Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDOe DOUQLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell UniversKy Library KF 720.C65 A practical treatise ""'"J* {^.lyS^^ Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018822209 A PEAOTIOAL TEEATISE ON THE LAW OF REPLEVIN AS ADMINISTERED BY THE (/;»'" < -^ COURTS OF THE UNITED STATES. ABKANGED VS THREE PARTS TO FACILITATIT READY REFERENCE. BY • J. E. COBBEY, B.S., LL.B. CHICAGO: CALLAGHAN AND COMPANY, 1890. COPYEIGHT BY J. E. COBBEY. (ALL BIGHTS BESEBYKD.) TO MY PAKENTS, whose economy and saoeifices enabi^ed me to acquire the edncation which made this wobk possible, it is ee- spectfullt insokibed by The Authoe. PREFACE. The first work on replevin was by Gilbert in 1756; fol- lowed by Wilkinson in 1825; and by Morris in 1849, which passed through several editions, all of which have long been out of print. These were followed by Wells in 1880, each work being an improvement on its predecessor. As the use of the writ has been greatly enlarged and extended, and the value of personal property has greatly increased in late years, there is a demand for a more recent, comprehensive, and ex- haustive treatise on this subject. What here follows is the result of an earnest endeavor to make a reliable, useful, and comprehensive statement of the law of replevin, not only in its general, but special forms. How far this effort has been successful those who use the book can alone determine. The writer does not claim that his work is without error, but throws himseK upon the indulgence of the members of this learned profession in hopes that they will deal lightly with his errors and short comings, and credit him with an honest and diligent endeavor to elucidate a subject by no means free from doubt and difficulties. Remembering that, while in the theory of law, every case which arises for judgment is decided by some rule which al- ready exists, yet the moment the judgment is made it has to some extent modified the rule, so that the difficulty of for- mulating an exact rule on any given subject increases rather (v) Tl PREFACE. than diminislies with the number of decisions in which the courts have endeavored to apply the rule. As the work con- tains nearly 11,000 citations, it is apparent that it has cost much painstaking labor, not only in finding the citations, but in classifying and deducing rules from them. The plan pur- sued has been to state in as clear and accurate form as possi- ble the principle of law involved, citing an authority directly in point, and following this by other citations bearing on the general principle involved, and quoting from leading cases upon any particular proposition, where practicable, the length of the quotation depending upon the inaportance of the ques- tion involved and the thoroughness of the investigation made by the court rendering the opinion. Upon doubtful questions I have endeavored to give a full presentation of the conflicting views, and have given my own view of the better rule, believing that to do less would be to fail in my duty. While this opinion will not carry with it the weight of judicial decision, it will at least amount to a dictum, and will aid the investigator in determining the law on controverted points. Where practicable parallel references have been given to West .Publishing Company's System of Reports, Smith's Leading Cases, American Decisions, American Reports, and other collections of cases, as well as to the state reports. Great pains have been taken to refer to the very latest de- cisions, believing, with Chancellor Kent, '^that the best deci- sions are the latest, other circumstances being equal." Where a decision bears upon a general principle, yet is gov- erned or limited by a statute, the statute has been given in the notes. The writer believes that the arrangement, which is cov- PBEFACE. VU ered by copyright, will be of great advantage in enabling tbe attorney to quickly find the law on any given point, even without reference to the exhaustive index. Part I. treats exclusively of questions likely to occur to the practitioner when • preparing to commence an action in replevin ; such as what property may be replevied, when re- plevin will lie, proper parties, demand, etc. Part II. treats of all questions liable to arise in the con- duct of a replevin action, commencing with affidavit and tak- ing them up in the regular order of the progress of a case through the trial and appellate courts. Part III. treats of suits on replevin bonds or to enforce the judgment in replevin, treating it in its regular and logi- cal order. The subject naturally divides itself into these divisions, and the line of division is as distinct and complete as between many subjects upon which separate treatises have been pub- lished. Thus the work is really three books in one volume. The author trusts that this work will to some extent light- en the labors of a busy profession to whom it is fraternally submitted. Beatrice, Neb., May 1, 1890. (t&^ TABLE OF CONTENTS. PAET I. QUESTIONS AEISING IN PEEPAEING TO COM- MENCE A EEPLEVIN ACTION. CHAPTER I. mstorical and introductory. beot:on. History 1 Derivation and definition 2 A writ of justice 3 One of the modes of redress for tJie loss of goods 4 Both parties are actors 5 Old forms of the action 6 Practice 7 Replevin in tne old forms is unknown in this country 8 But are still recognized, though not in name 9 At common law replevin in the cepit 10 Common law replevin may be extended or limited by practice acts.... 11 CHAPTER II. SCOPE AND NATURE OF THE ACTION. The ^st of the action 12 It is not an extraordinary remedy like attachment 13 A court of chancery will not interfere 14 Replevin; suits in; how regarded by the courts 15 Replevin is strictly a law action 16 Distinction at common law between trespass, trover, and replevin.... 17 Similarity of trespass, trover, and replevin 18 Replevin as used in America 19 Importance of the action 20 It is a mixed action partly in rem. and partly in personam 21 The action is grounded on a tortious taking 22 Object of the action, primary 2;! secondary 2-1: (ix) I CONTENTS. SEOTIOK. Scope of the investigation... 25 The same — Illustrations 26 Eepleyin is strictly a possessory action 27 CHAPTER III. LANDLORD AND TENANT— DISTEESS. The landlord cannot sustain replevin for his share until it is set apart 28 The landlord in such a case should bring bill in equity, not replevin.. 29 But if landlord's right is denied, he may replevy 30 Where the tenancy is for a definite time, replevin will not lie until the time is up 31 Landlord may replevy his share when ready for delivery 32 Crops on leased land belong to thetenantuntil gathered and divided 33 Assignee of landlord may replevy when share set apart 34 Where a tenant abandons his lease 35 A tenant has a right to possession oven against the landlord 36 Distress — History 37 Gross abuses 38 Chief use was to collect rent 39 At first a distress could not be sold 40 Later rule under the statute of 2 W. & M., Cb. 5 41 The theory out of which distress grew 42 To authorize a distress must be an actual demise :.. 43 Distress only lies for rent in arrears 44 It could be taken for any kind of rent 45 Distress as known at the common law is almost unknown in this country — Attachment takes its place 46 Where it could be made 47 What is triable in a replevin of a distress 48 Venire how laid in a replevin of a distress 49 Action by tenant— Tender 50 CHAPTER IV. WHEN THE ACTION LIES GENERALLY. When the action lies generally 51 The action lies generally when there has been an illegal taking 52 When it lies generally, old and modern rule 53 The same — Illustrations 54 The same — ^Negative illustrations 55 It does not lie for the purpose of determining the title to real estate 56 But will by a receiptor of goods 57 As regards possession ; 58 Replevin lies for property in the hands of a receiptor 59 CONTENTS. XI BECTION. When right to possession alone sufBcient when plaintiff must have legal title 60 'Defendant must be in possession 61 What constitutes possession by an oflScer 62 Levy without possession is no ground for replevin 63 Replevin will not lie against one who is not detaining 64 Mere acts of ownership insufficient 65 Exception — Where property in defendant's possession is wrongfully transferred different rule by statute 66 Where only part of the property is taken 67 Cases depending upon particular facts 68 CHAPTER V. WHAT PUOPEHTY MAY BE KEPLEVIBD. What may be replevied — Examples 69 Will lie for wild animals once in actual possession .' 70 Does not lie for a corpse after interment 71 Money is not the subject of an action of replevin 72 Must be for certain fepecific articles 73 A life insurance policy may be the subject of replevin 74 So may public records, the seal of a court, and the fee book 75 When check, lease, or private papers can be 76 Stock or corporate property may be by custodian only, not by stock- holders 77 Parish records may be 78 Title deed may be 79 Scrip cannot be 80 County warrant can— Chose in action 81 Property must be in esse at commencement of the action 82 Property must be capable of seizure and delivery 83 CHAPTER VI. WHAT TITLE WILL SUPPORT THE ACTION. Peaceful possession is good evidence of title 84 The possession must be under a claim of right., 85 Special property with actual possession..... 86 Absolute possession 87 Just what right of possession will support replevin 88 The interest sufficient to maintain trover is sufficient 89 As against a wrongdoer, prior possession alone sufficient 90 Owiierahip alone without possession not 91 The right of exclusive possession, coupled with an interest 92 Paramount title is not necessary as against trespassers and wrong- doers /. 93 Xll CONTENTS. SEOTION. Right to the possession Indispensable to maintain the action 94 Difference between action against stranger and general owner 95 An after-acquired interest will not support replevin 96 And the right of possession must also continue to the close 97 Right of possession at some former time cannot be tried 98 Plaintiff must recover on strength of his own title, not on the weak- ness of the defendant's 99 An equitable title alone will not support replevin 100 A special property interest in, is suiHcient. 101 The same — Illustrations 102 A holder of a bill of lading 103 A lien for advances 104 An auctioneer 105 Possession parted with conditionally^Bailor 106 Abortive sale lOV Possession by an agent 108 Possession of a stray for the statutory timewill support it 109 Officer's possession after levy sufficient ^ 110 One entitled to possession for temporary purpose can replevy from general owner Ill Where title is reserved by seller, his interest is sufficient to support replevin 112 Symbolical delivery sufficient 113 Right of property in flro company, band, and other voluntary or- ganizations ; 114 Certain special interests held not sufficient to maintain replevin — Illustrations 115 Neither is a landlord's lien 110 One tenant in common cannot ." 117 Statute of frauds— Title based on, insufficient 118 Title by gift insufficient 119 Title based upon promise by infant insufficient 120 A lien without the right of possession will not support replevin 121 Right to cut trees will not support replevin for trees cut by another 122 Title based on pretended butillegal judicial sale will not 123 Title based on an unexecuted or conditional contract 124 One who has pteced the title in another is estopped 125 Surety on undertaking has not such an interest, for this reason, as will support replevin 126 Title to a half interest will not do 127 Proof of title without right to possession not sufficient 128 A right based on a special law must comply with the terms of the law strictly 139 To the right of property plaintiff must add the right of possession 130 While possession is prima facie title, it is not good against a supe- rior title 181 CONTENTS. XUl CHAPTER VII. WHO MAY MAINTAIN EEPLEVIN. MSOTIOK. General rule 1.32 Either a general or special property is sufficient 133 Right to actual possession sufficient 134 Replevin may be maintained by one from whose possession it was taken without right 135 The same 136 Who may maintain replevin — Examples 137 Creditors of a common debtor 138 One of several defendants in an execution 139 State or United States may 140 An agent may bring replevin in his own name 141 Right to use property at will is sufficient 142 General property and right to possession sufficient 143 One entitled to possession tor a special purpose 144 One who has lost possession wrongfully 145 Who may not maintain replevin — Examples — A surety on a stay bond 146 One who has pointed out property as that of another is estopped to replevy it 147 ^A stranger cannot 148 Contract against good morals 149 A servant » 150 An administrator may replevy personal property of his intestate, but not special legacies 151 A pledgee has the right to possession 152 If an agent have only constructive possession, his wrongful transfer conveys no right or title 153 A married woman may maintain replevin without alleging coverture 154 A wife may replevy her own property from her husband ., 155 Husband cannot replevy from a wife he has abandoned 156 Where property is wrongfully taken from a lienholder, he may re- take it by replevin 157 A laborer's lien is protected— General owner cannot replevy 158 Liena generally— Illustrations 159 Effect of tender of amount of lien '. 160 But where a trespasser places the property in the possession of the lienholder, the true owner may replevy 161 Owner may replevy as against a stranger notwithstanding the lien 163 A finder of property has a lien on it for the reward offered 163 Finder may replevy from one taking property from him.., 164 Finder— Riparian owner— Replevin for involunatry deposit— Not an accretion 1^5 A receiptor of property has a greater interest than a naked bailee.. 166 The same ■ 167 xiT CONTENTS. SECTION. An officer may replevy from another officer or from a receiptor or from the owner 168 "Other than the defendant" defined — The .trustee and theindividual are quoad the property different persons 169 "Stranger" defined 170 CHAPTER VIII. MOHTGAGOB InD MOETGAGEE. History Mosaic law 171 As a general rule 172 After condition broken mortgagee may demand possession and re- plevin at any time 173 Mortgagee must always make demand 174 May bring against widow of mortgagor 175 There must be a breach before mortgagee can replevy — Effect of breach after suit commenced 176 Mortgagee cannot replevy on a partial breach 177 An assignee of the mortgagor is not an agent of the mortgagee, and cannot replevy on that ground 178 Mortgagor cannot replevy from mortgagee who has taken posses- sion after condition broken 179 The contrary has been held 180 Where the mortgagor claims damage for a breach of conditions of sale, he may replevy 181 Illegality of the consideration of the mortgago'no ground for 182 Part payment no defense to replevin by mortgagee 183 Distinction between a mortgage and a pledge 184 Rule of damages in cases between mortgagor and mortgagee 185 Assignee of note can maintain replevin in his own name though mortgage is not assigned 186 Action may be brought in name of mortgagee, though not the real party in interest .' 187 Mortgagee may bring replevin even after he has sold 188 Mortgagee may replevy from a stranger after condition broken or after he has had possession 189 Eight to follow to foreign state and replevy 190 Mortgagee may replevy from any one interfering with his right under the mortgage 191 But it must be an actual interference, not a threat to interfere 192 When mortgagee may replevy from officer levying on mortgaged property for debt of mortgagor 193 The same.... 194 The same — Proper judgment in such a case 195 That mortgagee has been summoned as a garnishee of the mortga- gor no ground of 196 Where officer levies before mortgagee takes possession 197 CONTENTS. XV BECTION. Where no default has been made 198 An agreement to mortgage no ground for replevin 199 Mortgage given under duress — Void mortgage 200 Mortgagee must discharge lien for keeping stock first 20-1 Right of replevin between different mortgagees 202 Distinction between a mortgage given on a crof planted and on one to be planted 203 Where property commingled can only get the property described in mortgage 204 Where mortgagor wrongfully mixes goods, the mortgagee may re- plevy the whole 205 Mortgage alone not sufficient proof of title 206 CHAPTER IX. AGENT, BAILOR, AND BAILEE. A person dealing with an agent or bailee must look to the authority of the agent 207 Replevin will not lie by owner because agent sells at less price than he should 208 Where agent nells without authority owner may replevy 209 Bailee may replevy from a stranger to the title 210 Bailee may successfully defend against the owner as well as a stranger — Duty of bailee 211 Where the terms of the bailment are violated, replevin may be brought at once by the owner 212 Where a bailee pledges goods without authority, owner may re- plevy at once 213 A pretended sale by drunken bailee no protection to the purchaser. 214 Bailee's interest may be levied on and sold, and bailor cannot replevy 215 Butif the whole thing be levied on, replevin will lie by the real owner 216 A bailee of property cannot dispute the title of his bailor 217 The general owner must tender amount of lien 218 CHAPTER X. PABTNEBS, JOINT 0WNEE8, TENANTS IN COMMON. General rule 219 As to what constitutes a partnership or joint ownership 220 Right of officer to seize partnership property — Not settled 221 One partner may replevy from an .officer seizing the whole property for the debt of the other partner 222 The same — Both owners can join and replevy 223 One partner, entitled to exclusive possession, may 224 The interest of partners— How considered 225 XTl CONTENTS. Effect of sale by one partner of his interest «...«. 226 Joint owners should joitf in replevin '^'^'^ Beplevin by purchaser of partnership property attached by creditor of the firm 228 A tenant in common cannot replevy from an officer who has taken the whole on a writ against his co-tenant 229 One joint tenant cannot sustain replevin against his co-tenant 230 The same 231 And a levy on the interests of one is no excuse for replevin by the other 232 "Where it is agreed that one shall have exclusive possession, that one can replevy from his co-tenant 233 The same — Tenants in common 234 Where by agreement one is to have exclusive possession, replevin will not lie by the other 235 Where one of two tenants in common convert the whole peoperty, the other may replevy his interest 236 Joint tenancy is a matter of defense 237 Replevin will not lie for an undivided interest 238 It will not lie where the property of joint owners is not susceptible of division 239 It will not lie where thfe result would be to deprive a part owner of possession 240 When one joint owner may sever the property by his own act, with- outinjury to the other, it will lie 241 Effect of severance by sale by one joint tenant 242 Pledge by one joint owner is good as to his interest, and replevin will not lie by the other 243 CHAPTER XL VENDOR AND VENDEE. Right of vendor to replevy property sold 244 The same 245 Where the vendor reserves title in himself 246 Where title reserved, vendor may replevy from assignee 247 Where title is reserved and default is made, the vendor may replevy without tender back of partial payment 248 The same— May replevy even from U. S. Marshal 249 Where contract of sale is unconditional 250 Will not lie where condition is waived and property delivered 251 Sale by sample a conditional sale. Death of vendee before delivery 252 Use restricted to certain limits 253 But goods on commission not a sale on condition 254 Stoppage in transitu — Replevin by vendor 255 Where property is sold on agreement to give a note 256 CONTENTS. XVli SECTION. Must offer to retiirn note before suing 257 Must pay back partial payments received on a rescission 258 Need not offer back payments made, where contract demand 259 Where it is impossible to restore, will not be required 260 When offer to restore must be made 261 Sale induced by fraud of vendee 262 A vendor may reclaim property obtained from him by fraud 263 A contract of exchange 264 Fraudulent purchaser takes a title voidable at the election of the defrauded vendor 265 It is not material when false representations were made so they pre- ceded the consent of vendor — Meaning of consent 266 What circumstances justify a rescission 267 When no questions are asked silence not fraud usually 268 Payments in counterfeit money 269 Where an infant pleads his minority 270 Non payment no ground of rescission 271 When an insolvent honestly though hopelessly endeavors to go on, no fraud 272 Completion of payment stopped by garnishment no.ground for res- cission '. 273 Failure of vendee may justify a rescission : 274 Must exercise his right of rescission promptly 275 Eule where possession by consent but based on fraud 276 What acts constitute a return and rescission 277 Effect and remedy on rescission of sale by vendorfor fraud of vendee 278 Third persons, how affected — A defrauded vendor of goods may re- claim 279 May bring replevin and action for value at the same time 280 But cannot prove under bankrupt law and then replevy 281 May claim under an assignment and replevy at the same time 282 Where sold on execution vs. buyer — Cannot be replevied 283 Will not lie against purchaser in good faith 284 Goods obtained by fraud and levied on for debts of the vendee may be replevied 285 doods obtained by fraud and used to pay a pre-existing debt may be replevied by true owner i 286 Conditional sale — Vendee can sell his interest 287 What is wrongful detention 288 Does not lie by vendee to enforce contract of sale 289 CHAPTER XII. EIGHT OP BBPLEVIN BY AND FROM AN ASSISNEE FOE BENEFIT OF CEBDITOBS. An assignee is not a purchaser for value 290 An assignee represents the assignor 291 XVm CONTENTS, raoTioK. Need not allege his official character in petition 292 His right depends upon his complying with the law 293 By assignor against assignee for exempt property 294 May replevy property retaken by the assignor 295 Replevin lies, by the seller, against the assignee of a fraudulent pur- chaser..... 296- Eights of a purchaser — Voluntary assignment — Title of assignee 297 Assignee's suit subject to the same defenses as any other suit 29S CHAPTER XIII. GOODS IN CUSTODY OF THE LAW. Goods in custody of law — Old rule — Contempt 299^ Modern rule — Not so strict 300 A stranger to the writ of seizure may replevy 301 The same 302* A purchaser of property so taken is not protected from replevin 303 But where one's goods have been wrongfully seized by an officer and the owner thereafter acquires peaceful possession, ho is pro- tected therein 304 Mere irregularities in the taking insufficient 305 Exeippt property may be replevied 306 The same — Construction — Costs 307 Exempt property may be replevied in any court having jurisdiction, notwithstanding the statute provides a special proceeding 308 Attached property may be replevied 309- But the action cannot be brought by the attachment plaintiff 310 But if he pay claim of plaintiff, may then replevy from the officer.... 311 Where the process of seizure is void or the court had no jurisdiction 312 Property seized under an unconstitutional law 313 The writ must be lawfully executed 314 Lies for powder condemned by city officers 315 Liquors seized under a statute forbidding their sale cannot be re- plevied '. 316 Property seized by special officers of the law cannot be replevied 317 Property seized by a revenue collector cannot 31g An assignee in bankruptcy is only protected when he acts strictly within the scope of his duties and authority 31^ Receivers — Comity of states— Will respect officers of sister states 320 Replevin lies against a receiver where he takes the wrong property 321 The legislature may bar the right by replevin 322 Property held by special order of court — Fine 323 Property held byU. S. marshal cannot be replevied in state court... 324 But where the marshal has taken the wrong person's goods, or is proceeding illegally, it will lie 325 Replevin for property illegally seized may be brought in any court having jurisdiction 326 CONTENTS. XIX BKCTION. May be brought where property is or where defendant resides 327 Removal of the property does not affect the jurisdiction 328 The action may be brought in any court of competent jurisdiction.. 329 Replevin against attaching officer— Where brought 330 May be removed from state to federal court 331 When an execution defendant can replevy 332 CHAPTER XIV. BBPLEVrS OF PEOPBETY SEIZED FOB A TAX. The general rule 333 Errors in the assessment or in the warrant of collection no ground for replevin 334 Warrant must be regular and issued by proper authority 335 Illegality of the tax no ground for replevin 336 Excessive, double, or erroneous assessments— No ground for 337 Will lie when tax is void 338 Will not lie where part is valid and part invalid 339 Where A's property is taken on a warrant for B's tax, A may re- plevy 340 A purchaser from the officer is not thus protected 341 The same is true in case of seizure for a fine 342 Payment of tax after seizure no ground for replevin 343 May tender the legal tax and bring replevin 344 Property must be seized by an officer in his own district, or replevin will lie 345 The illegality of the corporation no ground for replevin— Writ must be executed by a regular officer 346 Nq other remedy is prohibited 347 CHAPTER XV. EEPLEVIN OF IMPOUNDED ANIMALS. Replevin does not lie for impounded or distrained animals if the proceeding is regular 348 The same — Illustrations 349 If the distrainor lose possession, his lien is lost 350 Impounded cattle cannot be replevied for mere irregularities if tar ken damage feasant 351 Where the statute gives a special remedy for testing the legality of the distraint, replev\n will not lie 352 XX CONTENTS. CHAPTER XVI. THINGS WHICH MAY BE HEAL OR PBBSONAli PBOPEETY ACCORDING TO CIRCUMSTANCES. SECTIOH General rule in regard to houses, trees, crops, grass, and other prop- erty which maybe either real or personal property according to circumstances 353 "When maintainable for property sevnred from the realty 354 Timber cut on land sold for taxes 355 A growing crop passes with a judicial sale of realty 356 Crops growing on' mortgaged land are covered by the mortgage 357 A purchaser at a foreclosure sale cannot, before the sale is con- firmed, replevy the crop 358 The general rule 359 Mortgagee cannot maintain replevin for property severed before he took possession .• 360 Where title is in litigation — Effect on crops 361 Eight of mortgagee to replevy house removed unlawfully 362 When buildings are repleviable 363 The same 364 Where the intention of the parties make a building personalty 365 Fixtures may be removed by owner while in possession, not after... 366 The landlord's right to those fixtures orignated in an implied gift.. 367 Fixtures part of the realty — Illustrations 368 Fixtures .severed from the realty become personal property 369 Trade fixtures 370 The same 371 Personalty— Where attached to land without owner's consent 372 A building or other fixture placed on the land of another with his consent is personal property 373 Cannot be maintained for timber severed from the freehold by an adverse claimant 374 The same, and other property 375 Proof necessary — Title — What is adverse possession 376 Eeplevin does not lie by one of two claimants of government land for the crops raised or grass cut by another claimant 377 Where a person claiming to own the land severs chattels '. 378 Property severed under contract of sale can be replevied by the vendee, not by the vendor 379 But where nothing was paid for the land and timber was fraudu- lently sold, the owner can replevy 380 In cases of disseizin 381 Chattels severed from realty ! 382 The same in case of trespasser 383 Owner may replevy property illegally severed by a tenant 384 Actual severance not necessary 385 Chattels severed by mistake 386 CONTENTS. XXI SECTIOV, Eights of the holder of a colorable title merely 387 Instances 388 CHAPTER XVII. WHERE THE GOOODS HAVE BEEN CHANGED IN FORM OR ENHANCED IN VALUB^. Change in form generally— Rule under tho civil law 389 Rule now where property is changed in form 390 Rule — ^Description should be as it is in its new forni 391 Right to replevin unaffected by change in form 392 Application of rule — Illustrations 393 Right of plaintiff not affected by change made by agreement 394 Owner should move to reclaim his property as soon as he knows of its loss i 395 Where an innocent purchaser for value changes the form and adds to the value, replevin will not lie 396 The natural increase of live animals may be replevied by the owner of the animals 397 Animals — Increase of may be replevied by the owner of the dam — Exception — Where dam is hired for a term, increase belongs to the usufructuary 398 CHAPTER XVIII. CONFUSION OF GOODS OF DIFFERENT OWNERS. Generally 399 Of articles separable into aliquot parts, as pounds, bushels, etc. — Where the confusion is without malice, each owner takes his just proportion 400 Replevin can be maintained for part of mass if it can be identified... 401 The same — When for a partof cotton in mass 402 Loss, if any, must fall on the one causing the mixture 403 State or United States may replevy its property from mass 404 Where the contusion is occasioned by the willful act of one party, he must bear the loss 405 Articles that can be identified can be replevied— As to them it is not a confusion *06 One who willfully mixes property can only replevy that hecanidentify 407 Where the confusion is by agreement— Rule ." 408 Commingling of property— Right of part owner against a stranger 409 CHAPTER XIX. GOODS ACQUIRED BY THEFT OR FRAUD. Owner may replevy stolen goods wherever found 410 Against a thief, an innocent purchaser may elect to affirm the sale or exchange and keep the property 4:11 XXll CONTENTS. BEOTION. Eatiflcation cannot be inferred by lapse of time 412 Owner may replevy chattels obtained from him by fraud wherever found 413 It lies for goods obtained by the fraudulent use of the process of a court 414 Eeplevin will not lie for goods obtained by fraud, in the hands of in- nocent purchasers 415 Distinction between acquiring goods by theft and by fraudulent purchase ." 416 When property traded for stolen property may be replevied 417 Trade or barter of property— Fraud— Eescission of contract 418 Replevin will lie where possession is obtained by fraud or defendant 419 Markets overt, unknown in this country 420 One who has participated in the fraud, or his representatives, can not regain possession by replevin 421 A purchaser of stolen property cannot maintain replevin against the owner who has acquired possession 422 CHAPTER XX. ON PASTIES- PLAINTIFF AND DEFENDANT — INTEHVBNTION AND SUBSTITUTION. Plaintiffs generally 42.3 Trustees — Executors — Administrators 424 The action must be brought in name of real party in interest 425 Wife may maintain in her own name 426 f^on compos mentis 427 Assignment of the right to replevy property — Sale 428 Joint owners must join as plaintiffs 429 Where property is owned by two jointly 430 Defendants generally : 431 Who is the proper defendant....- 432 Defendant must have possession at thetimethesuitwas commenced 433 But will lie against one having the legal title, though the property has not been moved by him 434 But if he wrongfully took it and disposed of it to avoid the replevin, he is a proper defendant 435 An officer who levies upon property wrongfully is the proper defend- ant and not the party he represents— Constructive possession... 436 The same — Execution— Constructive possession 437 Constructive possession — Mere paper levy insufficient 438 Power and authority of the officer as a defendant in such cases 439 Where judgment plaintiff directs the officer to levy on specific prop- erty, he is liable 440 Co-defendants— Who maybe 441 One of two wrongdoers may be sole defendant 442 CONTENTS. xxau SECTION. The one having the actual possession the proper defendant, though autiiigfur auothw 443 Intervention — Change and substitution of new defendants — Lien- holders — Costs 444 Trial of the right of property cannot be turned into replevin— Inter- venor 445 Intervention — Substitution 446 CHAPTER XXI. DEMAND AND TKNDEB TO DISCHAKGE LIEN. Demand necessary— When — Eule 447 Reason of the rule — Plea of title in defendant waives demand 448 Effect of demand and refusal 449 When both parties claim an absolute title, demand not necessary... 450 Want of demand must be taken advantage of in time — Willingness to surrender 451 Office of demand — By whom made 455i Where plaintiff relies upon a wrongful detention and taking, demand unnecessary 453 Demand necessary when title is acquired in good faith for value, but not necessary where title is acquired in fraud 454 Demand not usually necessary to sustain replevin on ground of wrongful detention 455 Not necessary against an innocent purchaser of a fraudulent ven- dee — ^Necessary to terminate a right of possession 456 When a rightful possession becomes wrongful — When demand neces- sary 457 When the original taking is not WTOngful, demand must be made.... 458 Acts of dominion on part of defendant will excuse demand 459 Title of record does not excuse 460 Assignee must give notice and make demand 461 Demand must be made where plaintiff puts property in defendant's possession, and he merely allows it to remain 462 Not necessary where trespass committed in the taking — Stolen goods 463 That the possession of the defendant is in good faith of no avail if original taking was fraudulent 464 Where possession obtained by fraud, demand is unnecessary 465 To be protected, an officer must keep strictly within the command of his writ... 466 Demand need not bo made on wrongdoer, but must on a bonfi fide holder- Demand on agent of limited authority iuBuffioient— waiver of demand 467 To recover costs, demand must be made— Waiver of demand— A genera! denial not 468 XXIV CONTENTS. SECTION. Possession of goods by mistake— Lien 4C& Taker up of strays — or to save property 470 Necessary from a borrower of lost goods 471 Possession acquired in good faitli — Demand necessary 472' But a contrary rule has been laid down 473 Conversion — Refusal to deliver in advance of demand 474 Excuse for not complying with demand — True reason 475- When demand should be made — When action commenced 476 Demand after affidavit signed — Defective, how cured 477 Demand after issuance of writ 478 Proof of— When made 479- Time when demand should be made — Where defendant has a right for a limited time 480 A demand of one not having authority 481 If proved failure to allege is cured after trial 482 Written demand must be specific 483. Of person in charge sufficient — In case of ducedcnt 484 Acts and notice equivalent to demand — Intervener 485- Of the indices of ownership sufficient 486- A demand made in violation of an injunction not good 487 A mortgagee of chattels must make demand of an officer 488 Mortgagee must make demand of one in possession— Absconded mortgagor 489 Action against sheriff 490 Action by mortgagee vs. mortgagor 491 Trustee after default need not demand 492 A mortgagor to replevy back must demand 493 Where property taken under an illegal mortgage, demand not nec- essary by the owner 494 Also where plaintiff repudiates a delivery made under avoid agree- ment 495- Must be made of a purchaser at an execution sale, or an officer 496 When demand of an officer proceeding under a writ of attachment or other process is necessary — Execution 497 When the property of a stranger to the writ is sold 498 But where propcity is found by the officer in the actual custody of the defendant in execution..." 499. In replevin for exempt property 500 But purchaser when, entitled to demand 501 Conditional sale — Part payment 502 Fraud by vendee — Attaching or other creditor— No demand neces- sary 503 Vendee must make demand of third party in possession 504 When demand necessary to put the vendor in the wrong 505. If vendee's possession lawful, demand must be made 506 But if he violate the contract of sale, not 507 Purchaser must demand and tender amount of his bid 508 CONTENTS. XXT SECTION. Same of sherifi's sale 509' Sufficient demand, claim of ownership by defendant— A waiver 510 Where a person known to be an agent exceeds his authoritj' 511 Not necessary where bailee wrongfully sells property or converts it 512 The manner of defendant's possession does not affect the necessity of demand 513 Tender when necessary to discharge lien before suit brought against common carrier 514 The same— What issues triable— Offset 515. Excessive charges — Tender of proper amount 516 Of note or property received in payment 517 Tender must be unconditional 518 So must refusal 519' Tender before action brought 520 Where defendant has a lien — Innkeeper or carrier 521 Landlord's lien — Mortgagee 522 Where a tradesman has a lien 523- Expenses advanced under a wrongful levy cannot be recovered 524 PAET II QUESTIONS AEISING IN THE PEOSECUTION AND DEFENSE OF AN ACTION IN EEPLEVIN. CHAPTEE XXII. THE AFFIDAVIT, COMPLAINT, DECLARATION, AND PETITION. The affidavit— Its history and what it is 525 Importance of the affidavit, complaint, declaration, or petition 526 An affidavit must be ffied in all cases 527 The defendant alone can take advantage of failure to file affidavit.. 528 Jurisdiction depends upon affidavit 529 It must be signed and sworn to .'. 530 Allegations of the affidavit should be in the present tense 531 Right of possession must be alleged— Illustrations 532 "Owner" and " ownership " defined ■ 533 Affidavit "must allege the property was not taken for tax, etc 534 Must allege that it was not taken on execution or attachment 535 Or all facts making the property exempt from seizure must be al- leged 536 This allegation need not be in the exact words of the statute 537 Must state that it was not taken on a writ of replevin 538 The affidavit should state the value of the property 539 XXXL OONTiBNTS. BECTIOIf. Allegations of value are not binding on the trial , 540 Wlien value in affidavit governB — Proper practice 541 Must allege wrongful detention— Illustrations.... 542 Distinction between "he detains" and "he detained" 543 The law requires a more particular description in replevin than in trespass or trover 544 A variance in description is fatal 545 Copies of written instruments need not be set out 546 A description which can be made definite is good 547 Description may be amended to correct mistake 548 What description sufficient— The best possible will do 549 Description by kind or quantity 550 Undivided interest— Fractional part as a description 551 Where articles are numerous, a general description 552 Sufficiency of— Defects waived by pleading 553 When sufficiency is a question of fact, and when of law 554 Nature of plaintiff's interest need not be particularly alleged 555 Special interest must be pleaded 556 Allegations in the alternative not fatal 557 But they must be definite as to the person entitled to possession .... 558 Plaintiff cannot take inconsistent positions 559 The affidavit may be made by an agent or attorney 560 Agency, how stated 561 How made when corporation is the complaining party 562 There is a distinction between a good cause of action defectively stated and a defective cause of action 563 Venue should be laid in the county 564 Plaintiff may replevy property held by different titles in one action 565 Eedundant or irrelevant matter may be stricken out 566 The statutory allegations of the affidavit are not conclusive of the facts stated 567 Fatal defects in affidavit — Illustrations 568 An affidavit in replevin may be amended 569 Damages claimed may be enlarged by amendment 570 The proper way to amend is by a new affidavit 571 Signature and jurat may be added naiic pro tunc by amendment.... 572 Amendment sworn to by different agent of plaintiff from original affidavit may be filed as a matter of right 573 Effect of failure to amend substantial defect 574 Cannot thus add a new cause of action 575 Cannot strike out part of the property by amendment on appeal.... 