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But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage. (m) For which reason the statute of Marlbridge (n) directs, that (without suing a writ out of the chancery) the sheriff immediately, upon plaint to him made, shall proceed to replevy the goods. And, for the greater ease of the parties, it is farther provided by statute 1 P. and M. c. 12, that the sheriff shall make at least four deputies in each county, for the sole purpose of making replevins. Upon application, therefore, either to the sheriff or one of his said deputies, security is to be given, in pursuance of the statute of Westm. 2, 13 Edw. I, c. 2. 1. That the party replevying will pursue his action against the distrainor, for which purpose he puts in plegios de prosequendo, or pledges to prosecute; and, 2. That if the right be determined against him, he will return the distress again; for which purpose he is also bound to find plegios de retorno habendo. Besides these pledges, the sufficiency of which is discretionary and at the peril of the sheriff, the statute 11 Geo. ÎI, c. 19, requires that the officer granting a replevin on a distress for rent, shall take a bond with two sureties in a sum of double the value of the goods distrained, conditioned to prosecute the suit with effect and without delay, and for return of the goods; which bond shall be assigned to the avowant or person making cognizance, on request made to the officer; and, if forfeited, may be sued in the name of the assignee. (3) And certainly as the end of all distresses is only to compel the party distrained upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient sureties as by retaining the very distress, which might frequently occasion great inconvenience to the owner; and that the law never wantonly inflicts. The sheriff, on receiving such security, is immediately, by his officers, to cause the chattels taken in distress to be restored into the possession of the party distrained upon: unless the distrainor claims a property in the goods so taken. For if, by this method of distress, the distrainor happens to come again into possession of his own property in [*148] 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. (0) 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)
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 there 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 dis
(0) See page 19.
(r) 2 Inst. 193.
(p) Finch, L. 316.
(t) F. N. B. 69, 73.
(m) 2 Inst. 139. (n) 52 Hen. III, c. 21. (q) Co. Litt. 145. Finch, L. 450. (8) Smith's Commonw. b. 3. c. 10. 2 Inst. 141. Hickes's Thesaur. 164. (u) In the old northern languages the word withernam is used as equivalent to reprisals. (Stiernhook, de jure Sueon. l. 1, c. 10.)
(3) But now by statute 19 and 20 Vic. c. 108, the registrar of the county court of the district in which the distress is taken may grant replevins; the replevisor giving such security as the registrar may direct, that he will pursue his action against the distrainor, either in one of the superior courts of law, or in the county court.
trainor. For which reason goods taken in withernam cannot be replevied till the original distress is forthcoming. (v)
*But in common cases, the goods are delivered back to the party replevying, who is then bound to bring his action of replevin; which [*149] 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 in the course of proceeding any right of freehold comes in question, the sheriff can proceed no farther; (2) so that it is usual to carry it up in the first instance to.the courts of Westminster-hall. (4) Upon this action brought, and declaration delivered, the distrainor, who is now the defendant, 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 had 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 suing out any fresh replevin; but allows him a judicial writ, issuing out [*150] 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 impannelled to (r) Raym. 475. The substance of this rule composed the terms of that famous question, with which Sir Thomas Moore (when a student on his travels) is said to have puzzled a pragmatical professor in the university of Bruges in Flandes: who gave a universal challenge to dispute with any person in science; in omni scibili, et de quolibet ente. Upon which Mr. Moore sent him this question, "utrum averia caruce, capta in vetito nimio sint irreplegibilia." whether beasts of the plough, taken in withernam, are incapable of being replevied. (Hoddesd. c. 5.)
(w) 2 Inst. 139.
(a) 2 Saund. 195.
(x) Ibid, 23.
(3) F. N. B. 69, 70.
(z) Finch. L. 317.
(4) [Now however, by statute 9 and 10 Vic. c. 95, s. 119, all actions of replevin in cases of distress for rent in arrear or damage feasant shall be brought without writ in the new county court, and (section 120) in the court holden for the district wherein the distress was taken. But (section 121) in case either party declare to the court that the title to any hereditament, or to any toll-market, fair, or franchise is in question, or that the rent or damage in respect of which the distress was taken exceeds 201., and becomes bound, with two sureties, to prosecute the suit without delay, and to prove that such title was in dispute, or that there was ground for believing the rent or damage to exceed 201., then the action may be removed before any court compotent to try the same, which is done not by recordari, but by writ of certiorari, the new county courts being courts of record, which the shiremotes were not.]
See also statute 19 and 20 Vic. c. 108, s. 67.
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) 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 redistrainor'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 does not amount to felony unless it be done animo furandi, is nevertheless a transgression, for which an action of trespass vi et armis will lie; wherein the plaintiff shall not recover the [*151] thing itself, but only damages for the loss of it. (5) 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. 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 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 sack, for then it may be distinguishably marked. 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 these 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. (j) (6) But there is one disad
(e) Stat. 17 Car. II, c. 7. (i) Co. Litt. 286.
() F. N. B. 71. (9) F. N. B. 69. 3 Rep. 147. (j) Co. Entr. 179. Cro. Jac. 681.
(h) F. N. B. 138.
(5) [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. 1. T. R. 480; 9 Saund. 47, in notes. See 1 Chitty on Pl. 4th ed. 151 to 159.]
To entitle one to maintain trespass de bonis asportatis the taking must have been wrongful and against the will of the plaintiff, but need not have been with actual force. Gibbs v. Chase, 10 Mass. 125. If the plaintiff delivers the property to defendant under a fraudulent purchase, he cannot, on discovery of the fraud, bring trespass. McCarty v. Vickery, 12 Johns. 848. And see Prince v. Puckett, 12 Ala. 832. But an officer who has rightfully taken possession of property by virtue of process may sometimes render himself a trespasser ab initio, by abuse of his authority by any act of unlawful force. See 2 Greenl. Ev. § 615. And the same is true of any person who abuses an authority the law confers upon him. See post, p. 213.
