upon; unless the distrainor claims a property in the goods so ta[148] ken. For if, by this method of distress, the distrainor happens to come again into possession of his own property in goods which before he had lost, the law allows him to keep them, without any reference to the manner by which he thus has gained possession; being a kind of personal remitter (o). If therefore the distrainor claims any such property, the party replevying must sue out a writ de proprietate probanda, in which the sheriff is to try, by an inquest, in whom the property previous to the distress subsisted (p). And if it be found to be in the distrainor, the sheriff can proceed no farther; but must return the claim of property to the court of king's bench or common pleas, to be there farther prosecuted, if thought advisable, and there finally determined (q) (5). : But if no claim of property be put in, or if (upon trial) the sheriff's inquest determines it against the distrainor; then the sheriff is to replevy the goods (making use of even force, if the distrainor makes resistance) (r), in case the goods be found within his county. But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are eloigned, elongata, carried to a distance, to places to him unknown and thereupon the party replevying shall have a writ of capias in withernam, in vetito( or, more properly, repetito) namio; a term which signifies a second or reciprocal distress (s), in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods of the distrainor, in lieu of the distress formerly taken, and eloigned, or withheld from the owner (t). So that here is now distress against distress; one being taken to answer the other, by way of reprisal (u), and as a punishment for the illegal behaviour of the original distrainor. For which reason goods taken in withernam cannot be replevied till the original distress is forthcoming (v). [*149] *But in common cases, the goods are delivered back to the party replevying, who is then bound to bring his action of replevin; which may be prosecuted in the county-court, be the distress of what value it may (w). But either party may remove it to the superior courts of king's bench or common pleas, by writ of recordari or pone (x); the plaintiff at pleasure, the defendant upon reasonable cause (y); and also, if in the course of proceeding any right of freehold comes in question, the sheriff can proceed no farther (z); so that it is usual to carry it up in the first instance to the courts of Westminster-hall (6). Upon this action brought, and declaration delivered, the distrainor, who is now the defend travels) is said to have puzzled a pragmatical professor in the university of Bruges in Flanders ; who gave a universal challenge to dispute with any person in any science; in omni scibili, et de (s) Smith's Commonw. b. 3, c. 10. 2 Inst. 141. quolibet ente. Upon which Mr. More sent him this Hickes's Thesaur. 164. question, "utrum averia carucae, capta in vetito namio, sint irreplegibilia," whether beasts of the plough, taken in withernam, are incapable of being replevied. (Hoddesd. c. 5.) (w) 2 Inst. 139. (y) F. N. B. 69, 70. from, and are returnable only into the Supreme Court or Common Pleas Court: and are removable by either party from the Common Pleas to the Supreme Court by certiorari as other personal actions. (2 R. S. 533, ◊ 68: 389, 4: 523, § 6.) ant, makes avowry; that is, he avows taking the distress in his own right, or the right of his wife (a); and sets forth the reason of it, as for rent arrere, damage done, or other cause: or else, if he justifies in another's right as his bailiff or servant, he is said to make cognizance; that is, he acknowledges the taking, but insists that such taking, was legal, as he acted by the command of one who had a right to distrain; and on the truth and legal merits of this avowry or cognizance the cause is determined. If it be determined for the plaintiff; viz. that the distress was wrongfully taken; he has already got his goods back into his own possession, and shall keep them, and moreover recover damages (b). But if the defendant prevails, by the default or nonsuit of the plaintiff, then he shall have a writ de retorno habendo, whereby the goods or chattels (which were distrained and then replevied) are returned again into his custody; to be sold, or otherwise disposed of, as if no replevin hath been made. And at the common law, the plaintiff might have brought another replevin, and so in infinitum to the intolerable vexation of the defendant. Wherefore the statute *of Westm. 