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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 sherif 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 (9) (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) (), 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 bave a writ of capias in withernam, in vetito( or, more properly, repetito) namio; a term which signi. fies 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 (1). 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 recordlari or pons (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 (6). Upon this action brought, and declaration delivered, the distrainor, who is now the defend

travels) is said to have puzzled a pragmatical pron (p) Finch. L. 316.

fessor in the university of Bruges in Flanders ; q) Co. Litt. 145. Finch. L. 450.

who gave a universal challenge to dispute with

any person in any science : in omni scibik, et de (8) 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 velito

namio, sint irreplegibilia ," whether boasts of the (u) in the old northern languages the word wi- plough, taken in withernam, are incapable of being thernam is used as equivalent to reprisals. (Stiem- replevied. (Hoddesd. c. 5.) hook, de jure Sucon. I. 1, c. 10.)

(v) Raym. 475. The substance of this rule composed the terms of that famous question, with (y) F. N. B. 69, 70. which sir Thornas More (when a student on his

(0) See page 19.

(7) 2 Inst. 193.

(0) F. N. B. 69. 73.

(w) 2 Inst. 139.
(1) Ibid. 23.

(2) Finch. L. 317.

(5) See note 2. p. 145: the return of an from, and are returnable only into the Supreme eloigninent would not be allowed under the Court or Common Pleas Court: and are remor Revised Statutes : and the capias in wither. able by either party from the ('ommon Pleas to nam is abolished, (2 R. S. 533, 9 63,) as also the Supreme Court by certioran to other per. al writs of second deliverance. Id.

ronal actions. (2 R. S. 533. $ 65. 3°N : (6) In New-York. writs of replevin issue 523, 9 6.)

2

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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 arrcre
damage done, or other cause : or else, if he justifies in another's right 28
his bailiff or servant, he is said to make cognizance ; that is, he acknow.
ledges 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 de-
termined 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 ha-
bendo, whereby the goods or chattels (which were distrained and then re-
plevied) are returned again into his custody ; to be sold, or otherwise dis-
posed 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, issu-
ing out of the original record, and called a writ of second deliverunce, in or.
der to have the same distress again delivered to him, on giving the like se.
curity 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 de-
liverance 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 aster issue joined, or if a ver-
dict 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 nos
amount to felony unless it be done animo furandi, is nevertheless a trans-
(6) 2 Saund. 195.

(d) 1 Ventr. 64.

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(6) F. N. B. 69.
(c) | Inst. 340.

(e) Stat. 17 Car. II. c. 7.
(f) F. N. B. 71.

(7) See 2 R. S. 531, $ 56: similar to 17 no writ of second deliverance, nor other wr
Cer. II. c. 7. But by the Revised Statutes, of replevin, is allowed: but the plainuiff may
? vol. 532, 962, when judgment passes against bring an action of trover or trespass, unless
the plaintiff in replevin by default or other. the judgment was on the merits.
wise, and a return of the property is awarded :

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[*151] gression, for which an action of trespass vi et armis will lie ;

wherein the paintiff 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 an. other'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 he like; for that cannot be known from other money or com ; 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 trover.

This action of trover (11) and conversion was in its original an action of (8) F. N. B. 69.3 Rep. 147.

(k) Co. Entr. 170. Cro. Jac. 681.

(1) Co. Litt. 295.

(4) F. N. B. 138. (1) Co. Litt. 286.

(8) In order to sustain trespass for laking see Coin. Dig. Detinue; I Chitty on Pl. 4th goods, the actual or constructive possession ed. 110. to 114. It has been supposed that must be vested in the plaintiff at the time the detinue is not sustainable where the goods act complained of was done. For instance, have been taken tortiously by the defendant, the lord before seizure may bring the action but that doctrine is erroneous, and it is the against a stranger who should carry off an proper specific remedy for the recovery of the estray or wreck; for the right of pussession, identical chattels personal, when they have and thence the constructive puissossion, is in not been taken as a distress. See cases and him. So the executor has the ignt immedi. observations, i Chitty on Pl. 4th ed. 1/2, 3. ately on the death of the testator, and the (10) In New-York' this action is abolished night draws after it a constructive possession. (2'R. S. 553, Ø 15.) replevin fully supplying I T. R. 480. 2 Saund. 47. in notes. See 1 its place. Chitty on Pl. 4th ed. 151 to 159.

(11) On the action of trover in general, se (9) A8 19 the action of detinue in general, i Chitty's Pl. 4th ed. 135 10 145. Absoli.