(6) In an action of detinue, if the plaintiff recovered, and the subject of the suit possessed peculiar value so that a recovery of the damages might not be an adequate remedy, the court of equity sometimes interfered to compel specific delivery, but this is now unnecessary, as the courts of common law possess the same power under the common law procedure act of 1854.
vantage which attends this action; viz.: that the defendant is herein permitted to wage his law, that is to *exculpate himself by oath, (k) and thereby defeat the plaintiff of his remedy: which privilege is grounded on the [*152] 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 trover. (7)
This action of trover (8) and conversion was in its original an action of 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 them to nis 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
(7) Wager of law was abolished by statute 3 and 4 Wm. IV, c. 42, s. 13, and since then the action of detinue is said to be brought more frequently than formerly. For curious historical information regarding Wager of Law, see Superstition and Force by H. C. Lea.
(8) [On the action of trover in general, see 1 Chitty's Pl. 4th ed. 135 to 145. Absolute and exclusive property, with actual possession, is not necessary; for a factor to whom goods have been consigned, and who has never received them, may maintain such an action. 1 Bos. and Pul. 47. But in order to maintain trover, the plaintiff must have a right of property (though special and subject to the claims of others) and a right of immediate possession, (as the owner has against a wrongdoer, where the goods have been delivered to a carrier): 7 T. R. 12; and therefore where goods leased, as furniture with a house, have been wrongfully taken by the sheriff in execution, the lessor cannot maintain trover against the sheriff pending the lease, because till the term has expired he has no right of possession. Id. 9; 1 Ry, and Mood. 99. But the landlord may maintain trover against a purchaser of machinery taken out of a mill, and afterwards sold under a fi. fa., by the sheriff, although the tenant's term has not expired. 5 B. and A. 826; 2 Dowl. and Ry. 1. And against a mere wrongdoer the simple fact of possession is usually sufficient evidence of ownership. 7 T. R. 397; 7 Taunt. 302; 4 East, 130; 5 Esp. R. 88. So bailees of goods (2 Bing. 173; Ld. Raym. 275; B. N. P. 33; 1 Mod. 31; Stra. 505), as carriers, consignees, pawnees, trustees (2 Saund. 47, a.), agisters of cattle, one who borrows a horse to till his land (Bro. Tres. 67), and churchwardens (2 Stra. 852; 2 P. Wms. 126; 2 Saund. 47, c.), may maintain this action against any one who converts the property. But a special property, which may be sufficient as against a stranger, gives no right against one who has the general property. 1 T. R. 658. Where the sheriff under a writ of fi. fa. against A. sells the goods of B. though by public sale, the purchaser is liable to the latter in trover. 3 Stark. 130; 5 B. and A. 826; 2 Dowl. and 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 endorsed and forwarded the bill of lading to the plaintiff, directing him to take possession of the goods, held, that on the defendants' (the carrier's) 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. and S. 350, as between vendor and assignee of factor to the vendee. As between foreign merchants and pledgee of his consignee, see 5 Moore, 518.
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. and 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. and 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 évidence 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 id. 407; but the court cannot infer a conversion fro such proof, it must be found by the jury. 2 Mod. 242; 10 Coke, 57; 2 Roll. Ab. 693; 1 T ›. 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 a qualified refusal. as because the holder does not know to whom the goods belong: 1 Esp. R. 83; 2 Buls. 312; Bull. N. P. 46; or that the claimant has not proved his right: 3 Camp. 215; or a servant refu ing to deliver them, without an order from his employers (5 B. and A. 247), or referring the plaintiff to his master (id.), or a false assertion of a carrier, that be has delivered the goods: I Camp. 409; in all these cases the facts do not amount to a conversion.]
As to the meaning of conversion, see Burroughes v. Bayne, 5 H. and N. 296; Pillott v. Wilkivison, 2 H. and C. 72. Addison on Torts, ch. 7. § 1.
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 forever 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 alone 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 sug gest (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.
*As to the damage that may be offered to things personal, while in [*153] the possession of the owner, as hunting a man's deer, shooting his dogs, poisoning his cattle, or in anywise 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; 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 direction; for the action will lie against the master as well as the servant. (0) 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) (9)
II. Hitherto of injuries affecting the right of things personal, in possession. We are next to consider those which regard things in action only; or such rights as are founded on, and arise from, contracts; the nature and several divisions of which were explained in the preceding volume. (g) The violation, or nonperformance, of these contracts might be extended into as great a variety of wrongs, as the rights which we then considered; but I shall now consider them in a more comprehensive view, by here making only a twofold division of contracts; viz., contracts express, and contracts implied; and pointing out the injuries that arise from the violation of each, with their respective remedies. Express contracts include three distinct species; debts, covenants, and promises.
(m) See book I, ch. 8; book II. ch. 1 and 26. (p) Cro. Car. 254, 487.
(n) 10 Rep. 56.
(q) See Book II, ch. 30.
(0) Noy's Max. c. 44.
(9) [As to what is evidence of knowledge, sec 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; 2 Lev. 172. If a man sets traps in his own grounds, but baited with such strong-scented articles as allure the neighboring dogs from the premises of the owners, or from the highways, the owner of a dog injured may maintain an action upon the case. 9 East, 227; but see Ilott v. Wilkes, 3 Bar. and Ald. 304.]
As to the liability of the owner of a vicious animal for au injury committed by him, see Van Leuven v. Lyke, 4 Denio, 127; S. C., 1 N. Y. 515; Buckley v. Leonard, 4 Denio, 509; Earhart v Youngblood, 27 Penn. St. 331.