2. c. 2. restrains the plaintiff, when nonsuited, from [*150] suing out any fresh replevin; but allows him a judicial writ, issuing out of the original record, and called a writ of second deliverance, in order to have the same distress again delivered to him, on giving the like security as before. And, if the plaintiff be a second time nonsuit, or if the defendant has judgment upon verdict or demurrer in the first replevin, he shall have a writ of return irreplevisable; after which no writ of second deliverance shall be allowed (c). But in case of a distress for rent arrere, the writ of second deliverance is in effect (d) taken away by statute 17 Car. II. c. 7, which directs that, if the plaintiff be nonsuit before issue joined, then upon suggestion made on the record in nature of an avowry or cognizance; or if judgment be given against him on demurrer, then, without any such suggestion, the defendant may have a writ to inquire into the value of the distress by a jury, and shall recover the amount of it in damages, if less than the arrear of rent; or, if more, then so much as shall be equal to such arrear, with costs: or, if the nonsuit be after issue joined, or if a verdict be against the plaintiff, then the jury impanelled to try the cause shall assess such arrears for the defendant: and if (in any of these cases) the distress be insufficient to answer the arrears distrained for, the defendant may take a farther distress or distresses (e) (7). But otherwise, if, pending a replevin for a former distress, a man distrains again for the same rent or service, then the party is not driven to his action of replevin, but shall have a writ of recaption (f), and recover damages for the defendant the re-distrainor's contempt of the process of the law. In like manner, other remedies for other unlawful takings of a man's goods consist only in recovering a satisfaction in damages. And if a man takes the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury; which, though it doth not amount to felony unless it be done animo furandi, is nevertheless a trans (a) 2 Saund. 195. (b) F. N. B. 69. (c) 2 Inst. 340. (7) See 2 R. S. 531, 56: similar to 17 Car. II. c. 7. But by the Revised Statutes, 2 vol. 532, 62, when judgment passes against the plaintiff in replevin by default or otherwise, and a return of the property is awarded; (d) 1 Ventr. 64. (e) Stat. 17 Car. II. c. 7. no writ of second deliverance, nor other writ of replevin, is allowed: but the plaintiff may bring an action of trover or trespass, unless the judgment was on the merits. [*151] gression, for which an action of trespass vi et armis *will lie; wherein the plaintiff shall not recover the thing itself, but only damages for the loss of it (8). Or, if committed without force, the party may, at his choice, have another remedy in damages by action of trover and conversion, of which I shall presently say more. 2. Deprivation of possession may also be by an unjust detainer of another's goods, though the original taking was lawful (9). As if I distrain another's cattle damage-feasant, and before they are impounded he tenders me sufficient amends; now, though the original taking was lawful, my subsequent detainment of them after tender of amends is wrongful, and he shall have an action of replevin against me to recover them (g): in which he shall recover damages only for the detention and not for the caption, because the original taking was lawful. Or, if I lend a man a horse, and he afterwards refuses to restore it, this injury consists in the detaining, and not in the original taking, and the regular method for me to recover possession is by action of detinue (h). In this action of detinue (10), it is necessary to ascertain the thing detained, in such manner as that it may be specifically known and recovered. Therefore it cannot be brought for money, corn, or the like; for that cannot be known from other money or corn; unless it be in a bag or a sack, for then it may be distinguishably marked. In order therefore to ground an action of detinue, which is only for the detaining, these points are necessary (i): 1. That the defendant came lawfully into possession of the goods, as either by delivery to him, or finding them; 2. That the plaintiff have a property; 3. That the goods themselves be of some value; and, 4. That they be ascertained in point of identity. Upon this the jury, if they find for the plaintiff, assess the respective values of the several parcels detained, and also damages for the detention. And the judgment is conditional; that the plaintiff recover the said goods, or (if they cannot be had) their respective values, and also the damages for detaining them (k). But there is one disadvantage which attends this ac tion; viz. that the defendant is herein permitted to wage his law, [152] that is, to *exculpate himself by oath (1), and thereby defeat the plaintiff of his remedy: which privilege is grounded on the confidence originally reposed in the bailee by the bailor, in the borrower by the lender, and the like; from whence arose a strong presumptive evidence, that in the plaintiff's own opinion the defendant was worthy of credit. But for this reason the action itself is of late much disused, and has given place to the action of troyer. This action of trover (11) and conversion was in its original an action of (g) F. N. B. 69. 3 Rep. 147. (k) F. N. B. 138. (i) Co. Litt. 286. (8) In order to sustain trespass for taking goods, the actual or constructive possession must be vested in the plaintiff at the time the act complained of was done. For instance, the lord before seizure may bring the action against a stranger who should carry off an estray or wreck; for the right of possession, and thence the constructive possession, is in him. So the executor has the right immediately on the death of the testator, and the right draws after it a constructive possession. 1T. R. 480. 2 Saund. 