576 May amend by adding new article 577 Jurisdictional defects cannot be thus cured 578 Cannot amend by making new parties 579 Total lack of affidavit cannot be cured by amendment 580 Statutory form of affidavit is but a general guide 581 Neednot follow particular form 582 CONTENTS. XXvii r. • -1 . ™ , . BEOTION. Kequisites of affidavit ggo AppiovHiI foim of affidavit 5^4 Another form of action should not be joined with replevin 585 The affidavit need not be separate from the complaint 586 Affidavit takes the place of all other pleadings by plaintiff 587 A complaint may be used as an affidavit 588 Complaint— Affidavit ' ._ "" 539 Sufficiency of complaint 59Q What constitutes a good complaint— Illustrations 591 By sheriff, in case of attached property 592 What the declaration or complaint should contain 593 Declaration 594 Declaration must follow affidavit 595 Must make issuable allegations 593 Artificial words not to govern 597 When both affidavit and petition are used, petition need not be as specific as the.affldavit 593 Where both are need, the affidavit is not a part of the pleadings 599 Petition — Illustrations gOO Plaintiff must stand or fall by title alleged inhis petition 601 Petition should be construed as a whole 602 Special damages must be specially pleaded 603 CHAPTER XXIII. THE WRIT— ITS HISTORY AND USB. Originally the writ of replevin was not returnable 604 The writ noo omittas 605 Alias and plnries writs 606 Writ issued only at Westminster 607 Origin of present writ and proceeding 608 Writ of withernam 609 Conclusion 610 Issuing of the writ merely a ministerial act 611 Must bo by authority and under a valid law 612 To whom directed 613 Where the sheriff is a party directed to the coroner 614 What the writ should contain 615 When returnable 616 Description 617 The same — Illustrations 618 Sufficient if with outside help the property can be identified G19 The description may be amended 620 If there is a total lack of description, the writ is void 621 Writ need not state the value of the property 622 Where bond is filed first 623 XXTIU CONTENTS. BECTION, Rule in regard to replevin oJ attached property 62 • 10o4 xl CONTENTS. SECTION. Where the finding is in favor of the party in poseessioii value not so important 1065 The verdict must describe the property with certainty 1066 Indefinite description fatal '. 1067 Illustrations of verdicts which have been upheld 1068 Illustrations of verdicts held bad 1069" A conditional verdict is always bad 1070 Verdicts held bad under plea of non cepit 1071 Where the successful party claims less than a full interest thevalue of his interest must be fixed 1072 The same — Illustrations 1073 Verdict for damages not essential 1074 Court may compel a finding of nominal damages 1075 A verdict may be sufficient to support a judgment of return, but not for value, 1076. Form of where defense is fraud in vendee's title 1077 General form of verdict 1078 A verdict may be returned on Sunday 1079' Or on a legal holiday •. 1080 Separate defendants are entitled to separate verdicts 1081 Finding partly for defendant and partly for plaintiff proper, when lOS^ Each party may submit special issues to the jury 1083 Separate issues must not be united by the verdict 1084 A verdict which is inconsistent with itself cannot stand 1085 CHAPTER XXXV. JUDGMENT. The judgment must follow the verdict 1086 The same — ^Damages must be proved 1087 The court may modify the judgment as to damages 1088 Judgment may be made to conform to verdict by motion lOS^ How corrected nunc pro tunc 1090 May be amended saving the rights of third parties-^Notice.. 1091 Error in entering judgment, how corrected 1092 The proper entry of judgment may be compelled by mandamus.... 1093 Power of court over judgment — Fraud 1094 Jurisdiction of inferior courts 1095 Judgment must be confined to matter properly arising in the re- plevin suit 1096- It is error to render judgment for more than is claimed 1097 The judgment must be certain and definite 1098 Must describe the property with certainty 1099- A judgment which can be made certain by reference to the plead- ings is good 1100. The judgment must speak upon all the issues involved 1101 CONTENTS. xlf BEOTION. The judgment must speak as to all the parties 1102 Oneg-ood count will support a judgment llOa When alternative judgment necessary 1104 A judgment in replevin should be in the alternative 1105 When alternative judgment not necessary 1106 Where bond not given alternative judgment not necessary 1107 Successful party may waive right to au alternative judgment 1108 How this election made 1109 Where property iushands of the court, judgment for delivery alone is sufficient 1110 Judgment for a return is necessary where the successful party is not in possession 1111 Judgment for a return is a matter of right 1112 Insolveneyot successful partydoesnotchangehis right to areturn 1113 Return can only be awarded against one in possession 1114 The same 1115 Exception in case of fraud 1116 Where plaintiff fails in his action for any reason restitution should be awarded 1117 Judgment of return should follow dismissal 1118 The same — A contrary rule 1119 An action of replevin cannot be dismissed until the property is dis- posed of 1120 Judgment may be rendered for a return of part of the property and damages for the part not taken 1121 Judgment of return should fix a reasonable time in which the re- turn is to be made 1122 - Where the successful party already has possession judgment for a return is not necessary 112S Nor if he has acquired possession during the litigation 1124 Nor where the suit proceeds as one for damages only 1125 Right of property must be shown to entitle a party to a return.... 1126 One who disclaims all interest in the property cannot have a return 1127 One who pleads property in a stranger 1128 Where it is impossible that the property should be returned 1129 It is error to order the return of property not in existence 1130 Effect of death or destruction of property 1131 The young of animals born while in litigation 1132 Effect of failure to adjudge a return 1133 Judgment for value is only proper where a return is awarded 1134 Where the property can ^e returned, the party in possession can not complain of error in fixing the value 1135 Where defendant has but a limited interest 1136 An officer is entitled to judgment of return where successful 1137 Officer only entitled to return where hecan sell 1138 The same — Exception 1139 xlii CONTENTS. SECTION. An officer may have judgment for a sum larger than the value of thegoodd ; 1140 Where the amount of the special interest is not found a return should be awarded 1141 A joint judgment can only be rendered 1142 Joint judgment for defendants who make separate defenses 1143 Judgment against a person not a party void 1144 Proper judgment in certain cases — Practice 1145 Judgment on plea of non cepit and non detinet 1146 An absolute money judgment is erroneous 1147 Equities should be adjusted — Damages 1148 Proper judgment for damages 1149 A stipulation as to the amount of the damages will be enforced by the court 1150 Liability and obligations of an administrator 1151 Substitution of defendants 1152 Substitution of an intervenor 1153 Surety on bond may be allowed to prosecute the suit when aban- doned by his principal 1154 Judgment against the sureties 1155 Costs 1156 CHAPTER XXXVI. EPPECT OF JUDGMENT — HOW ENFORCED AND SATISFIED. Effect of the judgment 1157 The same — Illustrations ". 1158 Judgment in replevin settles the right to possession 1159 Non cepit 1160 Non detinet 1161 Judgment in replevin, how far conclusive 1162 Bar— Estoppel — Former replevin 1168 Judgment when a bar — What it is a merger of 1164 When conclusive in another replevin action 1165 How far binding in other forms of action 1166 Does not bar a suit in equityto determine the rightsof the parties 1167 Title not determined unless strictly in issue 1168 Judgment in replevin is binding not only on the parties biit on their privies .■ 1169 Judgment in replevin a bar. to suit for damages between the same parties only 1170 Judgment conclusive in federal and sister state courts 1171 An officer is liable on his official bond for the judgment against him in replevin 1172 A trustee not personally liable 1173 The payment of the money judgment vests the title to the prop- erty in the defeated party 1174 CONTENTS. xliii SECTION. Ottwo defendants the one who pays takes the title 1175 How enfoioed /. 1176 How satisfied 1177 In conclusion— Summary .' , 1178 CHAPTER XXXVII. WHAT IS A PEOPBR KETUEN OF THB PROPERTY. Eetomo babendo 1179 Officer must take and deliver the property under such an order 1180 Eeturn not always ordered, 1181 Duty of party in possession when return is awarded 1182 Property should be returned to the custody from which taken 1183 What constitutes a return or tender of return 1184 What is a proper return under the order — In case of attached prop- erty— What officer 1185 To whom the property is to be returned on a writ of retorno babendo 1186 Where property has been sold and replaced by other of same kind 1187 The successful party may wait until the property is tendered him 1188 An actual return will alone satisfy the judgment of return 1189 And a tender of property must be kept good to have the effect of satisfying the judgment — Sheriff's return conclusive 1190 The effect of a return is to satisfy the judgment of return or value 1191 CHAPTER XXXVIII. DISMISSAL — NONSUIT AND EE-INSTATEMENT. A nonsuit did not bar another action at common law 1192 Plaintiff cannot dismiss to the detriment of the other party 1193 The same 1194 Neither can he dismiss as to a part of the property if it is claimed ^ by defendant 1195 The same 1196 But if defendant has retained the property, plaintiff may dismiss.. 1197 The rule as to damages on dismissal 1198 Where writ is quashed.judgment for return or value is proper 1199 But if defendant claim further relief, the plaintiff should be heard before judgment is entered 1200 Court should compel plaintiff to prosecute diligently 1201 Defeated party cannot appeal and then dismiss 1202 If a nonsuit is the result of an appeal, a return should be awarded 1203 Where plaintiff allows his action to be dismissed, it will not be re-instated 1204 Dismissal for defects in the affidavit 1205 Judgment of return on nonsuit 1206 xliv CONTENTS. SECTIOIf, When limited to value of special interest 120T On a nonsuit, judge may be compelled to award proper judgment 120& If the court has no jurisdiction, return cannot be awarded 120&' It the court has jurisdiction, neither party can dismiss 1210- The action should not be dismissed on slight grounds 1211 Eight to dismiss lost if not act«d upon in time 1212 Where proceedings in an action of replevin are stayed by injunction 1213 Agreement to arbitrate — When a dismissal 1214 Defendant may stipulate for a dismissal 1215 Effect of judgment for a return 1216 Effect of judgment of dismissal 1217 CHAPTER XXXIX. CROSS KBPLEVINS, SECOND BEPLBVINS, AND RECAPTION. Distinction between the writ of replevin and other writs 1218 Where the property is held by a special writ for that identical property, it cannot be replevied ISID' Judgment in trial of the right of property has the same effect 1220 The issues made and tried in replevin are res adjudieata, 1221 The pendency of another action for the same property in same court is a good defense 1222^ Former replevin may be pleaded in bar of the second suit 1223- Consolidation of the two actions is error , 1224 Cross replevins arenot allowed 1225 Illustrations of cross replevins — Definition , 1226- And this inhibition extends to grantees of the defendant 1227 Second replevins — Definition 1228 On the discontinuance of an action in replevin, another one may be brought 1229 A nonsuit is not now a bar to a new action 1230 Recaption — Definition 1231 Replevin may be brought against a party in replevinwho has just taken it in replevin 1232 It may be brought against the plaintiff 1233 A stranger to the first action of replevin may bring replevin for the property 1234 Judgment for damages or for other property is not a bar to the sec- ond replevin 1235 CHAPTER XL. ERKOK AND APPEAL. General principles 1236- Proceedings in error or appeal must be by the real party in inter- est 1237 CONTENTS. xlv SECTION. Joint parties should join in proceedings to vacate or modify the judgment ., ' 1238 Pleadings may be amended even after judgment 12.39 Practice in error cases in replevin— Illustrations 1240 The same— Waiver of right to error 1241 Error from judgment of dismissal 1242 Presumption in favor of correct assessment of damages by the jury 1243 What defects are waived by appeal— Practice on appeal 1244 Defense cannot be changed upon appeal 1245 How appealable value determined 1 1246 After appeal taken the judgment is held in abeyance 1247 When return will be awarded in appellate court 1248 Appeal does not open a judgment in appellant's favor for part of the property 1249 PAET IIL QUESTIONS AEISING IN THE PEOSEOUTION AND DEFENSE OF AN ACTION ON THE EEPLEVIN BOND. CHAPTER XLI. WHAT CONSTITUTES A BREACH, AND WHEN EIGHT OF ACTION ACCRUES ON THE BOND. What constitutes a breach 1250 The condition to prosecute without delay „ 1251 What is an unusual delay 1252 The condition to prosecute with effect 1253 The same 1254 iDismissal on ground of no jurisdiction is a breach 1255 Voluntary nonsuit is a breach of this obligation 1256 Failure to enter the suit in court is a breach 1257 A contrary rule held where the "court" was absent 1258 Where the suit abates by removal of the court, bond not liable 1259 Failure in the suit is a breach of this condition 1260 Failure by death, or other act of God 1261 The obligors may limit their liability to the successful trial in jus- tice court 1262 But ordinarily, the obligation refers to the final determination 1263 The replevin action must be finally ended, or suit on bond will be enjoined 1264 xlvi CONTENTS. BECTIOlf. Breach of the condition to return 1265 Demand for return not necessary 1266 The judgment of return in replevin is conclusive on the sureties.... 1267 The failure to pay money judgment or costs is a breach 1268 CHAPTER XLII. ACTION ON BOND— HOW BEOTTGHT. Debt is the proper form of action on the bond 1269 What facts are material to be alleged 1270 The same 1271 Copies of pleadings in replevin are no part of the petition 1272 One cause of action well stated is sufficient 1273 Proper and improper allegations — Illustrations 1274 The same 1275 The same — Illustrations — In regard to return and demand thereof 1276 Allegations by officer or other party having only a special interest 1277 Malice need not be alleged 1278 Bond executed in wrong name, how sued 1279 Defect apparent on face of bond after oyer may be reached by de- murrer 1280 [n variance between bond and petition, recitals of bond will govern 1281 CHAPTER XLIII. VALIDITY AND CONSTKUCTION OF BONDS. A bond in replevin will be construed liberally for the purpose for which it was given 1282 The same — Illustrations 1283 The delivery of the property to the plaintiff in replevin is a suffi- cient consideration 1284 That the bond never was delivered is a good defense 1285 Bond may be valid though not signed 1286 [f the bond is good at common law, arecovery may behad thereon 1287 Replevin bonds not dated, date from their delivery 1288 Bonds taken under repealed law are void 1289 Surety not mentioned in body of bond— Mistake in name in body of bond— Not fatal 1290 But if defendant in replevin take advantage of such error to dis- miss the action, he cannot then ask to recover on the bond 1291 Void bonds — Illustrations 1292 Disability of one surety does not release the co-obligors on the re- plevin bond 1293 CONTENTS. Xlvii CHAPTER XLIV. PROPER PARTIES. SECTION. Who are proper parties to a suit on tlie replevin bond 1294 Suit by officer for use, etc 1295 Suit by usee in name of sheriff 1296 An action on a replevin bond should be brought in name of real party damaged 1297 A stranger cannot maintain an action 1298 Statute of limitations to suit on bond 1299 Bight of assignee of judgment to sue on bond 1300 A substituted plaintiff may bring the suit in his own name, on the proper averments 1301 How brought in cases depending upon particular facts — Illustra- tions 1302 All parties interested may join in suit on bond 1303 Joint obligees should join in suit on bond 1304: Suit on bond may be brought in any court of competent jurisdic- tion 1305 Procedure in case of lost bond 1306 CHAPTER XLV. LIABILITY OF PEINCIPAIi AND LIABILITY AND EIGHTS OP SURETIES ON THE BOND. Liability of principal 1307 How courts regard the liability of sureties to replevin bonds 1308 Sureties' liability can not be greater than the principal's 1309 A release to the principal will discharge the sureties 1310 There must be judgment against the principal 1311 The waiver of judgment for return and taking a money judgment releases the sureties 1312 The sureties cannot contradict or question the judgment against their principal 1313 Sureties are bound by the judgment rendered in the replevin action 1314 Judgment by confession or by agreement for a less amount than that claimed, if in good faith, is binding on the sureties 1315 Sureties are not bound by a judgment rendered by collusion or fraud 1316 Judgment may be entered in the replevin action against the sure- ties only where the statute so provides 1317 The obligations of the sureties will not be enlarged by the courts,. 1318 The liability is fixed by law and cannot be changed or released without the consent of the obligee 1319 The liabili'-y of the surety must be determined by the law in force at the time it was assumed 1320 :xlviii CONTENTS. BECTIOK. The sureties' obligation only covers the default of their principal when the suit takes its ordinary legal course, and he is cast in the replevin action 1321 It is no breach where the liability arises after the successful termi- nation of the suit 1322 Subsequent surrender of the property by the officer to whom it is returned releases 1323 Where the property pending the litigation is taken and disposed of legally, it releases the sureties 1324 Value at date of trial and damages the extent of their liabilty 1325 The sureties are not liable for damages which accrued prior to the judgment for a return 1326 Effect of a compromise with a part of the sureties 1327 Judgment in favor of the plaintiff on first trial as to all, and de- feat as to one, defendant on retrial does not release the sureties 1328 But sureties will not be released on anyfrivolous pretext — Illustra- tions 1329 Sureties cannot contradict the recitals of their bond 1330 ■Change in character in which plaintiffs sue and addition of other plaintiffs will not release the sureties 1331 A legal change of defendants does not release the sureties. 1332 Effect of agreement to delay or neglect to enforce claim on bond... 1333 A discharge in bankruptcy is no defense 1334 Voluntary payment by surety cannot be recovered back from prin- cipal 1335 Contribution and subrogation 1336 If sureties pay the judgment they are entitled to the property 1337 CHAPTER XLVI. PROPER MEASURE OF EBCOVERY IN SUIT ON BOND. The measure of damages should be compensation 1338 The same — Illustrations 1339 lioss from interruption of business should be recovered in the re- plevin action 1340 Vindictive and punitive damages are not recoverable 1341 In justice court the damages are not limited by the jurisdiction of the justice 1342 Limit of damages recoverable — Illustrations 1343 The value found in the replevin suit with interest is a proper item of recovery on the bond 1344 Interest on the value should be allowed 1345 Where value not found in the replevin suit, actual value allowed... 1346 Measure where property attached to real estate and mortgaged and not actuallj- taken possession of 1347 iRule in replevin of attached property 1348 CONTENTS. XUX SECTION'. s, how determined— Limit 1349 Where part of the goods is returned injured 1350 In case of distress ." 1851 Measure of damages, suit by one having special interest only 1352 In case of partners 1353 As between mortgagee and mortgagor 1354 Where only nominal damages will be allowed 1355 Where suit dismissed 1356 Rule of damages in suit on delivery bond 1357 Costs of court and of retaking the property and attorney's fees.... 1358 Interest on the penalty of the bond may be allowed when needed.. 1359 CHAPTER XLVII. DEFENSES TO SUITS ON REPLEVIN BOND. What defenses are proper to suit on the bond 1360 ■ What defenses may be set up '. 1361 Any material alteration in bond is a good defense 1362 The jadgraent in replevin is conclusive as to all matters properly triable in that action 1363 Matters litigated in the replevin suit cannot be retried in the suit on the bond 1364 Property in a stranger is no defense to suit on the bond 1365 The obligors are estopped from alleging irregularities back of the judgment in replevin. 1366 The Fame — Illustrations 1367 Defects in the replevin proceedings are of no avail in the suit on the bond 1368 Where the replevin suit was not tried on its merits more latitude is allowed in making defense 1369 The same 1370 Per contra 1371 The plea must answer all the material allegations of the petition.. 1372 The same — Illustrations 1373 pleas held not good under certain circumstances 1374 Satisfaction, no judgment, release, are all good defenses 1375 That the property has been eloigned or ceased to exist or died — How far a defense 1370 That it cannot be returned no defense 1377 What may be shown in mitigation of damages 1378 Rule against a stranger to the title is more strict 137'.) Matters in mitigation of damages — Illustrations 1380 That the plaintiff has been partly paid in another proceeding is a defense pro tanto 1381 The same ,.- 1382 Set-off may be allowed in suit on bond 1383 1 CONTENTS- SECTION. Illustrations of matter not allowed to be shown in mitigation of damages 1384 Evidence — In certain cases— Illustrations 1385 The judgment and pleadings in the replevin case are competent evidence in the suit on the bond 1386 A party in his suit on the bond must occupy a position consistent with his position in the replevin suit 1387 A return to be a full defense must fully comply with the order of the court 1388 A return of part of the property is a defense pro tanto 1389 New title acquired since the bond was given and before the judg- ment in replevin no defense— Bes adjudicata 1390 Effect of a return after suit brought on bond 1391 It is a good deiense that plaintiff had the possession of the property 1392 Damages for failure to return should be recovered from the re- plevin and not from the appeal bond 1393 In an action for the malicious prosecution of a replevin suit 1364 PART FIRST. QUESTIONS AKISING IN PEEPAHmG TO COM- MENCE A KEPLEVm ACTION. OHAPTEE I HISTOEICAL AND INTRODUCTORY. History- Derivation and definition A writ of justice . . . . One of the modes of redress for the loss of goods . Both parties are actors • Old forms of the action . Practice Section, . 1 . 2 . 3 tSoctloD. Replevin in the old forms is un- known in this country . . 8 But are still recognized, though not in name .... 9 At common law replevin in the eepit 10 Common law replevin ma^y be extended or limited by prac- tice acts 11 § 1. History. Eeplevin is among the earliest remedies given by the common law. As far back as we have any- written history we find replevin spoken of. The action originally lay for the purpose of recovering chattels taken as a distress, but has acquired a much more extended use. In England and most of the states of the United States it extends to all cases of illegal taking, and in some states it may be brought wherever a person wishes to recover spe- cific goods to which he alleges title. It, like other forms of action, probably grew out of a pressing demand for a remedy for a specific evil which had become so oppressive that it could be borne no longer. The immediate circum- stance which gave rise to the introduction of this form of action was undoubtedly the oppressive use of the right of dis^aint by avaricious landlords. (See Chapter III.) It is first treated of under the head of distress. All of the early writers treat it under this title. It makes its first appearance and is first spoken of as a separate action near the close of the twelfth or commencement of the thirteenth century, but for a long time after that was considered in connection with distress. Its first appearance as part of the (1) 55 HISTORICAL AND INTEODUOTOBY, lex scripta is in the Statute of Marlbridge, 52 Henry TU.^ ■wliicli would be in 1267. Its history for the first five cen- turies is but a panoramic view of the struggles between the barons and feudal lords on the one hand and the common people on the other, the lords trying to narrow the scope of the repleyin process, and the common people seeking to en- large and extend it. With the increase of personal property holdings and the advancement of intellectual culture, the limits and obstructions thrown around the writ when it was at first reluctantly allowed have been one by one bro- ken down, until to-day they are only known in history. And the writ as used to-day, though one of the' oldest writs known to the law, is just as much a matter of stat- ute in its practical use and application, as writs which were created by statute — ^withthis difference, that while stat- utoiy writs are said to be in derogation of the common law, and the cases to which they apply must, therefore, be strictly limited to those covered by the legislative intent, the writ of replevin is a common law remedy, and statutory enact- ments in regard thereto are said to be in aid of the common law, and therefore the cases to which such enactments ap- ply will be extended rather than restricted. For a more extended historical review, the reader is referred to the common law writers and Keeves' History of English Law, Vol. II., 308, and for conduct of a replevin suit. Vol. III., 282. This tendency to enlarge the scope of the writ still exists, as is shown by recent legislative enactments and ju- dicial constructions. In some states to-day, an action of re- plevin may develop into a suit for damages pure and simple. In others, an action started to replevin personal property may be transformed into an equitable action to determine the title to the land, which produced the personal property.' And in many states it may now be used to try the title as well as the right of possession of personal property. So 1 Rogers v. Kerr, 42 Ark. 100. A WBIT OF jaSTICE. 3 that, all things considered, it is the most important form of action known to our system of jurisprudence.^ § 2. Derivation and definition. The most probable etymology is that of Diez,^ who derives the phrase plevir la fey [Gt plevine par sa fey, Britt. 180 a) to pledge one's word, afterwards shortened into plevir, from prcebere fidem, pleige from prcebium. Replevin, therefore, is regaining possession by giving security (plevine).^ The word means a redelivery of the pledge or thing taken in distress to the owner by the county court registrar, upon the owner giv- ing security to try the right of distress, and to restore it if the right be adjudged against him.* Replevin consists in the redelivery of the goods taken to the owner. ° The name of one of the common law actions, the distinguishing features of which are that it is brought to obtain possession of spe- cific chattel property, and is prosecuted by provisional seizure and delivery to plaintiff of the thing in suit.° Re- plevin is a personal action ex delicto, brought to recover pos- session of goods unlawfully taken, the validity of which tak- ing it is the regular mode of contesting. The word means a redelivery of the pledge or thing taken in distress.' The term "replevy" means to redeliver goods which have been distrained to the original possessor of them, on his giving pledges.* Property is said to be repleviable or replevisable when proceedings in replevin may be resorted to for the purpose of trying the right to such property. ° § 3. A writ of justice. Replevin is a justicial writ to the sheriff, complaiiaing of an unjust taking and detention ' For history of the writ, see Chap. XXIII. 2 2 Grimm, 401. 'Co. Litt. 145b. * Wharton Law Dictionary; Abbott's Law Dictionary. ^ Hastings on Torts, 157. 6 Pierce r. Hill, 9 Port. (Ala.) 151 ; Brooke v. Berry, 1 Gill (Md.), 153 ; Marston v. Baldwin, 17 Mass. 609; Paul r. Luttrell, 1 Col. 317. ' Wharton Law Dictionary; Wells' Bes Adjudicata, § 360. 8 Kirk V. Morris, 40 Ala. 229. » GaUoway r. Bird, 4 Bing. 299; Mennie v. Blake, 6 El. & B. 842. 4 HISTOBICAL AND INTEODUOTOET. of goods or chattels, commanding the sheriff to deliver back the same to the owner, upon security given to make out the injustice of such taking, or else to return the goods and chat- tels.' It was a writ of right, not of grace or favor, under the common law.^ § 4. One of the modes of redress for the loss of goods. By the ancient law of England there existed four different modes of redress for the loss of goods: by appeal of robbery (in which restitution as well as punishment for the felony was awarded), by writ of replevin, by writ of trespass, and by writ of detinue. But these proceedings were not adequate for relief in all cases. The appeal of robbery availed only when goods had been feloniously taken, and the writ of re- plevin was applicable only in cases of distress.' § 5. Both parties are actors. A replevin is a civil suit or action, in which both parties are actors, and in cases of rent, the avowant is the principal actor.* § 6. Old forms of the action. In England the action in the progress of its development assumed three forms — Cepit from the Latin capio, "to take," where the action was simply for the wrongful taking. Detinet, from de and teneo, "to hold," where the\action was for a wrongful holding. If the goods were not taken on the writ by the officer, the action proceeded as replevin in the detinet, but if the goods were taken, the action was called replevin in the detinuit, the first meaning "he detains," thesecond "he detained." The action in the detinet has long fallen into disuse, and is never brought unless the distrainor has eloigned the goods, so that they cannot be got at to make replevin.^ § 7. Practice. The registrar of the county court now grants the replevin, approves of the replevin bonds, and is- 1 Wmiamson r. Binggold, 4 Cranch (U. S. C. C.) 42. 2 Anon 2 A. T. K. 237 ; Chadwick v. Miller, 6 Iowa, 34. 2 8 Black. Com. 146. * Rfae r. McCrea, 1 Ashm. (Pa.) 17. 5 Fox V. Pritchett,5 Vroom (N. J.) 13; Truitt r.Revill, 4Harr.(Del.) 71 ; Potter v. North, 1 Sand. 347 b, note 2. Petre v. Duke, Lutw. 360. PBACTICE. 5 sues all necessary process in relation thereto, wMcli is exe- cuted by the high bailiff of the county court. The replevin is granted at the instance of the party whose goods are dis- trained, who is called the replevisor, who must give secur- ity for prosecuting the action. The security must be of sufficient amount to cover the alleged rent or damage in re- spect of which the distress shall have been made, and the probable costs of the cause; and to make a return of the goods, if a return shall be adjudged. The action, if intended to be commenced in a county court, must, according to the conditions of the bond, be commenced within a month ; if in a superior court, then within a week. In the latter case the replevisor further undertakes to prove before the court in which the action is brought that he had good ground for believing that the title to some corporeal or incorporeal hereditament, or to some toll, fair, market, or franchise was in question, or that the rent or damages exceeded £20 ; in other words, that the facts were such as to exclude the jur- isdiction of the county court. When the action is brought, the defendant must appear to the writ as in ordinary cases. The plaintiff's declaration states in general terms the taking of the goods. If the defendant insists that the goods were lawfully taken by him in his own right, the pleading is called an avowry; if in the right of another, it is called a cog- nizance. He may claim also a return of the goods ; so that both parties are regarded as actors, or claimants seeking re- dress. The plaintiff's next pleading is called a plea in bar, and that of defendant a replication, and so on. The judgment, if for the plaintifiP, awards damages for the unlawful taking; if for the defendant, it is that he have a return of the goods taken ; and if the distress was for rent, he recovers the amount of arrears in damages. If the action be in the county court, it is tried in the same way as other actions in county courts.' 1 Abbott's Law Dictionary; Terms de la Ley ; Cowel; 3 Black. Com. 6 HISTOEICAL AND INTBODUOTOET. § 8. Replevin in the old forms is unknown in this country. But statutory replevin has followed one form in some states, while in other states it has patterned more after some other form. "Eeplevin in the cepit resembles the old trespass vi et armis, and only puts the taking in issue ; re- plevin in the detinet is a substitute for the old action of de- Mnue, where the injury is only in the keeping, the taking Jiot having been wrongful.'" § 9. But are still recognized, though not in name. Although the technical action of replevin has been abolished by statutes in many of the states, and, strictly speaking, can not be said to exist in any of them, an action for the recov- ery of specific personal property is recognized in nearly all of them, and, generally, all the remedies formerly secured to parties by the action of replevin and trover may be had in a single action of replevin or its statutory equivalent under another name, to recover a chattel, or its value, and damages for its detention." § 10. At common law, replevin in the cepit would not lie against one who came into possession of property under a contract, express or implied, or where he came rightfully into the possession of tiie chattel, the remedy in such cases being 145-151; 3 Steph. Com. 420-423 ; Lush. Prac. 1013-1026; FaweettL. and T. 176-178; Harwood v. Smethurst, 5 Dutch. (29 N. J. 203); Pierce v. Van Dyke, 6 Hill, 613; Oleson r. Merrill, 20 Wis. 462; Cum- mings V. Vorce, 3 Hill, 282. ^ Konge F. DawsoTi, 9 Wis. 246. "Eldridge v. Adams, 54 Barb. 417; Collins v. Hough, 26 Mo. 152; Chadwick v. Miller, 6 Iowa, 34. Itis unknown in Louisiana, where thecivil law prevails. It never was recognized in Alabama. Smith r. Crockett, Minor (Ala.), 277; Peirce v. Hill, 9 Porter (Ala.), 155. In Mississippi was formeriy not recognized. Wheelock v.Cozzens, 6 How. (Miss.) 281, and is used but little. In Virginia it was abolished by statute. Nicholson v. Hancock, 4 Hen. & M. (Va.) 491 ; Vaiden v. Bell, 3 Bond. (Va.) 448. In Connecticut, Vermont, and South Carolina it was only allowed for a dis- tress up to a recent period. Watson v. Watson, 9 Conn. 140; Id. 10 Conn. 75 ; Glover v. Chase, 27 Vt. 533 ; Hewitson v. Hunt, 8 Rich. (S. C.) 106. In Connecticut, under the statutes of 1821, replevin existed only in favor of an owner of chattels. Brown v. Chickopee Falls Co., 12 Conn. 87, COMMON LAW BEPLEVIN MAY BE EXTENDED. 7 by trover or assumpsit-;— nor for property sold for taxes, though a portion of them was illegal,' but the scope of the writ is now much broader by statute. § 11. Common law replevin may be extended or lim- ited by the statute, ^ and in Iowa it is held that the provisions of the Iowa code are not the whole of the law of replevin ; the common law still contains the body and substance of the .action.' ' Bonsall r. Comby, 44 Pa. St. 442; Bmerick r. Sloan, 18 la. 139, a Stapletord r. White, 1 Houst. (Del.) 238. » Chadwick r. Miller, 6 la. 34. SCOPE ASD NATUBi: 01' THE AOTIOIT. CHAPTEE n. SCOPE AND NATDEE OF THE ACTION. Section, The ^st of the action . . 12 It is not anextraordinary rem- edy like attachment . . 13 A court of chancery will not interfere 14 Replevin: suits in; how re- garded by the courts . .15 Eeplevinis strictly alaw action, 16 Distinction at common law be- tween trespass, trover, and replevin 17 Similarity of trespass, trover, and replevin . . . .18 Section. 19 20 Replevin as used in America . Importance of the action It is a mixed action partly in rem. and partly in personam, 21 The action is grounded on a tortious taking . . .22 Object of the action, primary, 23 secondary, 24 Scope of the investigation . 25 The same; illustrations . . 26 Replevin is strictly a posses- sory action . . . .27 § 12. The gist of the action is the -wroDgM detention and not the original taking.' The gist of this action, with- out which it is not maintainable, is an unlawful detention of property.^ The gist of the action of replevin is plaintifE's right to the immediate possession of the property at the commencement of the action.' In this respect our replevin is the same as the common law action of detinue, and dif- fers from the common law action of replevin.* § 13. It is not an extraordinary remedy, like attach- ment. The action of replevin is not an extraordinary rem- edy in derogation of the common law, like the proceeding > Phillips y. Schall, 21 Mo. App. 38; Metton v. McDaniel, 2 Mo. 45; Pilkington v. Trigg, 28 Mo. 95; Rowe v. Hicks, 58 Tt. 18 (4 Atl. 563). 2 Cool r. Roche, 15 Neb. 27 (17 N. W. 119). " Haggard v. "Wallen, 6 Neb. 272; Moore v. Kepner, 7 Neb. 294; Blue Valley Bank r. Bane, 20 Neb. 294 (30 N. "W.64), * Wetson v. Fuller, 9 Kan. 176. DISTINCTION AT COMMON LAW. 9 by attachment, and the law goTerning the same should be liberally construed in the interest of justice.' § 14. A court of chancery will not interfere with the conduct of a replevin suit nor take any action which would tend to decide the questions legitimately raised in the re- plevin action already pending between the same parties.^ § 15. Replevin: Suits in; How regarded by the courts. Suits in replevin are said to be, in some respects, sui generis; and the inclination of the courts has been to give them a flexibility sufficient to meet exigencies and adjust all equi- ties arising in such actions.' § 16. Replevin is strictly a law action, in which the right of recovery must exist at the time the action is com- menced. It cannot be created by bringing into court money or notes as in an equitable suit for rescission, and offering to surrender or pay, as the court may direct.* It is a civil ac- tion subject to the same rules as other civil actions.' § 17. Distinction at common law between trespass, trover, and replevin. At common law, the distinction be- tween the technical action of trespass, trover, and replevin may be briefly stated as follows: To maintain trespass it was essential to aver and prove that there was a wrongful act vi et armis, or a taking de bonis asportatis j in trover for a conversion, the taking may have been lawful, as by finding or by consent of the plaintiff, the gist of the action being for the unlawful conversion; the action of replevin was a form of action to recover the possession of specific chattels wrong- fully taken from the plaintiff. The actions of trespass and trover were for damages, the former for the unlawful taking, and the amount of damages depended more or less upon ' Martinez v. Martinez, 2 N. M. 464. 2 Miller v. White, 14 Fla. 435; See Hopkins v. Drake, 44 Miss. 619. ' Hickman v. Dill, 32 Mo. App. 509; Boutelle v. Warm, 62 Mo. 350; Barney v. Brannon, 51 Conn. 175. *■ Thompson v. Peck, 115 Ind. 512 (18 N. E. 16) ; Moriarty v. Stofferan, 39 111. 528. 6 Latimer v. Motter, 26 Ohio, St. 480. 1,6 SCOPE AND NATURE 0¥ THE ACTION. the circumstances attending the taking ; and if for chattels, de bonis asportatts, the damages would not be less than the value of the property; whereas in troyer, damages were not on account of the wrongful taking, or the manner in which the possession was acquired, but only for the conversion, and the usual measure of damages was the value of the con- verted property, with interest from the time of the conver- sion. In replevin there was no claim for damages as such, but only for the immediate possession of the property. This delivery of the property on the first process is one of the main differences between replevin and other forms of action. In trespass and trover the property was never delivered to ■plaintiff. If successful, the fruit of his victory was only an ordinary judgment for so much money.' Replevin, too, can be used under circumstances under which the other forms of action could not. Thus a simple omission or refusal to de- liver goods rightfully in one's possession would not furnish ground for an action of trespass, but might furnish ample ground for replevin.