Chose in action - Evidences of title and debt-In favor of whom. Abb. N. S. 265; 4 Trans. App. 375. See Draycot v. Piot, Cro. Eliz. 818; Hall v. Dean, id. 841; Kinaston v. Moor, Cro. Car. 89. c. Chose in action. It is a well-settled rule of law that an action can be maintained for the conversion of a chose in action which has been pledged as a security for a debt. Luckey v. Gannon, 6 Abb. N. S. 209; S. C., 37 How. 134; 1 Sweeny, 12. It is equally well settled that where trover will lie, replevin may be maintained. Barrett v. Warren, 3 Hill, 348. Trover will lie for the recovery of an insurance policy. Luckey v. Gannon, 6 Abb. N. S. 209; S. C., 37 How. 134; 1 Sweeny, 12. So it will lie for the recovery of a bond and mortgage, deposited as collateral security. Campbell v. Parker, 9 Bosw. 322. This is not in accordance with the English rule which holds that a mortgage cannot be replevied, as it savors of the realty. d. Evidences of title. An assignee of a bill of lading, who is deemed to be the consignee thereof, may maintain replevin to recover the possession of the property mentioned in such bill, as against one who claims under an inferior title. Dows v. Rush, 28 Barb. 157. So any transferable evidence of title may be replevied whether it be a bill of lading, a certificate of stock, a bill of exchange, or a warehouse entry. Knehue v. Williams, 1 Duer, 597; S. C., 11 N. Y. Leg. Obs. 187. e. Evidences of debt. As a general rule, the action of replevin may be maintained for the recovery of a promissory note in the hands of a third person. But the maker of such note cannot bring an action of replevin for its recovery after payment, unless the note has a special value as a voucher. Todd v. Crookshanks, 3 Johns. 432; Cahoon v. Bank of Utica, 7 N. Y. (3 Seld.) 486; S. C., 7 How. 401; Streever v. Bank of Fort Edward, 34 N. Y. (7 Tiff.) 413; Birdsall v. Russell, 29 id. (2 Tiff.) 220; Wheeler v. Allen, 49 Barb. 460; Savery v. Hays, 20 Iowa, 25. Section 2. In favor of whom. a. Owner of property. In order to entitle the plaintiff, in an action to recover the possession of personal property, to the delivery of the property before judgment, it must appear that he is the owner of the property claimed, or is lawfully entitled to its possession. Code, § 207. The fact of ownership will not, of itself, entitle the plaintiff to recover in an action of replevin. That fact must be coupled with the present right of possession at the time of the commencement of the action. Wood v. Orser, Persons entitled to possession and in a representative character-Officers, etc. 25 N. Y. (11 Smith) 348; Bush v. Lyon, 9 Cow. 52; Redman v. Hendricks, 1 Sandf. 32; Rogers v. Arnold, 12 Wend. 30; Sharp v. Whittenhall, 3 Hill, 576. b. Persons entitled to possession. It is sometimes difficult to determine who is entitled to bring an action of replevin by virtue of the right to possession. Absolute ownership will not per se give the right of action, while a mere equitable interest, coupled with possession, may be sufficient to enable a person to maintain replevin against a wrong-doer who has disturbed him in his possession, although the absolute ownership of the property is in another. Frost v. Mott, 34 N. Y. (7 Tiff.) 253; Johnson v. Carnley, 10 id. (6 Seld.) 570. A person having a lien upon goods has such a special property in them as will entitle him to maintain an action of replevin against the owner who takes them from him without first satisfying the lien. Baker v. Hoag, 7 N. Y. (3 Seld.) 555; Ingersoll v. Van Bokkelin, 7 Cow. 670; Wheeler v. McFarland, 10 Wend. 318; Rogers v. Arnold, 12 id. 30. So the assignee of one whose goods have been tortiously removed and detained may maintain replevin against the wrongful taker, and recover in his own name. McKee v. Judd, 12 N. Y. (2 Kern.) 622; Merrill v. Grinnell, 30 id. (3 Tiff.) 594; Waldron v. Willard, 17 id. (3 Smith) 466; Dows v. Rush, 28 Barb. 157. c. Persons in a representative character. An action of replevin, commenced by a party who has died before judgment, may be continued in the name of the personal representatives of the deceased. Lahey v. Brady, 