47. in notes. See 1 Chitty on Pl. 4th ed. 151 to 159. (9) As to the action of detinue in general, (k) Co. Entr. 170. Cro. Jac. 681. see Coin. Dig. Detinue; 1 Chitty on Pl. 4th ed. 110. to 114. It has been supposed that detinue is not sustainable where the goods have been taken tortiously by the defendant, but that doctrine is erroneous, and it is the proper specific remedy for the recovery of the identical chattels personal, when they have not been taken as a distress. See cases and observations, 1 Chitty on Pl. 4th ed. 112, 3. (10) In New-York this action is abolished, (2 R. S. 553, § 15.) replevin fully supplying its place. (11) On the action of trover in general, see 1 Chitty's Pl. 4th ed. 135 to 145. Absolute trespass upon the case, for recovery of damages against such person as had found another's goods, and refused to deliver them on demand, but converted and exclusive property, with actual posses- tomer, as "bills" (not as cash), and after such sion, is not necessary; for a factor to whom entry the customer was at liberty to draw to goods have been consigned, and who has never the full amount by checks, and the bankers received them, may maintain such an action. became insolvent, having in their possession 1 Bos. & Pul. 47. But in order to maintain several of the customer's bills so paid in, and trover, the plaintiff must have a right of pro- the assignees having converted the same to perty (though special and subject to the claims their use, it was held that the customer (who of others) and a right of immediate posses- had a cash balance in his favour at the time sion, (as the owner has against a wrongdoer, of the bankruptcy) might maintain trover where the goods have been delivered to a car- against the latter for the amount, there being rier), 7 T. R. 12; and therefore where goods no evidence that he had in point of fact leased, as furniture with a house, have been agreed, that when the bills were paid in, they wrongfully taken by the sheriff in execution, were to become the property of the bankers. the lessor cannot maintain trover against the 2 B. & C. 422. 3 Dowl. & Ry. 733. But an sheriff pending the lease, because till the exchequer bill (the blank in which was not term has expired he has no right of posses- filled up) having been placed for sale in the sion. Ib. 9. 1 Ry. & Mood. 99. But the hands of J. S. he, instead of selling, depositlandlord may maintain trover against a pur- ed it at his banker's, who made him advances chaser of machinery taken out of a mill, and to the amount of its value, held that the owner afterwards sold under a fi. fa. by the sheriff, thereof could not maintain trover against the although the tenant's term has not expired. 5 banker, as the property in such bill passed by B. & A. 826. 2 Dowl. & Ry. 1. And against delivery, as in the cases of bank notes and a mere wrongdoer the simple fact of posses- bills of exchange. 4 B. & A. 1. The churchsion is usually sufficient evidence of owner- wardens and overseers of a township leased ship. 7 T. R. 397. 7 Taunt. 302. 4 East, lands belonging to the poor to the plaintiff, 130. 5 Esp. R. 88. Abbott's L. S. 73. So for a term of years, covenanting that it should bailees of goods, 2 Bing. 173. Ld. Raym. be lawful for him to take all the manure, &c. 275. B. N. P. 33. 1 Mod. 31. Stra. 505. as from the poor-house, and use it upon the decarriers, consignees, pawnees, trustees, 2 mised premises, and the plaintiff covenanted Saund. 47. a, agisters of cattle, one who bor- to provide straw for the use of the poor; it was rows a horse to till his land, Bro. Tres. 67, decided that he could not maintain trover and churchwardens, 2 Stra. 852. 2 P. Wms. against a succeeding overseer, who used the 126. 2 Saund. 47. c. may maintain this action manure on his own land, even though it arose against any one who converts the property. from the straw supplied by the plaintiff, as the But a special property, which may be suffi- covenant entered into with the previous overcient as against a stranger, gives no right seers could not bind their successors. against one who has the general property. 1 Stark, 28. An insolvent debtor cannot mainT. R. 658. Where the sheriff under a writ tain trover for plate, although his assignee of fi. fa. against A., sells the goods of B., does not interfere to prevent him. 1 Carr. though by public sale, the purchaser is liable 146. to the latter, in trover. 3 Stark. 130. 5 B. & A. 826. 2 Dowl. & R. 1. S. P. Where A. shipped goods by the order of, and for B. in London, and shortly afterwards ascertained that B. had stopped payment, and he then indorsed and forwarded the bill of landing to the plaintiff, directing him to take possession of the goods, held that on the defendants' (the carriers) refusal to deliver them to the plaintiff, he had a sufficient title to sue for them in trover. 2 Bing. 260. See also 5 M. & S. 350. as between vendor, and assignee of factor to the vendee. And where a purchase was made for A. and B. by a broker, who, after a division of the goods, pledged the warrants of B., with those of A. to C. for a debt of A., it was held that B. might maintain trover against C. though the latter did not know that B. had any interest in the warrants; the broker having no power to pledge them. 5 B. & A. 395. As between foreign merchant and pledgee of his consignee, see 5 Moore, 518. n. And where a customer of a country bank was in the habit of paying in bills of exchange, which were never written short, but entered to the full amount in the pass-book on the day they were paid in, and also in the books of the bank to the credit of the cus 3 A conversion seems to consist in any tortious act, by which the defendant deprives the plaintiff of his goods, either wholly, or but for a time. 3 B. & A. 685. The mere abuse of a chattel by a bailee is no conversion, Gil. L. Ev. 265. 