^ Trespass will not lie against one who came rightfully into the possession of the goods of another, even though it should turn out that the party who delivered them to him was a wrongdoer. Or where a bailee of goods sells and delivers them without authority, such sale and de- livery conveys no title to the purchaser ; and replevin would lie, but trespass could not be maintained.^ Or if an infant sell and deliver property, he can avoid the sale and bring replevin, but trespass will not lie.* The defendant must have the actual or constructive possession at the cqjnmence- ' 3 Black. Coin. 152; Robinson v. Eichards, 45 Ala. 358; Badger v. Phinney, 15 Mass. 362; Cox r. Morrow, 14 Ark. 608; Sedgwick on Meas. of Dam. II., 440. 2 Isaacs V. Clark, 2 Bulst. 310; Grace r. Mitchell, 31 Wis. 536. = Barrett v. Warren, 3 Hill (N. Y.), 348; Wilson r. Barker, 4 Barn. & Adol. (24E. C. L.) 614; Marshall v. Davis, 1 Wend. 109; Nash v. Mosher, 19 Wend. 431. * Fonda v. Van Horn, 15 Wend. 631; Roof v. Stafford, 7 Cow. (N. T.) 179; and note. DISTINCTION AT COMMON LAW. 11 ment of the action, or replevin will not lie, but he might be liable in trespass without having possession/ Where one "takes forcible possession of his own goods, he may be liable as a trespasser, but not in replevin ; having the right of possession at the time of the seizure, his trespass does not debar him from the right of possession, nor vest the other party with the right to replevy the goods." Judge Coleridge once said: "Keplevin at corpmon law is distinguished from "trespass in this, among other things, that while the latter " is intended to procure compensation in damages for goods " wrongfully taken out of the actual or constructive posses- " sion of the plaintiff, the object of the former action is to "procure the restitution of the goods themselves, and it "effects this by a preliminary ex parte interference by the "officers of the law with the possession. * * * As a "general rule, it is just that a party in the peaceable pos- *' session of goods should remain undisturbed, either by "parties claiming adversely, or by the officers of the law, until ' "the right be determined and the possession shown to be "unlawful; but where, either by distress or by merely a "strong hand, the peaceable possession has been disturbed, " an exceptional case arises, and it is thought just that even "before any determination of the right the law should inter- " fere to place the parties in the condition in which they were " before the act was done, security being taken that the right "shall be tried and the goods forthcoming to abide the de- '" cision." ' Lathrop v. Cook, 2 Shep. (14 Me.) 415; Richardson r. Reed, 4 Grey, 443 ; Hickey v. Hinsdale, 12 Mich. 100 ; Ramsdell v. Buswell, 54 Me. 546 ; Grace r. Mitchell, 31 Wis. 533; Coply v. Rose, 2 Comst. 115; Mitchell r. Roberts, 50 N. H. 486. 2 Taylor v. Welbey, 36 Wis. 42 ; Hurd r. West, 7 Cow. 753 ; Spencer v. McGowen, 13 Wend. 256; Coverlee f. Warner, 19 Ohio, 29; Marsh v. White, 3 Barb. 518; Collomb v. Taylor, 9 Humph. (Tenn.) 689; Owen V. Boyle, 22 Me. 67; Hodgeden v. Hubbard, 18 Vt. 504; Bogard f. -Jones, 9 Humph. (Tenn.) 739; Neely v. Lyon, 10 Terg. (18 Tenn.) 473; 'Carroll v. Pathkiller, 3 Porter (Ala.), 279. 12 SCOPE AND NATURE OE THE ACTION, § 18. Similarity of trespass, trover, and replevin. It may assist some in understanding the law applicable to the action of replevin to consider it as belonging to the same class as trespass and trover, and only differing from them in the mode of procedure and the character of the result ob- tained; but with all this difiPerence in their governing prin- ciples the actions are essentially the same.' Trover supposes a casual loss by the plaintiff and a finding and conversion by the defendant,^ while replevin supposes only a right of pos- session in plaintiff and a wrongful detention by defendant.' Trespass lies for any unauthorized interference with the property of another. But to sustain an action in trover, the interference must amount to a conversion. In other respects the actions are similar.*. Detinue was for the detention, and supposed a bailment of the goods by the plaintiff to the defendant, and a refusal to deliver them after proper re- quest.^ Replevin is based on the supposition that plaintiff has a general or special property in the goods in dispute and a right to their immediate possession, and that defend- ant stands in the way of the exercise of this right.* 1 Marshall r. Davis, 1 Wend. 109 ; Holbrook v. Wight, 24 Wend. 169 ; Eector v. Chevalier, 1 Mo. 345; Briggs r. Gleason, 29 Yt. 78; Rogers f. Arnold, 12 Wend. 30; Heard v. James, 49 Miss. 236; Chapman t. An- drews, 3 Wend. 242; Wickliffe v. Sanders, 6 T. B. Mon. (Ky.) 296; San- ford r. Wiggiin, 14 N. H. 441; Sawtelle f. Rollins, 23 Me. 196; Rowell f. Klein, 44 Ind. 294. 2 3 Black. Com. 151. ' Ward F. Macauley, 4 T. R. 260, 488 ; Burdick v. MoVanner, 2 Denlo, 171; Heyland v. Badger, 35 Cal. 404; Carlisle F.Weston, 1 Met. (Mass.) 26 ; Waterman f. Robinson, 5 Mass. 304. * Price F. Helyer, 4 Bing, 597. = 3 Black. Com. 155; Lawson f. Lay, 24 Ala. 188; Schulenberg f. Campbell, 14 Mo. 491; Y. B., 6 H. 7,9; Fitz,TJ. B. 323; Selw. N. P. 657. 6 Hunt F. Chambers, 1 Zab. (21 N. J.) 624; Mennie v. Blake, 6 Ell. & B. (88 E. C. L.), 850; Drummond f. Hopper, 4 Harr. (Del.) 327; Watson F. Watson, 9 Conn. 140; Vaiden f. Bell, 3 Randolph, 448; Chinn F. Russell, 2 Biackf . 176, note 3 ; Ramsdell v. Buswell, 54 Me. 548 ; Mil- ler F. Sleeper, 4 Cush. 370, Wheelock v. Cozzens, 6 How. (Miss.) 280; Smith F. Huntington, 3 N. H. 76; Pirani f. Barden Pike, (5 Ark.) 84; Neff r. Thompson, 8 Barb. 215. IMPOBTANCE OF THE ACTION. 13 § 19. Replevin is the remedy which in America may be used by a person in almost all cases in which chattel^ are unlawfully taken from him; but it is not often used in England, except in cases of wrongful distress for rent or stock taken damage feasant, when it is b^'ought for the pur- pose of trying the legality of the distress ; it may also be used to decide a question of title to land or other heredita- ments imder the English practice. In the code states the old common law action of replevin has been abolished, and the provisional remedy, claim and delivery, is in use. But even in these states the name replevin is still in use for want of a better nomenclature.' § 20. Importance of the action. It is the only remedy for settling the right of possession of specific chattels." When we consider that the greater part of the wealth of the world is in personal property, we see at once the impor- tance of this action. Both the legislatures and the courts have recognized its importance; and through their aid, what was in its origin a half civilized contest, in which brute force was a prominent factor, has- grown and devel- oped, with the growth and development of civilization, into an ever ready instrument for the solving of the intricate problems arising out of the possession and ownership of such vast wealth. The peculiarities of the action also ren- der it important. It is the only form of action where, on an ex parte showing by affidavit, the property, thing in contro- versy, is placed in the care of the plaintiff at the commence- ment of the litigation.* For this reason the remedy has frequently been called a violent one, but the frequency with which it is appealed to and the fact that the tendency of both the courts and the legislatures, .for the last 100 years, has been to enlarge rather than restrict the scope of the ' Eepalje & Lawrence's Law Die. " Corbitt Y. Brong, 44 Mich. 150 (6 N. W. 213). 'Hunt T. Chambers, 1 Zab. (N. J.) 624; Tates v. Fassett, 5 Denio, 81; Kingsbury's Exrs. r. Lane's Exrs., 21 Mo. 117; Creamer v. Ford, 1 Heisk. (Tenn.) 308; Lowry v. Hall, 2 W. & S. (Pa.) 129. 14 SCOPE AND NATUBE OE THE ACTION. action, shows not only that no eyil effect has followed this^ feature of the action, but also shows its importance and ne- cessity/ § 21. It is a mixed action, partly in rem and partly in personam, wherein the plaintiff seeks to recoyer the thing detained in specie, and not as in trespass or trover, damages for its detention.^ In Pennsylvania, replevin is not altogether a proceeding in rem, but against the defendant in the writ personally, with a summons to appear.' Replevin in its inception is a mixed action. It is a demand for the thing itself, and also for damages for the taking and deten- tion.* The action of replevin is not one in rem, and to give jurisdiction over the person he must be a party.^ So far as the action seeks an order in regard to the disposition of the property itself, it is an action in rem, and seizure of the property gives jurisdiction. But so far as it seeks judgment against the defendant for damages, it is an action in perso- nam, and service on the person is necessary to a valid judg- ment. ° In a replevin suit, where the property is not seized 1 Tibball r. Cahoon, 10 Watts. 232; Pettygrove v. Hoyt, 11 Me. 66; Mennie v. Blake, 6 Ell. & Bla. (88 E. C. L.) 849; Badger v. Phinney, 15 Mass. 362; Town v. Evans, 1 Eng. (Ark.) 263; Ames v. Miss. Boom Co., 8 Minn. 467; Kingsbury's Exrs. v. Lane's Exrs., 21 Mo. 117; Hunt f. Chambers, 21 N. J. 624; Clark f. Skinner, 20 Johns. 467 ; Tra vers f. Inslee, 19 Mich. 101; Weaver r. Lawrence, 1 Dall. 156; Hutchinson r. McClellan, 2 Wis. 17 ; Tift f. Verden, 11 S. & M. (Miss.) 160. Imprison- ment is sometimes allowed. Tomlin v. Fisher, 27 Mich. 525. "Mitchell F. Roberts, 50 N. H. 486; Turner v. Lilly, 56 Miss. 576; Fisher v. Whoollery, 25 Pa. St. 197; Herdic f. Young, 55 Pa. St. 176. See Bigelow on Estoppel (4 Ed.), 46, 47, and 225. 8 Bower v. Tollman, 5 Watts & S. 556. * Fisher v. Whoollery, 25 Pa. St. 197. , . 6 Waits F. Triblecoek, 5 Dill. (8th Circ. Iowa) 547. 6 Bower v. Tollman, 5 W. & S. (Pa.) 561; Brown f. Smith, 1 N. H. 38 ; Wheeler v. Train, 4 Pick. 168 ; Fletcher v. Willnns, 6 East. 283 ; Sharp F. Whittenhall, 3 ^ill (N. Y.), 576 ; Lowry v. Hall, 2 W. & S. (Pa.) 132; Baldwin f. Cash, 7 Watts & S. 425; Eaton f. Southby, Willes, 131; Burr r. Daugherty, 21 Ark. 559; Doggett v. Robins, 2 Blackf. (Ind.) 416; Stevens r. Tuite, 104 Mass. 332; EamsdeU f. Buswell, 54 Me. 547; St. Martin v. Desnoyer, 1 Minn. 41. N. OBJECT OF THE ACTION. 15 upon the writ, and the plaintiff proceeds for its value, the suit becomes essentially a personal action, and is governed by the same principles as an action of trover for the conversion of the property.' In Kansas it is not necessary ithat the property be seized or that an order of delivery be taken out. The statute says that plaintiff may have the order of delivery when he commences the suit or at any time before answer on giving bond, eto.^ § 22. The action is grounded on a tortious taking, and sounds in damages like an action of trespass, to which it is extremely analogous.' Replevin is founded upon an unlaw- ful detention, whether there was an unlawful taking or not.^ There are no fictions of law to be indulged in, in the action of replevin. It originates in wrong, and can only be supported while it exists.^ §23. Object of the action. The primary object oi out ac- tion of replevin is to enable the plaintiff to obtain the actual possession of property wrongfully detained from him by the defendant, at the time the action is brought.^ The primary object of replevin is to recover the property in specie, not. its value.' § 24. The same. The secondary object is to recover an amount of money which shall be an equivalent of the value of the property sued for, if the prime object is for any reason de- feated ; and also damages that will compensate for the loss of bheuse of the property, though usually this is of little import- ance in the action.' But the recovery of damages has been 1 McArthur v. Oliver, 60 Mich. 605 (27 N. "W. 689). 2 Batchelor v. Walburn, 23 Kan. 733. 3 Hopkins r. Hopkins, 10 Johns. (jN. Y.) 369. * Sexton r. McDowd, 38 Mich. 149. 5 Adams r. Wood, 51 Mich. 411 (16 N. W. 788). « Clark V. West, 23 Mich. 242 ; Hickey v. Hinsdale, 12 Mich. 99. 'Herdic r. Young, 55 Pa. St. 176; Hunt r. Kobinson, 11 Cal. 277; Nickerson r Chatterton, 7 Cal. 568; Buckley v. Buckley, 12 Nev. 426. 8 Buckley F.Buckley, 12 Nev. 426; Yates r. Fassett, 5 Denio, 21; Burr V. Daugherty, 21 Ark. 559; Bruen v. Ogden, 6 Hoist (N. J.) 371; Hart r. Fitzgerald, 2 Mass. 509 ; Ellis, Admr. r. Culver, 2 Harr. (Del.) 16 SCOPE AND NATUEB OF THE ACTION. held to be, in a proper case, as mucli a primary object of the action of replevin as is the recovery of the property in specie.' In those states -vfihich allow it to proceed as an action for damages when the property is not taken, and those in which it may be started as an action of damages, and the property taken at any time during its pendency by making affidavit and "filing bond, this is the proper view. Eeplevin in the latter case is hardly a distinct action, but rather an appen- dage to another action. § 25. Scope of the investigation. The investigation in replevin is confined to the property mentioned in the com- plaint; other property cannot be brought into the contro- versy by answer.^ According to the general nature of re- plevin, the state of things existing when the suit is com- menced will control the determination; and this rule must always prevail unless very peculiar and unusual reasons ex- ist to prevent it.' In replevin the question is. Who was en- titled to the possession of the property when the action was begun ?* Right of property and possession thereof only can be tried.^ But any facts that form part of the res gestce are admissible as in other actions, and all the incidents which will' help to determine the main question — the right to pos- session — should be examined into. § 26. The same illustrations. When the action is for the recovery of goods wrongfully attached by an officer on 129; Gray f. Nations, 1 Ark. 559; Whitfield v. "Whitfield, 40 Miss. 352; Stevens v. Tuite, 104 Mass. 3.32; Parham v. Riley, 4 Coldw. (Tenn.) 5; Smith V. Houston, 25 Ark. 184; Frazier v. Fredericks, 4 Zab. (N. J.) 163; Loomis v. Tyler, 4 Day (Conn.), 141j Broadwater v. Darne, 10 Mo. 278. ' Burrage v. Melson, 48 Miss. 244. See Buckley r. Buckley, 12 Nev. 423. 2 Lovensohn r. Ward, 45 Cal. 8. s Gary v. Hewitt, 26 Mich. 228. *Kingsbui7 v. Buchanan, 11 Iowa, 387; Cassell r. Western Stage Co., 12 Iowa, 47; Campbell v. Williams, 39 Iowa, 646; Marshall r. Bun- ker, 40 Iowa, 121. ^ Gillespie v. Brown, 16 Neb. 462 (20 N. W. 632). THE SAME — ILLUSTKATIONS. 17 process against another, the plaintiff must recover on the strength of his own title, which is liable to be defeated by any state of facts showing that the property was liable to the levy.^ Where the holder of a prior mortgage replevied from the sheriff, the latter was permitted to set up as a defense under the statute that the mortgage was .to secure a loan on usurious interest.^ Where the action was for a dis- tress for rent, the defendant was permitted to show that he purchased the premises with the consent of his landlord.' Where the action was for wheat stored with the defendant, and he justified on the ground that he was a warehouse- man, the plaintiff was allowed to show that some forty bushels were lost, and that the value of this exceeded the storage.* Where the defendant claimed that the property belonged to his minor son, and that he, as natural guardian, was bound to keep the custody of it, the plaintiff was allowed to show that he bought of both defendant and his son, and the defendant was allowed to show that the sale was fraud- ulent.^ In replevin to recover property taken on a chattel mortgage, the plaintiff claimed the mortgage was given to secure a note given for machinery purchased under a war- ranty; that there was a breach of the warranty, and that he had been damaged thereby to the amount of the note, and it was held that the issue thus tendered was triable in replevin." Eeplevin is the proper process to obtain posses- sion of property which plaintiff claims as his own.' The action of replevin is a possessory one, and, as a general rule, one in the actual and undisputed possession of property can- not be required, as against a mere intruder, to show title.' 1 Hotchkiss T. Ashley, 44 Tt. 198. 2 Dix V. Van Wyck, 2 Hill, N. T. 522. 8 Hill V. Miller, 5 S. & K. (Pa.) 355. * Bobb F. Talcott, 47 Mo. 343 ; Gillham r. Kerone, 45 Mo. 490. = Bliss V. Badger, 36 Vt. 338. « Hutt V. Bruckman, 55 HI. 441 ; Bruce r.Westervelt, 2 E. D, Smith, 440, ' Mendelsohn v. Smith, 27 Mich. 2. * Hatch F. Fowler, 28 Mich. 205. 2 18 SCOPE AND NATUEE OF THE ACTION. Eeplevin lies to obtain possession of personal property, and it cannot be turned into a suit to quiet a party's title to property already in his possession.' § 27. Replevin is strictly a possessory action. " Such " wherein the right of possession only, and not of property, " is contested." ^ Its primary object is to enable the plain- tiff to obtain the actual possession of personal property wrongfully detained from him by the defendant, at the time the action is brought.^ Generally speaking, in an action of replevin, the right to the possession of the property, at the time the suit is brought, is the only matter in controversy, and the only question that can be tried and determined therein.* Eeplevin is a mere possessory action to recover the possession of property of which the plaintiff is deprived by a tort.^ The action for the recovery of personal prop- erty is undoubtedly a possessory action, wherein a mere possessory right may, and often will, prevail against an absolute legal title, .where the absolute title to personal property, and the right to the possession thereof, become separated and are held by different parties.' ' Bacon v. Davis, 30 Mich. 157. " 2 Black. Com. 198. = Hickey v. Hinsdale, 12 Mich. 100; Huron r. Beckwith, 1 Wis. 20; Jackson r. Sparks, 36 Ga. 445; Childs r. Childs, 13 Wis. 17; Smith v. Williamson, 1 Har. & J. (Md.) 147; Seldner v. Smith, 40 Md. 603; Cor- bitt V. Heisey, 15 Iowa, 296; Johnson r. Carnley, 6 Seld. (N. Y.) 578; McCoy r. Cadle, 4 Clark (Iowa), 557 ; Kose v. Cash, 58 Ind. 278 ; Hunt r. Chambers, 1 Zab. (21 N. J.) 624. * Kramer r. Matthews, 68 Ind. 172; Pacey r. Powell, 97 Ind. 371; McFadden r. Ross, 108 Ind. 512; Hall v. Durham, 113 Ind. 327 (15 N. E. 529). 5 Rose V. Cash, 58 Ind. 278. ^ Entsminger r. Jackson, 73 Ind. 144; Kramer r. Matthews, 68 Ind. 172. LANDLOED CANNOT SUSTAIN KEPLBYIN. 19 CHAPTEB in. LANDLORD AND TENANT-DISTRESS. Section. The landlord cannot sustain re- plevin for his share until it is set apart . . . .28 The landlord in such a case should bring bill in equity, not replevin . . . .29 But if landlord'srightis denied, he may replevy . . .30 Where the tenancy is for a defi- nite time, replevin will not lie until the time is up . . 31 Landlord may replevy his share when ready for delivery . 32 Crops on leased land belong to the tenant until gathered and divided 33 Assignee of landlord may re- plevin when share set apart 34 Where a tenant abandons his lease 35 A tenant has aright to posses- sion even against the land- lord 36 Distress — History . . .37 Section. . 38 Gross abuses .... Chief use was to collect rent . At first a distress could not be sold Later rule under the statute of 2W. &M., Ch. 5 . The theory out of which dis- tress grew To authorize a distress must be an actual demise . Distress only lies for rent in ar- rears It could be taken for any kind of rent Distress as known at the com- mon law is almost unknown in this country — Attachment takes its place .... Where it could be made . What is triable in a replevin of a distress 48 Venire how laid in a replevy of a distress 49 Action by tenant— Tender . 50 39 40 41 ^ 42 43 44 45 46 47 § 28. The landlord cannot sustain replevin for his share until it is set apart. "Where a tenant agrees to de- liver a share of the crop for rent, the landlord cannot sus- tain replevin for any portion until his share has been ascer- bained and set apart or separated from the tenant's.^ Where ' Lacy V. Weaver, 49 Ind. 373; Williams r. Smith, 7 Ind. 559; Chis- som V. Hawkins, 11 Ind. 316; Fowler v. Hawkins, 17 Ind. 211; Daniels r. Brown, 34 N. H. 454; Dixon v. Niccolls, 39 111. 372; Alwood r. Buck- man, 21 111. 200; Sargent v. Courrier, 66 III. 245. 20 LANDLOBD AND TENANT DISTEESS. a landlord agreed to receive a part of the crop as rent, to be harvested by the tenant, and delivered to him in the crib, and it was levied on as the property of the tenant -while yet in the field, Held, That the landlord could not maintain replevin for his share prior to a division.^ § 29. The landlord in such a case should bring bill in equity not replevin. Where a party first purchased land, but, being unable to pay for it, agreed to deliver a part of the crop as rent for the use of the land, and afterwards refused to do so, and was in the act of selling and converting the crop, it was held that the landlord could not maintain re- plevin for a part of the corn, but that his only remedy was by bill in equity.^ § 30. But if landlord's right is denied, he may bring replevin. A landlord who has an interest in the crop may bring claim and delivery against the tenant or a stranger who denies his right of possession under his lien, as well as where the entire crop has been removed from the land.' § 31. Where the tenancy is for a definite time, re- plevin will not lie until the time is up. Eeplevin will not lie for property held in connection with a tenancy on shares running from year to year, and terminable only by notice, so long as the year has not expired and notice has not been given.* Parties may stipulate as to what share each is to have in a crop to be raised, and what time it is to be delivered and separated, and it will be valid between themselves, and replevin will not lie until the time fixed for delivery.^ § 32. Landlord may replevy his share when ready for delivery. One who has leased a farm upon the tenant's agreement to deliver in payment half the produce is a ten- ant in comanon in respect to such produce, and when the 1 Sargent v. Courrier, 66 111. 245. See Lacy v. Weaver, 49 Ind. 376; Williams v. Smith, 7 Ind. 559; Lindley v. Kelley, 42 Ind. 294. 2 Parker v. Garrison, 61 111. 251. 8 Livingston v. Farisb, 89 N. C. 140. * Coon V. Male, 39 Mich. 454. 5 Lanyon v. Woodward,55 Wis. 652 (13 N. W. 863). A TENANT HAS A BIGHT TO POSSESSION. 21 grain is threshed and ready for delivery may demand his share; and if refused, maintain replevin therefor.' Where the grain was harvested ard ready for delivery, and the ten- ant took his part and left the landlord's in the bin, and went away, this was held a sufficient division, so that the landlord could maintain replevin.^ § 33. Crops on leased land belong to the tenant until gathered and divided. Where a landlord leases land upon shares, his share to be delivered in crib, he has not such an interest in the crop that .he can maintain replevin for his share while it is standing in the field. The crop, until gathered and divided, belongs to the tenant, and his in- terest is subject to levy for his debts.' § 34. Assignee of landlord may replevy when share set apart. W^iil® ^ landlord has no property in the crop of his tenant until matured and his proportion set apart still he may assign his interest, and when set apart his as- signee may maintain replevin.* § 35. Where a tenant abandons his lease, and the whole crop is levied on for the tenant's debt, the landlord may replev.y. his interest in a growing crop.^ While the land- lord has no right as against the tenant until the crop is divided, as against a stranger he has a right to his share even before the division is made. So far as the landlord's interest is concerned, the officer is regarded as a trespasser. § 36. A tenant has a right to possession, even against the landlord. Where, by the terms of a lease, the tenant ' Sutherland y. Carter, 52 Mich. 471 (18 N. W. 223) ; Grouse r. Der- byshire, 10 Mich. 479; Fiquet r. Allison, 12 Mich. 328; Kindy v. Green, 32 Mich. 310; Kaufmann r. Schilling, 58 Mo. 219; Inglebright v. Ham- mond, 19 Ohio, 337; Ryder v. Hathaway, 21 Pick. 305; Warner r. Cushman, 31 111. 283; Taylor's Landl. & T. (6th Ed.) 19; Caswell r. Districh, 15 Wend. 379. 2 Burns r. Cooper, 31 Pa. St. 429. 2 Sargent v. Courrier, 66 111. 245. See Alwood r. Euckman, 21 lU. 200; Dixon v. Niccolls, 39 111. 372, as to title to crops. * Lufkin T. Preston, 52 Iowa, 235 (3 N. W. 58). 6 Atkins r. Womeldorf, 53 Iowa, 150 (4 N. W. 905). 22 LANDLORD AND TENANT — DISa?BESS. is to thresh the wheat crop and deliver to the landlord a cer- tain share in the bushel, the tenant has a right to possess the wheat for the purpose of performing his contract, and may maintain replevin therefor, even against the land- lord.' A tenant may recover personalty violently or fraud- ulently taken from his lawful possession by his landlord, ^though the title may be in the latter.^ § 37. Distress — History. Distress is defined as the tak- ing of a personal chattel out of the possession of an alleged wrongdoer, by the person claiming to be injured, into his •own custody to compel satisfaction for the wrong complained ■of.' The thing taken, as well as the process by which it was taken, was called a distress. History does not inform us just how this custom originated, but doubtless in the early history of civilization, when "might made right" and supe- rior force was the only law respected. It seems to have been used in most any case where the one having the superior force desired to coerce a person of inferior physical force into doing an act or paying a debt claimed of him, and is spoken of in three divisions: "1st. When the taking is "justifiable, and the detaining also, as for a debt due, "recovered. 2d. Where both are wrongful, such as are " disavowable both in taking and detaining. 3d. Where "the taking is lawful, as in damage feasant, and the tak- " ing tortious as against sufficient gages and pledges ten- "dered."* In 1267 distresses are spoken of as revenges.^ The distresses were usually the cattle of the debtor, prob- ably from the ease with which it could be taken, and the 1 Cunningham v. Baker, 84 Ind. 597; Williams v. Smith, 7 Ind. 559; Chissom v. Hawkins, 11 Ind. 316; Lacy v. Weaver, 49 Ind. 373 (19 Am. B. 683). ^ Ivey V. Hammock, 68 Ga. 428, under the Georgia Code, § 4035. The issue is not the right of possession or o! property, but in whose lawfully acquired, quiet and peaceable possession it last was. See Trotti r. Myly, 77 Ga. 684. ' 3 Blackstone, 6 ; Gilbert on Distresses, 4 ; Bradby on Distresses, p. 1, * Mirror of Justices, Ch. 2, § 26. ' Stat. Marlbridge, 52 H. III., Chap. 1 and 3. AT FIRST IT COULD NOT BE SOLD. 23 actual distress brought upon tlie debtor by taking from him this, the most important of his possessions. But we must remember that the term cattle was used with a more general meaning then than now, being a general term includ- ing horses and chattels.^ § 38. Gross abuses grew out of the exercise of such a right for such a general purpose. It was used by the bar- ons in feudal times as a powerful force to coerce the tenants into performing military service, that they might appear at the head of a large body of vassals. When neighboring lords were seeking to enlarge their domains, tenants were fi'equently distrained upon by both. The husbandry of the realm — then its only support — was greatly injured and the public peace disturbed. In the latter part of Henry III. it had become a crying evil and seriously threatened the peace of the realm, and laws were enacted regulating distress and forming remedies for illegal distresses. Out of this early legislation our replevin grew, which title see.^ § 39. Chief use was to collect rent. The right of dis- tress was most frequently used to enforce the payment of rent or dues by a tenant to his lord the owner of the land. If the tenant failed in the payment of his rent, or refused to perform the service which his feudal contract bound him to do, the lord would seize his goods, and detain them as a pledge or security to compel payment or performance.'' § 40. At first it could not be sold, but must be held as a pledge, but if placed in pound overt they could be kept until the claim was paid to the distrainor, and they were so held at the risk and cost and expense of the debtor, and must be fed and cared for by him. It was thus in the power ef the landlord to harass and distress the debtor for ' 3 Blackstone, 6 ; Macaiiley's History, Vol. I., p. 294. ^ 3 Blackstone, 14; Gilbert on Distresses, 3, Statute de Districtione Scaocarii, 51 Henry HI. 1266, Statute Marl. 52, Henry III., C. 1. Beeves History, Vol. 2,.p. 66. ' 3 Blackstone, 145 ; Evans v. Brander, 2 H. Bla. 547. 24 LANDLOBD AND TENANT — DISTRESS. an indefinite period unless lie should perform the service or pay the sum demanded.' § 41. Later, under the statute of 2 W. and M., Ch. 5, it was provided that unless the owner of the goods dis- trained should within a certain time replevy them, the distrainor should appraise and sell them after due notice. But this act was* construed to not be imperative but at the option of the landlord to sell or hold as a pledge,^ but in Pennsylvania, in 1772, a similar statute was passed and afterward construed differently by the courts.^ So that at common law the distress was only a pledge to compel the payment of certain dues, or the performance of certain services. The distrainor had no right to sell it to satisfy his claim. And after an action of replevin, the effect of the judgment of retorno habendo was merely to put him in the condition in which he was before the action was begun. That is to say, the beasts or chattels were returned to him merely as a pledge to be retained until the rent or duty for which they were taken was paid or satisfied, And it was often the case that, pending the first writ of replevin, the distrainor would distrain a second time for the same rent or service, but since he had already security to have return upon making out the justice of his first caption, it was highly reasonable that, pending that suit, the tenant should be protected from further distresses, for the same rent or cause for which the first distress was taken. For this pur- pose the writ of recaption was framed, in which, if the defendant was convicted, he was fined to the king; because, by the second caption, he took upon him to determine the justice and legality of the first while that very point was under the consideration of the court of justice in which the replevin depended, for if the first distress were lawful, he 1 3 Blaokstone, 14-145 ; Gilbert on Distress, 4 ; Woglam v. Cowper- bhwaite, 2 Ball. 68. 2 Hudd V. Ra venor, 2 B. <\c B. 662 ; Lear v. Edmonds, 1 B. & Aid. 157 ; Lingham r. Warren, 2 B. & B. 36. 8 Quin F. Wallace, 6 Whart. 452. TO AUTHOEIZE A DISTRESS. 25 should have return of it; and, therefore, the second was unreasonable. If the first were unlawful, much more so was the second taking for the same cause ; so that the recap- tion lay even where the cause of the first caption was just. § 42. The theory out of which distress grew was that no man needed the aid of the law to take what was his own. The power of distress was given to the lord in lieu of a for- feiture of the land. The common people who occupied the lands were bondsmen, and deemed incapable of owning land. As these bondsmen became enfranchised, in course of time, they were conceded, a right to the use of the soil, but not to acquire the title, and the rents remained the property of the landlord, and, he continued to collect them by his own authority.' § 43. To authorize a distress there must be an actual demise-^an agreement for one will not do — at a certain fixed rent, payable either in money, in produce, or by services. But a parol demise is sufficient, if the terms are capa- ble of being made definite by evidence.^ If the rent is to be paid in repairs, and the amount of the repairs is not defi- nitely settled, the landlord cannot distrain. But if to be paid in kind — that is, a certain quantity of the grain raised — ^the landlord could distrain for so many bushels in arrear, fixing a value in order that if the goods should not be re- plevied, or the arrears tendered, the officer may know what amount of money is to be raised by the sale; and in such case the tenant may tender the arrears in grain.^ In Louis- iana the landlord may follow goods removed from his prem- ises for fifteen days after removal, provided they continue to be the property of the tenant.* As a means of collecting rent, however, it has become very unpopular in the United ' Taylor on Landlord and Tenant, § 557. 2 Coke Litt. 96 a; Reeves' History of Eng. Law, Vol. II., 475 ; Miles v. Stevens, 3 Pa. St. 31; Jacks v. Smith, 1 Bay. (S. C.) 315. ' Warren v. Forney, 13 Serg. & K. (Pa.) 52 ; Jones v. Gundrin, 3 Watts & S. (Pa.) 531. * La. Civil Code, 2675. 26 liANDLOBD AND TENANT DI8TBESS. States as giving an undue advantage to landlords over other creditors in tlie collection of debts.' § 44. Distress would only lie for rent in arrear, and therefore could not be brought until the day after it was due unless made payable in advance or on a day certain. But no previous demand was necessary in the absence of a stipulation to that effect. An unsatisfied judgment for the rent in arrear did not extinguish the right to distrain. Nor the taking of a note or security unless it was taken in abso- lute payment Each one of several joint tenants was allowed to distrain for all the rent and account to the others, or they could all join. But if the rent was of an entire thing, as of a house, they must all join, as the subject matter was held in- capable of division.^ § 45. It could be taken for any kind of rent in arrear, the detention of which beyond the day of payment was in- jurious to him who was entitled to receive it. At common law the distrainor must have possessed a reversionary inter- est in the premises out of which the distress issued, unless he had expressly reserved a power to distrain when he parted with the reversion.* But the English Statute of 4 Geo. II., C 28, abolished these distinctions, and gave the remedy in all cases where rent was reserved upon a lease. The effect of the statute was to separate the right of distress from the reversion to which it had before been incident, and to place every species of rent upon the same footing as if the power of distress had been expressly reserved in each case. § 46. Distress as known at the common law is almost unknown in this country. "Where recognized in this coun- try it is so modified by statute as to make the old decisions ' 1 Taylor on Land. & T. § 556 ; Woglam r. Cowperthwaite, 2 Ball. (Penn.) 68; Bidge v. Wilson, 1 Blackf. (Ind.) 409; Owens f. Conner, 1 Bibb (Ky.), 607; Mayo v. Winfree, 2 Leigh (Ya.), 370; Burket v. Boude, 3 Dana, (Ky.) 209. 2 Bates V. Nellis, 5 Hill, N. Y. 651. 8 5 Term, 24B ; Coke Litt. 197 a, 317 ; Croke Jac. 611. * Cornell v. Lamb, 2 Cow. (N. Y.) 652; 1 Term, 441; Coke Litt. ItSb. WHERE IT COULD BE MADE. 27 thereon of little value.^ In many of the states it never had a foothold in any form.^ In others it has been abolished by statute.' The law of attachment on mesne process has su- perseded the law of distress. The state of New York has expressly abolished it by statute. In North Carolina it is held to be inconsistent with the spirit of her laws and goT- ernment, and the courts have declared that the common process of distress does not exist in that state. In Georgia it is limited to the cities of Savannah and Augusta, while in Ohio, Alabama, and Tennessee there are no statutory provisions on the subject, except in the former state to secure to the landlord a share in the crops in preference to an exe- cution creditor.* Mississippi has abolished it by statute; but property can not be taken in execution on the premises •unless a year's rent, if it be due, is first tendered to the landlord. § 47. Where it could be made. A distress could be made either on or off the land. As a general thing, it was confined to things on the land out of which it issued.^ And where land was rented to several, the lord could distrain for the whole upon the land of any of them, because the whole rent was deemed to issue out of every part of the land." If there was a house on the land, the distress could be made in the house ; if the outer door or window was open, a •distress could be taken out of it. If an outer door was open, 'Powers r. Florence, 7 La. Ann. 524; Howard v. Dill, 7 Ga. 52; Mitchell V. Franklin, 3 J. J Marsh, 477 ; Woglatn v. Cowperthwaite, 2 Ball. (Pa.) 68; Kidge v. Wilson, 1 Blackf. 409; Burket v. Boude, 3 Dana, 209-; Penny v Little, 3 Scam. (111.) 301; Gray r. Eaweon, 11 III. 527; Owen v. Boyle, 22 Me. 47; Trieber v. Knabe, 12 Md. 149; Coburn V. Harvey, 18 Wis. 147; Eiddle r. Weldon, 5 Whart. 9 ; Briggs v. Large, 30 Pa. St. 287; Allen r. Agnew, 4 Zab. (N. J.) 443; Hall v. Amos, 5 T, B. Mon. (Ky.) 89. 2 Dalgleish v. Grandy, Cam. & N. (N. C.) 22. ' Guild V. Rogers, 8 Barb. 502 ; Crocker r. Mann, 3 Mo. 472. * Griffith Law. Beg. 404; Aiken Dig. 357. s 2 Strong, 1040; Eep. temp. Hardw. 245; 1 Ld. Eaym, 55; 12 mod. SG. f Eolle Abdr. 671. 28 LANDLOED AND TENANT — DISTKESS. an inner door could be broken for tlie purpose of taking a distress, but not otherwise.' But if property was clandes- tinely removed from the premises to avoid distress, it could be distrained wherever, found within thirty days.^ As be- fore remarked, distress has been so modified by statute where it exists at all as to make the old decisions of little value, and for that reason but few of them have been cited. A few citations of a later date on the general princi- ples follow. For a more extended discussion of this mat- ter, the reader is referred to works on that special subject. § 48. What is triable in a replevin of a distress. The action of replevin may be brought to try the legality of dis- tress for rent, provided there is no sum whatever due, but if any sum, however small, is due, and the distress is for a greater sum, or is excessive in regard to the quantity of goods taken, or otherwise irregular, the remedy must be in case.' In such an action^the tenant may show breaches of the covenants on the part of the landlord which have pro- duced damages equal to or greater than the amount of the rent due, and thus defeat the levy of the distress warrant. But where other stock followed off the distrained stock the landlord's liability incurred on this account cannot be setw tied in the replevin of the distress.* § 49. Venue how laid in replevy of a distress. The declaration for replevin of distrained animals is suflficient if it state the town where the distraint occurred,^ though the old decisions required a more particular statement of place.* 1 Comb, 47; Cae. temp Hard, 168; 6 Bingh. 150. 2 3Esp.iVLsiPrius,15; 7 Bingh. 423; 1 Mood &M. 535; 4Campb.l35. See Hammond N. P. 382; 5 Dom. Abr. 34; Coke Litt. 47 a; Bacon Abr. Distress B.; 4 Term, 565. 3 Hare v. Stegall, 60 111. 380; Chitty's Pleadings, Vol. 1, p. 188 (6th Am. Ed.) * Lindley r. Miller, 67 111. 244. See Streeter v. Streeter, 43 111. 155. ^ Strong V. Lawler, 37 Conn. 177. * Patten r: Bradley, 2 Moore & Payne, 78; Potter f. North, 1 Saund. 347; Banks v. Angell, 7 Adolp. & Ell. 841; 6 Bac. Ab. Replevin & Avowry, H. 72 ; 1 Chitty on Plead. 161 ; Stephen on Plead. 202 ; Browne- ACTION BT TENANT. 29 § 50. Action by tenant. An action will lie against a landlord by a tenant who has tendered the rent in arrear after the distress levied, but before the goods are removed or impounded.^ Chattels seized and distrained and sold for rent due can not be replevied by virtue of title founded on an appraisement under the poor debtors' act.^ on Actions at Law, 447; 2 Greenl. Ey. § 562; Gardner f. Humphrey, 10 Johns. 53 ; Trulock v. Rigeby, Tebo, 185. 1 HUson T. Blain, 2 Bailey (S. C), 168. » Bonsall v. Comly, 44 Pa. St. 442. See Taylor's Landlord & Tenant, § 748-750 ; Woodfall's Landlord & Tenant, 514. 