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be considered in the next book. And so the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in his master; and if he receives his part of the stipulated contract, he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.



In the preceding chapter we considered the wrongs or injuries that affected the rights of persons, either considered as individuals, or as related to each other; and are at present to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

And here again we must follow our former division (a) of property into personal and real: personal, which consists in goods, money, and all other moveable chattels, and things thereunto incident; a property which may attend a man's person wherever he goes, and from thence receives its denomination and real property, which consists of such things as are permanent, fixed, and immoveable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist.


First then we are to consider the injuries that may be offered to the rights of personal property; and, of these, first the rights of personal property in possession, and then those that are in action only (b).

I. The rights of personal property in possession, are liable to two species of injuries the amotion or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal ownThe former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust


detaining them, though the original taking might be lawful. [*145] *1. And first of an unlawful taking. The right of property in all external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows, as a necessary consequence, that when I have once gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever either by fraud or force dispossesses me of them, is guilty of a transgression against the law of society, which is a kind of secondary law of nature. For there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions: and, if an acquisition of goods by either force or fraud were allowed to be a sufficient title, all property would soon be confined to the most strong, or the most cunning; and the weak and simple-minded part of mankind (which is by far the most numerous division) could never be secure of their possessions.

The wrongful taking of goods being thus most clearly an injury, the

(a) See book II. chap. 2.

(b) Book II. chap. 25.

next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with damages for the loss sustained by such unjust invasion; which is effected by action of replevin (1), (2); an institution, which

(1) See in general, Com. Dig. Replevin; Bac. Ab. Replevin and Avowry; Vin. Ab. Replevin; Gilbert on Distresses, by Hunt; Bradby on Distresses; Selw. N. P. 1155. and Wilkinson on Replevin; and see, as to distresses, the notes ante, 5 to 10.

A replevin in general lies only for goods and chattels, and it cannot be maintained for taking and removing things affixed to the freehold, even though wrongfully separated therefrom by the defendant. Co. Lit. 146. b. 4 T. R. 504. But growing crops may be considered in the nature of goods and chattels, being under 11 Geo. II. c. 19. distrainable; therefore where a replevin bond was to prosecute for taking goods, chattels, and growing crops, and in the declaration it was set out as to prosecute for taking "goods and chattels," it was held to be no variance. 7 Moore, 231. 1 Bing. 6.

It is said by the learned Commentator in the text, that the action of replevin obtains only in one instance of an unlawful taking, that of a wrongful distress. But lord Redesdale remarked in 1 Sch, & Lef. 327. that this definition is too narrow, and many old authorities will be found in the books, of a replevin where there had been no distress. See Vin. Ab. Replevin, B. & C. 2. Com. Dig. Replevin. Replevin is now seldom brought but for distresses for rent, damage-feasant, poor's rate, &c. Com. Dig. Action, M. 6. It may certainly be brought to try the legality of a distress for rent, provided there were no sum whatever in arrear, 5 T. R. 248. n. c. 3 B. & P. 348; but if any sum, however small, were due, and the distress were for a greater sum, or excessive, or otherwise irregular, the remedy must be by action on the case. 1 Hen. Bla. 13. Replevin lies also for an illegal distress taken damage-feasant; and when the party in possession of the

(2) In New-York the remedy by replevin has been greatly enlarged by the Revised Statutes, and it now extends, except in the cases specified in the act, to any wrongful taking or detention of the goods or chattels of another. Executors may maintain this action for goods wrongfully taken, whenever they could maintain trespass by statute. But replevin does not lie for property taken under a warrant for the collection of a tax, assessment, or fine, in pursuance of a statute: nor at the suit of the defendant in an execution or attachment for goods taken by virtue thereof, unless they are exempt by law from execution, &c. nor at the suit of any other person, unless he has at the time a right to reduce the goods into his possession.