1 Daly, 443; Mellen v. Baldwin, 4 Mass. 480; Potter v. Van Vranken, 36 N. Y. (9 Tiff.) 619; S. C., 2 Trans. App. 73. So the action may be commenced by the personal representatives of a party deceased, where the goods. taken continue in specie in the hands of the wrong-doer. Potter v. Van Vranken, 36 N. Y. (9 Tiff.) 619; S. C., 2 Trans. App. 73; Chamberlain v. Williamson, 2 Maule & Selw. 408; Countess of Rutland's Case, 1 Cro. Eliz. 377; Berwick v. Andrews, 2 Ld. Raym. 971. d. Officers, sheriffs, etc. An officer who has taken goods into his possession by virtue of a process of execution may maintain replevin against a third person who has taken them away without right or authority. Barker v. Miller, 6 Johns. 195; Barker v. Binninger, 14 N. Y. (4 Kern.) 270; Howland v. Willetts, 9 id. (5 Seld.) 170; S. C., 5 Sandf. 219. A person who receipts property levied upon by a constable or sheriff has neither a general or special property in the goods, and cannot maintain replevin in his own name, although the property be tortiously taken by a stranger. He acts as the mere agent of the officer. Dillenback v. Jerome 7 Cow. 294. e. Partners. One partner cannot maintain replevin against another partner for the recovery of the exclusive possession of the partnership stock. Each is entitled to the possession, and the possession of either is the possession of both. Azel v. Betz, 2 E. D. Smith, 188; Koningsburgh v. Launitz, 1 id. 215. But, where two persons are partners and one of them finds the stock, and the other does the work, and the working partner absconds, the partner finding the stock can maintain replevin for it in his own name, if it be taken from the possession of the working partner before he has begun to work it up. Boynton v. Page, 13 Wend. 425. See Russel v. Allen, 13 N. Y. (3 Kern.) 173; Foster v. Magee, 2 Lans. 182. Section 3. Against whom. a. Party wrongfully taking or detaining. In general, the action of replevin will lie against any person wrongfully taking or detaining the personal property of another. The distinction once made between actions in the cepit, and actions in the detinet, is now virtually ignored, and the action in the detinet lies where the taking was tortious as well as where the wrong consists in its detention only. Zachrisson v. Ahman, 2 Sandf. 68. b. Persons in a representative character. Although persons acting in a representative character, as executors, administrators etc., may maintain replevin against a party who has wrongfully detained the property of the deceased, yet, such administrators or executors are not liable, in an action of replevin, for any wrongful act of their testator, unless they retain after demand the specific chattels wrongfully taken by him during his life-time. Hambly v. Trott, 1 Cowp. 371; Mellen v. Baldwin, 4 Mass. 480; Mason v. Dixon, Sir Wm. Jones, 173; Lahey v. Brady, 1 Daly, 443; Potter v. Van Vranken, 36 N. Y. (9 Tiff.) 619; S. C., 2 Trans. App. 73. c. Sheriffs, etc. Replevin will lie against a sheriff who levies upon the property of a person other than the defendant named in the process. The property taken is not in the custody of the law, as regards the real owner. The sheriff, in such cases, acts without authority, or color of authority. He is a wrong-doer, and, if he acts by the direction of the plaintiff, both are trespassers. Marsh v. Backus, 16 Barb. 483; Clark v. Skinner, 20 Johns. 465; Dunham v. Wyckoff, 3 Wend. 280. The same rule applies, whether the goods were taken under an attachment or on an execution. Marsh v. Backus, 16 Barb. 483. An action of replevin will lie against a sheriff, in such cases, even though the property has never been removed, or taken into the actual possession of the officer. Any unlawful intermeddling with the property of another, or any exercise of dominion over it, in defiance or exclusion of the owner, even though there be no manual interference, is such an unlawful taking as will authorize an action of replevin against the officer. Neff v. Thompson, 8 Barb. 213; Wintringham v. Lafoy, 7 Cow. 735; Allen v. Crary, 10 Wend. 349; Fonda v. Van Horne, 15 id. 631. It is provided by statute that no replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment, or fine, in pursuance of any statute of this State. 