30 WHEN THE ACTION LIES QBNEBALLT. CHAPTBE lY. . WHEN THE ACTION LIES GENERALLY. Section. When the action lies generally 51 The action lies generally when there has been an illegal tak- ing 52 When it lies generally old and modern rule . . . .53 The same illustrations, . . 54 The same negative illustrations 55 It does not lie for the purpose ol determining the title to real estate . . . .56 But will by a receiptor of goods 57 As regards possession . . 58 Replevin lies for property in the hands of a receiptor . 59 Whenrightto possession alone sufficient when plaintiff must have legal title . . .60 Section. Defendant must be in posses- sion What constitutes possession by an officer Levy without possession is no ground for replevin Replevin will not lie against one who is not detaining Mere acts of ownership insuffi- cient Exception — Where property in defendant's possession is wrongfully transferred differ- ent rule by statute . Where only part of the prop- erty is taken .... Cases depending on particular facts 61 62 63 64 65 66 67 68 § 51. When the action lies generally. At common law the action only lies where the property was unlawfully taken, and was termed replevin in the cepit; but under stat- utes, perhaps generally, the remedy by the action of replevin is enlarged so as to embrace property wrongfully detained, and is called replevin in the detinet. Replevin in the detinet was a creation of statute.' Under the statutes, if the action is in the detinet, it will generally lie whenever trover could be maintained at common law ; that is, whenever the defen- dant wrongfully detains chattels, or converts the same, with- 1 Dame r. Dame, 43 N. H. 37; Ely v. Ehle, 3 Comst. N. Y. 506; Vai- den T. Bell, 3 Rand. (Va.) 448; Rector v. Chievalier, 1 Mo. 345; Trap- nail y.Hattier, 1 Eng. (Ark.) 18; Dearmonr.Blackburn,l Sneed. (Tenn.) 390 (60 Am. Dec. 160). WHEN THE ACTION LIES GENEEALLY. 31 out regard to the manner in wliicli they were obtained by the defendant,' the action will lie. Generally, the action lies at common law, whenever the plaintiff could maintain trespass for the unlawful taking/ Generally, it may be said that the action will not lie against one who has come into the lawful possession of chattels, if he has any legal or equi- table lien on the same, or where he has not actual or construc- tive possession of the same.^ And if personal property has been leased by the owner, he cannot usually maintain the action against the lessee during the terms of the lease; but the lessee may maintain it as against the lessor or other per- son who takes it out of his possession wrongfully.* § 52 The action generally lies when there has been an illegal taking. In England and most of the states, the ac- tion now generally lies when there has been an illegal seiz- ure or taking of chattels. Thus it generally lies to recover the possession of property, seized on execution or other pro- cess, which is the property of the plaintiff and not of the de- fendant in execution.^ Keplevin, at common law, is a form of action which lies to regain possession of personal chattels which have been wrongfully taken from the plaintiff. Un- der statutes, the plaintiff may, in various states, bring this action whenever he wishes to recover specific chattels to which he claims title and the right of possession, and which iSawtell V. Kollins, 23 Me. 196; Evelette v. Blossom, 54 Me. 447; "Willis r. Barrister, 36 Vt. 220 ; Marshall F.D*vis,l Wend. 109; Crocker T. Mann, 3 Mo. 472 ; Estee's Pleadings, 2164-5, 4180. 2 Sawtell V. Rollins, 23 Me. 196 ; Pangburn v. Patridge, 7 Johns. (N. Y.) 140; Rogers v. Arnold, 12 Wend. (N. Y.) 30; Allen v. Crary, 10 "Wend. 109; Roberts v. Randall, 3 Sandf. (N. Y.) 707; Stewart r. Wil- lis, 6 Barb. 79. ' Ramsdell r. Buswell, 54 Me. 546; Byron r. Orippen, 4 Gray (Mass.), 312; Potter v. Mardre, 74 N. 0. 36; Newhall r. Dunlap, 14 Me. 180 (31 Am. Dec. 45); Hoover v. Hayes, 10 B. Mon. (Ky.) 72 (Am. Deo. 540). * Hunt V. Strew, 33 Mich. 85; Simpson r. Wrenn, 50 III. 222; Moore F. Moore, 4 Mo. 421. 'Waid r. Gailord, 1 Hun. (N. Y.) 607; Cole r. Mann, 62 N. Y. 1; Welsh r. Cochran, 63 N. Y. 181 ; Going r. Orus, 8 Kan. 85 ; Railroad Co. r. Roach, 21 Alb. L. J. 258; StockweU v. Veitch, 15 Abb. Pr. 412. 32 WHEN THE ACTION LIES GENERALLY. are wrongfully detained by another. The plaintiff is usmally required to give a bond, with approved sureties, to return the chattels, if a return be awarded, and pay all costs and damages incurred by the defendant by reason of the wrong- ful suing out of the writ. If the plaintiff establishes hia right to the property on the trial, he may now generally not only have judgment for the same, but recover the value of the use of the property during the unlawful detention by the defendant, and for any loss sustained by the deprecia- tion of the property while it was wrongfully detained by the defendant.' Under statutes it is now frequently if not gen- erally provided, that an action for the recovery of a chattel cannot be maintained in either of the following cases: 1st. Where the chattel was taken by virtue of a warrant against ■ the plaintiff, for the collection of a tax, assessment, or fine, issued in pursuance of a statute of the state or of the United States, unless the taking was, or the detention is, unlawful'. 2d. Where it was seized by virtue of an execution, or war- rant of attachment, against the property of the plaintiff, un- less it was legally exempt from such seizure, or is unlawfully detained. 3d. Where it was seized by virtue of an execution, or a warrant of attachment against the property of a person other than the plaintiff, and at the time of the seizure the plaintiff had not the right to reduce it into his possession ^ § 53 When it lies generally — Old and modern rule. Originally, replevin would only lie for a distress for rent, and later, at common law, replevin would only lie where there had been a tortious taking.^ In Connecticut the writ is sus- tainable only in cases of attachment and distress, and there ' Rowley v. Gibbs, 14 Johns. (N. Y.) 385 ; Frazier v. Fredericks, 24= N. J. L. 162 ; Gordon, r. Jenny, 16 Mass. 465 ; Field's Briefs. 8 Field's Briefs, § l56 ; Musgrove v. Hall, 40 Me. 489; Morely t. An- djerson, 4G Miss. 49; Niagara Elevating Co. v. McNamara, 50 N.T. 653; Bailroad Co. v. Kane, 72 N. T. 614; Hudler r. Golden, 36 N. Y. 446, ' Tropnall v. Hattien, 1 Eng. (6 Ark.) 18; Wright r. Armstrong, 1 111. (Breeze) 130 ; Rector v. Chevalier, 1 Mo. 345 ; Dame v. Dame, 43 N. H. 37 ; Ely V. Ehle, 3 Gomst. (N. Y.) 506; Vaiden v. Bell, 3 Rand. (Va.) 448. ILLEGAL TAKING — ILLUSTEATIONS. 33 the plaintiff must show not only a taking and detention, but an attachment or distress.' But this old rule has been changed and the scope of the writ greatly enlarged in most of the states, until it may be used wherever one claims prop- erty in another's possession.^ Beplevin lies when one claims goods in the possession of another, without regard to the manner in which they were obtained.^ Eepleyin lies in Penn- sylvania for the property of one person in the possession of another, whether the claimant ever had possession or not, and whether his property be absolute or qualified, provided he has the right of possession.* § 54. The same — Illustrations. Eeplevin will lie where trespass would lie.* Where trespass or trover can be main- tained for the unlawful conversion of goods, replevin will also lie.* It will lie by a stranger whose property has been taken under process;' by an officer from whose custody property is taken f for any wrongful takiag of property." Possession or right to possession at the tinie of the caption ■ is necessary to maintain the action f where property has been improperly seized by an officer;" when plaintiff has a ' Watson r. "Watson, 9 Conn. 140. ^Doggett V. Eobbins, 2 Blackf. (Ind.) 415; CuUum v. Bevans, 6 Har. & J. (Md.) 469 ; Bruen v. Ogden, 11 N. J. L. (6 Hals.) 370 ; Pangburn v. Patridge, 7 Johns. (N. Y.) 140; Weaver v. Lawrence, 1 Ball. 156; Har- lan V. Harlan, 15 Pa. St. 507; Herdic v. Young, 55 Pa. St. 176; Stone r. Wilson, Wrigbt (Ohio), 159. » Craig V. Kline, 65 Pa. 399. * Harlan r. Harlan, 15 Pa. St. 507; Miller v. Warden, 111 Pa. 300. 5 Phillips V. Harriss, 3 J. J. M. 126 ; Eowell v. Klein, 44 Ind. 290. 6 Marshall v. Davis, 1 Wend. (N. Y.) 109; Crocker v. Mann, 3 Mo. 472; Sawtelle v. Rollins, 23 Me. 196. ' Phillipfs V. Harriss, 3 J. J. M. 125. 8 Boarne v. Hocker, 11 B. M. 29; DezeU r. Odell, 3 Hill (N. Y.), 215. ' Bouldin v. Alexander, 7 Mon. 425. "» Dillon V. Wright, 4 J. J. M. 255; Id. 7 Id. 10; Mclsaacs r. Hobbs, 8 Dana, 269. " Gimble r. Ackley, 12 Iowa, 27. 34 WHEN THE ACTION LIES GENEBALLT. lien on property taken from him against his will.' When personal property is unlawfully sold, the owner may at his election seek redress by replevin or trover.^ It lies for goods wrongfully taken without a previous demand.' Any unlaw- ful interference witli the property of another, or exercise of dominion over it, by which the owner is damnified, is suffi- cient to maintain the action.* The owner and shipper may bring replevin for a cargo, where the master wrongfully re- fuses to proceed on the voyage.* It will lie for a school- house. ° § 55. The same — Negative illustrations. It will not lie when the defendant has a special property in the chattels determinable on certain conditions until the conditions are complied with fully;' nor to try the right of property;' nor where the owner of a stray raft regained possession of it by force, the taker cannot maintain replevin.^ It will not lie by a defendant in execution," nor for the recovery of prop- erty seized to satisfy a sheriff' s f ee bill. " Eeplevin does not lie unless there has been an unlawful taking from the possession . of another.'^ § 56. It does not lie for the purpose of determining the title to real estate. But the owner may bring replevin for chattels severed from the freehold where there is no ad- verse possession, or where the adverse possessor is a tres- ^ Young r. Kimball, 23 Pa. St. 193. ' Eggleston v. Mundy, 4 Mich. 295. 3 Pierce v. Van Dyke, 6 Hill (N. Y.), 613. < Stewart v. Wells, 6 Barb. (N. Y.) 79 ; Haythorn v. Rushforth, 19 N; J. L. 160; Neff v. Thompson, 8 Barb. (N. Y.) 213. * Portland Bank v. Stubbs, 6 Mass. 422. ' Joint School Dist. v. Kemen, 65 Wis. 282 (27 N. W. 31). ' Stapleford v. White, 1 Houst. (Del.) 238. s Taggart v. Hart, Brayt. (Vt.) 115. ' Coverlee r. Warner, 19 Ohio, 29. '» Reynolds r. Salle, 2 B. Mon. 18; Safiell r. Wash, i B. Mon. 93. " Morgan v. Craig, Hard. (Ky.) 101. " Meany r. Head, 1 Mass. 319. AS BEQAEDS POSSESSION. 35 passer.' It will not lie for the recovery of real property," nor to collect damages for conversion.' § 57. But will by a receiptor of goods, where he is bound to deliver them by a certain day or pay the execution under which they were taken, though he left them in pos- session of the execution defendant.* But where T. held out property as his own and thereby obtained credit from S., and S. levied on the property for the debt thus made, T. cannot maintain replevin for the property as the property of L., whose agent he now claims to_be.° And an agreement on the part of a debtor to deliver as security to his creditor cer- tain personal property, will not enable the latter to maintain detinue therefor in case of its non-delivery. ° § 58. As regards possession. In general, replevin will lie against any person (except officers of the law, having possession legally', by virtue of legal process) in whose pos- session personal property, unlawfully taken, is found; nor need unlawful taking by the defendant be proved.' But the property must be actually out of the possession of the plain- tiff in replevin.' If, after an action commenced, plaintiff obtain possession of the property by picking it up where he chanced to find it, it will not extinguish his right of action.' The authorities are numerous and decisive that the right to possession of personal chattels by the plaintiff and an actual wrongful taking by the defendant are sufficient to support ' Baker v. Campbell, 32 Mo. App. 529; Lehman v. Kellerman, 65 Pa. 489; Stockwell y. Phelps, 34 N. T. 363; Eiewe f. McCormick, 11 Neb. 261 (9 N. "W. 88). 2 Smith V. Stanford, 62 Ind. 392; Eicketts f. Darrell, 55 Ind. 470; Stockwell r. Phelps, 34 N. T, 363. ' Seymour v. Vancuren, 17 How. Pr. (N. Y.) 94. « Miller r. Adsit, 16 Wend. (N. T.) 335; Williams v. Morgan, 50 Wis. 548 (7 N. W. 541). 5 Towne v. Sparks, 23 Neb. 142 (36 N. W. 375). ° Berry v. Berry, 31 Iowa, 415. ' Murphy v. Tendall, Humpst. 10. 8 Cummings r. McGill, 2 Murphy (N. C), 357. ' Tracy r. New York, etc., 9 Bosw. (N. Y.) 390. 36 WHEN THE ACTION LIES GENERALLY. repleTin, and that it is a concurrent remedy with trespass de bonis asportatis.^ § 59. Replevin lies for property in the hands of a receiptor. The receiptor's possession is that of the officer. Seizure from him is seizure from the sheriff. A sheriff who attempts to sell goods after a writ of replevin is served on him for them, is a wrongdoer.^ § 60. When right to possession alone snfScient, and when plaintiff must have legal title. Where the plaintiff in an action of detinue has never had the actual possession, he must have the legal title in order to entitle him to recover. A parol agreement by a debtor, that certain personal prop- erty belonging to him "should stand good for his indebted- nes's," not accompanied by a delivery or change of posses- sion, does not convey the legal title, but creates an equitable lien merely, which will not support an action of detinue, as it amounts to no more than a verbal chattel mortgage. But the assignee of a written chattel mortgage has the legal title and may maintain detinue for its recovery in his own name.^ But this general rule is modified where the defendant is a mere wrongdoer. The naked possession of goods with claim of right is sufficient evidence of title against one who shows no better title.' The right to bring replevin is doubtful where a legal title to specific property cannot be shown. ° A recovery cannot be had in an action to recover possession of personal property of which the ^ Pangbom f. Partridge, 7 Johns. 140; Marshall r. Davis, 1 "Wend. 109; Rogers v. Arnold, 12 Wend. 30; Wheeler v. McFarlaln, 10 Wend. 318. ' Mayhue r. Snell, 37 Mich. 30.5 ; Dillenback r. Jerome, 7 Cowen (N. Y.), 294; Norton v. The People, 8 Cow. 137. ' Jackson v. Rutherford, 73 Ala. 155 ; Russell r. Walker, 73 Ala. 315; Parsons v. Boyd, 20 Ala. 112; Reese v. Harris, 27 Ala. 301; Graham r. Newman, 21 Ala. 497. * Huddleston r. Huey, 73 Ala. 215; Gafford r. Stearns, 51 Ala. 434; Miller v. Jones, 26 Ala. 260; Folmar v. Copeland,57 Ala. 588; 2 Greenl. Ev., § 637. 5 Parker v. Garrison, 61 III. 250. DEFENDANT MUST BE IN POSSESSION. 37 defendant never had the possession, nor can a recovery be had where the legal title of the property is in defendant, he holding it as trustee for plaintiff. The proper remedy in the latter case is an action in equity for an accounting.' Ordinarily, the right to the immediate possession and an ille- gal detention by the defendant are necessary to sustain the action of replevin. Any other rule vrould have to be made by an express statute on tho subject.^ Replevin may be maintained, not only for the unlawful taking, but for the unlawful detention of property.' Replevin lies for the unlawful detention of goods lawfully taken.* § 61. Defendant must be in possession. To enable plaintiff to maintain an action for the recovery of specific personal property, the defendant must be in possession thereof at the commencement of the action. Where the petition alleges that the defendant is in possession, and the proof shows the contrary, there is such a variance between the allegations and the proof as disables plaintiff from re- covering.' 1 Wheeler v. Allen, 51 N. Y. 37. Here plaintiff placed iu the hands of the defendant a sum of money, at two different times, to invest in the ecrip of an insurance company; defendant madethe first investment, but caused the scrip to be issued in his name. The last sum he appropriated to his own use, giving to plaintiff a false certificate, stating that it was invested as directed. In an action to recover possession of the scrip, Held, that it was impossible to adjudge the delivery of any particular scrip, and that plaintiff could not recover. 2 Spencer v. Roberts, 42 Conn. 75; Sander v. Goldsmith, 41 Conn. 578. ' Lamotte v. Wisner, 51 Md. 543 ; Waterman v. Mattcson, 4 R. I. 539. * Lathrop r. Bowen, 121 Mass. 107; Esson v. Tarbell, 9 Gush. 407. ° Haeger v. Marcus, 5 Mo. App. 565; Crawford r. Wright, 5 Mo. App. 577; Feder r. Abrahams, 28 Mo. App. 454; Davis f. Randolph, 3 Mo. App. 454; Johnson r. Garlick, 25 Wis. 705; CoflBn r. Gephart, 18 Iowa, 257; Houghton r. Newberry, 69 N. C. 456; Hall v. White, 106 Mass. 599; Mitchell v. Roberts, 5o'n. H.-486; Roberts v. Randel, 3 Sandf. (N. Y.) 707; Brockway v. Burnap, 12 Barb. 347. These two New York cases, though well considered, have been overruled in Ellis v. Lersner, 48 Barb. 546 ; but I do not think this case establishes a contrary rule in New York, but rather leaves the question open. 38 WHEN THE ACTION LIES GENEKALLT. § 62. What constitutes possession by an officer. Ee- plevin will not lie for property which, whenleyied upon, was left and has remained in plaintiff's possession, even though he became receiptor for it to defendant.' But a contrary rule was followed where goods were attached and plaintiff in re- plevin kept the goods, giving the ofi&cer a receipt for them. Held, that plaintiff was not precluded by his receipt from maintaining replevin, that the officer had made a valid seiz- ure and levy.^ And this is the better rule on principle. If the officer's possession, be it actual or constructive, is such that when interfered with he could recapture by replevin, then re- plevin will lie against him, but where an officer has not pos- sessed himself of chattels under a writ in such a manner that he could maintain trespass or replevin against a wrongful taker, replevin will not lie against him by the real owner, who is a stranger to the writ.' It is not always necessary that goods levied upon by attachment should be removed,in order to constitute such possession as will be deemed a conversion sufficient to entitle a party to the writ of replevin. But the question of possession and the extent and validity of his lien are matters for the jury.* Where a sheriff has possession and control of property by his deputy, replevin can be main- 1 Morrison v. Lumbard, 48 Mich. 548 (12 N. W. 696). In this case the constable levied on sheep claimed by plaintiff on an execution against i)laintiff's father, but did not take possession. In about a week he came back for the sheep, and, on plaintiff objecting to letting them go, told him if he would give him a receipt that they should not leave the farm, he would let them alone. This was done, and plaintiff brought replevin just before the sale advertised by the constable. Johnson v. Prussing, 4 Bradw. (111.) 575. 2 Williams v. Morgan, 50 Wis. 548 (7 N. W. 541). ' Libby v. Murray, 51 Wis. 371 (8 N. W. 238). In this case the offi- cer said he levied on the property, but did not serve the writ or takepos- session of the property. See also Gallagher r. Bishop, 15 Wis. 276 ; Bryant V. Osgood, 52 N. H. 182; Nichols v. Patten, 18 Me. 231; Water- house V. Smith, 22 Me. 337; Eand r. Sargent, 23 Me. 326; Fernald r. Chase, 37 Me. 289. 4 O'Connor v. Gidday, 63 Mich. 630 (30 N. W. 313) ; Hatch v. Fowler, 28 Mich. 205; Quackenbush r. Henry, 42 Mich. 75. LEVY WITHOUT POSSESSION. 39 tained against him for it.' A -writ of repleTin will not lie ex- cept against a party -who takes and retains possession; and when an officer has fully executed a previous replevin writ and has no further control of the property in controversy, a suit in replevin cannot be maintained against him.'' § 63. Levy without possession is no ground for re- plevin. Where a constable has levied upon personal prop- erty in possession of the judgment debtors, but has never taken it into his own possession or in any way interfered with their possession, the judgment debtors cannot maintain re- plevin against the constable. Beplevin lies only by one out of possession to obtain possession from one having the pos- session.' § 64. Replevin will not lie against one who is not de- taining the property when the writ is sued out. It is the condition of things ivhen the suit is commenced which fur- nishes the ground for the action.* It is strictly a possessory action, and it lies only in behalf of one entitled to possession, against one having, at the time the suit is begun, actual or constructive possession and control of the property.' Re- plevin does not lie against one who is not unlawfully de- taining the property at the time the affidavit for the writ is sworn to and the writ delivered to the officer. So held, ' Crum F. EUiston, 33 Mo. App. 591 ; Davis v. Randolph, 3 Mo. App. 454; Haeger f. Marcus, 5 Mo. App. 565. 2 Boyden v. Frank, 20 Bradw. (111.) 169; Goff f. Harding, 48 HI. 148. In this case the sheriff had levied an execution on property and turned it over to the judgment debtor on a delivery bond, and it was held replevin would not lie against the sheriff. 3 Bacon F.Davis, 30 Mich. 157; Hickey f. Hinsdale, 12 Mich. 99. See Morrison f. Lumbard, 48 Mich. 548 (12 N. W. 696). * Aber f. Bratton, 60 Mich. 357 (27 N. W. 564) ; Myers v. Credle, 63 N. C. 504. 5 Mitchell r. Roberts, 50 N. H. 486; Brockway v. Burnap, 12 Barb. 347 ; King v. Orser, 4 Duer. 431 ; Roberts v. Randel, 3 Sandf . 707 ; Knapp V. Smith, 27 N. Y. 281; Richardson v. Reed, 4 Gray, 442; Coffin F. Gephart, 18 Iowa, 256. 40 WHEN THE ACTION LIES GEXEBALLY. where the writ was sworn out and held until defendant could be caught in temporary possession.' § 65. Mere acts of ownership insufficient. Mere acts of ownership on the part of the defendant without manual possession will not suffice to support replevin. There must be an actual taking or an actual detention.^ It will not lie in , favor of one who is already in possession, nor can it be maintained against one who does not detain the possession of the property f nor against a party who has never had the goods in his possession or under his control, though he may be liable in trespass de bonis asportatis.* § 66. Exception where property in defendant's posses- sion wrongfully transferred. — Different rule by statute. Where the property was in defendant's possession and wrong- fully transferred by him shortly before the commencement of the action, or where the statute allows the replevin action to proceed as one for damages if the property is not taken, the rule is different. In Michigan the action has been allowed to proceed under their statute even where the defendant pointed out part of the property named in the writ and plain- tiff refused to take possession of it. In the same action it was also held that plaintiff under such circumstances was not bound to give a forthcoming bond.' But of course the only 1 Burt V. Burt, 41 Mich. 82. 2 Wallace v. Brown, 17 Ark. 449. 3 Hove F. McHenry, 60 Iowa, 227 (14 N. W. 301). In this case a mort- gagee brought replevin against an officer who he supposed had levied on the property mortgaged, but it turned out that the officer had left it in the hands of the execution defendant, the mortgagor taking from him a delivery bond therefor, and had not taken manual possession of the property. Libby v. Murray, 51 Wis. 371 (8 N. W. 238) ; Bacon r. Davis, 30 Mich. 157. * Richardson v. Reed, 4 Gray, 441; Johnson v. Garlick, 25 Wis. 705; Gallagher r. Bishop, 15 Wis. 276; Dudley v. Ross, 27 Wis. 679; Grace r. Mitchell, 31 Wis. 533. 6 McBrian v. Morrison, 55 Mich. 351 (21 N. W. 368). The Michigan statute provides that if the property specified "shall not be found or shall not be delivered to the plaintiff," he may proceed to recover the same, or its value. Comp. L, § 6738, or How. Stat. § 8327, and if plain- WHERE ONLY PART OF THE PROPERTY IS TAKEN. 41 result of the suit under sucli circumstances would be a money judgtaent. Eeplevin will lie, although the defendant has parted with the possession of the property, and it has passed beyond the reach of the process of the court.' The action of replevin cannot be brought against one not in possession, and who cannot deliver the property, unless he hascdncealed, removed, or disposed of it, with the intent of avoiding the writ. It will not lie against a pledgee of property who has made a bona fide sale and delivery to a third party, who is in actual possession when the writ is sued out and so informs plaintiff, nor for property destroyed.^ Cattle in the posses- sion of a constable were replevied by the owner. After the constable had given an undertaking which entitled him to have the cattle returned to him, the replevin suit was dis- missed, but the cattle never actually returned to him, and he refused to accept the delivery upon any condition, and dis- claimed possession. Held, that the owner could not main- tain a second action of replevin against the constable.' § 67. Where only part of the property is taken. Al- though the statutes of most states allow the action of re- plevin to proceed, where the property is not seized, as a suit for damages, still it is not the proper remedy in every in- stance where trover, detinue, or case is appropriate, but should only be brought where there is a reasonable probability that the property can be seized. If, then, the property is not seized through no fault of plaintiff, the action proceeds as an action for damages ; or if only part of the property be taken, tiS does not give bond, the property shall be, it taken, returned to the person from whom it was taken. Comp. L. § 6736; Brockway v. Bur- nap, 16 Barb. (N. T.) 309. 1 Baruett v. Selling, 3 Abb. New. Cas. 83; Id. 54, How. Pr. 118. In New York this is allowed by statute, and the defendant may be arrested if he has sold the property with intent to thwart the replevin. § 550, Code. 2 Gildas V. Crosby, 61 Mich. 413 (28 N. W. 153). 3 McHugh V. Robinson, 71 Wis. 565 (37 N. W. 426) ; Libby v. Mur- ray, 51 Wis. 371 (8 N. W. 238). See also Brockway v. Burnap, 12 Barb. 347. 42 WHEN THE ACTION LIES GENEEALLT. it may proceed as replevin for that part and as damages for the part not taken. ^ But it is a possessory action, and will not lie for property which is held in trust by defendant for plaintiff as a mere security for the payment of what the lat- ter owes the former.^ § 68. Replevin has been held to be or not to be the proper form of action in cases depending upon particular facts, and not on any established rule.^ ' Krosmopolski v. Paxton, 58 Miss. 581. 2 Adrianoe v. Eutherford, 57 Mich. 170 (23 N. W. 718). 'Smith F. Crockett, Minor (Ala.), 277; Page v. Crosby, 24 Pick, (Mass.) 211; Duncan v. Green, 6 Gill. (Md.) 478; Karthaus v. Owings, 4 Har. & J. (Md.) 263; Southwick v. Smith, 29 Me. 228; Amos v. Sinnott, 5 III. (4 Scam.) 440; Dixon r. Hancock, 4 Cush. Mass. 96; Taylor v. True, 27 N. H. 220; Byron v. Crippen, 4 Gray (Mass.), 312 ; Simpson v. McFarland, 18 Pick. Mass. 427 ; Stevenson v. Eidgely, 3 Har. & J. (Md.) 281; Daniel v. Daniel, 6 B. Men. (Ky.) 230; Jackson v. Hale, 14 How. 525; United States r. Kennan, Pet. (C. C.) 168; Gest v. Cole, 2 Nott. & M. (S. C.) 456; Pott v. Oldwein, 7 "Watts (Pa.), 173; Brown v. Caldwell, 10 Serg. & R. (Pa.) 114; Chapman V. Andrews, 3 Wend. (N. Y.) 240; Harrison v. Mcintosh, 1 Johns. (N. Y.) 380; Harwood v. Smithurst, 29 N. J. L. (5 Dutch) 195; Smith V. Huntington, 3 N. H. 76; Broadwater v. Darm, 10 Mo. 77; Dillon v. Wright, 7 J. J. Marsh (Ky.), 10; Talbert f. De Forrest, 3 Iowa, 586; Morris r. Cannon, 1 Harr. (Del.) 220. WHAT MAT BE REPLEVIED. 48 CHAPTER V. WHAT PROPERTY MAY BE REPLEVIED. Section. ex- What may be replevied amples 69 Will lie for wild animals once in actual possession . . 70 Does not lie for a corpse after interment . . . .71 Money is not the subject of an action of replevin . . .72 Must be for certain specific arti- cles 73 A life insurance policy may be the subject of replevin . . 74 So may public records — The seal of a court and the fee book 75 Section. When check, lease, or private papers can be . . . .76 Stock or corporate property may be by custodian only, not by stockholders . . 77 Parish records may be . .78 Title deed may be . . .79 Scrip cannot be . . . .80 County warrant can— Chose in action 81 Property must be in esse at commencement of the action 82 Property must be capable of seizure and delivery . . 83 § 69. What may be replevied. The old rule was that replevin would lie for anything that could be distrained.' but the rule now is that any personal property may be the subject of replevin. The exceptions or modifications of this rule — if such they may be called — are due to the efforts of the courts to keep the issue triable in this form of action within certain limits. Thus one partner cannot replevin partnership personal property, because if this were allowed the settlement of the partnership business would be brought about by replevin instead of in equity. The title to real es- tate cannot be tried in a replevin suit. And property not in existence when the writ issued cannot be replevied. But with these few limitations all species of animate, inani- mate, tangible, movable property may be the subject of re- ' Bacon's Abridg. — Title Replevin. 44 WHAT PKOPEBTY MAY BE KEFLEVIED. plevin.' The following citations will give a general idea of the general scope of the decisions on this subject. For the la«v on the modifications of the rule, the reader is referred to the special chapters on those subjects. Bonds may be replevied.^ Standing corn and wheat may be replevied.' Growing trees become subject to replevin as soon as severed from the freehold.* For a house unlawfully removed from the land whereon it stood.^' For cattle taken damage feas- ant when the impounder does not comply fully with the law.° For a promissory note which has been paid but not delivered up.' For runaway slaves by the lessee of their labor.* For a billiard table." For an insurance policy.'" For a title deed." The records of a corporation.'^ For vouchers and statement of account.'^ A writ of replevin is for the deliv- ery of personal property only." § 70. Will lie for wild animals once in actual posses- sion. To acquire property in animals, birds, and fishes which are wild by nature, one must have them in actual pos- session, custody, and control ; and this he may do. by train- ing, domestication, or confining. Where a woman had a canary which she had had about two years, and which knew ' Eddy V. Davis, 35 Vt. 248; Groff v. Shannon, 7 Iowa, 508; Egberts r. The Dauphin Bank, 19 Pa. St. 75; Bower v. Talhnan, 5 Watts & S. 556 ; Ricketts v. Doi-rel, 55 Ind. 470 ; Yausse r. Eussell, 2 McCord (S. C), 329 ; Eaton v. Southby, Willes, 131. 2 Douglas r. Wolf, 6 Kas. 88; Sager v. Blain, 44 N. Y. 445. 3 Simpson v. De Haven, 98 Ind. 411; Mallock v. Fry, 1,5 Ind. 483; Garth y. Caldwell, 72 Mo. 622; 2 Sohouler Per. Prop. 468. See Chap. XVI. * Brewer v. Fleming, 51 Pa. St. 102. See Chap. XYI. 6 Ogden V. Stock^ 34 111. 523. See Chap. XVI. 6 Kimball v. Adams, 3 N. H. 182; Brown v. Smith, 1 N. H. 36. See Chap. XY. ' Savery v. Hoys, 20 Iowa, 25. See § 76. 8 Brooke v. Berry, 1 Gill. (Md.) 153. 8 Clark V. Griffith, 24 (N. Y.) 595. " Harris v. Harris, 43 Ark. 535. " Wilson V. Bybolt, 17 Ind. 391. See § 79. 12 South Plank r. Hixon, 5 Ind. 165. See § 77. " Drake v. Auerbach, 37 Minn. 505 (35 N. W. 367.) " Roberts v. Dauphin, &c., 19 Pa. St. 71. MUST BE FOE CERTAIN SPECIFIC ARTICLES. 45 its name a!nd would answer the call of its owner, held that on its disappearance and being taken possession of by an- other, an action for its recovery Avould lie.' Beplevin will lie for a reclaimed mocking-bird against one detaining it from the possession of the one who reclaimed it.^ § 71. Does not lie for a corpse after interment. Re- plevin will not lie for a coffin interred in the ground and its contents, when those contents are a corpse. When a coffin, with the consent of all. persons having any pecuniary inter- est in it, has been deposited in the earth for the purpose of interment, with a corpse inclosed within it, it is no longer an article of merchandise, and no right to the corpse remains except to protect it from insult.' § 72. Money is not the subject of an action of re- plevin, unless it is marked or designated in some manner, so as to become specific as regards the power of identifica- tion, such as being in a bag or package.* § 73. Must be for certain specific articles. To main- tain an action to recover personal property, the plaintiff must show a present right to certain specific property: thus, where he brought replevin for ten new buggies as a mort- gagee, and the defendant had more than ten new buggies, held, that the action would not lie.^ So where replevin was brought for three bales of cotton, when defendant had many bales, held, that it would not lie, as description was too ' Manning v. Mitcherson, 69 Ga. 447. 2 Haywood v. The State, 41 Ark. 479. See Buster v. Newkirk, 20 Johns. 75; Gott v. Kilts, 15 Wend. 550; Amory r. Flyn, 10 Johns. 103. 2 Guthrie v. Weaver, 1 Mo. App. 136. See Wynkoop v. Wy'nkoop, 42 Penn. 293, but still such a right oi property exists in the coffin as to sup- port a charge of larceny for stealing it. State v. Doepke, 5 Mo. App. 489. * Hamilton v. Clark, 25 Mo. App. 428; Ames v. Miss. Boom Co. 8 Minn. 467; Sager v. Blain, 44 Hand. (N. Y.) 445; Skidmore v. Taylpr, 29 Cal. 619; Pelkington v. Trigg, 28 Mo. 95; Blackstone Com. Vol. 2, p. 151; Bull. Nisi Prius R. 32; Dows v. Bignall, Labor Supt. (N. Y.) 408; Coris Case, Dyer, 22 b; Sharon v. Nunan, 63 Cal.- 234; Griffith vBogar- dus, 14 Cal. 410. » Blakely y. Patrick, 67 N. C. 40. 46 WHAT PBOPEBTY MAY BE BEPLEVIED. indefinite.' So an action for a certain number of bushels of corn will not lie wlien the corn is still ungathered, stand- ing in the field, and several parties have an interest in the crop.^ Eeplevin lies for specific property only, and cannot be maintained for an undivided share.' Eeplevin lies for specific property capable of identification and actual return and cannot be maintained for an undivided interest or share, except in cases of fraud or wrongful confusion of the prop- erty.* Where the tenant agreed to pay as rent a share of the grain delivered in the half bushel, it was held that replevin would not lie until so delivered.^ Standing corn is personal property and may be replevied." § 74. A life insurance policy may be the subject of replevin. A life insurance policy was replevied by the insured from his wife's (the beneficiary's) bailee, but no question seems to have been raised as to whether or not it was repleviable; though the court express some doubts on that point, they affirm the lower court.' § 75. For the seal of a court and the fee book — Public records. Eeplevinrlies for the seal of a court and a fee book, by the clerk and proper custodian.* But replevin is not the proper remedy to obtain possession of papers filed in a public office. The custody of such papers belongs to the officer in charge, and mandamus to compel the custodian to deliver them up to the owner is the only safe process.' ' McDaniel f. Allen, 99 N. C. 135 (5 S. E. 737). 2 Jones V. Dodge, 61 Mo. 368. « Low V. Martin, 18 111. 286. * Stanley v. Robinson, 14 Bradw. (111.) 480. This was for lumber, no part of which had been delivered, and the exact amount to be delivered had not been agreed upon yet. See also McEldury v. Flannigan, 1 How. and Gie, 308 ; Hart v. Fitzgerald, 2 Mass. 569 ; Gardner v. Deitch, 9 Mass. 427; Beynolds r. McCormick, 62 111. 412. 6 Lacy F. Weaver, 49 Ind. 373; Williams v. Smith, 7 Ind. 559. • Matlock F. Fry, 15 Ind. 483. ' Harris r. Harris, 43 Ark. 535. * Fleutge F. Priest, 53 Mo. 540. • La Grange v. The State Treasurer, 24 Mich. 469. WHEN CHECK, LEASE, OB PEIVATE PAPERS CAN. 47 The archives of any department are not in the possession of the head of the department, chief of bureau, or clerk under either, for the time being, but in the possession of the United States. Hence, a party cannot by writ of replevin against such head of department, or other public officer, take papers from the public archives on the allegation of their being his private property.' It will not lie to remove pub- lic papers or documents from a public office. Such instru- ments are in the custody of the sovereign power, and the writ, if issued for their seizure, will be quashed when the facts appear to the court and the papers returned. Neither can a person try the title to a public office by replevin. He cannot replevin his commission when made out and ready for delivery, as this would be to try the right to the office. The value of a public office cannot be ascertained in replevin or awarded in damages.^ § 76. When check, lease, or private papers can. A lease of itself is not the subject of replevin.^ Where a check has been obtained by false representations and the money ob- tained upon it, and the check returned to the drawer, and was in his possession, held, that an action of replevin for it could not be sustained. It has no value.* Private papers may be replevied.^ It lies for vouchers and statement of 1 Brent r. Hagner, 5 Cranch. (C. Ct.) 71. 2 Marbury r. Madison, 1 Cranch. (U. S.) 49. 3 Nichols T. Mase, 94= N. Y. 160. * Bamett v. Selling, 3 Abb. New Cas. 83. As to replevin for securities, see Schreoppel v. Corning, 5 Den. 236; Clowes r. Hawley, 12 Johns. ±84 ; Hodges v. Lathrop, 1 Sandf . 46 ; Kuehne v. Williams, 1 Duer. 597 ; Murray r. Burling, 10 T. R. 172. The Barnett case above referred to is also reported in 70 N. Y. 492. The replevin seems to have been brought in that case not to get the check, but to get an order of arrest for the defendant in replevin who drew the check— under New York Code, 1851, § 179, Subd. 3. 5 Gibbs V. Usher, 1 Holmes, 348 (1st circ.) This was an indenture of lease. The decision is based on the interpretation of the Massachusetts statute (17 Stat. 196), 1870. 48 WHAT PEOPEETX MAY BE EEPLEVIED. acoaunt.' But a note or check may be repleTied by the legal owner. ^ § 77. Stock or corporate property may be by custodian only, not by stockholder. Property of a corpoTation cannot be replevied by a stockholder in his Own name, even if he owns all of the stock.' The president of a corporation can- not maintain a possessory warrant in his own name to re- cover possession of corporate property of which he has had no prior possession either as an officer or an individual.' The proper officer or agent who is the custodian of the stock or property of a corporation may bring replevin for it in his official capacity .° § 78. Parish records may be replevied by proper custo- dian.' §79. Title deeds may be replevied.' But replevin will not lie for the recovery of a deed, where there is a ques- tion whether it was delivered or not, and the title to the land will be involved in the action ; title cannot be tried this way. In replevin for a deed, its value must be proved.' § 80. Scrip. A party cannot recover scrip by replevin. If he desires the identical scrip, his remedy is in equity. ° § 81. County warrant — Chose in action. Eeplevin lies for an unindorsed county warrant. The difficulties in ' Drake v. Auerbach, 37 Minn. 505 (35 N. W. 367). ' Clapp r. Shepard, 2 Met. 127; Chirkering v. Raymond, 15 111. 363; Bessell v. Drake, 19 Johns. 66; Graff v. Shannon, 7 Iowa, 508. 'Button V. Hoffman, 61 Wis. 20 (20 N. W. 667) ; Bartlett v. Brickett, 14 Allen, 62; Taylor on Private Corp. § 187. * McEvoy r. Hussey, 64 Ga. 314. 5 South r. Hixon, 5 Ind. 165. 'Baker v. Fales, 16 Mass. 147; Lawyer v. Baldwin, 11 Pick. 192; Sudbuty V. Stearns, 21 Pick. 148. ' Wilson V. Rybolt, 17 ftid. 391. 8 Flannigan v. Goggins, 71 Wis. 28 (36 N. W. 846). ' Wheeler r. Allen, 49 Barb. (N. Y.) 460, but this seems to have been decided on the title of plaintiff rather than on the character of the prop- erty. MUST BE CAPABLE OF SEIZUKE AND DELIVERY. 49 taking the chose in action does not affect the right to the remedy.' § 82. Property must be in esse at commencement of the action. It will not lie for property destroyed and not in existence at the commencement of the action,^ nor for property which has been destroyed before demand made or suit commenced;^ nor for the young which animals are expected to produce.