The writ cannot be executed until an affidavit is annexed to it, showing that the case does not come within any of the above exceptions, and until the plaintiff and two sureties executes a bond in double the value of the property conditioned to prosecute the suit with effect and without delay, and to return VOL. II.

land has no title thereto, this action is preferable to trespass for seizing the cattle, in order to put in issue the title of the party distrainign. 1 Saund. 346. c. n. 2. So, to try the legality of a distress for poor rates, 3 Wils. 442. 1 Salk. 205. 6 East, 283. 2 Bla. Rep. 1330. 1 Burr. 585. Willes, 672. b; or of one of the several rates where the distress warrant includes a supposed arrear of several rates, 2 Moore, 417; or for sewer's rate, 6 T. R. 522. Hardw. 478. Com. Dig. Pleader, K. 26. Willes, 672. n. b.; or for a heriot, &c. Cro. Jac. 50. But if a superior court award an execution, it seems that no replevin lies for the goods taken by the sheriff by virtue of the execution, and if any person should pretend to take out a replevin, the court would commit him for a contempt of their jurisdiction, Gilb. Rep. 161. Willes, 672. n. b. 2 Lutw. 1191. 3 Lev. 204. 2 Stra. 1184; and where goods are taken by way of levy, as for a penalty on a conviction under a statute, it is generally in the nature of an execution, and unless replevin be given by the statute this action will not lie, the conviction being conclusive, and its legality not questionable in replevin, 2 New. Rep. 399. Bac. Ab. Replevin, (C) Com. Dig. Action, M. 6. Willes, 673. n. b. Brod. & Bing. 57; but where a special inferior jurisdiction is given to justices, &c. and they exceed it in some cases, replevin lies. Willes, 672. n. b. This action is also maintainable for goods distrained under a warrant from commissioners authorized by act of parliament to levy rates for specific local purposes, with power of distress. 1 Swanst. 304. 1 B. & B. 57.


The plaintiff ought to have either an absolute or special property in the goods in question, vested in him at the time of the taking. Bro. Bepl. pl. 8. 20. A mere possessory right

the property if a return be adjudged, and to pay the amount that may be recovered.

The sheriff then delivers the property to the plaintiff, and gives notice to the defendant thereof, and of the time at which he is to appear in court to resist the plaintiff's claim. The sheriff, after demand of delivery of the goods, may break open any house in which they are concealed. If he cannot obtain the goods, he arrests the defendant until he enters into bond with two sureties to abide the order of the court, and to put in special bail.

If the defendant claims property in the goods, and pays to the sheriff his fees and the fees of a jury to try the claim, he may have his title tried before such jury; and in the meantime the goods remain in the custody of the sheriff. If the jury find for the defendant, he receives back again the goods: if the jury find for the plaintiff, the plaintiff, on refunding the expenses and indemnifying the sheriff, receives the goods.

See the other proceedings, 2 R. S. 522, &c.

the mirror (c) ascribes to Glanvil, chief justice to king Henry the Second. This obtains only in one instance of an unlawful taking, that of a wrongful distress (3) and this and the action of detinue (of which I shall presently say more) are almost the only actions, in which the actual specific possession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as of a nature so transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor. And, since it is a maxim that "lex neminem cogit ad vana, seu impossibilia," it there[*148] fore *contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction in damages. But in the case of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the distrainor; and therefore they may not only be identified, but also restored to their first possessor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distrainor has a remedy in damages, either by writ of rescous (d), in case they were going to the pound, or by writ de parco fracto, or pound-breach (e), in case they were actually impounded. He may also at his option bring an action on the case for this injury: and shall therein, if

(c) c. 2, § 6.

(d) F. N. B. 101.

is not sufficient. 10 Mod. 25. If the goods of a feme-sole are taken, and she marry, the husband alone may sue the replevin, or the wife may join, R. T. Hardw. 119; but it must appear on the face of the record that she held an interest in the things taken. 2 New. R. 402. Executors may maintain replevin for the goods of the testator taken in his lifetime. Bro. Repl. pl. 59. And parties who have a joint interest in the distress may join in the replevin, Co. Lit. 145. b. ; but where the interest is several, there ought to be several replevins. Bro. Abr. Repl. pl. 12. While the goods distrained for rent remain unsold, the tenant may replevy, although the five days allowed by the act have expired, and although they have been appraised and removed off the premises. 5 Taunt. 451. 1 Marsh. 135. 1 Chitty R. 196. a.

