidence does not disclose. Hoffman Brothers then replevied the books in an action against their custodian to which the town was not a party. No claim of property or bond being delivered to the constable within twenty-four hours after the service of the writ, the property was delivered to Hoffman Brothers. The town then sued out the writ of replevin in the present action against Robert Thomas, the constable who had seized the books under Hoffman Brothers' writ, and who held them as their agent. We are of the opinion that the trial judge rightly awarded the possession of the books to the town. The town was deprived of the possession of the books by virtue of a writ to which the town was not a party. But apart from that, we think that property of a municipal corporation, necessary and in actual use in the exercise of its proper municipal functions, cannot be seized by virtue of a writ of replevin. LaGrange v. State Treasurer, 24 Mich. 468; 24 Am. & Eng. Encycl. L. (2d ed.) 505; 20 Id. 1189, 1190. In its essence the question of the validity of Hoffman Brothers' seizure of the books by writ of replevin is the same as if they had obtained a judgment and levied upon and sought to sell the town hall. Clearly, that could not be done. The principle is familiar that the public property of a municipal corporation cannot be seized by writ of execution upon a judgment against the corporation, but must be reached by mandamus to compel the payment or by a levy of a tax for that purpose. 2 Dill. Mun. Corp. (4th ed.), § 576.. The reason of public policy which supports this rule applies with equal force to Hoffman Brothers' action by replevin. Town of Guttenberg v. Thomas. 88 N. J. L. If they were permitted in that manner to seize these books, it would be equally open to any constable or sheriff to seize upon public papers and expose public offices to the visitation. of ministerial officers who might be commanded by writ issued without previous order or supervision of a court to seize upon and deliver to anyone who should sue out the process any document or muniment which might be found in the office. Or, as in the present case, the property might be seized while in the physical possession of a custodian, not making the municipal corporation a party, thus putting the public body to the necessity of replevin and leaving it optional with the other party to take the course which has been followed in this case, viz., to rebond and keep the property out of the possession of the public corporation. Such procedure is not warranted by principle or authority. The case of LaFrance Fire Engine Co. v. City of Syracuse, 68 N. Y. Supp. 894, is cited for the proposition that a vendor who is not paid for a truck purchased by the fire commissioners of the city may recover possession of the truck. But that question was not involved in the decision of that case, and that portion of the opinion is obiter. The possession of the town of Guttenberg of the property in question not being subject to disturbance by a writ of replevin against the town, or against the custodian of its property, its possessory rights remain the same as when the property was in its physical possession. Of course, after the property so unlawfully taken from the town's possession had been delivered to Hoffman Brothers by the officer, the town had a right to replevy it from the person to whom the officer had delivered it. Weiner v. Van Rensselaer, 43 N. J. L. 547. The judgment of the court below will be affirmed, with costs. |