* But judgment may be rendered for animals born pending the litigation over the possession of 1 their parents/ or any product of the animals, as their wool or butter. ° § 83. Property must be capable of seizure and deliv- ery. It will not lie for clothes or ornaments actually worn on the person, though for the purpose of preventing replevin,' nor will it lie for an apprentice at the suit of his master.* It will not lie for an article manufactured to order until completed.' It cannot be employed to quiet the title to property already in plaintiff's possession.'" 1 Saunders r. Jordan, 54 Miss. 428. See Emery v. Cobbey, 26 Neb. (43N.W.410). 2 Burr V. Dougherty, 21 Ark. 559; Caldwell v. Fenwick, 2 Dana, Ky. 333. 3 Gildas V. Crosby, 61 Mich. 413 (28 N. \Y. 153) ; Scott v. Elliott, 63 N. C. 215. * Lindsay v. Perry, 1 Ala. 203; Chissom v. Hawkins, 11 Ind.318; Mc- Carty v. Blevins, 5 Terger (Tenn.), 196. ^ Buckley v. Buckley, 12 Nev. 426. « Arundel v. Trevil, 1 Sid. 81. ' Maxham v. Day, 16 Gray (Mass.), 213. 8 Morris v. Cannon, 1 Harr. (Del.) 220. » Pettingill v. Merrill, 47 Me. 109. "Bacon r. Davis, 30 Mich. 157; Hiokey r. Hinsdale, 12 Mich. 100; See on general subject, Brockway v. Burnap, 16 Barb. {N, Y.) 309. 50 WHAT TITLE WILL SUPPOKT THE ACTION. CHAPTEE YI. WHAT TITLE WILL SUPPORT THE ACTION. Section. good Peaceful possession is evidence of title The possession must be under a claim of right . Special property with actual possession . . . . Absolute possession Just what right of possession will support replevin . The interest sufficient to main- tain trover is sufficient As against a wrongdoer, prior possession alone sufficient . Ownership alone without pos- session not .... The right of exclusive posses- sion, coupled with an inter- est Paramount title is not neces- sary as against trespassers and wrongdoers . Bight to the possession indis- pensable to maintain the ac- tion Difference between action against stranger and gen- eral owner .... An after-aoquired interest will not support replevin . And the right of possession must also continue to the close Eight of possession at some former time cannot be tried Plaintiff must recover on Strength of his own title. 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 Section. not on the weakness of the defendant's .... An equitable title alone will not support replevin . A special property interest in, is sufficient .... The same — Illustrations A holder of a bill of lading . A lien for advances . An auctioneer .... Possession parted with condi- tionally — Bailor . Abortive sale .... Possession by an agent . Possession of a stray for the statutory time will support it Ofiicers' possession after levy sufficient 110 One entitled to possession for temporary purpose can re- plevy from general owner . Where title is reserved by seller, his interest is suffi- cient to support replevin . Symbolical delivery sufficient 113 Eight of property in fire com- pany, band, and other vol- untary organizations . Certain special interests held not sufiicient to maintain replevin— Illustrations Neither is a landlord's lien One tenant in common cannot 117 Statute of frauds — Title based oil, insuflflcient . . . 118 99 100 101 102 103 104 105 106 107 108 109 111 112 114 115 116 POSSESSION MUST BE UNDEE A CLAIM OF EIGHT. 51 Section. Title by gift insufficient . . 119 Title baaed upon promise by infant insufficient . . . 120 A lien without the right of possession will not 8UH>ort replevin ..... 121 Eight to cut trees will not support replevin for trees cut by another . . . 122 Title based on pretended but illegal judicial sale will not . 123 Title based on an unexecuted or conditional contract . 124 One who has placed the title in another is estopped . . 125 Surety on undertaking has Section, not such an interest, for this reason, as will support re- plevin 126 Title to a half interest wiU not do 127 Proof of title without right to possession not sufficient . 128 A right based on a special law must comply with the terms of the law strictly . . . 129 To the right of property plaintiff must add the right of possession .... 130 While possession is prima facie title, it is not good against a superior title . . . 131 § 84. Peaceful possession is good evidence of title. Where on the trial the plaintiff shows peaceful possession in himself prior to the taking by defendant, he has gone far to establish his right to the property, and the burden is on de- fendant to show that his taking was rightful.^ If the plain- tiff can show an undisputed possession under a claim of own- ership for a long time, it will entitle him to recover against a defendant who has wrongfully deprived him of the posses- sion unless he shows something more than a bare assertion of title.' § 85. The possession must be under a claim of right and acquired without force or fraud,^ but need not be under a claim of absolute ownership. In general, it may be said that anyone having a legal right to the possession of per- sonal property may bring replevin, and it matters not 1 Shomo r. Caldwell, 21 Ala. 448; Kobinson y. Calloway, 4 Ark. 100; Sprague v. Clark, 41 Vt. 6; Dixon v. Thatcher, 14 Ark. 141. 2 Smith F. Graves, 25 Ark. 461 ; 2 Greenl. Ev. 637 ; Morris v. Daniel- son, 3 Hill, 168; Hunt v. Chambers, 1 Zab. (21 N. J.) 624. SHalliday v. Lewis, 15 Mo. 406; Hatch v. Fowler, 28 Mich. 205; Bayless v. Lefaivre, 37 Mo. 120; Siemmons v. Austin, 36 Mo. 308; Per- ley r. Foster, 9 Mass. 114; Bond v. Padelford, 13 Mass. 395; Harris v. Smith, 3 S. & R. 23; Stanley v. Gaylord, 1 Cush. 536; Brownell v. Man- Chester, 1 Pick. 232; Mitchell v. Hinman, 8 Wend. 667. 52 WHAT TITLE WILL SUPPORT THE ACTION. whether that right be founded on a full claim of title or a less interest, so that the right to possession be clear and rightful. § 86. Special property ^/ith actual possession or even the right to possession is sufficient to maintain the action against one who wrongfully seizes and remoyes it.' It is sufficient if the plaintifE have either a general property or a special property coupled with an interest in the chattel sought to be replevied, and be entitled to the possession of it at the time the action is brought.^ § 87. Absolute possession of property, combined with absolute right to it, except as against some person other than the defendant, between whom and the owner of the property no privity is shown to exist, will entitle a plaintiff to main- tain his action.' But, of course, if plaintiff's title is denied by the pleadings, naked proof of possession would not make a case for him; he must show something (some title) on which to base a lawful possession.* * 'Johnson v. Carnley, 10 N. T. 570; Frost r. Mott, 34 N. T. 253 ; Walpole r. Smith, 4 Blackf. 304; Mead v. Kilday, 2 Watts (Pa.), 110; Halliday r. Lewis, 15 Mo. 403; Kirby v. Miller, 4 Colder (Tenn.), 3; Cox V. Morrow, 14 Ark. 603; Gillet v. Treganza, 6 Wis. 343; Shaddon V. Knott, 2 Swan (Tenn.), 358; (58 Am. Dec 63); Harlan v. Harlan, 15 Pa. St. 507; (53 Am. Dec. 612). " Sprague f. Clark, 41 Vt. 6; Baker v. Fales, 16 Mass. 147; Curdy v. Brown, 1 Duer. (N. Y.) 101 ; Eockwell r. Saunders, 19 Barb. 473 ; Moor- man r. Quick, 20 Ind. 67; Gartside v. Nixon, 43 Mo. 138; Frizell y. White, 27 Miss. 198; Alden r. Carver, 13 Iowa, 253; Prater r. Frazier, 11 Ark. 249; Bayard v. Jones, 9 Humph. (Tenn.) 739; Hatch v. Fow- ler, 28 Mich. 205 ; Spencer v. Roberts, 42 Conn. 75; Sanford Mfg. Co. v. Wiggin, 14 N. H. 441 (40 Am. Dec. 198). 3 Johnson v. Carnley, 10 N. Y. (6 Seld.) 570. * Gartside v. Nixon, 43 Mo. 138; Gray v. Parker, 38 Mo. 160; Harri- son F. Mcintosh, 1 Johns. 380, See Ludden f. Leavit, 9 Mass. 104; Perley v. Foster, 9 Mass. 112 ; Whitwell v. Wells, 24 Pick. 25 ; Walcot F. Pomeroy, 2 Pick. 121 ; Fairbank v. Phelps, 22 Pick. 538 ; Waterman V. Kobinson, 5 Mass. 303 ; Dixon v. Hancock, 4 Cush. 96 ; Hill r. Free- man, 3 Cush. 260; Davidson v. Waldron, 31 111. 120; Clark v. West, 23 Mich. 242; Belden F.Laing,8 Mich.503; Campbell f. Williams, 39 Iowa, 646; Warren v. Leland, 9 Mass. 265; Mitchell r.Eoberts, 50 N. H. 486; WHAT EIGHT OF POSSESSION WILL SUPPOET. 53 § 88. Just what right of possession will support re- plevin it is difficult to say. Ownershiji or title are not nec- essarily inyoh'ed, but may be. "Where title is involved, the better title will prevail, and the legal title will prevail over the equitable.' And where the question of title is put in issue, and the right to possession is to be determined by the question of title, the burden is on plaintiff to show a supe- rior title in himself." Where the title is wholly between the plaintiff and defendant, the question is, Which has the better title ?^ The one having the legal title is ordinarily entitled to possession, and where the legal title and the right to posses- sion are in the same person, the question involved is not diffi- cult, but where the legal title and right to possession for the time are in different persons, perplexing questions frequently arise. Where the plaintiff claims a right of possession only as distinct from the title, as in case of a bailee, a lessee, or a lienh older, etc., he may recover against the general owner if his right be clear and exclusive. Such a right to possession is generally spoken of as a " special property " by the statutes. " Special property," Greenleaf says, " in a " strict sense, may be said to consist in the lawful custody " of property, with a right of detention against the general " owner. But a lower degree of interest will sometimes suf- " fice against a stranger or wrongdoer. Foi a wrongdoer " is not permitted to question the title of one in actual pos- " session of goods whose possession he has invaded." * Wallace, r. Brown, 17 Ark. 450; Hill v. Kobinson, 16 Ark. 92; Britt v. Aylett, 6 Eng. (Ark.) 476; Parham v. Riley, 4 Cold. (Tenn.) 5. ' Heyland v. Badger, 35 Cal. 404; Eeese v. Harris, 27 Ala. 306; Kil- lion F.Carrol, 13 Ired. (N. C.) 431; Bergesch F.Keevil, 19 Mo. 128; War- ner V. Matthews, 18 111. 83; Rogers r. Arnold, 12 Wend. 30. 2 Hatch F. Fowler, 28 Mich. 206; Patterson v. Fowler, 22 Ark, 39«; Sinicoke v. Frederick, 1 Ind. 54; Hallett f. Fowler, 8 Allen, 93; Dr i' li- son F. Waldron, 31111. 120; Daws v. Green, 32 Barb. 490; By.rm . •/, Bartlett, 15 Pick. 75; Bogard r. Jones, 9 Hump. (Tenn.) 739; FowJer r. Down, 1 Bos. & Pull. 44. 3 Bartlett v. Goodwin, 71 Me. 350. * Greenleaf on Ev. 637; Eisendrath r. Knauer, 64 111. 40:J; Wilson v. 54 WHAT TITLE WILL SUPPOBT THE ACTION. § 89. The interest sufficient to maintain trover is suffi- cient to maintain replevin.' The rule is similar to that in trespass de bonis asportatis. The action cannot be sup- ported unless the plaintiff have the actual or constructive possession of the goods, or a general or special property in ihem, with the right to immediate possession when the injury was committed. It is not essential that the plaintiff should ever have had the actual possession, but he must have had such a title that he was authorized to reduce the goods to his possession at the commencement of his suit.^ § 90. As against a wrongdoer, prior possession alone is sufficient to enable the plaintiff to maintain replevin.' A right to the possession of the thing sued for is sufficient to maintain replevin.* A person entitled to possession with- out title may maintain replevin against one who withholds the possession.^ Possession alone will entitle one to main- tain detinue against a wrongdoer, and the right of posses- sion, accompanied by a lien for money advanced, or for a debt previously contracted, entitles the plaintiff to maintain the action against any one disturbing his possession." As against a mere wrongdoer, and those claiming under him, Eoyston, 2 Ark. 31 5; Wallace v. Brown, 17 Ark. 450; L. S, & M. S. E. K. V. Ellsey, 85 Pa. 283. ' Rich V. Ryder, 105 Mass. 306; 3 Steph. (N. P.) 2485. 2 Putnam v.Wyley, 8. Johns. 432; Lunt F. Brown, 13 Me. 236; Can- non V. Kinney, 3 Scam. 9 ; Heath v. West, 8 Foster (N. H.), 101 ; Hume r. Tufts, 6 Blackf. 136; Muggridge r. Eveleth, 9 Met. 233; Boiee f. Kno.x, 10 Met. 40; Bell v. Monahan, Dudley (S. C), 38; Crenshaw v. Moore, 10 Geo. 384. 2 Van Namee f. Bradley, 69 111. 299 ; Rogers v. Arnold, 12 Wend. 37 ; Hammond v. Mead, 1 Hill, 204; Johnson v. Carnly, 10 N. Y. 570; Wheeler F. McCorrister, 24 111. 40; 1 Smith's Lead Cas. Vol. I. p. 648 (7 Am. Ed.); Dickson r. Mathers, Hempst. 65; Cobb r. Megrath, 36 Ga. 025; Clark v. Hieck, 17 Ind. 281; Byrd v. O'Houlin, 1 MiU (S. C), 401. * Saunders f. Jordan, 54 Miss. 428. 6 Prater v. Frazier, 11 Ark. 249. ' Gafiord v. Stearns, 51 Ala. 434; Dozier v. Joyce,-8 Porter, 303'; Stoker v. Yerby, 11 Ala. 332; Miller v. Jones, 26 Ala. 247; Bryan v. Smith, 22 Alaj 534; Desha v. Pope, 6 Ala. 690. EIGHT OF EXCLUSIVE POSSESSION. 55 detinue may be maintained on proof of prior possession.' One, thougli not the owner, eiltitled to the possession of per- sonal property, may maintain replevin against a party who cannot show a better right to it.^ Prima facie right to the property is sufficient against all who do not prove a better title.' § 91. Ownership alone without possession is not suffi- cient to support the action. The action is possessory, and ownership is only incidental to the main issue.* § 92. The right of exclusive possession, coupled with an interest or special property in a chattel, is sufficient to maintain replevin for it against one wrongfully taking or detaining it, though a third person has, at the time, a com- mon or sole property in the chattel.^ But a prima facie title is better than possession." ' Wortham v. Gurley, 75 Ala. 356 ; Huddleston v. Huey, 73 Ala. 215 , Jones V. Anderson, 76 Ala. 427; Shomo v. Caldwell, 21 Ala. 448; Miller V. Jones, 26 Ala. 247; Euse v. Harris, 27 Ala. 301. 2 Cox V. Fog, 54 Vt. 446 ; Sprague v. Clark, 41 Vt. 6 ; Tittemore v. Labounty, 60 Vt. 624 (15 A. 196); Chaffee v. Harrington, 60 Vt. 718 <15A. 350); Lamotte f. Wisner, 51 Md. 543; Brommell v. Hart, 12 Heis (Tenn.), 366. ^ Ingersol v. Emmenson, 1 Ind. 76; La Fontain r. Green, 17 Cal.296; Emmons v. Dowe, 2 Wis. 322. * Tomlinson v. Collins, 20 Conn. 365; Brown v. Chickopee Falls Co., 16 Conn. 87; Johnson v.Neule, 6 Allen, 228; Neff F.Thompson, 8 Barb. 213 ; Tisou's Admr. v. Bowden, 8 Fla. 69 ; Williams v. West, 2 Ohio St. 83 ; Smith r. Orser, 43 Barb. 187; Mnggridgey. Eveleth, 9 Met. 233; Wade V. Mason, 12 Gray, 335; Bradley v. Michael, 1 Cart. (Ind.) .")52; Pang- burn V. Patridge, 7 John. (N. Y.) 140 ; Hotchkiss v. McVickar, 12 Johns. 403; Clark v. Skinner, 20 John. (N. Y.)465; Hall F.Tuttle,2Wond. 475. ^ Stevens v. Chase, 62 N. H. 340. In this case plaintiff leased land and stock on such terms that he had an interest in the increase of the stock ; the heifer in question broke out of its pasture and in( o defendant's pasture; defendant refused to surrender it, claiming it as his; on plain- tiff's bringing replevin, defendant claimed that the action should have been brought by one Thompson, the owner, and not the plaintiff, the lessor. See also Mitchell v. Roberts, 50 N. H. 486 ; Marshall v. Davis, 1 Wend. 109 ; Dubois v. Harcourt, 20 Wend. 41 ; Rogers v. Arnold, 12 Wend. 30. »RoseF. Tolly, 15 Wis. 443; Beckwith v: Philleo, 15 Wis. 224; 56 WHAT TITLE WILL STJPPOET THE ACTION. § 93. Paramount title is not necessary as against trespassers and wrongdoers, to support the action; but a naked possession, or a right of possession coupled with a beneficial interest, will do.' As against a naked trespasser or wrongdoer, actual possession, or a right of immediate possession by the plaintiff, to the chattel, coupled with an interest, is sufficient to maintain the action.^ § 94. Bight to the possession indispensable to main- tain the action. A general or special property, with the right to the immediate possession in the plaintiff, is always sufficient to enable him to maintain the action. The right to the possession at the time of bringing the action is es- sential to a recovery.'' It cannot be maintained without showing either a general or special property in the plaintiff, together with the immediate right of possession.* § 95. Difference between action against stranger and general owner. In Michigan one having a special or quali- fied property in the goods may maintain replevin for the whole against a stranger, but only for his interest against the general owner, ^ and this doctrine is sound on principle. § 96. An after acquired interest will not support repelvin. The plaintiff must have the exclusive right to the possession at the commencement of the suit." But where Pierce v. Stevens, 30 Me. 184; Southwick v. Smith, 29 Me. 229; School Dist. r. Lord, 44 Me. 384 ; Melton v. McDonald, 2 Mo. 45 ; Eamaay v. Bancroft, 2 Mo. 151 ; Bush r. Lyon, 9 Co w. 53 ; Warner v. Hunt, 30 Wis. 201 ; Eisendrath r. Knauer, 64 III. 402. ' Freshwater v. Nichols, 7 Jones (N. C. L.),251; Armory v. Delamere, 1 Strang. (S. C.) 504 (Smith's Lead. Cas. 151); Eogers v. Arnold, 12 Wend. 37. ^ Williams v. West, 2 Ohio, St. 82 ; Freshwater v. Nichols, 7 Jones. (N. C. L.) 251; Bostick v. Brittain, 25 Ark. 482; Tan Boalen v. Dean, 27 Mich. 104; Lehman v. Kellerman,65 Pa. St. 489; Currier r. Ford, 26 III. 489; Van Namee v. Bradley, 69 111. 299; Hopper r. Miller, 76 N. C. 402; Allen r. Smith, 45 Ga. 84. 3 Britt V. Aylett, 11 Ark. 475 (52 Am. Dec. 282). * L. S. & M. S. B. R. r. Ellsey, 85 Pa. 283. ° Davidson r. Gunsally, 1 Mich. 388. » McKennon v. May, 39 Ark. 4^2 ; Kingsbury v. Buchanan, 11 Iowa, AFTEE ACQUIEED INTBEEST WILL NOT SUPPOET, 57 the plaintiff did not have the right of possession at the commencement of the action, but acquired such a right by the simple lapse of time before the trial, it was held that a return could not be ordered.' Where the facts develop that plaintiff had no right to the possession at the time of the levy, he cannot maintain the action, and it should be dismissed on motion of defendant.^ To maintain replevin, plaintiff must have had the right of possession at the commencement of the action (and the filing of the affidavit and issuing of the writ is the commencement of the action) where plantiff, at the filing of the affidavit, had possession of the sewing ma- chine, except the stand, and returned the head and part he had to defendant before the levy of the writ, replevin will not lie.' Where property was tendered back to plaintiff be- fore the writ of replevin was served, held, to defeat the action.* The plaintiff in replevin must prove a right to the possession at the time the action was commenced.* In order to maintain an action for the recovery of chattels in specie, the plaintiff must have, as against the defendant, a present, unqualified right to the possession of the chattel, in 387; Hunt v. Chambers, 1 Zab. (21 N.J.) 623; Noble F.Bpperi.y,6 Port. (Ind.), 416; Barrett v. Turner, 2 Neb. 174; Dickson r. Mathers, Hcmpst. (U. S. C. C). 65; Campbell v. Williams, 39 Iowa, 646. ' Ingraham v. Martin, 15 Me. 373 ; Barney v. Bronnson, 51 Conn. 175. 2 Duncan v. Brennan, 83 N. Y. 487. 8 Wheeler & W. Mf g Co. v. Teetzlaft, 53 Wis. 211 (10 N. W. 155). *Kiefer v. Carrier, 53 Wis. 404 (10 N. W.) 562. 5 Mclsaacs v. Hobbs, 8 Dana. (Ky.) 268; Sprague v. Clark, 41 Vt. 6; Shaddon v. Knott, 2 Swan. (Tenn.) 358; Bogard r. Jones, 9 Humph. (Tenn.)739; Dodworth f. Jones, 4 Duer. (N.Y.)201; McCurdy F.Brown, 1 Duer. (N. Y.) 101; Brockwell f. Saunders, 19 Barb. (N. Y.) 473; Gart- side V. Nixon, 43 Mo. 138; Pilkington v. Trigg, 28 Mo. 95; Frizel v. White, 27 Miss. 198; Hill f. Robinson, 16 Ark. 90; Britt v. Aylett, 11 Id. 475; Walpole v. Smith, 4 Blackf. (Ind.) 304; Ingraham f. Martin, 15 Me. 373; Nobis f. Eperly,6 Ind. 414; Moorman r. Quick, 20 Ind. 67; Marienthal v. Shafer, 6 Iowa, 223; Alden f. Carver, 13 Id. 253; Smithy. Williamson, 1 Har. & J. (Md.) 147; Gates v. Gates, 15 Mass. 310; Collins F. Evans, 15 Pick. (Mass.) 63; Wheeler f. Train, 3 Id. 255; Baker F.Fales, 16 Mass. 147; Berthold v. Pox', 13 Minn. 501. 58 WHAT TITLE WILL SUPPORT THE ACTION. its present form, and hence, if there be any preliminary act •or condition precedent to be performed, before the unquali- fied right of possession attaches, the action cannot be inain- tained.' So where chattels are sold at a public sale to be . paid for by note, a purchaser cannot maintain replevin until he has tendered such a note as the terms of the sale re- quire, or the money, with interest , that would become due on the note at its maturity/ § 97. And the right to possession must continue to the close. The plaintiff in replevin must have aright to the possession not only at the commencement of the suit, but at its termination as well. If his right is founded upon a lien, the tender of the amount of his lien and cost before the termination of the action terminates his right to maintain the suit.' § 08. Right of possession at some former time cannot be tried. , The plaintiff's right to possession depends solely on his right at the commencement, and his right at a former time cannot be proved or questioned,except as it throws light upon or is drawn in question to arrive at a correct decision of the main question.* § 99. Plaintiff must recover on strength of his own title, not on the weakness of the defendant's. In an ac- tion for the recovery of personal property, the plaintiff must recover on the strength of his own title, and not upon the weakness of his adversary's If a claimant of personal prop- erty has no title thereto, he Cannot recover it from one in ^ Seals r. Edmondson, 73 Ala. 295; Kirkpatriok v. Snyder, 33 Ind. 169; Bailey v. Troxell, 43 Ind. 432; Moffatt r. Green, 9 Ind. 198. As to what is, and what is not, an executory contract. See Lester v. East, 49 Ind. 588. 2 Wainscott v. Smith, 68 Ind. 312. 5 Le Flore v. Miller, 64 Miss. 204 (1 .So 99) ; Helen r. Gray, 59 Miss. 54. * Harlan r. Harlan 15 Pa. St. 513; Alden v. Carver, 13 Iowa, 254; Stpughton V. Rappalo, 3 S. & E. 562; Shearick v. Huber, 6 Benn. 3; Hunt F. Strew, 33 Mich. 85 ; Herdic v. Young, 55 Pa. St. 177 ; Hatch V. Fowler, 28 Mich. 210; Morgner v. Briggs, 46 Mo. 65. SPECIAL PBOPEETY INTEREST IN IS SUFEIOIENT. 59 possession claiming title by yirtue of a sheriffs sale, although the sale was irregular.' If he fail on the strength of his own title, the possession ought to be restored to the defen- dant.^ Plaintiff must recover, if at all, on his own title, and not on any defect or weakness in his adversary's.' The plain- tiff in a replevin suit cannot plead property in another to as- sist him. He must recover, if at all, on the strength of his own title. He may plead any qualified title, but it must be in himself.^ § 100. An equitable title alone will not support re- plevin.^ In New Jersey, where the distinction between law and equity courts is still kept up, replevin will not lie by one having a title enforcible in equity only." Where a firm held n mortgage on a horse, a member of the firm cannot replevin the horse; his title is only equitable as a member of the firm.' If the plaintiff has never had the actual possession of the property, he must show a valid and operative legal title in himself. At the commencement of the suit a possible or •equitable title or interest is not sufficient title upon which to found the action.' § 101. A special property interest in is sufficient to support replevin." If plaintiff have a special property, or an 1 Eastern v. Fleming, 78 Ind. 116; Picquet r. McKay, 2 Blackf. 465. ^ Reinheimer v. Hemingway, 35 Pa. St. 432 ; Stanley v. Neale, 98 «ss. 343. ' Goodman v. Kennedy, 10 Neb. 270 (4 N. W. 987). * Holler V. Colson, 23 111. App. 324. ^ Gluck V. Cox, 75 Ala. 310; Jones y. Anderson, 76 Ala. 427; but see Bates V. Wiggins, 37 Kan. 44 (14 P. 442). ° Woodruff r ^pgar, 42 N. J. 198. Tiiis case arose on these facts: A husband sold property directly to his wife, but before she took posses- sion of it, it was levied on for his debts, and she brought replevin, held, that her only remedy was in equity, and that replevin would not lie. ' Vinson r. Ardis, 81 Ala. 271; Hacker v. Johnson, 66 Me. 21. " Alabama Bank r. Barnes, 82 Ala. 607. '' The City Bank v. R. W. & 0. R. R., 44 N. Y. 136; Dezell v. Odell, 3 Hill (N. Y.), 215; Miller v. Adsit, 16 Wend. 335; Wheeler v. McFarlaud, 10 Wend. 318; Rich v. Rider, 105 Mass. 306; National Bank v. Dear- born, 115 Mass. 219; Woods v. Nixon, Add. (Pa.) 131. 60 WHAT TITLE WILL SUPPOET THE ACTION. interest of a temporary or limited nature in tlie property, and had actual possession of whicli he has been deprived by defendant, it is enough; he need not be absolute owner.' A general or special property in goods, accompanied with pos- session, either actual or constructive, is sufficient.^ § 102. Special property right sufficient — Illustration. The taker up of a stray has such a qualified ownership as will support replevin.' § 103. A holder of a bill of lading for goods by the terms of which the goods are to be delivered to him may bring replevin if the delivery is refused.* § 104. A lien for advances upon property pledged for the security thereof is sufficient to support replevin against an officer attaching it for a debt of the lienor.^ § 105. An auctioneer has sufficient interest to maintain replevin against one wrongfully interfering with his posses- sion." § 106. Possession parted with conditionally — Bailor, where a sheriff sold a boat upon condition that if the sale was held to be void the purchaser was to hold it as his bailee and the sale was held void, this title was held sufficient to support replevin.' § 107. Abortive sale. "Where one had put into a boat part of the machinery, which was to be paid for when all in, and the master refused to pay for what was in or let the rest be put in, he was allowed to replevy the part put in.* W ' Hazard r. Hall, 5 Mo. App. 584. 2 Wilson V. Royston, 2 Ark. 315; Walpole v. Smith, 4 Blackf. (Ind.) 304; Cox V. Morrow, 14 Ark. 603; Holiday v. Lewis, 15 Mo. 403; Frost r. Mott, 34 N. Y. 253; Brockway v. Burnap, 12 Barb, (N. Y.) 347; Mead v. Kildoy, 2 Watts (Pa.), 110; Kerby y. Meller, 4 Coldw. (Tenn.) 3; Gillett v. Treqaaza, 6 Wis. 343. 3 Barron v. Lands, 1 Dur. (Ky.) 299. * Powell V. Bradlee, 9 Gill. & J. (Md.) 220. 6 Currier v. Ford, 26 111. 488. « Tyler v. Freeman, 3 Gush. 261. ' Scott V. Elliott, Phill. (N. C. L.) 104. 8 Kidd V. Beldin, 19 Barb. (N. Y.) 266. WHERE TITLE IS EESEEYED BY SELLER. 61 § 108. Possession by an agent is actual — not conRtruo- ti'^e — possession by the principal, and will support a posses- sory warrant by the latter against one who wrongfully and fraudulently takes possession thereof.^ § 109 Possession of a stray for the statutory time will support it. An adverse possession of a horse which has strayed from the original owner, for the full term of limitation, gives a good title thereto sufficient to sustain an action of replevin against the original owner.'' § 110 Ofiac'er's possession after levy sufficient. After levy and appraisement by an' officer, he has such a special property as will maintain replevin, though the goods leded on be left in the defendant's custody.' But a mere paper levy is not sufficient.* An officer who has actually levied has such an interest in the property that he can maintain replevin against one who interferes with his pos- session. ° § 111. One entitled to possession for temporary pur- pose can replevy from general owner. One who has a temporary property in a chattel, and delivers it to the gen- eral owner for a special purpose, may, after that purpose is satisfied, and during his temporary right, maintain trover for it against the general owner." Part owner who has ac- quired the interest of the other part owner may maintain detinue against a bailee of the latter.' § 112. Where title is reserved by seller his interest is sufficient to support replevin. A wholesaler who sent beer in his own barrels to a retailer to be paid for as sold ' Hillyer v. Brogden, 67 Ga. 24. 2 Hicks V. Fluit, 21 Ark. 463. 'Polite r. Jefferson, 5 Harr. (Del.) 388; Dunkin v. McKee, 23 Ind. 447; Martin v. Watson, 8 Wis. 315. * Johnson v. Prussing, 4 Bradw. (Dl.) 575. « Lockwood V. Bull, 1 Cow. 322; Dezell r. Odell, 3 Hill, 215; Lathrop F. Blake, 3 Foster (N. H.), 56; BroadweU f. Paradice, 81 111. 474. • Boberts r. Wyatt, 2 Taunt. 268. ' Freeman r. Speegle, 83 Ala. 191. C2 WHAT TITLE WILL SUPPOET THE ACTION. may maintain replevin against an officer wlio levies on it as the property of the retailer.' § 113. Symbolical delivery sufficient. Where a per- son has advanced money on property which is not capable of actual delivery, but has had a symbolical delivery, as by a receipt or order therefor, he has sufficient possession and title to support replevin against an officer who attaches them under a writ against the general owner.^ Such a transfer of title is prima facie only, and is subject to explanation.^ If the receipt or bill of lading or other evidence of title is ac- companied by a draft, it is understood that the transfer of title is made subject to the amount shown by this draft, and it is a first lien on the property in the hands of the trans- fer ree in equity.* § 114. Right of property in fire companies, band, and other voluntary organizations. Where a town or- ganized a fire department, allowing them a • room which was famished partly by an appropriation, partly by vol- untary gift, and partly by money furnished by the fire company, ten years after, the fire company disbanded and divided the furniture among its members. Held, that the town could maintain replevin for this property.^ Members of a new fire company may maintain replevin for such prop- erty against members of a former fire company. ° Where members of a band divided into two factions, and one sought ' Meldrum r. Snow, 9 Pick. (Mass.) 441; Rogers r. Whitehouse, 71 Me. 350. 2 National Bank r. Dearborn, 115 Mass. 219; National Bank r. Bay- ley, 115 Mass. 228. See Trixworth r. Moore, 9 Pick. 347 ; Fettyplace r. Dutch, 13 Pick. 388; Whipple v. Thayer, 16 Pick. 25; Gibson V. Ste- vens, 8 How. 384; National Bank v. Crocker, 111 Mass. 163. ' Pratt V. Parkman, 24 Pick. 42. * National Bank v. Crocker, 111 Mass. 163. ^ Inhabitants of Brooklyn v. Sherman, 140 Mass. (1 N. E. 153) ; See Perry v. Stone, 111 Mass. 60, where under very similar circumstances an action was brought by the firemen who stayed in versus the vendee of those who went out, and the holding in favor of plaintiffs. « Bisbee v. Fadden, 140 Mass. 6 (1 N. E. 742). PEOMISE BY INFANT INSUFFICIENT. 63 to replevin from the other the instrumentg, held, that they were tenants in common, it being a voluntary organization,, and replevin would not lie.' § 115. Certain special interests held not suflBcient to maintain replevin.^ — Illustrations. Where goods are in the hands of a factor who has a lien for advances, the owner of the goods does not have sufficient possession to maintain re- plevin.'^ § 116. Neither does a landlord's lien for rent, or an at- tachment for it, give him the right to the possession of the crop, and such title will not support replevin for the crop,' unless by the terms of the contract he is entitled to posses- sion.* § 117. One tenant in common cannot maintain agaiast his co-tenant, and where suit is brought the court will order a return. ° § 118. Statute of frauds — Title based on, insufficient^ A title based upon an agreement within the statute of frauds, for not being in writing, but which has been executed, will support replevin. ° § 119. Title by gift insufficient. A agrees in writing to give a cow to B, held, that until the gift was perfected by delivery, A had such a title that he could maintain re- plevin against for possession.' § 120. Title based upon promise by infant insufficient. A title based upon an agreement by an infant to convey ' Hewett V. Hatch, 57 Vt. 16. 2 "Wood V. Orser, 25 N. T. 348. 3 Bell V. Matheny, 36 Ark. 572; Knox v. Heliums, 38 Ark. 413. * Sheble r. Curdt, 56 Mo. 437. 5 Witham v. Witham, 57 Me. 447; Strickland v. Parker, 54 Me. 322; Wells V. Noyes, 12 Pick. 324. See Chapter on Joint Owners. ' Norton v. Simonds, 124 Mass. 19. ' Miller r. Le Piere, 136 Mass. 20. Id this case, A run a raffle and de- cided that B had won the cow at the raffle, but C claimed to have won her and took possession, and refused to surrender her. The rules of the raffle are not recognized in law, but the transaction in this case is treated as a gift. 64 WHAT TITLE WILL SUPPOBT THE ACTION. to plaintiff will not support an action of replevin by plain- tiff.' § 121. A lieu without the right of possession will not support replevin. One who has advanced money upon an understanding that the proceeds of goods remaining in the possession of the owner shall be applied to repay him, has not such a right to possession of the goods as will support an action for the delivery of them.^ § 122. Right to cut trees will not support replevin for trees cut by another. The owner of a tract of land gave to plaintiff a permit to cut and take away certain trees, reserv- ing the ownership and control of the lumber cut, until pay- ment therefor had been made; defendant, without license, entered upon the land, and cut and removed these trees, held, that the plaintiff had no such title or right of possession in the lumber as would entitle him to maintain replevin there- for.' § 123. Title based on pretended but illegal judicial sale will not. Where an officer pretended to levy two different executions against different defendants upon the same goods, and sell them at the same time to different purchasers, held, that the sale made under the writ first levied carried the title, and the purchaser under the second writ did not acquire such title thereby as to sustain replevin against the other purchaser.* § 124. Title based on an unexecuted or conditional con- tract will not support the writ.' The proper remedy in such cases is to bring an action for the failure to comply with the agreement.* A mere unlawful taking, not followed by ' Pakas v. Eacy, 2 How. Pr. (U. S.) 277. 2 McCurdy v. Brown, 1 Duer. (N. Y.) 101. • Gillerson v. Manaur, 45 Me. 25. * Knapp v. White, 40 Wis. 143. 6 Barrett v. Turner, 2 Neb. 172. ' Haverstiek v. Fergus, 71 111. 105. For examples of such cases see Whitconjb v. Hungerford, 42 Barb. 177; Stevens v. Eno, 10 Barb. 95; Lester y. East, 49 Ind. 588; Boper v. Lane, 9 Allen, Mass. 510; Updike v. Henry, 14 111. 378. PROOF OF TITLE NOT SUFFICIENT. 65 detention will not support replevin as at common law ; it will only lie to regain the possession of property in specie.^ § 125. One who has placed the title in another is estopped. "Where A and B sell property to different indi- Tiduals, the purchasers signing a receipt that payments are to be made to C and the title is to remain in C until the last dollar is paid, and then is to make them a good and sufficient title, held, that A and B are estopped to deny that the title to the property is in C, and that they have not such title as will support replevin in their own names for the property.^ § 126. Surety on undertaking has not such an in- terest, for this reason, as will support replevin. Plaintiff must show such an interest as entitles him to the immediate possession, but the surety on the undertaking of the plaintiff ■ in replevin has no legal interest in the property, and cannot maintain replevin against one wrongfully dispossessing the- plaintiff of said property, but one who had given a receipt to produce the property could maintain replevin.' § 127. Title to half interest will not do. Keplevin for timber cannot be maintained on a showing by plaintiff of title to an undivided half of the land from which it was re- moved.* § 128. Proof of title without right to possession not suiScient. In an action for the unlawful detention of per- . sonal property, where the real question litigated is the right of possession, if the plaintiff's evidence shows simply that he was the owner, and that the defendant was rightfully in possession as his bailee, the plaintiff fails to show himself entitled "to possession, and a judgment of ncJn-suit on de- fendant's motion at the close of plaintiff's evidence is proper." 1 Paul V. Luttrell, 1 Col. 317. 2 Rice V. Crow, 6 Heis. (Tenn.) 28. ' Jimmerson v. Green, 7 Neb. 26. * Hess r. Griggs, 43 Mich. 397 (5 N. TV. 427). ^Gaynor r. Blewitt, 69 Wis. 382 (34 N. W. 725); Everett f. Bu- chanan, 2 Dak. 249. 66 WHAT TITLE WILL SUPPORT THE ACTION. The right of recovery depends upon the question who has the right of possession.' § 129. A right based upon a special law must comply with the terms of the law strictly. A person who takes up a stray animal and fails to advertise it, as required by law, can- not maintain replevin for it against the owner who has taken it fx'om his possession. Beplevin cannot be maintained by one who has only a naked possession without any general or special property in the article in suit." § 130. To the right of property plaintiff must add the right of possession. To maintain replevin, the plaintiff must have in himself the right of property, general or special, coupled with the right of immediate possession, and if his title is denied, the onus is on him to prove it.° § 131. While possession is prima facie title, it is not in fact ownership, and will not support replevin when the title is shown to be in another.* ' Parlemon v. Young, 2 Dak. 175. ^ Wright T. Kichmond, 21 Mo. App. 76; Broadwater f. Dame, 10 Mo. 277; MjMahill r. Walker, 22 Mo. App. 170. 'Andrews v. Costican, 30 Mo. App. 29; Melton v. McDonald, 2 Mo. 45; Suggett v. Cason, 26 Mo. 221; Gartside r. Nixon, 43 Mo. 138. * Baker y. Campbel^ 32 Mo. App. 529. WHO MAY MAINTAIN BEPLE'VIH, 67 CHAPTEE VIL WHO MAY MAINTAIN KEPLEVIN. Section. General rule .... 132 Either a general or special property is suffleient . . 133 Right to actual possession sufflcieBt 134 Beplevin may be maintained by one from whose posses- sion it was taken without right 135 The same 136 "Who may maintain replevin — Examples .... 137 Creditors of a common debtor 138 One of several defendants in an execution . . . .139 State or United States may . 140 An agent may bring replevin in his own name . . . 141 Eight to use property at will is sufficient .... 142 General property and right to possession sufUcient . . 143 One entitled to possession for a special purpose . . . 144 One who has lost possession wrongfully .... 145 Who may not maintain re- plevin — Examples— A surety on a stay bond . . . 146 One who has pointed out prop- erty as that of another is estopped to replevy it . . 147 A stranger cannot . . . 148 Contract against good morals 149 A servant 150 Anadministrator may re- section. pleVy personal property of his intestate, but not special legacies 151 A pledgee has the right to possession .... 152 If an agent have only con- structive possession, his wrongful transfer conveys no right or title . . . 153 A married woman may main- tain replevin without alleg- ing coverture _ . . . 154 A wife may replevy her own property from her husband 155 Husbandcannotreplevy from a wife he has abandoned . 156 Where property is wrongfully taken from a lienholder, he may re-take it, by replevin . 157 A laborer's lien is protected— general owner cannot re- plevy 158 Liens generally— Illustrations 159 Effect of tender of amount of lien 160 But where a trespasser places the property in the posses- sion of the lienholder the true owner may replevy . 161 Owner may replevy as against a stranger notwithstanding the lien 162 A finder of property has alien on it for the reward offered 163 Finder may replevy from one taking property from him 164 68 WHO MAY MAINTAIN KEPLEVIN. Section. Finder — ^Riparian owner — Re- plevin for involuntary de- posit — Not an accretion . 165 A receiptor of property has a greater interest than a naked bailee .... 166 The same 167 An officer may replevy from Section another officer or from a re- ceiptor or from the owner . "Other than the defendant" defined. Thetrusteeandthe individual are quoad the property different persons . "Stranger" defined 168 169 170 § 132. It is a general rule in replevin that the plain- tiff must have a general or special interest in the property he seeks to seize by replevin, and a right to the immediate and exclusive possession of the property. This has been the rule from the earliest time down to the present.' To main- tain an action for the recovery of specific personal property the plaintiff must have the legal title, and a right to the im- mediate possession of the entire chattel sued for.