2 R. S. 522 (540), § 4; Code, § 207; People v. Albany Common Pleas, 7 Wend. 485. By this it must be understood that an action will not lie to recover the possession of personal property, subject to execution, from an officer who holds it under a tax warrant against the plaintiff, regular upon its face, and issued by the proper authorities. Hudler v. Golden, 36 N. Y. (9 Tiff.) 446; S. C., 2 Trans. App. 316. But, where it is apparent, on the face of the warrant, that it was issued without jurisdiction, replevin will lie against the officer. Wright v. Briggs, 2 Hill, 77; George v. Chambers, 11 Mees. & Wels. 149. Where the statute has, from considerations of public policy, prohibited the remedy in this instance, it has not restricted the use of other concurrent remedies - such as trespass or trover. People v. Albany Common Pleas, 7 Wend. 485. And notwithstanding the provisions of the Revised Statutes that replevin shall not lie for goods taken for a tax pursuant to statute, the rightful possessor of goods, unlawfully seized under a warrant against another, for non-payment of taxes, may maintain an action of replevin for their recovery. Stockwell v. Vietch, 15 Abb. 412; S. C., 38 Barb. 650; Travers v. Ins. Co., 19 Mich. 98. d. Receiptors. Although a receiptor may not maintain an action of replevin against a party removing goods from his possession, he is responsible to the officer from whom he receives them, and may be proceeded against, on a refusal to redeliver Where the action lies. them, either in an action of replevin or trover for the goods, or in an action in the nature of assumpsit on the receipt. Dezell v. Odell, 3 Hill, 215. Section 4. Where the action lies. a. For the wrongful taking. The distinction between the different forms of the action of replevin is not wholly unimportant, although the form of the pleadings in the action has been almost totally changed by the Code. The right of the plaintiff to recover the possession of personal property by an action of replevin, is the same, whether the property was wrongfully taken by the defendant, or came lawfully into his possession. But, in order to fix the liability of the defendant in the latter case, it is necessary, in most instances, that a demand should be made and an opportunity afforded for the restoration of the property. Tallman v. Turck, 26 Barb. 167; Barrett v. Warren, 3 Hill, 348; Nash v. Mosher, 19 Wend. 431. It is the refusal of the defendant to restore the property to the party legally entitled to its possession, that constitutes a wrongful detention, where the possession of the property was legally obtained. But it is the duty of the defendant to establish, by proof, that he came into the possession in good faith and for a lawful purpose, before he can avail himself of the defense that no demand was made before action, as, until such proof has been made, he will be deemed as much a wrong-doer as an original taker, and will not be deemed entitled to a demand. Ib. As a general rule, replevin in the cepit, or for the wrongful taking, lies only where an action of trespass might have been brought. Barrett v. Warren, 3 Hill, 348; Ely v. Ehle, 3 N. Y. (3 Comst.) 506; Stockwell v. Phelps, 34 id. (7 Tiff.) 363. In order to maintain this action, the plaintiff must show that he was either in actual possession, or entitled to immediate possession, at the time the property was taken. Stockwell v. Phelps, 34 N. Y. (7 Tiff.) 363; Redman v. Hendrick, 1 Sandf. 32. And if the plaintiff fails to establish an exclusive right to possess and control the property he cannot recover. Rogers v. Arnold, 12 Wend. 30. But right of possession must not be confounded with absolute ownership. Right to the possession for the time, and dominion of the goods and chattels is all that is essential. Ib. Actual possession of the property at the time that it was taken, coupled with an equitable interest in it, is sufficient to maintain this action, although the general property be in a stran |