Replevin Bonds.-Two modes have been adopted by sheriffs or other officers making replevins with respect to bonds; the first to take a bond from the pledges or sureties, Dalton's Sheriff, 438, 9. Lord Raym. 278. Lutw. 687; the other method has been to take a bond from the party replevying. In all replevin bonds there are several independent conditions; one to prosecute, another to return the goods replevied, and a third to indemnify the sheriff, and a breach may be assigned upon any of these distinct conditions. 7 Mod. 380. Or the breach may be assigned thus, "that defendant did not prosecute his suit with effect, and hath not made return." 3 M. & S. 180. A plaintiff must succeed in his suit, or he does prosecute with effect." 7 Mod. 380. The sheriff may assign the bond to the avowant or cognizor, who may maintain an action

not "

(e) Ibid. 100.

upon it in the superior courts. 5 T. R. 195. The sureties are liable to the amount of the penalty in the bond and costs of suit thereon. i Taunt. 218. They will not be discharged by time being given to the plaintiff in replevin, 2 Marsh. 81. 6 Taunt. 379. S. C.; nor by the execution of a writ of inquiry, under the 17 Car. II. c. 19. s. 23. 2 Brod. & Bing.


When the defendant has obtained judgment, if the sheriff return to the writ de retorno ha bendo, that the cattle are eloigned, the defendant may, if the sheriff has omitted to take sufficient pledges, Cro. Car. 446. Sir W. Jones, 278. 7 Mod. 387. Bull. N. P. 60. 3 Stark. 168. immediately without any previous proceedings, commence an action on the case against him. Ib. But the court will not attach him. 2 T. R. 617. In such action double the value of the goods distrained may be recovered against the sheriff, 2 H. Bl. 547, though it had been held in a previous case, that he should recover a full compensation in damages, though the sum exceeded in amount double the value the amount of the penalty in a replevin bond. 2 H. Bl. 36. See however a later case, 4 T. R. 433, where the value of the goods only was given. The court has, upon the sheriff and his deputy refusing to disclose the names of the pledges taken, made an order on them, to pay the defendant in replevin the damages and costs recovered by him. 2 Bl. Rep. 1220.

(3) This position is not correct; replevin lies in other cases of illegal taking. See cases 1 Chitty on Pl. 147. 4th ed. aute, 145. notes 1, 2.

the distress were taken for rent, recover treble damages (ƒ). The term rescous is likewise applied to the forcible delivery of a defendant, when arrested, from the officer who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action on the case, or of rescous (g): or, if the sheriff makes a return of such rescous to the court out of which the process issued, the rescuer will be punished by attachment (h).

An action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause: being a re-delivery of the pledge (i), or thing taken in distress, to the owner; upon his giving security to try the right of the distress, and to restore it if the right be adjudged against him (k): after which the distrainor may keep it, till tender made of sufficient amends: but must then re-deliver it to the owner (7). And formerly, when the party distrained upon intended to dispute the right of the distress, he had no other process by the old common law than by a writ of replevin, replegiari facias (m); which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and *afterwards to do jus- [*147] tice in respect of the matter in dispute in his own county-court. 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 (n). For which reason the statute of Marlbridge (o) 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. & 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. II. 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 (4). 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 (7) 8 Rep. 147. (m) F. N. B. 68.

(f) Stat. 2 W. & M. Sess. 1, c. 5.

(g) 6 Mod. 211.

(h) Cro. Jac. 419. Salk. 586.

(i) See page 13.

(k) Co. Litt. 145.

(n) 2 Inst. 139.

(0) 52 Hen. III. c. 21.

(4) See accordingly, 2 R. S. 526, § 27.

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).


*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

(o) See page 19.

(p) Finch. L. 316.

(q) Co. Litt. 145. Finch. L. 450.

(r) 2 Inst. 193.

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.

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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.
(r) Ibid. 23.

(y) F. N. B. 69, 70.
(z) Finch. L. 317.

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.)

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