^ A party who sues in' replevin or detinue must have the right of im- mediate possession, either by virtue of a general property, as owner, or a special property, as bailee, at the time he sues. ^ In some states it has been held that an action of replevin ' Kirby v. Miller, 4 Cold. (Tenn.) 3; Barrett v. Scrimshaw, Combe, i77; Smith V. Plomer, 15 East. 607; Gordon v. Harper, 7 Duruf. & East. 9 and 6; Britton Nichols Trans. Vol. 1, p. 139; Wade v. Mason, 12 Gray, 335; Pattison v. Adams, 7 Hill.N. Y. 126; Barry v. O'Brien, 103 Mass. 521; Ingersoll v. Emmerson, 1 Carter (Ind.), 77; Bradley v. Michael, 1 Carter (Ind.), 552; Johnson v. Neale, 6 Allen, 228; Mere- dith V. Knott, 34 Ga. 222; Crocker y. Mann, 3 Mo. 473; Russell v. Minor, 22 Wend. 659; Mclsaacs v. Hobbs, 8 Dana (Ky.), 268; Hub- loun's Case, Skinner, 65; Forth v. Pursley, 82 111. 152; Fairbanks v. Phelps, 22 Pick. 538; Lloyd v. Goodwin, 12 S. & M. (Miss.) 223; Pack- ard V. Getman, 4 Wend. 613 ; Waterman v. Robinson, 5 Mass. 304 ; Hal- linbake r. Fish, 8 Wend. 547;. Reese v. Harris, 27 Ala. 306; Loveday V. Mitchell, Comyns, 247; Hilger v. Edwards, 5 Nev. 84; Muggridge V. Eveleth, 9 Met. 235; Jimmerson v. Green, 7 Neb. 26. 2 Graham v. Myers, 74 Ala. 432; Smith v. Rice, 56 Ala. 418; Soger v. Blain, 5 Hand. (N. Y.) 449; Bassett v. Armstrong, 6 Mich. 397. ' Buck v. Payne, 52 Miss. 271; Cassell v. Western Stage Co.., 12 Iowa, 48; Lowry v. Hall, 2 W. & S. (Pa.) 133; Stapleford v. White, 1 Houst. (Del.) 238; Lester v. McDowell, 18 Pa. St. 91; Pierce f. Stevens, 30 Me. 184 ; Haythorn v. Rushforth, 4 Har. (19 N. J.) 160 ; Leibert v. McHenry, 6 Watts (Pa.), 302. GENEEAL OR SPECIAL PBOPEBTY IS SUFEICIENT. • 69 could be maintained in case of an unlawful detention, thougli the original taking was not tortious and unlawful.' "Not- withstanding some dicta to the contrary," says Mr. Justice Hand, in Brockway vs. Burnap, 16 Barb. (N. Y.) 309, "re- plevin would always lie for goods unlawfully taken." As a general rule, replevin lies only in behalf of one entitled to the possession against one having, at the commencement of the suit, actual or constructive possession and control of the property. To this rule there are some exceptions, as where goods wrongfully taken had been in defendant's possession, though disposed of or consumed before suit. The action will never lie where defendant never has been in either the actual or constructive possession.^ § 133. Either a general or special property is sufficient. It is an elementary principle that a general or special prop- erty in the goods taken is sufficient to maintain replevin.' One acting as a general agent under a power of attorney and having possession of the goods secured to his principal by mortgage may bring replevin in his own name against one interfering with his possession.* An auctioneer who is the agent of the owner, to whom goods have been sent for sale, may maintain replevin therefor. ° The rightful possession proves and constitutes a sufficient right of property, to sus- tain trover or replevin against one interfering with such pos- session wrongfully." So a person in possession as bailee, ' Badger r. Pinney, 15 Mass. 360 ; Baker v. Fales, 16 Id. 147 ; Mor- ton v. Baldwin, 17 Id. 606; geaver F. Dingley, 4 Green, 306 ; Sawtelle v. Rollins, 23 Me. 196; Ely v. Ehle, 3 Comet. (N. Y.) .506; Dame v. Dame, 43 N. H. 37; Kerley v. Hume, 3 T. B. Mon. 181; Wright r. Armstrong, Breese (111), 130; Harwood v. Smethurst, 29 N. J. L. 195. 2 Timp V. Dockham, 32 Wis. 146. 8 1 Ch. PI. 163. * Bartels r. Arms, 3 Col. 72. 5 Tyler v. Freeman, 3 Cush. 261. 6 White r. Bascom, 28 Vt. 271; Van Baalen v. Dean, 27 Mich. 104; Bass V. Pierce, 16 Barb. 595; Armory v. Delarairie, 1 Smith's L. C. 596; In note to this case is an extended review of the English cases: Hunt v. Chambers, 1 Zab. (21 N. J.) 620; Cleaves v. Herbert, 61 III. 127; John- eon V. Carnley, 6 Selden (N. Y.), 570; Sprague r. Clark, 41 Vt. 6. 70 WHO MAY MAINTAIN EEPLEYIN. whetlier as a common carrier, pledgee, or other bailee, may maintain tlie action as against all persons except tlie true owner.' And even as against the owner, if he has a lien for advances, services, and the like upon it.^ So the assignee of a bill of lading, shipping receipt, or vrarehouse receipt, is the legal owner of the property embraced in it, and may main- tain replevin for the same/ One of the joint owners entitled to possession may replevy against a stranger having no bet- tet title.* § 134. Right to actual possession sufficient. The right of possession merely is sufficient to enable a party to main- tain replevin. In a contract between vendor and vendee to the effect that the right of property should remain in the vendor, with the right to take possession at any time until the vendee should have fully compliedwith the terms of sale, held, that the vendor could maintain replevin. ° To support an action of claim and delivery, the property must be a per- sonal chattel at the time of the taking, and not something which has been turned into a chattel by reason of having been separated from the freehold by the defendant.^ To maintain the action of detinue it must be shown that the defendant, at the time the writ was sued out, had the actual possession, or the controlling power over the property where the sheriff had taken the property under a writ, but been ordered to return it to defendant ; this was sufficient possession in de- fendant.' The right is not limited to the general owner; he who has the right of possession may maintain it.* § 135. Replevin may be maintained by one from whose 'Simpson v. Wrenn, 50 lU. 222; Hopper v. Miller, 76 N. C. 402; Allen V. Smith, 45 Ga. 84. 2 Wood V. Orser, 25 N. T. 348; Currier r. Ford, 26 111. 489. ^ National Bank v. Crocker, 111 Mass. 163; National Bank v. Dear- bom, 115 Mass. 219 (15 Am. Rep. 92) ; Peters v. Elliott, 78 111. 321. * Chaffee v. Harrington (Vt.), 15 A. 850. ^ Gregory v. Morris, 1 Wyo. 213. 8 Hull V. Hull, 1 Idaho, 361. ' Henderson v. Telts, 58 Ala. 590; McArthur v. Currie, 32 Ala. 75.- » Williams v. West, 2 Ohio St. 82. MAT BE MAINTAINED BY EIGHTFUL POSSESSOE. 71 possession it was taken -without right.' One who has a present right of possession may bring replevin; possession is prima facie lawful. A plaintiff cannot change his case on rebuttal and make a new and different case from his peti- tion.^ But the action cannot be sustained by one who has not at the time a general or special property in the goods with the right to their immediate possession.' It is well es- tablished that one hating the right to the exclusiye posses- sion at the commencement of the suit can maintain replevin even against the general owner * . § 136. The same. "Where the plaintiff is able to show that the defendant was taking away property ot which he had just before been in possession, claiming to own it, it is sufficient, at least, to put the defendant upon proof of his title or right to possession, and in the absence of such proof the plaintiff will be entitled to recover.^ There is a presump- tion of ownership that follows actual possession of personal property, and is good title against all persons not having a better title. ° Possession is a right of property against all the world but the owner.' Replevin lies for him who has ' Kellogg V. Adams, 51 Wis. 138 (8 N. W. 115) ; Hunt v. Chambers. 1 Zab. (21 N. J.) 624. 2 Woolston r. Smead, 42 Mich. 54 (3 N. W. 251.) ' Miller v. Adsit, 16 Wend. 335 ; Perley v. Foster, 9 Mass. 114; Dun- ham V. Wyckoff, 3 Wend. 281; Rednion r. Hendricks, 1 Sandt (N. Y.) 32; Thompson v. Button, 14 Johns. 84. * Crocker v. Mann, 3 Mo. 473; Prater v. Frazer, 6 Eng. (Ark.) 249. 5 Morris y. Danielson, 3 Hil), 168. 8 Bogard r. Jones, 9 Hump. (Tenn.) 738; Sawtelle v. Rollins, 23 Me., 196;>SorriB r. Danielson, 3 Hill, 168; Ingersoll F.Enimerson, 1 Carter, 76; ■Schermefhorn r. Van,Volkenburgh, 11 Johns. 529; Wheeler v. Mc- Farland, 10 Wend. 322; Cusson v. Stout, 17 Johns. 116;i/^ngburn v. Patridge, 7 Johns. 140;'^emick v. Chapman, 11 Johns. 132; Cook v. Howard, 13 Johns. 276; Davis v. Loftin, 6 Texas, 495; Johnson V. Carnley, 10 N. Y. (Seld.) 579 ; Moorman v. Quick, 20 Ind. 68 ; Miller v Jones' Admr., 26 Ala. 260; Shorao v. Caldwell, 21 Ala. 448; Bayliss v. Lefaivre, 37 Mo. 119 ; 'Duncan v. Spear, 11 Wend. 54. 'Armory r Delamire, 1 Str 505; Summons v. Austin, 36 Mo. 308; Van Namee v. Bradley, 69 111. 301 ; Freshwater r. Nichols, 7 Jones (N. C.),252; Morris ^.Danielson, 3 Hill,168; Smith v.Graves, 25 Ark. 461. 72 WHO MAY MAINTAIN BEPLETIN. the general or special property in goods, against him who has wrongfully taken them ' § 137. Who may maintain replevin— Examples. The party against whom a writ of execution or attachment runs is the only party who may not maintain replevin against the officer holding the property by virtue of such process.^ A trustee may maintain replevin for possession of the trust property, but the beneficiaries in the trust cannot.' A les- see of. personal property, and not the lessor, may replevy it during the life of the lease. The action of replevin is pos- sessory, and no one not entitled to the possession can main- tain it.* A school district may bring replevin for its house arid other property. ° § 138. Creditors of a common debtor may join in a replevin suit for the property of the debtor on which they claim a lien.' § 139. One of several defendants in an execution may (where the statute permits it) replevy property levied on, al- though his co-defendants do not unite with him in execut- ing the forthcoming bond.' § 140. State or United States may replevy the property of the sovereignty.' § 141. An agent may bring replevin in his own name for bonds bought in his own name, but for his principal." Where a party conveyed property to a trustee to secure a debt due plaintiff, the action should be m the name of the 1 Tracey r. "Warren, 104 Mass. 376. 2 Gross r. Bogard, 18 Ka,n. 288. 8 Gates F. Bennett, 3.3 Ark. 475. *Hunt V. Strew, 33 Mich. 85. See Putnam v Wyley, 8 T. R. 434; Bruce v. Westervelt, 2 E. D. Smith, 446. 6 Joint School District v Keinen, 65 Wis. 282 (27 N. W. 31). « Earle v. Burch, 21 Neb. 702 (23 N. W. 254). ' Sheppard v. Melloy, 12 Ala. 561. j '■Bly V. U. S., 4 Dill. 464; Johnson v. Mcintosh, 8 "Wheat. 574; U. S. V. Cook, 19 "Wall. 593; Schulenbery r. Harriman, 21 "Wallace, 44, Id. 22 Dill. 398. > Douglas F. "Wolf, 6 Kan. 88 ; Mechem on Agency, 1041. ONE ENTITLED TO POSSESSION FOE A SPECIEIO PUBPOSE. 73 trustee, and not in name of the beneficiary.' Execution was. levied on an express package o£ money sent by the judgment debtor to an agent of his firm to repay advances made by the agent in the interest of his principal. The agent brought replevin against the sheriff, held, {!) that as between these parties the question of defendant's right to seize the money in the hands of the express company was immaterial; (2) that if the money was meant as payment, plaintiff could recover, but if to be used in the principal's business, he could not.^ § 142. Right to use property at will is sufficient to support replevin. One who has a right to use property at will can replevy it from any wrongdoer.' § 143. General property and right to possession suffi- cient. Beplevin lies by a person not having the actual possession of the goods when taken, provided he have at the time the general property and the right of immediate pos- session.* Eeplevin will lie by one claiming to be the owner against one who claims to be owner or to have a special own- ership in the property.* § 144. One entitled to possession for a special pur- pose may bring replevin. Thus, where one purchased 500 head of cattle to be by him selected out of a herd, the court say if the seller refused to let him make the selection he could replevy the whole herd, being entitled to the posses- 1 Garrett v. Carlton, (Miss.) 3 So. 376. See Davis r. Scott, 22 Neb. 154 (34 N. W. 3.53.) 2 Nicholson v. Dyer, 45 Mich. 610 (8 N. W. 515). = Tandler v. Saunders, 56 Mich. 142 (22 N. W. 271). In this case plaintiff bought property from the husband to be delivered to him in six months, but in the meantime he was to have the use of it whenever he wanted it; it was levied on on a writ against the vendor's wife, and plaintiff, the vendee, brought replevin. * Chinn v. Kussell, 2 Blackf. (Ind.) 172; Dunham v. Wykoff, 3 "Wend. (N. Y.) 280 ; Ross v. Cassidy, 37 How. Pr. t a threat to interfere 192 When mortgagee may replevy from officer levy ingon mort- gaged property for debt of mortgagor . . . .193 The same 194 The same— Proper judgment in such a case . . . 195 Thatmortga^eehas been sum- moned as a garnishee of the mortgagor no ground of . 190 Where officer levies before mortgagee takes possession 197 86 MOETGAGOB AND MOETGAGEE. Section. Where no default has been made 198 An agreement to mortgage no ground for replevin . . 199 Mortgage given under duress —Void mortgage . . . 200 Mortgagee must discharge lien for keeping stock first . . 201 Right of replevin between dif- ferent mortgagees . . 202 Distinction between a mort- gage given on a crop Section, planted and on one to be planted 203 Where property commingled can only get the property described in mortgage . 204 Where mortgagor wrong- fully mixes goods, the mort- gagee may replevy the whole 205 Mortgage alone not sufficient proof of title . . . .206 § 171. History Mosaic law. The mortgaging or pledg- ing of property to secure the payment of a debt or the per- forming of an agreement has been known from a very early day. It was provided in the civil legislation of Moses that, if a man held his neighbor's I'aiment in pledge for debt, he must deliver it to the debtor by sunset, that it might be used as night covering — Exodus XXII., 26, 27 — and that " no man shall take the nether or the upper millstone to ''pledges'''' Deut. xxiv. 6. At the present time, its chief use is to secure the payment of a sum of money. § 172. As a general rule, the mortgagee of personal property cannot maintain replevin against the mortgagor after default or condition broken without demand for the possession. But after default of any of the conditions of the mortgage ho may make demand, and, on refusal to deliver, may bring replevin and sustain his right to possession on the mortgage alone. A mortgagee of personal property can- not maintain an action to recover the possession of the same from a third person when the mortgage provides that the mortgagor shall retain possession of the property mortgaged. Eight of possession is necessary as a basis for action.' But where by statute on default the legal right to possession is in the mortgagee, he may maintain replevin if the mortgage ' Laubenheimer v. McDermott, 5 Mont. 512 (6 Pac. 344.); Belden r. Laing, 8 Mich. 500 ; Clark v. West, 23 Mich. 242. MOBTGAGEE MAY DEMAND POSSESSION WHEN. 87 be silent on the subject of possession.' Where in a mort- gage of personal property there is an agreement that the mortgagor shall retain possession for a definite time, the mortgagee cannot maintain replevin until the expiration of that time, but if, at the time of trial, the plaintiff have a right to the property, the defendant cannot have judgment for a return.^ Where it is agreed at the time of taking a mort- gage of a chattel that the mortgagor should retain posses- sion, the mortgagee cannot maintain replevin against one who takes the chattel.' And many authorities hold that any default vests the legal title at once in the mortgagee abso- lutely.* The mortgagee of personal property (where it is stipulated in the mortgage that he may take possession upon condition broken) has such an interest in the mortgaged property that he may, after condition broken, maintain an action of replevin for the mortgaged property. It is not necessary that plaintiff be the absolute owner. A special in- terest or ownership is sufficient.' § 173. After condition broken, mortgagee may demand possession and replevy at any time. A mortgagee of chat- tels, after condition broken, and demand for possession, may maintain replevin for the possession thereof." A mortgagee of chattels, who is authorized by the instrument to take pos- sesion if at any time he deem himself insecure, may demand the property at any time, and, upon the refusal of the mort- gagor to deliver it, may maintain replevin therefor.' 1 Mervine v. While, 50 Ala. 388 ; Morrison r. Judge, 14 Ala. 182; Bell r. Pharr, 7 Ala. 807. 2 Ingraham v. Martin, 15 Me. 373. 8 Pierce y. Stevens, 80 Me. 184; "Warner f. Matthews, 18 HI. 83; McCoy r. Cadle, 4 Iowa, 557; Curd v. "Wunder, 5 Ohio St. 92. * Heyland v. Badger, 35 Cal. 411 ; Brookover r. Esteriy, 12 Kan. 149; Patchin v. Pierce, 12 Wend. 61; Brown v. Bement, 8 Johns. 96; Ackley r. Finch, 7 Cow. 290; Butler v. Miller. 1 Comst. (N. Y.) 496; Livor r. Orser, 5 Duer. 501; Langdon v. Buel, 9 Wend. 80; Saxton r. Williams, 15 Wis. 292. * Brookover v. Esteriy, 12 Kans. 149. 8 Case V. Campbell, 14 Or. 460 (13 Pac. 324). ' Gage V. Wayland, 67 Wis. 566 (31 N.W. 108) ; Huebner v. Koebke, 88 MOETGAGOE AND MORTGAGEE. § 174. Mortgagee must always make demand. A moi-t- agee cannot maintain replevin for the mortgaged goods, even after default, without demand. If he fail in one action of replevin for want of demand, it does not bar another ac- tion after proper demand.' § 175. May bring against widow of mortgagor. The mortgagee may bring replevin for the property covered by his mortgage after default against the widow of his deceased mortgagor, even though the property constituted all the property of the estate, and had been set off to her by proper order of the court. ^ § 176. There must be a breach before mortgagee can replevy. Breach after suit commenced. — Effect. The law is well settled that, although a trustee or mortgagee of personal property is, after default made, or condition broken, entitled to the possession and is considered in law the owner of the property thus mortgaged, and his right to possession will be upheld in the proper action, yet prior to that time it is equally certain that no such right of either possession or ownership exists.^ The simple fact that the mortgagor com- menced his suit a few days before the maturity of the debt and before default does not give the defendant title to the property. The plaintiff should be permitted to show that the debt had matured and default been made since the bring- ing of the suit, that the rights of the parties may be equi- tably determined and adjusted.* § 177. Mortgagee cannot replevy on a partial breach. Where the condition in the mortgage was that the mortgagor 42 Wis. 319; Cline v. Libby, 46 Wis. 123; Frisbie f. Langwortliy, 11 Wis. 375. 1 Roberts v. Norris, 67 Ind. 386. 2 Eecker v. Kilgore, 62 Ind. 10. ^Barnett v. Timber-lake, 57 Mo. 499; Sheble v. Curdt, 56 Mo. 437; Jackson v. Cunningham, 28 Mo. App 354.; Pace v. Pierce, 49 Mo. 393; Bowen r. Benson, 57 Mo. 26; Laughlin r. Fairbanks, 8 Mo. 266. * Hickman v. Dill, 32 Mo. App. 509 ; Leonard v. Whitney, 109 Mass. 266; Boutell v. Warne, 62 Mo. 350; Jones v. Evans, 62 Mo. 382; Dougherty v. Cooper, 77 Mo. 528; Heap v. Jones, 23 Mo. App. G21. MOETGAGOB MAY OB MAT NOT EEPLEVY WHEN. 89 might hold possession "until the non-payment of said two promissory notes at maturity," held, that on default in pay- ment of one note and before maturity of the other, the mort- gagee was not entitled to possession, and could not maintain replevin.' But where there are several notes, he does not lose his lien, if, upon the non-payment of the first note be- coming due, he does not at once foreclose, but he may wait until the last note matures, and then take the property/ § 178. An assignee of the mortgagor is not an agent of the mortgagee and cannot replevy, on that ground. One who purchases and takes possession of personal property subject to mortgages thereon, which he assumes to pay, can- not, in an action of replevin brought in his own name, recover upon the ground that he is the agent of the mortgagees.' § 179. Mortgagor cannot replevy from mortgagee who takes possession after condition broken. Where the mort- gagee of chattels takes possession after condition broken, the mortgagor, who has subsequently tendered the sum due on the mortgage, but has not kept the tender good by paying the money into court, cannot maintain replevin for the prop- erty." § 180. The contrary has been held. But the owner of personal property who executes a chattel mortgage thereon, containing a stipulation that he may retain possession thereof until the maturity of the debt, can, if the mortgagee takes possession of such property before that time, recover its pos- session in an action of replevin.'" A mortgagor may bring replevin against the mortgagee who has seized the property 1 McGuire v. Benoit, 33 Md. 181. 2 Cleaves v. Herbert, 61 111. 127. See Reese v. Mitchell, 41 III. 365. ^ McNorton v. Akers, 24 Iowa, 369. « Smith V. Phillips, 47 Wis. 202 { 2 N.W. 285). This case does not de- cide that if tender had been kept good, replevin could have been main- tained, but leaves that point undecided. 5 Niven v. Burk, 82 Ind. 455. See Merrill v. Denton (Mich.), 41 N.W. 823. 90 MOETGAGOE AND MOETGAGEE. witliout having brought a personal action for the debt se- cured thereby, and may show that part of the debt is paid.' § 181. Where the mortgagor claims damage for a breach of conditions of sale, he may replevy. Where a mortgagee seizes property upon an alleged default, and the mortgagor replevies and the defendant justifies his posses- sion by the mortgage, plaintiff may allege and show dam- ages upon a breach of such warranty, and such matters may be properly adjusted in a replevin suit.^ § 182. Illegality of the consideration of the mortgage no ground for. Where a mortgagee has obtained possession of personal property for breach of the conditions of the mortgage, the mortgagor cannot maintain replevin of the property upon the ground that the consideration of the mort- gage was illegal.'' § 183. Part payment no defense to replevin by mort- gagee. It is no defense to an action by a mortgagee that the debt has been partly paid and credit not given. Nothing less than full payment defeats his right to possession after con- dition broken.^ § 184. Distinction between a mortgage and pledge. A mortgage passes the title of the property to the mortgagee, subject to be redeemed according to the terms of the con- tract, and if not redeemed the property becomes absolute in the mortgagee, and he may sustain replevin for the property or trover for the value, and the mortgagor cannot maintain replevin or trover against the mortgagee for refusing to de- liver the goods or for selling them, for the title is at law in the mortgagee and trover depends on title, general or special, to support it, and the mortgagor has no title, only an equi- table right to redeem the property by payment of the amount ' Gardner r. Matteson, 38 Mich. 200. 2 Hutt F.Bruckman,55 111.441, ' Dougherty v. Bonavia, 124 Mass. 210. * Roberts f. White, 146 Mass. 256 (15 N. E. 568). ASSIGNEE OF NOTE CAN MAINTAIN. 91 due on the mortgage. But in case .of a pledge, the title is not transferred.' § 185. Rule of damages in cases between mortgagor and mortgagee. Where property pledged to secure a debt is sought to be recovered by replevin, and judgment is for defendant for the money value of the property pledged, and is paid, the judgment being for more than the plaintiff's debt, the defendant holds the remainder of the money recov- ered, after satisfying his claim, to the use of plaintiff.^ In such cases, judgment should be rendered for defendant's in- terest in the property only. This prevents a multiplicity of suits.' § 186. Assignee of note can maintain replevin in his own name for the mortgaged property, though the mort- gage is not assigned. The assignment of the note carries the mortgage with it, notwithstanding that it may not be a legal transfer of the mortgage. The debt and the security are inseparable, and cannot reside at the same time in dif- ferent parties ; and he who controls the debt also controls the mortgage.* I am aware that this is a disputed question, and that Jones says, "The mortgagee's legal interest does " not pass by his assignment of the debt. Such assignee " cannot maintain replevin in his own name for the mort- " gaged property, though he may, in the absence of any ex- " press or implied stipulation to the contrary, bring such " action in the name of the mortgagee, who holds, in such " case, the legal title in trust foi such assignee's benefit."^ 'Heyland r. Badger, 35 Cal. 409; White v Phelps, 12 N H. 385; Ferguson v. Thomas, 26 Me. 499; Dewey y. Bowman, 8 Cal. 150; Tabot V. DeForrest, 3 G. Green, Io#a, 586; Brown v. Bement, 8 Johns. 96; Wood F. Dudley, 8 Vt. 430; Tannahill v. Tuttle, 3 Mich. 110 ; .Holmes V. Bell, 3 Cush. 323; Burdick v. xMcVanner, 2 Denio, 171. 2 Miles V. Walther, 3 Mo. App. 96. 8 Dilworth v. McKelvy, 30 Mo. 149. ♦Kingsland v. Chrisman, 28 Mo. App. 308; Christy v. Scott, 31 Mo. App. 331; Woodruff v. King, 47 Wis. 261; Bice v. Cribb, 12 Wis. 182; Crow V. Vance, 4 Iowa, 440 ; Furbank v. Goodman, 5 N. H. 450. 6 Jones, Chattel Mortgages, § 503, citing Rousdall v. Tewksbury, 73 92 MOBTGAGOE AND MOETGAGEB. But when we consider the fact that the tendency of both the courts and the legislatures is to insist upon the prosecution of actions in the name of the real party in interest, the doc- trine of the Kingsland case, supra, is certainly the better,' The endorsement in blank of a promissory note, which stip- ulates that a certain chattel therein described shall remain the property of the payee until the note has been paid, does not, of itself, vest the title to such chattel (a sewing ma- chine) m the endorsee so as to enable him to replevy the chattel on demand and non-payment of the note.^ The as- signee of a chattel mortgage may, upon condition broken, maintain an action of replevin for the recovery of the mort- gaged property.^ § 187. Action may be brought in name of the mort- gagee, though not the real party in interest. One who takes a chattel mortgage in his own name, but, in fact, for the benefit of another, may maintain replevin for such chattel in his own name, without joining such other person.* § 188. Mortgagee may bring replevin even after he has sold. The trustee (mortgagee) , in a deed of trust of personal property to secure a debt, has, after the maturity of the debt, and condition broken, a right to the possession of the property, and this right continues after he has sold the same, for the purpose of enabling him to deliver possession to the purchaser, and he can maintain replevin against the mortgagor, who has in the mean time taken possession of the property again. ^ § 189. Mortgagee may replevy from a stranger after condition broken or after he has had possession. Beplevin Me. 197, which upholds the text. See Prout r. Root, 116 Mass. 410; Graham v. Rogers, 21 Ala. 498. ' See City of St. Louis v. Rudolph, 36 Mo. 465; Edgell v. Tucker, 40 Mo. 531; Crowfoot v. Gurney, 9 Bing. 372. ■ The Domestic S. M. Co. v. Arthurhultz, 63 Ind. 322. 3 Barbour y. White, 37 111. 164. *. Allen V. Kennedy, 49 Wis. 549 (5 N. W. 906). s Lacy F. Gibony, 36 Mo. 320; Pace r. Pierce, 49 Mo. 393. MORTGAGEE MAY KEPLEVY. 93 lies by the mortgagee of a ctattel against one tortiously taking it from the custody of the mortgagor, default in pay- ment having been made by the mortgagor.' A mortgagee in possession of fixtures attached to the freehold can, in case of their removal, bring replevin.'' § 190. Right to follow to foreign state and replevy. If the chattel mortgage is properly executed and filed or re- corded according to the laws of the country or state vrhere drawn, and the mortgagor, contrary to the provisions thereof, removes the property to another state or foreign jurisdiction and there sells it, the mortgagee may follow and replevy it even from the purchaser. This is upon the theory that the mortgage is an absolute transfer of the title to the mortgagee, and that the mortgagor is but a bailee or an agent with a limited right of possession, and his removal of it from the place in which he was allowed to keep and use it amounts to a theft of the property, or, in its most favorable light, as a sale by a bailee without right, and the purchaser would take no better right than a purchaser from a thief. ^ A mortgagee of a vessel under the laws of Nova Scotia may replevy the vessel in Massachusetts.* § 191. Mortgagee may replevy from anyone interfer- ing with his rights under the mortgage. A mortgagee of personal property, not in actual possession, may maintain re- plevin against a person taking the same in defiance of his right, where the terms of the mortgage entitle him to take possession whenever he deems it necessary.^ § 192. But it must be on an actual interference, not a » Puller r. Acker, 1 Hill (N. T.), 473. "Laflin v. Grifflth, 35 Barb. (N. Y.) 58. •Welch F. Sackett, 12 Wis. 243; Cotton r. Watkins, 6 Wis. 629; Of- futt V. Flagg, 10 N. H. 46 ; Pickard r. Lowe, 15 Me. 48 ; Blystone v. Burgett, 10 Ind. 28; Smith f. McLean, 24 Iowa, 322; Martin v. Hill, 12 Barb. 633 ; Loeschman v. Machin, 2 Stark, 311 ; Jones v. Taylor, 30 Vt. 42 ; Barker v. Stacy, 25 Miss. 471; Ryan v. Clanton, 3 Strob. (S. C.) 413; Brackett r. BuUard, 12Met. 309. < Esson F. TarbeU, 9 Cush. Mass. 407. "Welch F. Sackett, 12 Wis. 243; Frisbee f. Langworthy, 11 Wis. 375. 94 MOKTGAGOB AND MOBTGAGEE. threat to interfere. Thus, where an officer levied on mort- gaged property, and said he would sell it regardless of the mortgage, it was held, that the officer's declaration to sell the absolute estate did not render the taking illegal, so as to sustain an action of replevin.' § 193. When mortgagee may replevy from officer levy- ing on mortgaged property for debt of mortgagor. Where by statute the interest of the mortgagor in the mortgaged chattels is subject to levy, replevin cannot be maintained by the mortgagee against an officer who levies on the same on a writ against the mortgagor, as the officer can only sell the mortgagor's interest, but where such interest is regarded as an intangible thing that cannot be reached by direct levy, of course the levy of the officer is upon the whole chattel, and an infringement of the mortgagee's rights, and he may bring replevin against the officer, and the validity of the mortgage is frequently tested in this way.'' A mortgagee has such an interest in the mortgaged chattels after condi- tion broken that he can maintain replevin against a sheriff who has taken them on an attachment against the mort- gagor.' A mortgagee of chattels, entitled to take possession of them for any cause, and especially on default of payment as provided by the terms of the mortgage, can usually main- tain this action against a sheriff who seizes them by virtue of an execution or attachment against the mortgagor.* Where default is made and the mortgagee demands posses- sion of the mortgaged property, and the officer refuses to surrender it, held, that the mortgagee may maintain an ac- tion in replevin for the possession thereof without first de- manding payment of the mortgage debt from the mortgagor 'Squires r. Smith, 10 B. Mon. (Ky.) 33. See Johnson f. Prussing, 4Bradw. (III.) 575; Persels v. MeConnell, 16 Bradw. (III.) 526. 2 Oldp V. Andrews, 66 Ind. 147. 2 Willis V. O'Brien, 35 N. Y.' Sup. Ct. 537. * Willis r. O'Brien, 35 N. T. Sup. Ct. 536; Frisbee r. Langworth, 11 Wis. 375. WHEN MORTGAGEE MAT BEPLEVY FBOM OFFICER. 95 or the officer.' In such a case, it is no defense for the officer to show that, at the time of such demand and refusal, another person held an unsatisfied prior mortgage on the property, by which such other person might have a right of possession as against the mortgagee.^ § 194. The same. A mortgagee may bring replevin against a sheriff for the chattels covered by his mortgage and held by the sheriff under an attachment for creditors.' The mortgagee of goods attached, while in the possession of the mortgagor, by an invalid attachment, may maintain re- plevin against the attaching officer.* And where the mort- gagee has taken possession of the property and it is levied on for the debt of the mortgagor, there seems to be no ques- tion but that the mortgagee may replevin from the officer, and in Kentucky it is so provided by statute.^ Under the Maine statute a mortgagee or pledgee of property must give an officer holding the same by process forty- eight hours' notice of the nature and amount of his claim before he can main- tain replevin.^ Where a mortgagor is in possession of. the mortgaged property, under a clause in the mortgage which gives him the right to retain possession until the debt is due, he has an interest which, before the debt is due, can be levied on for his debts; but under the clause which allows the mortgagee to take possession if he feel insecure, the mortgagee, if a levy be made, can take the property from the officer. In such cases the levy has usually been held to create an equitable lien for any surplus over the payment of the mortgage,' and there is no question but -yvhere the prop- 1 Eankin v. Greer, 38 Kan. 343 (16 P 680). 2 Rankin v. Greer, 38 Kan. 343 (16 P 680). 3 Lorton v. Fowler, 18 Neb. 224 ( 24 N. W. 685). * Allen V. Wright, 134 Mass. 347. 5 Mclsaacs v. Hobbs, 8 Dana (Ky.), 268. « Fairfield v. Nye, 60 Me. 373. ' Lininger v. Herron, 18 Neb. 450 (25 N. W. 578); Id. 23 Neb. 197 (36 N. W. 481); Saxton v. Williams, 15 Wis. 292; Cotton v. Watkins, 6 Wis. 629; Mattison f. Bancus, 1 Comst. (N. Y.) 295; Eedmond r. 96 MOETGAGOE AND MORTGAGEE. > erty is levied on for a debt of the mortgagor while in his hands, and his debt matures before sale, and is not paid, the mortgagee may demand the property and sustain replevin for its possession.' § 195. The same — Proper judgment in such case. Where in an action to recover possession of personal property, plaintiff claimed a special interest as mortgagee, defendants being the general owners, with a right to redeem, held, that the proper judgment in favor of the plaintiff was for a re- turn of the property or for its value, fixing it at the amount of plaintiff's interest, i. e., the amount due on the mortgage, not for the full value of the property, with damages for the detention.^ § 196. That mortgagee has been summoned as a gar- nishee of the mortgagor no ground of. A mortgagee of goods, who has been summoned as trustee on a writ against the mortgagor, cannot replevy them from the attaching offi- cer during the continuance of the attachment. His right of possession is not such as will allow him to thus interfere with the possession of the officer.^ § 197. Where officer levies before mortgagee takes possession. A mortgagee of chattels, whose mortgage is past due and unpaid, but not foreclosed, cannot maintain re- plevin against an officer who has taken the mortgaged chat- tels on an execution against the mortgagor and is proceeding lawfully to sell the same, and the officer has a right to the possession even against the mortgagee.* Hendricks, 1 Sandf. (N. Y.) 32; Prior v. Wliite, 12 HI. 261; Schraeder T. 'Wolflin, 21 Ind. 238. ' Simmons r. Jenkins, 76 111. 481; Frisby r. Langworthy, 11 ~Wia. 379; Beach v. Derby, 39 111. 622; Eggleston r. Mundy, 4 Gibbs fMich.) 295; Carty F. Fenstemaker, 14 Ohio St. 457 ; Mclsaacs v. Hobbs, 8 Dana (Ky.) 268; Putnam v. Cu8hing,10 Gray (Mass.), 334; Bates r. "Wilber, 10 Wis. 415; Randall v. Cook, 17 Wend. 55; Bailey v. Burton, 8 Wend. 339 ; Newman r. Tymeson, 13 Wis. 172. 2 Allen V. Judson, 71 N. Y. 77. ^Furber v. Dearborn, 107 Mass. 122; Boynton v. Warren, 99 Mass. 172 ; Martin r. Bagley, 1 Allen, 381 ; Hayward r. George, 13 Allen, 66. * Gary r. Hewitt, 26 Mich. 228. This decision was rendered upon the AGREEMENT TO MORTGAGE NO GEOUND FOB. 97 § 198. Where no default has been made. "Where prop- erty left in the hands of the mortgagor, under the terms of the mortgage, until default, is levied upon before default, this does not give the mortgagee the right to bring replevin. At least, he would have to make demand before bringing an action.' And where the mortgage provides that on such a contingency arising the mortgagee shall have the right to immediate possession, it is usually considered the same as if default had been made in payment. § 199. An agreement to mortgage no ground for re- plevin. One having an equitable mortgage (an agreement to mortgage) only, cannot maintain replevin against a sheriff who has levied on the property as the property of the mort- gagor.^ Where A. agreed to pay his debt to L. out of a field of sixty acres of corn by gathering and delivering it, but the price or number of bushels was not definitely agreed upon, Held, that L. did not have such a title or interest that he could maintain replevin against one who levied upon the whole corn for a debt of A.' But it has been held in such a case that replevin would lie against a receiver. Where 0., following statute: "When goods or chattels shall be pledged, by T\ay of ^' mortgage or otherwise, for the payment of money, or the performance " of any contract or agreement, such goods or chattels may be levied "upon and sold on execution against the person making such pledge, sub- " ject tothe lien of the mortgage or pledgeexistingthereon; andthepur- " chaser at such sale shall be entitled to pay to the person holding such "mortgage or pledge the amount actually due thereon, or otherwise per- "form the conditions of the pledge at anytime before the actual foreclos- " ure of such mortgage or pledge, and, on such payment or performance, " or a full tender thereof, shall thereupon acquire all the right, interest, " and property of which the defendant in execution would have had in "such goods and chattels, if such mortgage or pledge had not been "made." — Compiled Laws, § 4461. In the absence of such a statute, this case would hardly be good law. To same effect is Macomber f. Saxton, 28 Mich. 516. ^ Holladay v. Bartholomae, 11 Bradw. (111.) 206; Mobley r. Letts, 61 Ind. 11; Sparks v. Compton, 70 Ind. 393; Louthain F.Miller, 85 Ind. 161. 2 Empire S. T. F. Co. v. Grant, 44 Hun. (N. Y.) 434. ' Bailey v. Long, 24 Kan. 90. 7 98 MORTGAGOE AND MOBTGAGEE. to get B. to sign his notes as surety, verbally mortgaged cer- tain property to him, 0. then failed and his receiver took possession of the mortgaged property, held, that B. could, after the maturity of the notes, replevy the mortgaged prop- erty — that it was not necessary that he first pay the notes in this case.' § 200. Mortgage given under duress, void mortgage. A person who gave an ordinary chattel mortgage to an offi- cer to secure release from imprisonment may maintain re- plevin against such officer when he takes the property under the mortgage, and is not estopped to claim that the mort- gage is invalid and void." § 201. Mortgagee must discharge lien for keeping stock first. It will not lie by mortgagee for cattle until he was paid or tendered the charges of one who has fed and cared for them at request of the mortgagor." But where a mortgagor of horses kept them at the stable of an employee who claimed a lien for their care as against the mortgagee, held, that the mortgagee could maintain replevin, and that no lien was created as against him.* § 202. Right of replevin between different mortgagees. A mortgagee of personal property, having brought an action of replevin against a second mortgagee who was in posses- sion, the defendant brought into court the money due on the first mortgage, and tendered it to the • plaintiff. He did not plead his second mortgage, but relied on his possession and his tender. The plaintifiE replied that since the commence- ment of the suit he had sold the property, under his first mortgage, to a third person. Held, (1) That the first mort- gagee (plaintiff) was justified in replevying the property ; (2) upon the payment or tender of the debt, to secure which the mortgage was given, he was compellable to give up the prop- ' Bates V. Wiggins, 37 Kan. 44 (14 P 442). Tliat an oral mortgage is valid see Weil v. Ryus, .39 Kan. 564. 2 McCartney v. Wilson, 17 Kan. 294. ' ' Browns r. Holmes, 13 Kan. 492. See Russell r. Smith, 14 Kan. 373. < Howes V. Newcomb, 146 Mass. 76 ( 15 N. E. 123). WHERE MORTGAGOR WRONGEULLT MIXES GOODS. 