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among the Athenians; where masters were entitled to an action agains
We may observe that in these relative injuries, notice is only taken of
Yet the wife or the child, if the husband or parent be slain,
(0) Pott. Antiq. b. 1, c. 26.
this doctrine were elucidated in the recent action for seduction which is in most general
viceable to him by her pregnancy ; or the ac
her father's family. 4 Burr. 1878. 3 Wils.
be considered in the next book. And so the servant, whose inaster is dis. abled, 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 af fected 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 (6).
!. 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
delaining them, though the original taking might be lawsul. [*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 chatiels, 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 le' See book II. chap 9
(0) 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 theinselves 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 ; land has no title thereto, this action is prefer. Bac. Ab. Replevin and Avowry; Vin. Ab. able to trespass for seizing the cattle, in order Replevin; Gilbert on Distresses, by Hunt; to put in issue the title of the party distrain. Bradly on Distresses ; Selw. N. P. 1 155. and ign. 1 Saund. 346. c. n. 2. So, to try the Wilkinson on Replevin ; and see, as to dis. legality of a distress for poor rates, 3 Wils. tresses, the notes ante, 5 to 10.
442. 1 Salk. 205. 6 Easi, 283. 2 Bla. Rep. A replevin in general lies only for goods and 1330. | Burr. 585. Willes, 672. b; or of chatiels, and it cannot be maintained for tak- one of the several raies where the distress ing and removing things affixed to the free. warrant includes a supposed arrear of several hold, even though wrongfully separated there. ratcs, 2 Moore, 4.7: or for sewer's rate, 6 T. from by the defendant. Co. Lit. 146. b. 4 T. R. 522. Hardw. 478. Com. Dig. Pleader, R. 501. Bui growing crops may be consider. K. 26. Willes, 672. n. b.; or for a heriot, &c. ed in the nature of goods and chattels, being Cro. Jac. 50. But if a superior court award cader il Geo. II. c. 19. distrainable ; therefore an execution, it seems that no replevin lies where a replevin bond was to prosecute for for the goods taken by the sheriff by virtue of laking goods, chatiels, and growing crops, and the execution, and if any person should pre. in the declaration it was set out as to prose. tend to take out a replevin, the court would cute for taking "goods and chattels," it was commit him for a coniempt of their jurisdic. held to be no variance. 7 Moore, 231. 1 tion, Gilb. Rep. 161. Willes, 672. n. b. 2 Bing. 6.
Lutw. 1191. 3 Lev. 204. 2 Stra. 1184; and It is said by the learned Commentator in where goods are taken by way of levy, as for the text, that ihe action of replevin obtains a penalty on a conviction under a statute, it is only in one instance of an unlawful taking, generally in the nature of an execution, and that of a wrongful distress. But lord Redes. unless replevin be given by the statute this dale remarked in 1 Sch. & Lef. 327. that this action will not lie, the conviction being con. definition is too narrow, and many old authori• clusive, and its legality not questionable in ties will be found in the books, of a replevin replevin, 2 New. Rep. 399. Bac. Ab. Reple. where there had been no distress. See Vin. Ab. vin, (C) Com. Dig. Action, M. 6. Willes, Replevin, B. & C. 2. Com. Dig. Replevin. Re. 673. n b. 1 Brod. & Bing. 57; but where a plevin is now seldom brought but for distresses special inferior jurisdiction is given to jusfor rent, damage-leasant, poor's rate, &c. Com. tices, &c. and they exceed it in some cases, re. Dig. Action, M. 6. It may certainly be brought plevin lies. Willes, 672. n. b. This action to try the legality of a distress for rent, pro is also maintainable for goods distrained un. vided there were ne sum whatever in arrear, der a warrant from commissioners authorized ST. R. 248. n. c. 3 B. & P. 348 ; but if any by act of parliament to levy rates for specific sum. however small, were due, and the distress local purposes, with power of distress. I were for a greater sum, or excessive, or other. Swanst. 304. 1 B. & B. 57. wise irregular, the remedy must be by action The plaintiff ought to have either an abso on the case. i Hen Bla. 13. Replevin lies lute or special property in the goods in ques. also for an illegal distress taken damage-sea- tion, vested in him at the time of the taking. tant; and when the party in possession of the Bro. Bepl. pl. 8. 20. A mere possessory right
(2) In New York the remedy by replevin the property is a return be adjudged, and to has been greatly enlarged by the Revised pay ihe amount that may be recovered. Statutes, and it now extends, except in the The sheriff then delivers the property to the cases specified in the act, . to any wrongful plaintiff, and gives notice to the desendant taking or detention of the goods or chattels of thereof, and of the time at which he is to apanother. Executors may maintain this action pear in court to resist the plaintiff's claim. for goods wrongfully taken, whenever they The sheriff, after demnand of delivery of the could maintain trespass by statute. But re. goods, may break open any house in which plevin does not lie for property taken under a they are concealed.' If he cannot obstain the warrant for the collection of a tax, assessment, goods, he arrests the defendant until he enters or fine, in pursuance of a statute : nor at the into bond with two sureties to abide the order suit of the defendant in an execution or at of the court, and to put in special bail. Cachment for goods taken by virtue thereof, If the defendant claims property in the anless they are exempt by law from execution, goods, and pays to the sheriff his fees and the fc.: nor at the suit of any other person, un fees of a jury to try the claim, he may have less he has at the time a right to reduce the his title iried before such jury; and in the goods into his possession.