2d ed., but if he use it contrary to the design of the bailment, it is otherwise; as if a man lend his horse to go to York, and the bailee go to Carlisle. 2 Bulst. 309. Mere nonfeasance is not a conversion, 2 B. & P. 438; as that an agent employed to sell goods has neglected to sell them. If the goods come to the hands of the defendant by delivery, finding, or bailment, a demand and refusal should be proved at the trial, but in cases of tortious taking or actual conversion, proof of demand and refusal is unnecessary. 1 Sid. 264. The ordinary presumptive proof of a conversion consists in evidence of a demand of the goods by the plaintiff, and a refusal to deliver them by the defendant, 6 Mod. 212. 6 East, 540. 5 East, 407. but the court cannot infer a conversion from such proof, it must be found by the jury. 2 Mod. 242. 10 Coke, 57. 2 Roll. Ab. 693. 1 T. R. 478. Hob. 181. If the refusal be absolute, and there be no evidence to justify or explain it, the jury ought to find a conversion. 1 Esp. R. 31. Clay. 122. pl. 114. But them to his own use; from which finding and converting it is called an action of trover and conversion. The freedom of this action from wager of law, and the less degree of certainty requisite in describing the goods (1), gave it so considerable an advantage over the action of detinue, that by a fiction of law actions of trover were at length permitted to be brought against any man who had in his possession by any means whatsoever the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the conversion: for any man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property therein, unless the owner be for ever unknown (m): and therefore he must not convert them to his own use, which the law presumes him to do, if he refuses them to the owner: for which reason such refusal also is, prima facie, sufficient evidence of a conversion (n). The fact of the finding, or trover, is therefore now totally immaterial: for the plaintiff needs only to suggest (as words of form) that he lost such goods, and that the defendant found them and if he proves that the goods are his property, and that the defendant had them in his possession, it is sufficient. But a conversion must be fully proved: and then in this action the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself: which nothing will recover but an action of detinue or replevin. [*153] As to the damage that may be offered to things personal, while in the possession of the owner, as hunting a man's deer, shooting his dogs, poisoning his cattle, or in any wise taking from the value of any of his chattels, or making them in a worse condition than before, these are injuries too obvious to need explication. I have only therefore to mention the remedies given by the law to redress them, which are in two shapes; by action of trespass vi et armis, where the act is in itself immediately injurious to another's property, and therefore necessarily accompanied with some degree of force (12); and by special action on the case, where the act is in itself indifferent, and the injury only consequential, and therefore arising without any breach of the peace. In both of which suits the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained. And it is not material whether the damage be done by the defendant himself, or his servants by his direc-tion; for the action will lie against the master as well as the servant (o). And, if a man keeps a dog or other brute animal, used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequences, if he knows of such evil habit (p) (13). (1) Salk. 654. (m) See book I. ch. 8. book II. ch. 1 and 26. (n) 10 Rep. 56. a qualified refusal, as, because the holder does not know to whom the goods belong, 1 Esp. R. 83. 2 Buls. 312. B. N. P. 46. or that the claimant has not proved his right, 3 Camp. 215; on a servant refusing to deliver them, without an order from his employers, 5 B. & A. 247. or referring the plaintiff to his master, ib. or a false assertion of a carrier, that he has delivered the goods, 1 Camp. 409; in all these cases the facts do not amount to a conversion. An incorporated company may be guilty of a conversion by the act of their agent, done under the orders of the committee of management. 3 Stark. 50. (0) Noy's Max. c. 44. (12) Or in New-York, by 2 R. S. 553, § 16. case may be brought. (13) As to what is evidence of knowledge, see 4 Camp. 198. 2 Stra. 1264. 2 Esp. 482. But the owner is not answerable for the first mischief done by a dog, a bull, or other tame animal. Bull. N. P. 77. 12 Mod. 333. Ld. Raym. 608. Yet if he should carry his dog into a field, where he himself is a trespasser, and the dog should kill sheep, this, though the first offence, might be stated and proved as an aggravation of the trespass. Burr. 2092. Lev. 172. But where a fierce, and vicious dog is kept chained for the defence of the premi 2 |