99 erty; (3) If, before such tender, lie had, under the terms of the mortgage, sold the property, he will be excused for refusing the tender and failing to give up the property, but the burden of showing this fact lies upon him." § 203. Distinction between a mortgage given on a crop planted and one to be planted. It is well settled that a mortgage may be made en a growing crop, and that, after the crop matures and is gathered, there is a legal title in the mortgagee, which will support an action for the recovery of the chattel in specie. A crop is regarded as planted when the seed ig sown, and thus becomes a part of the freehold. But a mortgage on a crop to be afterwards planted and grown stands in a different category. Such conveyance at most creates only an equitable lien ; and, until the sale is perfected by a delivery of the product, no legal title exists in the mortgagee, and he can maintain no action at law for its recovery. In such condition the legal title remains in the mortgagor.'' § 204. Where property commingled, can only get the property described in the mortgage. Parties holding a mortgage upon a stock of drugs which are subsequently re- moved by the mortgagor with their consent, and commingled with another stock of like drugs, can by replevin only obtain possession of the drugs removed, and not of the combined stock.' § 205. Where mortgagor wrongfully mixes goods, the mortgagee may replevy the whole. If a mortgagor of goods mixes them, purposely or carelessly, with his own, and sells the whole, the mortgagee can replevy the whole from the purchaser, in the absence of evidence to distinguish the mortgaged goods from those not mortgaged.* ' Williamson v. Gottschalk, 1 Mo. App. 425. 2 Wilkinson v. Ketler, 69 Ala. 435; Booker F.Jones, 55 Ala. 266; Rees V. Coals, 65 Ala. 256 ; Grant r. Steiner, 65 Ala. 499. See Gillilan t. Kendall (Neb.), 42 N. W. 281. 2 Hubbell V. Allen, 90 Mo. 574 (2 S. W. 434). (See Chap. XVIII.) « Adams r. Wildes, 107 Mass. 123. (See Chap. XVIII.) 100 MOETGAGOE AND MOBTGAGEE. § 206. Mortgage alone not sufficient proof of title. In an action of replevin, the execution and delivery of a mort- gage, wliicli is duly recorded, of the replevied property by a third person to the plaintiff, will not establish the plaintiflE's right to the property as against the defendant, who is in possession, in the absence of evidence that the plaintiff ever had possession of the property, and that the mortgagor ever had possession of or title to the same.' But if there is inde- pendent evidence that plaintiff was in possession when he ex- ecuted the mortgage, the mortgage is admissible as showing an act of dominion over the property, and is some evidence of title." 1 Gibbs r. Childs, 143 Mass. 103 (9 N.E.3). " Eames f. Snell, 143 Mass. 165 (9 N. E. 532); FarweU v. Eogers.99 UasH. 33 PEBSON MUST LOOK TO AUTHOBITX OF AGENT. 101 CHAPTEE IX. AGENT, BAILOR, AND BAILEE. Section. A person dealing with an agent or bailee must look to the authority of the agent 207 Replevin will not lie by owner because agent sells at less price than he should . . 208 Where agent sells without au- thority, owner may replevy 209 Bailee may replevy from a stranger to the title . . 210 Bailee may successfully de- fend against the owner as well as a stranger — Duty of bailee 211 Where the terms of the bail- ment are violated, replevin may be brought at once by the owner . . . ' . 212 Section. Where a bailee pledges goods without authority, owner may replevy at once . . 213 A pretended sale by drunken bailee no protection to the purchaser . . . .214 Bailee's interest may be levied on and sold, and bailor can- not replevy .... 215 But if the whole thing be lev- ied on, replevin will lie by the real owner . . . 216 Abailee of property cannot dispute the title of his bail- or 217 The general owner must ten- der amount of lien . . 218 § 207. A person dealing with an agent or bailee must look to the authority of the agent. But that authority he may determine from the acts of the principal. If the prin- cipal place his goods in the hands of an auctioneer, it will not be presumed that they were not placed there for sale. Where a man sent a horse to a sale stable and it was sold, but on different terms from those warranted by his private instructions, the sale was held to convey a good title ;' that is, one dealing with an agent, knowing him to be an agent, is not bound by secret instructions of which he has no, knowledge. In the case above, if the ordinary business of 1 Sarjeant v. Blunt, 16 Johns. 74; Moore v. McKibbin, 33 Barb. 246; McMorris r. Simpson, 21 Wend. 610. 102 AGENT, BAILOR, AND BAILEE. the stable keeper had been other than that of the sale of horses, his sale of the horse ■would have conveyed no title. A purchaser from an agent must ascertain his authority at his peril. A purchaser from an agent without authority, even though the purchaser pay full value and acts in good faith, carries no title, and the owner may sustain replevin.' § 208. Sale not inyalid because agent sells at less than the price fixed by his principal. Where an agent or bailee, with authority to sell, sells at a less price than his instruc- tions warrant, the sale is still good, in the absence of fraud, and replevin will not lie by the owner. ^ If after the sale the agent abscond with the proceeds, it does not avoid the sale; and if the principal should take the sale money with knowl- edge of the facts, it would be an affirmance of the sale, and action would not lie by him for the property. § 209. Where agent sells without authority, owner may replevin. Where a man sent goods to an agent for sale on account, and the agent sold them to his own creditor, thus paying his own debt, the title of the owner is not thereby divested, and he may bring replevin against even a subsequent purchaser without notice.^ This rule is based 1 Jefferson r. Chase, 1 Hous. (Del.) 219; Sargent v. Gill, 8 N. H. 325; Lovejoy r. Jones, 10 Foster, 165; Sanborn v. Coleman, 6 N. H. 14; Fenn v. Harrison, 3 D. & E. 754; Johnson v. Willey, 46 N. H. 75; East India Co. v. Hensley, 1 Esp. 112. See Stanley v. Gaylord, 1 Cnsh. 544; Schemmelpennich r. Bayard, 1 Pet. 264; Pribble r. Kent, 10 Ind. 325; Johnson v. Willey, 46 N. H. 76; Poole v. Adkinson, 1 Dana, 110; Koland v. Gundy, 5 Ohio, 202; Sargent r.Gill,8N.H.325; Galvin v. Ba- con, 2 Fairfield (Me.), 28; Nash v. Mosher, 19 Wend. 431; Rowland v. Woodruff, 60 N. Y. 74; NeJt v. Thompson, 8 Barb. 213; Sarjeant v. Blunt, 16 Johns. 74; Drummond v. Hopper, 4 Har. (Del.) 327; Lecky F. McDermott, 8 S. & E. (Pa.) 500; Wilson f. Nason, 4 Bosw. 155; Peters Box & L. Co. v. Lesh. (Ind.) 20 N. E., 291 ; Grand Kapids Co. \. Lyon, (Mich.) 41 N. W. 497. 2 Dufresne v. Hutchinson, 3 Taunt. 117 ; Sarjeant v. Blunt, 16 John. 74; Scott r. Rogers, 31 N. Y. 676. 3 Hyde v. Noble, 13 N. H. 494; Loeschman r. Machin, 2 Stark, 311; Herron r. Hughes, 25 Cal. 556; Parsons r. Webb, 8 Green (Me.), 38; Calvin v. Bacon, 11 Me. 28. BAILEE MAY EEPLEYIN FBOM STEANGEB TO TITLE. 103 upon the assumption that the title of the original owner re- mains unimpaired by any fraudulent act of the bailee ; that the bailee, having no title in himself, cannot convey any by sale or transfer, and that a purchaser from such bailee takes no title, but simply a possession without other right/ It is a rule of law that mere possession of chattels will not au- thorize a transfer of a better title than the possessor had. Thus a servant who sells his master's goods without author- ity can convey no title. And where a servant quits his mas- ter's employ and takes away the master's goods,, it is a con- version, and replevin without demand will lie.'' And where a mortgagor of chattels in Illinois took them to Indiana and sold them, the court held that the mortgagee in a proper ease could recover them.^ § '210. Bailee may replevy from a stranger to the title. Special property in goods may enable a party to sue in his own name in replevin or trover. Where the entire prop- erty is in the consignor, he is the proper party to sue ; where the entire property is in the consignee, he is the proper party to sue; where both are interested, the one as gen- eral, the other as special owner, either may sue. A recov- ery in such action, properly instituted, will be a bar to any subsequent action against the same defendant at the suit of another party having either a general or special property in the goods.* A bailee, with whom a yoke of oxen are left " as a pawn or indemnity" for the return of a hired horse, 1 IngersoU F. Emmerson, 1 Carter (Ind.), 79; Stevens f. Cunningham, 3 Allen (Mass.), 492. See Nash v. Mosher, 39 Wend. 431; Trudo v. An- derson, 10 Mich. 357; Ballon f. O'Brien, 20 Mich. 304; 2 Kent, 324; Hilliard on Sales, 23 ; 1 Parsons on Contracts, 44. 2Pillsbury f. Webb, 33 Barb. 214; Trudo F.Anderson, 10 Mich. 357; Hotchklss r. Hunt, 49 Me. 213; Covill v. Hill, 4Denio, 327. ' Blystone v. Burgett, 10 Ind. 28 ; Oftutt v. Flagg, 10 N. H. 46 ; Jones F. Taylor, 30 Vt. 42; Martin r. Hill, 12 Barb. 631; Barker v. Stacyj 25 Miss. 447; Williams v. Merle, 11 Wend. 80; Dyer v. Pearson, 10 E.C.L. 38 ; IngersoU f. Eminerson, 1 Carter (Ind.), 78; Stanley r. Gaylord, 1 Cush. 536; Kitchell f. Vanader, 1 Blackf. (Ind.) 356. * IJenver v. Frame, 6 Col. 382. See Mechem on Agency, 1041. 104 AGENT, BAILOR, AND BAIIEE. may maintain detinue for them against any person wlio does not show a better title/ § 211. Bailee may successfully defend against the owner as well as a stranger. One in the rightful posses- sion of property as bailee can maintain replevin against one ■who interferes with his possession.^ The right of immediate possession may sometimes be in one person while the title may be in another. A bailee may have a right to the imme- diate possession by virtue of a lien for services bestowed or a contract for possession for a certain time as yet unexpired, and in such case the special owner may maintain replevin even against the general owner. In such cases the defen- dant is not obliged to show title against the world, but only to show a right to possession as against the plaintiff at the time the suit was begun.'* A bailee of goods, when sued, may show that his bailor did not own them. He is under no obligations to resist a claim made hj another person which appears to be bona fide but should notify his bailor of the claim before he surrenders possession. So that he could defend if he saw fit.* Where A delivered a package to B to be delivered to C, C, on demand of and refusal by B, may maintain replevin against B for the package.^ § 212. Where the terms of the bailment are violated replevin may be brought at once by the owner. Where one violates the terms of a bailment of personal property by removing it from the place where alone he was entitled to use it, or by selling it, the rule is similar. His wrongful act terminates his possession, and the bailor has a right to it 1 Noles V. Marable, 50 Ala. 366. See 1 Chitt. PI. 122 ; Reese v. Harris, 27 Ala. .301 ; Parsons v. Boyd, 20 Ala. 112. 2 Hopper r. Miller, 76 N. C. 402. ^ Bowen v. Fenner, 40 Barb. 385 ; Lummons r. Austin, 36 Mo. 308 ; Childs V. Childs, 13 Wis. 90; McLaughlin v. Piatti, 27 Cal. 452; Roberts V. Wyett, 2 Taunt. 268; Burton v. Hough, 6 Mod. 334; Pain v. Whit- takor, Ry. & M. 99; IngersoU v. Emmerson, 1 Carter (Ind.), 78; Dun- ning V. South, 62 111. 176; Williams v. West, 2 Ohio St. 83. * Learned v. Bryant, 13 Mass. 224. 6 Magdeburg v. Dihlein, 53 Wis. 165 (10 N. W. 363). bailee's inteeest mat be levied on and sold. 105 immediately.' A bailor has no right of action against the bailee until the termination of the bailment. He may then bring replevin without demand.^ Where one hires a horse to make a particular journey, and goes further, he is liable, and the owner might sustain replevin or trover ; but if, on his return, he informs the owner of his increased journey, and he accepts payment therefor, it is a waiver of the conversion.* § 213. Where a bailee pledges goods without author- ity, replevin will lie at once. When the owner of pork stored in a warehouse intrusted the warehouse receipts to an agent. for the purpose of repacking it, and the agent pledged the receipts as collateral for a loan of money, and on default the lender sold the pork, the real owner was permitted to sus- tain replevin against the innocent purchaser.* Where goods were shipped by the owner to an agent, to be held as the property of the owner until disposed of, and the agent pledged them for a loan of money, the owner can maintain replevin for them.^ § 214. A pretended sale by a drunken bailee no pro- tection. A taking under color of a contract of purchase from a mere bailee, made when such bailee was drunk, whether made so for the purpose or not, is tortious, and the owner of the property may maintain replevin therefor.' § 215. Bailee's interest may be levied on and sold, and bailor cannot replevy. As a general rule, property in the hands of a bailee for a limited time without fraud is not lia- ble to be taken for the bailee's debts, and where so taken the general owner may bring replevin at once.' But it has been frequently held that where the bailee had a definite 1 Billings F. Tucker, 6 Gray, 368; Wade f. Mason, 12 Gray, 335; Fan-ant v. Thompson, 5 B. & Aid. 826. 2 Felton y. Hales, 67 N. G. 107. s Eotch V. Hawes, 12 Pick. 136. * Burton r. Curyea, 40 111. 324. t' Chicago T. & P. R. E. f. Lowell, 60 Cal. 454. ^ Drummond r. Hopper, 4 Harr. (Del.) 327. ' Robinson r. Champlin, 9 Iowa, 91. 106 AGENT, BAILOE, AND BAILEE. ri^ht of possession for a certain time, and that right of pos- session was levied on and sold, the bailor could not replevy from the purchaser until the time had expired. In other words, by the sale the purchaser stepped into the position of the origi- nal bailee by operation of law.' § 216. But if the whole thing be levied on, replevin . will lie by the real owner. When goods in the hands of a bailee are attached as his property, replevin lies against the attaching officer by the real owner, although the goods are still in the hands of the bailee, not having been moved by the officer, and the attachment is pending and not dissolved." The bailor may declare the bailment at an end, and bring re- plevin whenever the bailee violates the terms of the bailinent, and this he does when he allows the whole interest to be levied on for his own debt. § 217. A bailee of property cannot dispute the title of his bailor, and where the bailee borrowed a pair of mules ' of the bailor, making no mention of any claim of title in him. self or wife, he cannot, on replevin by the bailor, set up title in his wife and plaintiff jointly to defeat plaintiff's re- covery.' A borrower must restore property before he can 1 Caldwell r. Cowan, 9 Terg. (Tenn.) 262; Hunt v. Strew, 33 Mich. 8.5; Smith v. Plomer, 15 East, 60T; Bruce v. Westervelt, 2 E. D. Smith (N. Y.), 240; Cox v. Hardin, 4 East. 211; Forth v. Pursley, 82 111. 152; Collins V. Evans, 15 Pick. 63; Wheeler v. Train, 3 Pick. 255; Gordon v, Hari)er, 7 Durnf. & East. 10, and 6; Dixon v. Thatcher, 14 Ark. 144; Wyman v. Dorr, 3 Me. J 83; Templeinan's Case, 10 Mod. 25. ^ Ealston v. Black, 15 Iowa, 47. See on this point Small v. Hutchins, 20 Me. 255; Illsley v. Stubbs, 5 Mass. 280; Bouldin r. Alexander, 7 B. Mon. (Ky.) 424; Thompson v. Button, 14 .Johns. (N. Y.) 84; Judd v. Fox, 9 Cow. (N. Y.) 259; Hall v. Tuttle, 2 Wend. (N. Y.) 475; Phillips V. Harris, 3 Marsh, Ky. 121. ' PuUiam v. Burlingame, 81 Mo. 111. On this general subject see Welles V. Thornton, 45 Barb. 390; Bates r. Stanton, 1 Duer.79; Blivin V. E. R. Co. 30 N. Y. 403; Burton r. Wilkinson, 18 Vt. 186; Aubery r. Fiske, 36 N. Y. 47; McKay v. Draper, 27 N. Y. 256 ; Sinclair v. Murphy, 14Mich.392; Osgood v. Nichols, 5 Gray, 420; The Idaho, 93 U.S. 575; Matheny v. Mason, 73 Mo. 677; Bigelow on Estoppel (3 Ed.), 430; Ed- wards on Bailment (2d ed.), § 73. GENERAL OWNER MUST TENDER AMOUNT OF LIEN. 107 assert title in himself.' But where one obtained goods fraud- lently, and bailed thena to another, the bailee may surrender to the true owner, and may show such fact as a bar to any suit against him by his bailor.^ A receiptor of an officer will not be permitted to set up title in himself as against the officer.' § 218. The general owner must tender amount of lien. A bailor cannot retake property by replevin upon which the bailee has alien, without tendering the amount due, although the bailee has demanded an excessive amount.* If a bailee, for hire for a limited term, with a right to purchase the goods upon payment of a certain price, sells the goods without having completed payment therefor, the bailment is there- by ended, and the owner may maintain replevin for the goods against the purchaser. ° 1 Simpson r. Wrenn, 50 HI. 224. 2 Bates V. Stanton, 1 Duer. (N. T.) 79. ^ Brusley r. Hamilton, 15 Pick. 40. * Monteith v. Great Western Pr, Co., 16 Mo. App. 450. 5 Partridge v. Philbriok, 60 N. H. 556; King r. Batesj 57 N. H. 446. See also Sargent v. Gile, 8 N. H. 325; Bailey v. Colby, 34 N. H. 29; Mc- Farland v. Farmer, 42 N. H. 386. 108 PAETNEKS — JOINT OWNEKS TENANTS IN COMMON. CHAPTEE X. PAETNERS— JOINT OWNERS TENANTS IN COMMON. Section. General rule . . . .219 As to what constitutes a part- nership or joint ownership 220 Bight of officer to seize part- nership property — Not Bef> tied One partnermay replevyfrom an officer seizing the whole property for the debt of the other partner The same — Both owners can join and replevy . One partner, entitled to exclu- sive possession, may . The interest of partners — How considered .... Effect of sale by one partner of his interest Joint owners should join in replevin 227 Replevin by purchaser of part- nership property attached by creditor of the firm A tenant in common can not replevy from an officer who has taken the whole on a writ against his co-tenant 229 One joint tenant cannot sus- tain replevin against his co- tenant The same And a levy on the interests of one is no excuse for re- plevin by the other 221 222 223 224 225 226 228 230 231 232 Sectioo. Where it is agreed that one shall, have exclusive posses- sion, that one can replevy from his co-tenants . . 233 The same — Tenants in com- mon 234 Where by agreement one is to have exclusive possession, replevin will not lie by the other 235- Where one of two tenants in common convert the whole property, the other may re- plevy his interest . . . 236- Joint tenancy is a matter of defense 237 Replevin will not lie for an un- divided interest . . . 23S It will not lie where the prop- erty of joint owners is not susceptible of division . . 239 It will not lie where the result would be to deprive a part owner of possession . . 240- When one joint owner may sever the property by his • own act, without injury to the other, it will lie . . 241 Effect of severance by sale by one joint tenant . . . 242' Pledge by one joint owner is good as to his interest, and replevin will' not lie by the other 243- § 219. As a general rule, one partner, joint owner, or tenant in common cannot replevy from another joint owner. WHAT CONSTITUTES PARTNEBSHIP. 109 tenant in common, or partner, and all of the tenants in com- mon must join in an action to recover possession of tlie com- mon property.' § 220. As to what constitutes a partnership or joint ownership. It is diffioult to lay down a rule within the limits allowed to that question in this work; the following decisions may throw some light on the matter. Where logs had been delivered to a sawing company to saw and take their pay in part of the proceeds of the. lumber, the plain- tiff who furnished the logs was allowed to replevy the lum- ber when attached as the property of the sawing company," the company not being joint owners thereof. A father who stocked up a farm, and put his son on it to make a living, if he could, without transfer of title to the son, may maintain replevin for the property seized for the son's debts where it does not appear that the son represented it as his own property or that the debt was contracted on the faith of its being the son's property.' A contract provided that K. should furnish and replenish a stock of merchandise which N. was to take charge of and sell, deducting from the proceeds the expenses of the business and a certain fixed sum for himself, the profits of the business to be divided equally, and N. to take his share thereof, at the expiration of the contract, out of the merchandise on hand, held, that the contract created a partnership, notwithstanding a stipulation that the goods were to remain the property of K., and that K. could not main- tain replevin for the goods until aftep a settlement.* A prin- cipal who furnished money to an agent to buy and crib corn may bring replevin for the corn. They are not tenants in common.* Where M. furnished her sons money to pur- chase and feed cattle, with the understanding that the title was to remain in her, and the cattle could only be sold by ' Freeman on Co-ten. & Part* 289, 337-8, 355 ; Bates on Part. 274-5. 2 Bassett r. Armstrong, 6 Mich. 397. « Morgan v. Pierson, 64 Wis. 523 ( 25 N. W. 543). * Kuhn V. Newman, 49 Iowa, 424. « Dows v. Morse, 62 Iowa, 231 { 17 N. W. 495)-. 110 PARTHEES — JOINT OWNERS TENANTS IN COMMON. her consent, held, ttiat replevin would not lie by tlie sons or their administrators.' Where a sheriff holds under levy an undivided interest of property, only that undivided interest may be replevied by one claiming to be the owner.^ But it has been held that a sheriff may levy on and sell one partner's interest in partnership property for the individual debts of that partner.' § 221. Right to seize partnership property not well settled. 3ut as to the officer's right to take possession of the firm property on a writ against only one of the partners to the exclusion of the other, the authorities are not uniform. "While none of them hold that the officer can interfere with the possession further than to protect his levy, still, many allow him to have exclusive possession of the firm property until sale.* The practice must be governed by the statute. § 222. One partner may replevy from an officer seiz- ing the whole property for the debt of the other partner. A partner is not merely a part owner of the partnership prop- erty ; he has an entire as well as a joint interest in the whole of it, and is in some sense a trustee of the partnership assets as a trust fund for the payment of creditors. One partner is, therefore, entitled to bring replevin for the whole property ^ Brown's Admx. v. Manning, 29 Cal. 602. 2 Schenck v. Long, 67 Ind. 579. ^ Waldman f. Broder, 10 Cal. 378; Scrugham v. Carter, 12 Wend. 131 ; Hacker v. Johnson, 66 Me. 21. * Branch r. Wiseman, 51 Ind. 1; Ladd v. Billings, 15 Mass. 15; Crockett v. Grain, 33 N. H. 548 ; Newman v. Bean, 21 N. H. 93 ; Morri- son V. Blodgett, 8 N.H.238; Gibson v. Stevens, 7 N. H. 353; Treadwell V. Brown, 43 N. H. 290; Haydon v. Haydon, 1 Salk. 392; Shover v. White, 6 Munford (Va.),110; Mersereau v. Norton, 15 Johns. 179; Skipp V. Harwood, 2 Swanst. 586 ; Johnson v. Evans, 7 Mon. & G. 240; Whitney v. Ladd, 10 Vt. 165 ; Remington v. Cady, 10 Conn. 44; Walsh V. Adams, 3 Denio, 125; Jones y. Thompson, 12 Cal. 191; Moore V. Sample, 3 Ala. 319; Hardy v. Donnellan, 33 Ind. 501; Bernal v. Ho- viouB, 17 Cal. 541 ; Sanders v. Young, 31 Miss. Ill ; White v. Jones, 38 111. 159; James v. Stratton, 32 111. 202; Goll v. Hinton, 8 Abb. Pr. 120; Eapp v. Vogel, 45 Mo. 524; Lawrence y. Burnham, 4 Nev. 361. PAETNEE ENTITLED TO EXCLUSIVE POSSESSION MAY. Ill if it is seized on execution for the indiTidual debt of the other partner.' § 223. The same — Both owners can join and replevy. Where an officer attaches partnership property on a writ against one of the partners alone, replevin will lie against him by the owners.^ § 224. One partner entitled to exclusive possession may. Ordinarily, replevin does not lie by one partner against the other, but where they have dissolved and agreed that one partner should take the firm property for a specific purpose, the case is different, and replevin or trover will lie.' Or where the partners have agreed that one should have exclu- sive possession, or where, for the carrying on the business, it is necessary that one should have exclusive control and pos- session, he can maintain replevin.* Partnership accounts cannot be settled in replevin. ° Where by the terms of a partnership one partner is entitled to the exclusive possession and control of certain part of the firm property, the other cannot interfere with such possession, and for a violent or fraudulent taking possessory action will lie." 1 Hutchinson v. Dubois, 45 Mich. 143 (7 N. W. 714). In this case the oflBcer did not levy on the debtor's interest in the partnership property,, but upon the whole property, and took full possession of it, excluding the plaintiff in replevin from all control over it. Where this is allowed by statute, this case would not be authority. ^ Pay V. Duggan, 135 Mass. 242. This is on the ground that the levy on the full interest in the property and the exclusion of the firm from' all control over it was a trespass. See Sanborn r. Eoyce, 132 Mass. 594; Bank v. Carrollton E. R. 11 Wall. 624-9; Cropper v. Coburri, 2- Curtis, 465; Burnell v. Hunt, 5 Jur. 650; Garvin v. Paul, 47 N. H. 158; Durborrow's appeal, 84 Penn.St.404; HayneS7.Knowles,36Mich.407; Levy V. Cowan, 27 La Ann. 556. = Bartley v. Williams, 66 Pa. 329. * Rich r. Kyder, 105 Mass. 306. In this Case the master of the ship was also a part owner, and when his possession was interfered with by the other owners he brought replevin, claiming that he was entitled to the possession as master and agent of the ship owners for the purpose of- closing up the business of the last voyage. s Candler v. Lincoln, 52 111. 76. « Ivey r. Hammock, 68 Ga. 428. 112 PAETNEES JOINT OWNEES TENANTS IN COMMON. § 225. The interest of partners— How considered. The interest of a partner is not to be regarded as a specific share in the goods owned by them, but rather an interest in the ■surplus after the firm debts are paid.' "Where two parties are jointly in possession of property as croppers, there must be such a division as will put each in possession of his part •of the property in his own right, before a possessory warrant will lie in favor of one, or his legal representatives in case of his death, against the other, or a purchaser from him to re- cover any portion of the joint property.^ § 226. Sale by one partner of his interest is a dissolu- tion of the partnership, and the purchaser does not become a partner, and if the other partner refuses to admit him into possession of the property, he cannot maintain replevin for the interest so purchased.' § 227. Joint owners should join in replevin. A joint ■owner of personal property can maintain replevin in his own name to recover it against one whose right to it is not superior to his.* Where their rights are distinct, or to sep- arate parts, they cannot join to replevy it. But ordinarily, where the property is owned by several, they must all join in an action to replevy it, even as against a third party.' » Garvin v. Paul, 47 N. H. 163. 2 Peebles v. Morris, 77 Ga. 536 ; Usry v. Rainwater, 40 Ga. 328. ^ Reece v. Hoyt, 4 Port. (Ind.) 169. As to the rights of a partner on the death of his co-partner, see Putnam v. Parker, 55 Me. 236. This matter depends largely on statute, and is hardly within the scope of this ■work, but see Klotz v. Macrady (La.), 2 So. 283; Gleason v. White, 34 €al 258; Appeal of Shipe (Pa.), 6 Atl. 103; Dyer r. Clark, 5 Met. 562 .(39Am. Dec. 697). * Chaffee r. Harrington, 60 Vt. 718 (15 A. 350). 5 McArthur v. Lane, 15 Me. 245; Chambers v. Hunt, 18 N. J. L. 339; Walker r. Fenner, 28 Ala. 373 ; Eeinheimer v. Hemingway, 35 Pa. St. 435; Dunott v. Hagerman, 8 Cow. 220; Coryton v. Lithebye, 2 Saund. 116; Glover v. Hunnewell, 6 Pick. 222; Owings r. Owings, 1 Har.&Gill. (Md.) 484; Barry v.Rpgers, 2 Bibb 314; Hinchman y. Patterson Co. 17 N. J. Eq. 75; Decker v. Livingston, 15 John. 479; Portland Bank r. Stubbs, 6 Mass. 422 ; Dewolt v. Harris, 4 Mason, C. C. 515 ; Eakin v. Eakiu, 63 111. 160; Colton v. Mott, 15 Wend. 619; Pickering v. Picker- TENANT IN COMMON CANNOT BEPLEVIN, WHEN. 113 One of two joint owners of goods cannot maintain replevin against a stranger.' But where tlie stranger is a wrongdoer without the shadow of right, one joint owner has been al- lowed to maintain repleyin." A tenant in common, who is entitled to the possesion of an undivided interest in personal property, can maintain replevin against a wrongdoer who is a stranger to the title.' § 228. Replevin by purchaser of partnership property attached by creditor of the firm. Where one partner bona fide, with the consent of his co-partner, sold the firm property to satisfy his individual indebtedness, the purchaser may main- tain replevin against one who attaches it for a firm debt, where it is not shown that the firm debt was contracted on the faith of that property.* Where the interest of one partner is sold at sheriff's or executor's sale, the purchaser becomes a quasi tenant in common with the other partners, so far as to en- title him to an account, but not to the exclusive possession of any part of the property, and he cannot maintain replevin therefor.^ A member of a firm may maintain replevin for his interest as a partner in the firm property against a stranger. ° § 229. A tenant in common cannot replevy from an offi- cer who has taken the whole on a writ against his co-tenant. A tenant in common does not have such an interest that he can maintain replevin against an officer who has taken the ing, 11 N. H. 141; Gilmore v. Wilbur, 12 Pick. 120; Hilliard on torts II. ,320-280; Freeman on Co-ten. and Part. 337-8. 1 McArthur r. Lane, 15 Me. 245. 2 Schwartz v. Skinner, 47 Cal. 6; DeWolf v. Harris, 4 Mason, C.C. 515. To maintain the replevin, the plaintiff should found his right upon a prior peaceful possession, rather than on ownership, for as to his co-ten-, ant's part he has no greater right than a stranger. See Hunt r. Cham- bers, 1 Zab. (N. J.) 623 ; Chambers v. Hunt, 18 N. J. L. 339; Barnes v. Bartlett, 15 Pick. 75; McEldery v. Flannagan, 1 Har. & G. (Md.) 308; Bussell V. Allen, 3 Kern. (N. Y.) 178; Wilson v. Gray, 8 Watts, 35; Dea- con r. Powers, 57 Ind. 489. s McArthur v. Oliver, 60 Mich. 605 (27 N. W. 689). * Stokes V. Stevens, 40 Cal. 391. f' Reinheimer v. Hemingway, 35 Pa. St. 435. « Bostick r. Buttain, 25 Ark. 482. 8 114 PABTNEKS — -JOINT OWNERS TENANTS IN COMMON. whole under a writ against the co-tenant, even if he has given bond and taken possession.' Where two parties were owners in common of hay, and writs of attachment against one of them were levied upon the hay, held, that the sherifip had the right to the possession of all the hay until sale, and that the other owner could not maintain replevin for his share before sale and division.^ § 230. One joint tenant cannot sustain replevin against his co-tenant for the possession of the property thus owned by them in common, for the reason that the pos- session of neither can be said to be wrongful as to the other, each having an equal right to possession of the joint prop- erty. If he sues for the moiety, the court will ex officio abate the writ, but if he sues for the whole, it can only be taken advantage of by a plea in abatement.^ A tenant in common cannot maintain replevin against his co-tenant.* One ten- ant in common cannot maintain replevin against his co-ten- ant for his part of the common crop, unless there has been a division of it, consummated by an assignment and appropri- ation of a part to each.^ But where plaintiff had a lien upon three bales of cotton, part of a crop, and all of the cotton had been removed except about enough to make three bales, and that had been taken possession of by a stranger, held, that he could maintain replevin for it as three bales of cotton. ° Replevin cannot be maintained against a defendant for one ' Ladd V. Billings, 15 Mass. 15. ' Lawrence v. Burnham, 4 Nev. 361. ' DeWolf F. Harris, 4 Mass. 515. * Barnes v. Bartlett, 15 Pick. (Mass.) 71; Wills v. Noyes, 12 Pick. (Mass.) 324; Silloway f. Brown, 12 Allen (Mass.), 30; Marsh f. Pier, 4Rowle,273; Chambers f. Hunt,3Har. (18 N. J.) 339; HarrisoTi f. Mc- intosh, 1 John. 380; Reinheimer v. Hemingway, 35 Pa. St. 435; Cul- lum F. Bevans, 6 Har. & J. (Md.) 469; Smith f. Kice, 56 Ala. 417; Prentice f. Ladd, 12 Conn. 331; Eussel f. Allen, 13 N. T. 173; Wilson V. Reed, 3 John. 117; Ellis v. Culver, 1 Har. (Del.) 76; Barnes v. Bart- lett, 15 Pick. 71; Freeman on Co-ten. & Part. 289. 5 Ward F. Worthington, 33 Ark. 830. * Washington f. Love, 34 Ark. 93; Jarroll v. McDaniel, 32 Ark. 595. JOINT TENANT CANNOT REPLEVIN FKOM CO-TENANT. 115 bale of cotton of wMch lie is part owner, neither can it be maintained for a certain number of bales out of a crop of cotton until separation or designation of the specific prop- erty.' § 231. The same. One of two or more joint owners of personal property incapable of division cannot maintain re- plevin against his co-owners.^ Eeplevin or its statutory sub- stitute cannot be maintained by one joint owner of personal property against his co-owner for the obvious reason thaHi neither is entitled to the immediate and exclusive possession of such property.^ One part owner of a chattel cannot main- tain replevin against another part owner, and in such an action it is not proper to render judgment for possession or for the value of such part.'' In the absence of some special agreement for possession one joint owner cannot, by an action of replevin, take from the other the property owned in com- mon.^ Where one joint owner brings replevin against an- other, on this fact being found by the jury, the court should order a return of the property; or, in case of a failure to re- turn, render judgment for the full value of the property in favor of defendant. No accounting can be had in a replevin action. ° A tenant in common cannot maintain replevin against a co-tenant because they have each and equally a eight of possession.' > Person v. Wright, 35 Ark. 169. 2 Hill V. Seager, 3 Utah, 379 ( 3 Pac. 545); Davis v. Soltish, 46 N. Y. 393; Walker f. Fenner, 28 Ala. 373; Kimball y. Thompson, 4 Cush. 441; CEabtree v. Chapham, 67 Me. 326. 'Cross F.Hulett, .53 Mo. 397; Wells r. Noyes, 12 Pick. 324; 2 Greenl. Ev. §563, 646-8; 6 Bac.Abd. 697; Lisenby k Phelps, 71 Mo. 522; Pulliam r. Burlingame, 81 Mo. Ill; Chambers v. Hunt, 22 N. J. L., (2 Zab.) 552; Holton v. Binns, 40 Miss. 491. * Mills V. Malott, 43 Ind. 248; Bowen v. Eoach, 78 Ind. 361. 5 Hudson v. Swan, 7 Abb. New Cas. (N. Y.) 324; Eeynolds r. McCor- mick, 62 111. 412. « Walker v. Spring, 5 Hun. (N. Y.) 107. ' Bohlen r. Arthurs, 115 U. S. 482 ( 6 P. 114); Wilson r. Gray, 8 Watts (Pa.), 25. 116 PABTNEBS JOINT OWNEES TENANTS IN COMMON. § 232. And a levy on the interest of one is no excuse for replevin by the other. Replevin cannot be maintained either at common law or under the code by one joint owner of a personal chattel against another joint owner, for a tak- ing away of the joint property by virtue of a writ of attach- ment against a third person.' A different rule prevails in some states by statute. § 233. Under an agreement that one joint owner is to have exclusive possession, he may maintain replevin against a stranger or his co-tenant. When, by the agree- ment of all the joint owners, one is to have exclusive posses- sion for a purpose, he may replevy in his own name against a stranger or his co-tenants.^ So where the joint owners agree that a servant or agent shall have exclusive custody of the property, the agent may replevy from anyone interfer- ing with that custody.' Where a partnership was for the manufacture of saddles, and one partner was to furnish all the stock, and the other do all the work, and the stock was seized on a process against the working partner alone before any work was done on it, held, that the one who furnished the stock could replevy it as his own.* § 234. The same — Tenants in common. The tenant entitled by agreement to the exclusive possession of the com- mon property may maintain replevin against his co-tenants who have or hold possession in violation of the agreement.' And where it has been previously agreed that one was to have control as security for advancements made, and was to sell the product, he may maintain replevin in his own name." A partner in a chattel who has the exclusive right to control ' Prentice r. Ladd,12 Conn. 331; McElroy r.FIannagan, 1 Har. & G. (Md.) 308; Scrugham f. Carter, 12 Wend. (N. Y.) 131; Lawrence v. Burnham, 4 Nev. 361. ' Newton v. Gardner, 24 Wis. 232; Corbitt v. Lewis, 53 Pa. St. 331- 3 Kich v. Ryder, 105 Mass. 307. * Boynton v. Page, 13 Wend. 425. 6 Morgan v. Hedges, 4 Col. 526; Newton v. Gardner, 24 Wis. 232. ' Pierce v. Jackson, 56 Ala. 599. JOINT TENANCY IS MATTER OF DEFENSE. 117 and sell it may maintain replevin for it against the vendee of his co-partner, who has notice of their agreement.' § 235. Where tiy agreement one is to have exclusive possession, replevin will not lie by the other. Neither of the tenants in common of personal property, -where there is an agreement that it shall be delivered by one to the other to be sold, or shipped to a commission merchant and sold, and the proceeds to be equally divided, can maintain replevin against the other, nor against the vendee of the other to re- cover it.'' But when a certain part of a cargo was sold by agreement of all the joint owners, held, that it conveyed a good title, and that replevin would lie by the purchaser.' § 236. Where one of two tenants in common converts the whole property, the other may replevy his interest, A tenant in common in personal property may maintain re- plevin against his co-tenant who has taken possession of the common property and converted it to his own use.* Claim and delivery by one tenant in common against another can only be maintained where the property has been destroyed or carried beyond the limits of the state.' When a partner makes a use of the firm property not contemplated by the terms of the agreement of the co-partnership, he at once becomes a trespasser and wrongdoer. . § 237. Joint tenancy is a matter of defense, and when pleaded by defendant is the subject of proof, and is one of the issues to be passed upon by the jury, the court directing them to find first whether there exists a joint tenancy, and, if so, to find for the defendant.^ But where the fact of the ' Harkey r. Tellman, 40 Ark. 551. 2 Hewlett V. Owens, 50 Cal. 474. 3 Seldon v. Hickok, 2 (Cain's Cases) N. T. Term E. 166. * Swartz V. Skinner, 47 Cal. 3. In this case, plaintiff allegedhis inter- est and asked possession of the property or judgment for the amount of his interest. 5 Strauss v. Crawford, 89 N. C. 149. 6 Belcher v. Van Duzen, 37 III. 282. See Hunt r. Chambers, 1 Zab. (N. J.) 620; Chambers r. Hunt, 2 Zab. ( 22 N. J.) 554; Holton r.Binns, 40 Miss. 491; Dewolf r. Harris, 4 Mason C. C. 515. 118 PAETNBBS — JOINT OWNEBS TENANTS IN COMMON. ^nt tenancy appears on the face of the papers, it is gromnd for motion to dismiss or demuiTer, and will usually abate the writ.' The non-joinder of tenants or owners in common as plaintiffs or defendants cannot be taken advantage of under the general issue, but must be raised by plea in abatement.'' § 238. Replevin will not lie for an undivided interest. A part owner of a vessel cannot maintain replevin for his un- divided part, although he owns a majority interest in the vessel.' An action will not lie for an undivided interest in a chattel, nor can such tenant in common sue alone as against a stranger in possession.* The plaintiff must have a right to a whole and entire interest.^ Where replevin was brought for one -third of 17-32 parts of a lot of wheat against the owner of the other interest, held, that the interest sued for was such an undivided interest that replevin would not lie." A different rule prevails where the property can be separated into aliquot parts, and the interest of plaintiff is easily sep- airable as one-third of sixty bushels of wheat. § 239. It will not lie where the property of j oint owners is not susceptible of division, as in the case of a growing crop, or in the case of a joint ownership of a single piece of property, replevin will not lie by one joint owner, because the property sought to be recovered is not susceptible of ' Hart V. Fitzgerald, 2 Mass. 509. 