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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 movable 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 immovable; 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 owner. The 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.

*1. And first of an unlawful taking. The right of property in all [*145] 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 once have 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 possession 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 simpleminded 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 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) an institution which 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: 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

(a) See book II, chap. 2.

(b) Ibid. 25.

(c) C. 2, § 6.

(1) Replevin is the universal remedy in the United States where chattels have been wrongfully taken or are wrongfully detained from the plaintiff, and he seeks to recover them in specie instead of a satisfaction in damages. It is a statutory action, and the statutes are considerably variant. The plaintiff must have either a general or a special property in the chattels. Speaking generally we may say that the plaintiff is required to show his right by affidavit when he sues out the writ; that the officer seizes the property, if to be found, and delivers it to the plaintiff, on receiving bond with sureties for its return in case the action is not sustained; that if the plaintiff recovers in such cases, he takes judgment for any damages he may have proved, while if the plaintiff is defeated, the defendant takes judgment either for a return of the property, or for its value, together with such damages as he may have shown. But if the officer does not find the property, so that it may be delivered to the plaintiff, the case nevertheless proceeds to judgment, and if the plaintiff recovers, he may, at his option, have the proper writ for its delivery in execution.

it is a maxim that "lex neminem cogit ad vana, seu impossibilia," it therefore *contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction [*146] 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 the distress were taken for rent, recover treble damages. (f) 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) (2) 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 redelivery 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, (j) after which the distrainor may keep it, till tender made of sufficient amends; but must then redeliver it to the owner. (k) 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; (i) which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and *afterwards to do justice in respect of the matter in dispute in his [*147] 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. (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. 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. 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

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(2) The action of rescous has fallen into disuse, and it is usual now to bring an action on the case.

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 goods [*148] which before he had lost, the law allows him to keep them, without any reference to the manner by which he thus has regained 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)

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 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 [*149] 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; (2) so that it is usual to carry it up in the first instance to the courts of Westminster-hall. 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

(p) Finch. L. 316.

(0) See page 19. (g) Co. Litt. 145. Finch, L. 450. (r) 2 Inst. 193. (s) Smith's Commonw. b. 3, c. 10. 2 Inst. 141. Hickes's Thesaur. 164. (t) F. N. B. 69, 73. (u) In the old northern languages the word withernam is used as equivalent to reprisals. (Stiernhook, de jure Sueon. l. 1, c. 10.)

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(v) Raym. 475. The substance of this rule composed the terms of that famous question, with which Sir Thomas Moore (when a student on his travela) 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 science; in omni scibili, et de quolibet ente. Upon which Mr. Moore sent him this question, utrum averia carucæ, 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. (x) Ibid. 23. (x) Finch, L. 317. (a) Saund. 195.

(v) F. N. B. 69, 70.

damages. (6) 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, [*150] 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 impannelled 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) 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. As 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 transgression, 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. (3) Or, if [*151] 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

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(3) 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., 348. 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, through 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. Six Carpenters' Case, 8 Co., 146; S. C., 1 Smith Lead. Cas., 216.

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. 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. (j) (4) But there is one disadvantage which attends this action; viz.: that the defendant is herein permitted to wage his [*152] law, that is, to *exculpate himself by oath, (k) 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 trover. (5)

This action of trover (6) 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 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, () 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 forever unknown: (m) and therefore he must not convert them to his own use, which the law presumes him to do, if he refuses to restore 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 suggest (as words of form) that he lost such goods, and that the defendant

(h) F. N. B. 138.
(k) Co. Litt. 295.

(i) Co. Litt. 286.

(1) Salk. 654.

(m) See book I, ch. 8; book II, ch. 1 and 26,

(j) Co. Entr. 170. Cro. Jac. 682,
(n) 10 Rep. 56.

(4) 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.

(5) 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. (6) As to the meaning of conversion, see Burroughes v. Bayne, 5 H. and N., 296: Pillott v. Wilkinson, 2 H. and C., 72; Thompson v. Currier, 24 N. H., 237; Adams v. McGlinchy, 62 Me., 533; Ireland v. Horseman, 65 Mo., 51; Laverty v. Snethen, 68 N. Y., 522; Haas v. Damon, 9 Iowa, 589; Dudley v. Abner, 52 Ala., 572; Eslow v. Mitchell, 26 Mich., 500; Millar v. Allen, 10 R. I., 49.

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