meantime the goods remain in the custody of The writ cannot be executed until an affida- the sheriff. If the jury find for the defendant, it is annexed to it, showing that the case he receives back again the goods : if the jury does not come within any of the above excep. find for the plaintiff, the plaintiff, on refunding tions, and until the plaintiff and two sureties the expenses and indeinnifying the sheriff, re executes a bond in double the value of the ceives the goods. property conditioned to prosecute the suit See the other proceedings, 2 R. S. 522. &c with effect and without delay, and to return Vol. II.
the mirat (c) ascribes to Glanvil, chief justice to king Henry the Second This obtains only in one instanoe of an unlawful taking, that of a wrong, ful 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 transi. tory 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[*245] 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 aciually impounded. He may also at his option bring an action on the case for this injury: and shall therein, if (c) c. 2, 66.
(e) Ibid. 100. (d) F.N. B. 101.
is not sufficient. 10 Mod. 25. If the goods upon it in the superior courts. 5 T. R. 195, of a feme-sole are taken, and she marry, the The sureties are liable to the amount of the husband alone may sue the replevin, or the penalty in the bond and costs of suit thereon. wise may join, R. T. Hardw. 119; but it must i Taunt. 218. They will not be discharged appear on the face of the record that she held by time being given to the plaintiff in reple. an interest in the things taken. 2 New. R. vin, 2 Marsh. 81. 6 Taunt. 379. S. C. ; nor 402. Executors may maintain replevin for by the execution of a writ of inquiry, under the goods of the testator taken in his lifetime. the 17 Car. Il. c. 19. s. 23. 2 Brod. & Bing. Bro. Repl. pl. 59. And parties who have a 107. joint interest in the distress may join in the
When the defendant has obtained judgment, ieplevin, Co. Lit. 145. b.; but where the in. if the sheriff return to the writ de retorno ha terest is several, there ought to be several re. bendo, that the cattle are eloigned, the defend plevins. Bro. Abr. Repl. pl. 12. While the ant may, if the sheriff has omitted to take sufgoods distrained for rent remain unsold, the ficient pledges, Cro. Car. 446. Sir W. Jones, tenant may replevy, although the five days 278. 7 Mod. 387. Bull. N. P. 60. 3 Stark. allowed by the act have expired, and although 168. immediately without any previous pro they have been appraised and removed off the ceedings, commence an action on the case premises. 5 Taunt. 451. i Marsh. 135. 1 against him. Ib. But the coun will not atiach Chitty R. 196. a.
him. 2 T. R. 617. In such action double the Replevin Bonds.-Two modes have been value of the goods distrained may be recover. adopted by sheriffs or other officers making ed against the sheriff, 2 H. Bl. 547, though it replevins with respect to bonds; the first to had been held in a previous case, that he take a bond from the pledges or sureties, Dal should recover a full compensation in dama. ton's Sheriff, 438, 9. Lord Raym. 278. Lutw. ges, though the sum exceeded in amount 687; the other method has been lo take a bond double the value the amount of the penalty in from the party replevying. In all replevin bonds a replevin bond. 2 H. Bl. 36. See however there are several independent conditions ; one a later case, 4 T. R. 433, where the value of to prosecute, another to return the goods re. the goods only was given. The court has, plevied, and a third to indemnify the sheriff, upon the sheriff and his deputy refusing to and a breach may be assigned upon any of disclose the names of the pledges taken, made these distinct conditions. 7 Mod. 380. Or an order on them, to pay ihe defendant in re. the breach may be assigned thus, " that de plevin the damages and costs recovered by fendant did not prosecute his suit with effect, him. 2 Bl. Rep. 1220. and hath not made return." 3 M. & S. 180. (3) This position is not correct; replevin A plaintiff must succeed in his suit, or he does lies in other cases of illegal taking. See noi " prosecute with effect." 7 Mod. 380. cases i Chitty on Pl. 147 4th ed. an:e, 145 The sheriff may assign the bond to the avow. notes 1, 2. ant or cognizor, who may maintain an action
the distiese 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 res cous (g): or, if the sheriff makes a return of such rescous to the court out of which the process issued, the rescuer will be piinished 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 (?). 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] sice 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 righi be determined against him, he will return the distress again, for which purpose he is also bound to find plegios de retorno kabendo. 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 tc: 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 lahen in distress to be restored into the possession of the party distrained Stat. 2 W. & M. Soss. 1, c. 5.
(1) S Rep. 147. (8) 6 Mod. 211. (a) Cro. Jac. 419. Salk. 586. (i) See page 13.
(m) F. N. B. 69.
(k) Co. Litt 145.
(4) See accordingly, 2 R. S. 526, 0 27