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 umverted

and exclusive property, with actual posses. toner, as “ bills" (not as casb), 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 trovcr, the plaintiff must have a right of pro- the assignees having converted the sanc 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 inaintain trover where the goods have been relivered 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 ihe 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. i 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. & 9. 826. 2 Dowl. & Ry. I. 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. d. The church. sion 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. I Mod. 31. Stra. 505. as from the poor house, and use it upon the de. carriers, consignees, pawnees, trustees, 2 mised premises, and the plaintiff covenanted Sauod. 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 churchwardeus, 2 Stra. 852.2 P. Wms. against a succeeding overseor, 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. corenant entered into with the previous over. cient as against a stranger, gives no right seers could not bind their successors. 3 against one who has the general property. 1. Stark, 28. An insolvent debtor cannot main. 1. R. 658. Where the sheriff under a writtain trover for plate, although his assignee of fi. fa. against A., sells the goods of B., does not interfere to prevent num. 1 Čarr. though by public sale, the purchaser is liable 146. to the latter, in trover. 3 Stark. 130. 5 B. A conversion seems to consist in any tor & A. 826. 2 Dowl. & R. I. S. P. Where tious act, by which the defendant deprives tho A. sbioped goods by the order of, and for B. plaintiff of his goods, either wholly, or but for in London, and shortly afterwards ascertained a time. 3 B. & A. 685. The mere abuse of that B. had stopped payment, and he then in. a chattel by a bailee is no conversion, Gil. L. dorsed and forwarded the bill of landing to the Ev. 265. 21 ed., but if he use it contrary to plaintiff, directing bim to take possessiou of the design of the hailment, it is otherwise ; ihe goods, held ihat on the delendants' (the as if a man lend his horse to go to York, and carriers) refusal to deliver them to the plain the bailee go to Carlisle. 2 Bulst. 309. Mere tiff, he had a sufficient title to sue for them in nonseаsance is not a conversion, 2 B. & P. trover. 2 Bing. 260. See also 5 M. & S. 438; as that an agent employed to sell goods 350. as between vender and assignee of factor has neglected to sell them. If the goods corne to the vendee. And where a purchase was to the hands of the desendant by delivery, find. made for A. and B. by a broker, who, after a ing, or bailment, a demand and refusal should division of the goods, pledged the warrants of be proved at the trial, but in cases of tortious B., with those of A. to C. for a debt of A., it iaking or actual conversion, proof of demand was held that B. might maintain trover against and refusal is unnecessary. i Sid. 264. The C. though the lauer did not know that B. ordinary presumptive proof of a conversion had any interest in the warrants ; the broker consists in evidence of a demand of the gnods having no power to pledge them. 5 B. & A. by the plaintiff, and a refusal to deliver ihein 395. As between foreign merchant and by the defendant, 6 Mod. 212. 6 East, 540.5 pledgee of his consignee, see 5 Moore, 518. East, 407. but the court cannot infer a conrer8. And where a customer of a country bank sion from such proof, it must be found by the was in the habit of paying in tills of ex. jury. 2 Mod. 242. 10 Coke, 57. 2 Roil. Ab. change, which were never written short, but 693. I T. R. 478. Hoh. 181. If the refuss! entered to the full around in the pass-book on be absolute, and there be no evidence to justify the day thev were paid in, and also in the or explain it, the jury ought to find a conver books of the oans to the credit of the cus- sion.' 1 Esp. R. 31. Clay. 122. pl. 114 Bu

them to his own use; from which finding and corverting 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 (mbi 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 resusal also is, prima facie, sufficient evidence of a conversion (r). The fact of the finding, or trover, is therefore now totally immaterial : for the plaintiff needs only to suggest (as words of forns) 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 anywise taking from the value of any of his chartels, 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 irespass 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 oniy 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 (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.

(0) Noy's Max. c. 44. (m) See book I. ch. 8. book II. ch. 1 and 26. (p) Cro. Car. 254. 487. (n) 10 Rep. 56. a qualified refusal, as, because the holder does (12) Or in New York, by 2 R. S. 553, $ 16. noi know to whom the goods belong, 1 Esp. case may be brought. R. 83. 2 Buls. 312. B. N. P. 46. or that the (13) As to what is evidence of knowledge, claimant has not proved his right, 3 Camp. see 4 Camp. 198. 2 Stra. 1264. 2 Esp. 482. 215; on a servant refusing to deliver them, But the owner is not answerable for the first without an order from his employers, 5 B. & mischief done by a dog, a bull, or other tame A. 247. or referring the plaintiff to his master, animal. Bull. N. P. 77. 12 Mod. 333. Ld. ib. or a false assertion of a carrier, that he has Raym. 608. Yet if he should carry his dog Jelivered the goods, 1 Camp. 409 ; in all these into a field, where he himself is a trespasser, cases the facts do not amount to a conversion and the dog should kill sheep, this, though the An incorporated company inay be guilty of a first offence, might be stated and proved as an conversion by the act of their agent, done unaggravation of the trespass. Burr. 2092. ? der the orders of the committee of manage. Lev. 172. But where a fierce, and vicious dog ment. 3 Stark. 50.

is kept chained for the defence of the premi

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