2 Bartlett v. Goodwin, 71 Me. 350. ' Haokett v. Potter, 131 Mass. 50. On this general subject see Hart F.Fitzgerald, 2 Mass. 509; Gardner v. Dutch, 9 Mass. 427; Ladd y. Billiugs, 15 Mass. 15; Kimball v. Thompson, 4 Cush. 441; Webster r. Vandeventer, 6 Gray, 428. * Spooner r. Boss, 24 Mo. App. 599 ; Keegan v. Cox, 116 Mass. 289 ; Jackson v. Stockard, 9 Bax (Tenn ), 260. Here replevin was brought for three-fourths of three bales Of cotton. Kindy v. Green, 32 Mich. 310 • Price' F. Talley's Adm'rs. 18 Ala. 21; Parsons v. Boyd, 20 Ala. 112; Hart V. Fitzgerald, 2 Mass. 509; Kimball r. Thompson, 4 Cush (Mass ) 447. 5 Frierson v. Frierson, 21 Ala. 590; Bell r. Hogen, 1 Stewart (Ala.) 536 ; Miller v. Batman, 11 Ala. 609. • Humphrey r. Boyn, 45 Mich. 565 (8 N. W. 556.) EFFECT OF SEVERANCE BY SALE. lib seizure and delivery to the plaintiff.' In an action of re- plevin for an undivided interest in a crop of wheat standing in shocks, the defendant, having no interest in the other un- divided one-half, cannot raise the point that, the wheat be- ing undivided when the writ issued, the action could not be maintained.^ § 24.0. It will not lie where the result would be to deprive a part owner of possession. Eeplevin will not lie for an undivided interest in a chattel where the execution of the writ will operate to deprive a co-tenant, whose title is not disputed, of his right of possession.' § 241. When one joint owner may sever the property by his own act without injury to the other, it will lie. Thus, where the partnership property was coffee in bags, the court said each partner could have taken the number of bags which belonged to him by his own selection.* But where the prop- erty was corn put in two separate cribs, but without any for- mal division or separation, it was held not sufficient division to support replevin by one against the other. ^ Where the property is of such a nature that one may take his share without injury to the other, replevin has been allowed. ° Or where goods, part of a larger number, are purchased, the pur- chaser to select his part, he may make the selection and main- tain replevin at any time. Such a purchase does not make him either a partner or tenant in common of the whole after selection.' § 242. Effect of a severance by sale by one joint tenant. Where one tenant in common sells the right to a stranger to cut timber off of the common property, another ten- 1 Read v. Middleton, 62 Iowa, 317 (IT N. W. 532) ; Jones v. Dodge, 61 Mo. 368. 2 Crapo V. Seybold, 36 Mich. 444. 'Kendy v. Green, 32 Mich. 310. * Gardner v. Dutch, 9 Mass. 427. 5 Usry r. Rainwater, 40 Ga. 328. 6 Forbes v. Shattucic, 22 Barb. 568; Tripp r. Riley, 15 Barb. 334. ' Clark r. Griffiths, 24 N. Y. 596; McLaughlin v. Piatti, 27 Cal. 452. 120 PAETNEES — JOINT OWNEES TENANTS IN COMMON. ant in common of the same property cannot maintain replevin for the timber after it has been so cut.^ Replevin will not lie by one tenant in common of a chattel against another for taking the chattel, and if one of them sells his interest to a third party he has the right to deliver the chattel to the pur- chaser, and neither he nor any one assisting him in so doing is liable to an action.^ If tenants in common of personal property make separate conveyances thereof to a purchaser, one of "which conveyances is fraudulent and void, the pur- chaser cannot maintain replevin against an officer attaching the same as the property of the vendor.^ § 243. Pledge by one joint owner is good as to his in- terest, and the other joint owner cannot replevy from the pledgee. Where one joint owner of a chattel pledges it to a third person, such pledge is good to the extent of the pledgor's right, and the other owner cannot recover in re- plevin.* Tenants in common of personal property are equally entitled to the possession and use of it; and where one of two persons owning chattels in common has mortgaged his share to the other he cannot maintain replevin therefor against the mortgagee, especially if he has made no offer to pay the debt or redeem."^ 1 Alford. V. Bradeen, 1 Nev. 228. See Baker v. Wheeler, 8 Wend. (N. Y.) 505. 2 Hudson V. Swan, 83 N. T. 552. ' Kimball r. Thompson, 4 Gush. (Mass.) 441. * Frans v. Young, 24 Iowa, 375. 5 Kline r. Kline, 49 Mich. 419 (13 N. W. 800). VENDOB AND VENDEE. 121 CHAPTEE XL VENDOE AND VENDEE. Section. Eight of vendor to replevy property sold . . . 244 The same 245 Where the vendor reserves title in himseli . . . 246 Where title reserved, vendor may replevy from assignee . 247 Where title is reserved and de- fault is made the vendor may replevy without tender back of partial payment . 248 The same — May replevy even from U. S. marshal . . 249 Where contract of sale is un- conditional .... 250 Will not lie where condition is waived and property deliv- ered 251 Sale by sample a conditional sale. Death of vendee be- fore delivery .... 252 Use restricted to certain lim- its ' . 253 But goods on commission not a sale on condition . . 254 Stoppage in transitu — Ee- plevin by vendor . . . 255 Where property is sold on agreement to give a note . 256 M-ust offer to return note be- fore suing .... 257 Must pay back partial pay- ments received on a rescission 258 Need not offer back payments made, where contract de- mand . . . . . 259 Section. Where it is impossible to re- store, will not be required . 260' When offer to restore must be made 261 Sale induced by fraud of ven- dee 262 A vendor may reclaim prop- erty obtained from him by fraud 263 A contract of exchange . . 264 Fraudulent purchaser takes a titl(} voidable at the election of the defrauded vendor . 265 It is not material when false representations were made so they preceded the con- sent of vendor — Meaning of consent 266 What circumstances justify a rescission .... 267 When no questions are asked silence not fraud usually . 268 Payments in counterfeit money 269 Where an infant pleads his minority 270 Non-payment no ground of rescission .... 271 Where an insolvent honestly though hopelessly endeav- ors to go on, no fraud . 272 Completion of payment stopped by garnish ment no ground for rescission . . 273 Failure of vendee may justify a rescission .... 274 122 VENDOE AND TENDEE. Section, Must exercise his right of re- scission promptly . . 275 Eule where possession by con- sent but based on fraud . 276 What acts constitute a return and rescission . . . 277 Effect and remedy on rescis- sion of sale by vendor for fraud of vendee . . . 278 Third persons, how affected— A defrauder, vendor of goods may re-claim . . 279 Ma,y bring replevin and action for value at the same time . 280 But cannot prove under bank- rupt law and then replevy . 281 May claim under an assign- Section, ment and replevy at the same time .... 282 Where sold on execution vs. buyer— Cannot be replevied 283 Will not lie against purchaser ia good faith Goods obtained by fraud and levied on for debts of the vendee may be replevied Goods obtained by fraud and used to pay a pre-existing debt may be replevied by true owner Conditional sale — Vendee can sell bis interest What is wrongful detention . Does not lie by vendee to en- force contract of sale , 284 285 286 287 288 289 § 244. Right of vendor to replevy property sold. Where a vendor sells property on time or partly on time, de- livering possession -without reservation, he can only rescind the sale and reclaim the property by alleging and proving fraud in the contract of sale, which would avoid it ; and if the property have in the meantime passed into the hands of in- nocent holders for value, it is beyond his reach, and he must take his chances with other creditors of his vendee. But if the contract of sale is that the title is to remain in the vendor until the property is fully paid for, or until other conditions of the sale are complied with, the vendor has usually been al- lowed to reclaim his property even in the hands of innocent third parties, if sold in violation of the contract with his con- templated vendee.' 1 Wills V. Barrister, 36 Vt. 220; Jessop v. Miller, 1 Keys(N. Y.),321; Bradshaw F.Warner, 54Ind. 58;'Deshon v. Bigelow,8 Gray, 159 ; TuUy V. Faii-ly, 51 Ind. 311; Hotchkiss v. Hunt, 49 Me. 213; Harris v. Smith, 3 S. and E. ( Pa.) 21; Rowe v. Sharp, 51 Pa. St. 27; Hodson v. War- ner, 60 Ind. 214 ; Leven v. Smith, 1 Denio, 571 ; Jennings v. Gage, 13 111. 610; Coghill v. Hartford, etc., 3 Gray, 545; Meldrum f. Snow, 9 Pick. 441; Eaton v. Munroe, 52 Me. 63; Holraark v. Molin, 5 Cold. (Tenn.), 482; Burbank v. Crooker, 7 Gray, 158; Sargent v. Metcalf, 5 Gray, 506. "WHERE TITLE KESEBYED TENDOE MAY. 123 § 245. The same. Where the owner of personal prop- «rty is induced to sell and deliver it by fraud,, he may, upon discovery of the fi-aud, rescind the contract ap.d recover the property from the vendee, but not from one^who has pur- ■chased from the vendee without notice of the fraud. But where the owner sells and delivers the property, reserving the title until the performance of sooie condition, no title passes until the performance of the coaddition, and a purchaser from the vendee, though witheut^otice of the condition, ac- c[uires no title to the property. The difference is, in the first case, the owner intentionally parts with the title ; in the sec- ond, he expressly retains it, and his vendee has none to sell.' § 246. Where the vendor reserves title in himself. A vendor may sell property and stipulate that the title shall re- main in him until fully paid for, and such a title is sufficient "to sustain replevin against a purchaser of his Vendee.^ On a conditional sale, where the seller reserves title to the property until payment of purchase money on default of pay- ment thereof, as stipulated, the seller can maintain an action •of replevin therefor.^ Where plaintiff was to have a horse if he paid for him by a certain day, and failed to pay for him within the time, and defendant took possession, held, that replevin would not lie in favor of plaintiff.* And the assignee ■of the vendor's right may maintain replevin against the ven- dee on failure to comply with the conditions of the sale.^ § 247. Where title reserved, vendor may replevy from assignee. Where goods were bought by a retailer with the understanding that the title was to remain in his vendor until paid for, and, before paid for, the retailer assigned, re- plevin will lie by the vendor against the assignee, though he ' Andrews v. Cox, 42 Ark. 473. See Schoulers P. P. § 511-569. 2 Grange Warehouse v. Owen, 2 Pick. (86 Tenn.) 355 (7 S. W. 457); Benner v. Puffer, 114 Mass. 376; Payne v. June, 92 Ind. 252. ' Campbell Mfg. Co. v. Walker, 22 Fla. 412 (1 So. 59); McGinnis r. .Savage, 29 W. Va. 362 ('l8 E. 746). * Jefferson v. Chase, 1 Houst. Del. 219. ' Dufer V. Hayden (Col.), 20 P. 617. 124 VENDOK AND TENDEE. could not dispute the title of those who had bought in good faith portions of the goods in the usual course of trade.' An assignee is not a purchaser in good faith for value. § 248. Where title is reserved and default is made, the vendor may replevy without tender back of partial pay- ment. Where property has been sold under a contract that title shall not pass from vendor until fully paid for, and that vendor may take possession at any time on default by ven- dee, vendor may maintain replevin at any time when vendee is in default without a tender back of amount already paid by vendee." "Where by the terms of the contract no title is to pass until the full performance of the contract by the vendee, on default, the vendor, after demand of payment or a return of the property, may replevy it from the vendee or his pur- chaser without payment or tender back of the partial pay- ment receive'd, and the vendee must look to a court of equity for his remedy for money paid.' § 249. The same may bring replevin even from a United States njarshal. A vendor may replevy his goods from a United States marshal, who attached them as the property of a supposed purchaser, when he has not complied with the conditions of such sale, and they have not been waived.* A firm in Omaha bought cigars in New York, for which they were to give their note, due in four months. Before the goods arrived, the purchasers went into bankruptcy. Some days after, the express messenger brought the goods to the store of the buyer, and the United States marshal then in posses- sion of the store took them. The vendors were permitted to sustain replevin. Under the conditions of the sale— the note had not been given — the court presumed that the con- tract meant the note of the buyer solvent, not bankrupt.^ ' Rogers r. Whitehouse, 71 Me. 222. (See assignee and § 282). 2 Fleck v. Warner, 25 Kan. 492; Proctor v. Tilton (N.H.), 17 A. 638. ^ Duke V. Shackelford, 56 Miss. 552. See Pepk v. Bonbright, 75 Iowa,. 98(89 N. W. 213). * Maddux v. Usher, 2 Fox's Decisions, 261 ; Farley v. Lincoln, 51 N. H. 579. 6 Sutro V. lloile, 2 Neb. 190. (See § 255-6). USE BESTEICTED TO OEETAIN LIMITS. 125 § 250. Where contract of sale is unconditional, replevin will not lie in the absence of fraud. Where a party sold mules by a bill of sale which was unconditional, it was held, that he could not maintain replevin against the purchaser or her husband on the ground that the price had not been paid. The bill of sale is conclusive evidence of title and the terms of the sale.' § 251. Neither will it lie where the condition is waived and property delivered. If an owner sell chattels for cash, and waive the condition and deliver the chattels, he can- not maintain replevin.^ A delivery without insisting on condition being performed is deemed a waiver of the condi- tion, and replevin will not lie.' Where, by a usage of trade, cash goods are delivered without insisting on instant payment, it is a question for the jury whether the seller in- tended to waive the condition or not.* § 252. Sale by sample a conditional sale — Death of vendee before delivery. Where goods were sold by sam- ple and shipped to the vendee, who died before they reached their destination, held, that the contract was but an offer to sell, and that the administrator could not complete the sale by accepting the goods, and that the vendor could maintain replevin even though the administrator had listed the prop- erty as belonging to the estate.* §253. Use restricted to certain limits. A vendor may make a conditional sale and restrict the use of the property within certain limits from which, if it is removed without ' McNail r. Zeigler, 68 III. 224. 2 Mixer v. Cook, 31 Me. 340. 2 Pitt V. Owen, 9 Wis. 152; Kinsey r. Leggett, 71 N. T. 387; Leven V. Smith, 1 Denio, 571; Ives r. Humphreys, 1 E. D. Smith, 196; Smith V. Lynes, 1 Seld. 43 ; Lupin v. Marie, 6 Wend. 77. * Powell F. Bardlee, 9 Gill & J. (Md.) 220. See Hill v. Freeman, 3 Cush. 257; Keeler v. Field, 1 Paige (C. H.),312; Hussey v. Thornton, 4 Mass. 405; Copland r. Bosquet, 4 Wash. C. C. 588; Smith v. Danie, 6 Pick. 262. ' Smith V. Brennan, 62 Mich. 349 (28 N. W. 892). 126 VENDOR AND VENDEE. his consent, lie may maintain replevin before default of pay- ment.' § 254. But goods on commission not a sale on condi- tion. A consignment of goods to be sold on commission ia not a conditional sale, and the consignor may maintain re- plevin against the assignee of theconsignee for the recovery of such part of the goods as remained unsold in the con- signee's hands vrhen the latter made the assignment.^ § 255. Stoppage in transitu. Replevin by vendor. Where the vendee, being about to fail, refused to receive a car-load of lumber; but a creditor paid the freight and at- tached it for a debt of the vendee, held, that the vendor could rescind the sale and maintain replevin against the of- ficer for the lumber, but must pay the freight advanced.' A vendee may replevin from a common carrier before delivery to the vendor of the articles sold.* Where an officer at- tached goods in the hands of a carrier on a writ against the vendee, and paid the carrier's charges, and the vendor re- scinded the sale and replevied the goods, held, that the tran- sit did not end until delivery to the vendee, but as the ven-, dor had not paid or tendered the officer the money paid by him to the carrier, he could not maintain the action.^ Where the vendee received them, but set them apart, intending to return them, held, vendor could replevy. ° § 256. Where property is sold on an agreement to give a note. Where personal property is sold and delivered on the express condition that the title shall remain in the ven- dor until the vendee pays for it, or gives notes or security, ' Hall V. Draper, 20 Kan. 137. ' Peet V. Spencer, 90 Mo. 384 (2 S. W. 434) ; Burrell on Assignment, (4 Ed.) §391. 2 GreTe v. Dunham, 60 Iowa, 108 (14 N. W. 130). The vendor's right of stoppage in transitu is only terminated when the goods pass into the possession ol the vendee. McFitridge v. Piper, 40 Iowa, 627. * C. B. & Q. R. B. Co. V. Painter, 15 Neb. 394 (19 N. W. 488). ^ Rucker v. Donovan, 13 Kan. 251. See Nicholson v. Dyer, 45 Mich. 610 (8 N. W. 515), on this general subject. « James v. Griffin, 2 Mees. & W. 622. MUST OFFEE TO EETTJBN NOTES BEEOKE SUING. 127 whicli he never does, it has been held that the vendor could maintain replevin, even against an innocent purchaser, from the vendee for value.' But a contrary rule was followed in a case of replevin by a mortgagee who had left the mort- gagor in possession with permission to sell.^ One who has sold property on an agreement of the purchaser to give a note at four months, which, on request, the purchaser neg- lected to do for three days, may replevy the property, and no demand is necessary, no title having passed to the pur- chaser.' Where pJaintifEs contracted to sell property to be paid for by ninety-day note, and property was delivered but defendants refused to give the note or to return the property, claiming the property was not up to contract, held, that plaintiffs could maintain replevin, as the conditional sale was not consummated, and that defendants could not hold the property for the performance of the contract.'' But where defendant bought property, agreeing to pay in two weeks, ' and did not do so, held, that the title passed, and replevin could not be maintained by the vendor.^ § 257. Must offer to return notes before suing. Ee- plevin is strictly an action at law. The right of recovery must exist at the time the action is commenced, and where the vendor has received notes for the purchase price, and de- sires to rescind the sale for fraud, he must return the notea before he brings replevin ; he cannot, as in an eqtiitable ac- tion, bring the notes into court and offer to surrender them as the court may direct.' But if the note has been adjudged 1 Bradshaw v. Warner, 54 Ind. 58; Thomas v. Winters, 12 Ind. 322; Dunbar v. Bowls, 28 Ind. 225 ; Ballard v. Burgett, 40 N. T. 314;. Hirschorn r. Carnny, 98 Mass. 149 ; Hodson v. Warner, 60 Ind. 214. 2 Carter v. Falely, 67 Ind. 427. = Solomon v. Hathaway, 126 Mass. 482. * Osborn r. Gantz, 60 N. Y. 540. 6 Thompson v. Wedge, 50 Wis. 642 (7 N. W. 560). 'Thompson r. Peck, 115 Ind. 512 (18 N. E. 16); Moriarty v. Stof. feran, 89 111. 528; Deane r. Lockwood, 115 HI. 490; Parrish v. Thurs- ton, 87 Ind. 437; Haase v. Mitchell, 58 Ind. 213; Home Ins. Co. f.How- ard.llllnd. 544; Gilbert f. McCorkle, 110 Ind. 215; Powers f. Benedict, 128 VENDOR AND VENDEE. to be void, an ofPer to return is not necessary.' In an action of replevin it is essential that the plaintiff should be entitled to the possession of the property at the time the writ was sued out. Where a party is induced to sell property and take a note of the purchaser, and another, upon false and fraudulent representations as to the amount of the property owned by the security, he may rescind the contract by offer- ing to return the note, but he cannot maintain replevin for the property sold until he does so, and demands the prop- erty.^ But if he brings the suit without so offering to return note and rescind the sale, but offer to do so before trial, it will not defeat his right to recover, but defendant will be entitled to costs up to that time, and perhaps damages, if he have suffered any.' § 258. Must pay back partial payment received on a rescission. Where goods are sold by bill of sale to be paid for in installments, the vendor must not only demand pay- ment as agreed, but, in case of default, demand the return of the goods before he can maintain replevin therefor. In such a case the value of the property as fixed by the bill of sale, less the amount of the installments paid on the same by the vendee, is the value to be assessed by the jury, in finding a verdict for the plaintiff; and the interest on such value fi'om the time of the demand is the amount of dam- ages to be assessed for its detention.* Where property was 88 N. Y. 605; Gould v. Cayuga Co. Nat. Bank, 86 N. T. 75; Id. 99 N. Y. 333; Nichols v. Michael, 23 N. Y. 264; Wilber r. Flood, 16 Mich. 40; Pangborn r. Ruemenapp (Mich.), 42 N. W. 78. ' Gittings V. Carter, 49 Iowa, 338. 2 Moriarity v. Stofferaii,89Ill. 528; Buchman v. Harney, 12 111. 336; Smith r. Doty, 24 111. 163; Hanchett v. Sorg, 15 Bradw. (111.) 493. ' Doane r. Loekwood, 115 111. 490 (4 N. E. 500) ; Farwell v. Han- chett, 120 111. 573 (9 N. E. 58). "Weed v. Page, 7 Wis. 511 ; Jennings v. Gage, 13 111. 611; Nellis v. Bradley, 1 Sandf. (N. Y.) 560; Thui-ston v. Blanchard, 22 Pick. 20 ; Kimball v. Cunningham, 4 Mass. 502 ; Poor v. Woodburn, 25 Vt. 235; Voorhees r. Earl, 2 Hill, 288; Buchman r. Harney, 12 111. 337; Eyan v. Brant, 42 111. 79. * Arosemena v. Hinckley, 43 N. Y. Sup. Ct. 43. SALE INDUCED BY FBAUD OF VENDEE. 129 sold on part time and $100 paid cash, if the vendor wishes to rescind the sale for fraud he should make demand and tender back the money received, less the value of the goods- disposed of by the vendee, up to the time of the rescission and less also the depreciation of the goods replevied.' § 259. Need not offer back payments made — Contract — Demand. Where the sale was on partial payments, the title and right to take possession to remain in vendor, held, that on default of a payment he could take possession and maintain replevin therefor without offering back the money already paid. And if for any reason the vendee could recover back the money so paid it must be in a separate action and not in the replevin action.^ § 260. Where it is impossible to restore, will not be required. Where the fraudulent party has so complicated the transaction that it is out of the power of the other to restore, the law only requires him to restore as far as is pos- sible.' § 261. When offer to restore must be made, the law does not require the party seeking to rescind to surrender the note or other consideration in advance of obtaining the goods sold.* It is sufficient if the offer be made before trial.' But unless the tender back be 'made before verdict it will be too late, and the defendant may have a new trial.* § 262. Sale induced by fraud of vendee. If A, after refusing to sell goods to B, a broker, personally delivers the 1 Schoonmaker v. Kelly, 42 Hun. (N. Y.) 299. 2 Fairbanks v. Malloy, 16 Bradw. (III.) 277. See Moriarity v. Stof- feran, 89 111. 528. ^ Masson v. Bovefc, 1 Denio, 73. * Poor V. Woodburn, 25 Vt. 239. = Matteawan Co. y. Bentley, 13 Barb. 641 ; Smith v. Doty, 24 111. ] 63 ; Kyan v. Brant, 42 111. 79; Buchman v. Harney, 12 111. 337; Voorhees v. Earl, 2 Hill, 288; Kimball v. Cunningham, 4 Maes. 502; Coghiil r. Boring, 15 Cal. 217; Thurston y. Blanchard,22 Pick. 20; Nellis r. Brad- ley, 1 Sandf. (N. T.) 560; Jennings v. Gage, 13 111. 611; Weed r. Page, 7 "Wis. 511; Nichols v. Michael, 23 N. Y. 264. • Ayers v. Hewett, 19 Me. 286; Manning r. Albee, 11 Allen, 520. 9 130 VENDOK AND VENDEE. goods to B upon his representation tliat they are for an un- disclosed principal, in good credit, and it turns out that no such principal exits, there is no sale, although the transac- tion is entered upon A's books as a sale to B, and a bill of parcels of the goods is made to him ; and A may maintain replevin for the goods against a bona fide pledgee of B.' The rule of law is well settled that a sale and delivery of goods procured by fraud passes no title to the fraudulent vendee as between him and the vendor, and the latter may maintain replevin to recover the goods.^ Where, before ac- tual delivery, the possession of personal property, is taken by the vendee, through the perpetration of a fraud, the ven- dor may rescind the contract, and replevy his property, and this without repaying or tendering the earnest money ad- vanced by him.' When a vendee brings replevin for prop- erty purchased of an insolvent vendor, against attaching creditors, who attached before he had taken manual posses- sion of the property (steam boilers), the burden is on plain- tiff to show that it was a bona fide purchase.* A vendorwho is induced to part with his property by fraud may rescind the contract of sale and reclaim the property, until, with a knowledge of the fraud, he elects to ratify or confirm the sale, or third persons acting upon the apparent ownership of the property by the fraudulent vendee have acquired rights therein bona fide, and for a valuable consideration. Execu- tion creditors would not acquire such a title by levy.^ § 263. A vendor may reclaim property obtained from him by fraud, and may maintain replevin. This rule does 1 Radliff r. DoUinger, 141 Mass. 1. 2 Delin v. Stohl, 2 N. Y. Civ. Pro. R. 222; Ash r. Putnam,! Hill, 302; Hunter v. Hudson, &c., 493; Nichols v. Michael, 23 N.Y.264; Hammond F. Lynes, 21 Fla. 118; Thurston v. Blanchard, 22 Pick. 18; Bufflngton V. Gerrieh, 15 Mass. 156; 5 Waits, A. & D. 459; Bigelow on Fraud, 401-3; Hall v. Gillmore, 40 Me. 578. 3 Bush V. Bender, 113 Pa. 94 (4 A. 213). * Taylor v. Richardson, 4 Houst. (Del.) 300. 6 WilliamBon v. N. J. S. R. R. Co. 29 N. J. Eq. 311. FRAUDULENT PUECHASEE TAKES VOIDABLE TITLE. 131 not, of course, extend to cases where the property has passed into the hands of a bona fide purchaser.' § 264. A contract of exchange, obtained by fraud, may be treated as void, and replevin brought for the property.' But where a plaintiff traded his wagon for another, which is taken from him, in the absence of fraud, he cannot maintain replevin for the wagon so traded.' § 265. Fraudulent purchaser takes a title voidable at the election of the defrauded vendor. The purchaser who by fraud purchases goods has no protection in law in such case. The seller may affirm the sale and sue for the price, or he may disaffirm it and replevj' the goods, or he may proceed criminally.* A person obtaining goods by fraudulent pre- ^ Parish v. Thurston, 87 Ind. 437. On this general subject see Buf- fington V. Gerrish, 15 Mass. 156 (8 Am. Dec. 97) ; Thurston v. Blanch- ard, 22 Pick. 18 (38 Am. Dec. 700); Story on Sales, § 172; Brower v. Goodyer, 88 Ind. 572 ; Donaldson v. Farvvell, 93 N. S. 631 ; Byrd v. Hall, 2 Keyes, 647; Johnson r. Monell, 2 Keyes, 655; Noble v. Adams, 7 Taunt. 59 ; Kilby v. "Wilson, Byan & M. 178 ; Bristol v. Wilsmore, 1 Barn. & C. 513; Stewart r. Emerson, 52 N. H. 301; Benjamon on Sales, § 440, note and citations; Henshaw. y. Bryant, 4 Scam. 97; Pat- ton F. Campbell, 70 111. 72; Donaldson r. Farwell, 5 Bissell, 451; Se- ligman r. Kalkman, 8 Cal. 207; Bedault r. Wales, 19 Mo. 36; Dow v. Sanborn, 3 Allen, 181 ; O'Donald r. Constant, 82 Ind. 212 ; 2 Pomeroy, Eq. §906; Shouler's Per. Prop. § 511-569 ; Bigelow's Law of Fraud, p. 77-412. 2 Nolan r. Jones, 53 Iowa, 387 (5 N. W. 572). ^ Marson v. Plummer, 64 Me. 315. * Sargent r. Sturm, 23 Cal. 359; Nichols v. Pinner, 18 N. T. 295; Ayres v. He-witt, 19 Me. 281; Hunter v. Hudson B. I. Co., 20 Barb. 494; Nichols V. Michael, 23 N. Y. 266; Eowley v. Bigelow, 12 Pick. 307; Lloyd r. Brewster, 4 Paige, 541; Gray v. St. Johns, 35 111. 239; Tit- comb V. Wood, 38 Me. 563; Mackinley r. M'Gregor,3 Whart. (Pa.) 368; Bowen v. Schuler, 41 111. 193; Smith v. Dennis, 6 Pick. 262; Marston v. Baldwin, 17 Mass. 606; Hussey v. Thornton, 4 Mass. 405; Hill r. Free- man, 3 Gush. 259; Van Cleef r. Fleet, 15 Johns. 149; Kilby r. Wilson, 1 K. & Moody, 178 ; Bristol v. Wilsmore, 1 B. & C. 514; Seaver v. Ding- ley, 4 Gr. (Me.) 307; Hall r. Gilmore, 40 Me. 581; Hall v. Naylor, 18 N. Y. 588; Cary v. Hotailing, 1 Hill, 311; Matteawan Co. v. Bentley,13 Barb. 641; Ash r. Putnam, 1 Hill, 302; Olmstead v. Hotailing, 1 Hill, 317; Acker v. Campbell, 23 Wend. 372; Abbotts r. Barry (2 Brad. & Bing.), 6 E. C. L. 370; Browning v. Bancroft, 8 Met. 278; CoghiU r. 132 VENDOR AND VENDEE. tenses is guilty of a tortious taking, and no demand for pos- session is necessary to enable tlie person defrauded to main- tain replevin for them unless they have passed to a third per- son, holding them bona fide for a valuable consideration, with- out notice.^ In such a case the commencement of a suit in re- plevin is all the notice required of the election of the vendor to rescind." If, however, the vendor has received a part of the consideration, he must first offer to return it and place the vendee in statu quo before he can replevy ; but if he do not do this, and bring the action and prove the fraud, he will be permitted to tender back the consideration received, and maintain the action, but will be taxed with costs up to the time of making the tender.' It is well settled both that the purchaser cannot avoid the sale on the ground of his own fraud, and that the seller may avoid it as long as the prop- erty is in the hands of the purchaser.* But if the owner stand by and see his fraudulent vendee sell them to a third Boring, 15 Cal. 217; Noble v. Adama, 7 Taunt. 59; Bigelow's Law of Fraud,. 77-412. ' Goldschmidt r. Berry, 18 Bradw. (III.) 276. See Bussing r. Eioe, 2 Cnsh. 48 ; Thurston v. Blanchai-d, 22 Pick. 18 ; Buffington r. Gerrish, 15 Mass. 156; Butters v. Haughwout, 42 HI. 18; Eyan r. Brant, 42 I11.7&; Bruner v. Dyball, 42 HI. 34. 2 Summer f. Waugh, 56 Dl. 531; Smith r. Smith, 19 El. 349; Her- rington V. Hubbard, 1 Scam. 569. ' Farwell v. Hanchett, 19 Bradw. (111.) 620. * Weed r. Page, 7 Wis. 503 ; Manning v. Albee, 14, Allen, 8; Bristol r. Wilsmore, 1 B. & Cress. 514; Stephenson v. Hart, 4 Bing. 476; Caldwell T. Bartlett, 3 Duer. 341; Titcomb v. Wood, 38 Me. 561; Jennings v. Gage, 13 LI. 610; Williams F.Given,6 Gratt. 268; Kej'ser v. Harbeck,3 Duer. 373 ; Allison v. Matthieu, 3 Johns. 235 ; Malcom v. Lovereidge, 13 Barb. 372; Andrew v. Dieterick, 14 Wend. 32; Welker t. Wolver- kuehler,49 Mo. 36. The few cases which hold a contrary rule — asMcCarty r. Vickery, 12 John. 348; Nash r. Mosher, 19 Wend. 431; Marshall r. Davis, 1 Wend. 109— have been overruled or doubted— see Butler v. Col- lins, 12 Cal. 457; Ash v. Putnam, 1 Hill, 307; Barrell v. Warren, 3 Hill, 348; Olmstead r. Hotailing, 1 Hill, 317; or have been decided on differ- ent points, as in Harper v. Baker, 3 T. B. Mon. (Ky.) 421, where a question of trespass was involved; or Trapnall v. Hattier, 1 Eng. (Ark.) 23, where the rights of an innocent purchaser were involved so that they are apparent exceptions only. WHEN NO QUESTIONS AEE ASKED. 133 party without objectioii, he is estopped to maintain replevin against the purchaser.' § 266. It is not material when false representations were made, so they procured the consent of vendor — Meaning of consent. By the consent of the vendor to the sale is meant something more than the mere consenting to the change of possession of the property sold. It must be a con- scious act, not iafluenced by false or fraudulent statements of the vendee.^ And the law does not measure degrees of fraud. Whether or not it be sufficient upon which to base a criminal charge, is no matter. If the fraud induced the sale, it is sufficient.* If made before the sale, and the fraudulent representations are in fact the cause of the sale, it is suffi- cient ground for rescinding it by the vendor.* § 267. What circumstances justify a rescission. The seller of goods on credit cannot rescind the contract of sale, and maintain replevin for the goods, upon proof that the purchaser had, at the time of the purchase, no reasonable expectation of paying for them. The proof must raise the presumption that the vendee intended at the time of the purchase never to pay for the goods. ^ § 268. When no questions are asked, no false pretenses, no artifice resorted to, silence is not fraud ; but concealment of insolvency, with no reasonable expectation of paying, ren- ders a sale fraudulent, and a vendor is entitled to possession as against the vendee or his voluntary assignee.' 1 Skinner r. Stouse, 4 Mo. 93 ; Thompson v. Blanehard, 4 N. T. 303. 2 Seaver r. Dingley, 4 Gr. (Me.) 307; Thurston r. Blanehard, 22 Pick. 20; Hall v. Gilmore, 40 Me. 581; Gray v. St. John, 35 111. 239. 3 Irving V. Motly, 7 Bing. 543; Po'or F."Woodburn,25 Vt. 234; Acker V. Campbell, 23 Wend. 373. * Bowen v. Schuler, 41 111. 194; Allison r. Matthieu, 3 Johns. 235. ^ Manheimer r. Harrington, 20 Mo. App. 297; Bidault v. Wales, 19 Mo. 36; Fox v. Webster, 46 Mo. 181; Thomas v. Freligh, 9 Mo. App. 151. 6 Davis V. Stewart, 3 McCrary, 174 (8 Fed. 803). See Thompson r. Eose, 16 Conn. 71 ; Johnson v.Monell, 2 Keyes, 655; Powell f. Bradlee,^ 9 Gill. & J. 220; Talcott v. Henderson, 31 Ohio St. 162-52 and note; 134 TENDOE AND VENDEE. § 269. . Payment in counterfeit money, believed by the vendor to be genuine, is such a fraud that no title passes, and vendor may recover possession.' § 270. Where an infant pleads his minority to escape payment of the purchase price, the seller may rescind the sale and replevy the goods. ^ § 271. Non-payment no ground of rescission. In the absence of deceit or fraud on the part of the purchaser, sim- ple non-payment for goods bought on credit is no ground for rescission of the contract. Such a case is one of the nat- ural contingencies of any business.' § 272. Where an insolvent honestly, though hopelessly, endeavors to go on in business, and no questions are asked him by the seller, his failure to disclose his insolvency is no fraud, and no ground for replevin.'' While a man is really struggling against adversity, with an honest intent to re- trieve his fortunes, the law will not declare him incapable of purchasing goods on a credit, although he does not disclose to the vendor the extent of his embarrassment. In such a case there is wanting that essential ingredient in fraud, a design never to pay.^ If a purchaser honestly believe him- self to be solvent, but is not, the sale cannot be rescinded.' § 273. Completion of payment stopped by garnishment no ground for rescission. Where a party turned over cer- tain notes and mortgages, and while the purchase price was Donaldson r. Farewell, 93 U. S. 631; Nichols r. Pinnen, 18 N. T. 295; Conyers v. Ennis, 2 Mason, 237; Powell v. Bradlee, 9 Gill. & J. (Md.) 220. 1 Williams v. Given, 6 Gratt. (Va.) 268. 2 Badger v. Phinney, 15 Mass. 359. 3 McNail r. Ziegler, 68 111. 224. * Nichols V. Pinnen, 18 N. Y. 295 ; Conyers v. Ennis, 2 Mason, 237 ; Powell r. Bradlee, 9 Gill. & J. (Md.) 220. ^ Eeticker v. 'Wachtel,26 111. App. 33. No false statements were made in this case. Patten r. Campbell, 70 111. 72 ; Morril r. Corbin, 13 111. App. 81; Catlin r. Warren, 16 111. App. 418; Preston v. Spaulding, 18 111. App. 341. « Greaner r. Mullen, 15 Pa. St. 208. POSSESSION Bl CONSENT, BUT BASED ON TBAUD. 135 being turned over to Mm, and he had receiTed a part of it, and the further payment was arrested by garnishment, he cannot bring action for the possession of the notes and mort- gage.' § 274. Failure of vendee may justify a rescission. Where a vendee has got possession of the property, but has not fulfilled Ms contract by giving note, and fails, vendor may maintain replevin.^ Where a conditional sale has been made, and the property is levied on, for debts of vendee, in vendee's hands, vendor may bring replevin.' § 275. Must exercise Ms right of rescission promptly. It is but justice to all parties that, if he would undo what he has done, he should act promptly on the discovery of the fraud. It is also required of him that he exercise diligence in discovering the fraud, as well as in rescinding the sale. When the plaintiff claimed that a horse had been stolen from Mm by B., in a suit against one who claimed to be a iona fide purchaser from E., the fact that the plaintifE had neglected for several years to proceed against B., who was responsible, and who lived in the same county, was held proper a defense.* § 276. Rule where possession by consent, but based on fraud. Where the title is obtained by fraud, and the pos- session accompanies it by the consent of the owner, the writ does not lie, where one gets the possession alone by fraud, violence, etc. ; or where the property disappears without the owner's consent and is taken possession of by the party com- plained against, it will lie. A tender back of whatsoever may have been given in exchange by the complaining party will not make that possession, which simply followed title, such possession as will support this remedy/ ' Morseman v. McKenley, 67 Ga. 391. 2 Sutro r. Hoile, 2 Neb. 186. « Aultman v. Mallory, 5 Neb. 178. * Walker r. Wolverkuehler, 49 Mo. 3.5 ; Furniss v. Hone, 8 Wend. 248; MacKinley r. MacGregor, 8 Whart. (Pa.) 368; Coghill v. Boring, 15 Cal. 213; Smith v. Field, 5 Term Eep. 403. sWelbom v. Shirly, 65 Ga. 695; Amos v. Dougherty, 65 Ga. 612. 136 VENDOR AND VENDEE. § 277. What acts constitute a return and rescission. To make a valid rescission to support replevin, the property re- ceived in exchange should be tendered back at the place it was when received, it practicable, and the defendant should be given to understand that the property is returned for that purpose, and that the intention of the plaintiff is to thereby rescind the sale. Thus, where plaintiff and defendant had traded horses, and plaintiff claimed fraud and took defend- ant's horse and left it iu defendant's yard, without saying anything to him, and replevied his own, this was held not to be a proper return. But I think the law as laid down in this case will hardly be followed generally by the courts.' § 278. Effect and remedy on rescission of sale by vendor for fraud by vendee — Proof. Where a sale of goods on a credit is rescinded by the vendor for fraud in the pur- chase, the contract is treated as a nullity, and the vendee is treated not as a purchaser, but as a person who has tor- tiously obtained possession of the goods, and the proper ac- tion in such case is replevin, but the contract cannot be re- scinded as to part and affirmed as to the residue.^ Where a vendor rescinds a sale for fraud and brings replevin, he must prove that the representations were made by the vendee, that they were false when made, that the vendee knew them to be false, that they were such as would deceive a prudent In this case the plaintiff and defendant traded horses. Plaintiff claimed fraud, on the discovery of which he took back the horse he had received and claimed his own, but was not allowed to reliever on the narrow ground that, though he was deceived into making the trade, he volun- tarily parted with the possession of the property; therefore, defendant's possession was not wrongful. Butthe Georgia statute allows the action only when the taking is wrongful. See Trotti v. Wyly, 77 Ga. 684. ' Thayer v. Turner, 8 Met. 553; Perley y. Balch, 23 Pick. 283. See Conner v. Henderson, 15 Mass. 320; Kimball v. Cunningham, 4 Mass. 502; Thurston v. lilanchard, 22 Pick. 18. 2 Kellogg V. Turpie, 93 111. 265; Read v. Hutchison, 3 Camp. 351; Ferguson r. Carrington, 9 B. & Cr. 59; Strutt r. Smith, 1 C. M. & R. 311 ; Selway v. Fogg, 5 M. & W. 83 ; Allen v. Ford, 19 Pick. 217; Bowen V. Schuler, 41 111. 193; Ryan v. Brant, 42 111. 78; King v. Mason, 42 111. 223. See Schuler's Pers. Prop. § 511-569. MAY CLAIM UNDER ASSIGNMENT. 13T man, thab they were belieYed by vendor, and that they in- duced him to part with his property.' § 279. Third persons, how aflFected. A defrauded ven- dor of goods may reclaim them from the fraudulent vendee, or from any person to whom he has conveyed them without consideration.^ But to maintain replevin he must act at once upon the discovery of the fraud, and it is a necessary condition precedent to bringing the action of replevin that he return the property or purchase money received from defendant to him, and that he first place him in the same position he was before the sale or trade.' § 280. May bring replevin and action for the value at same time. When a vendor has disaffirmed a sale on the ground of fraud, he may reclaim by an action of replevin for such of the goods as are within reach, and maintain an action at law against the vendee for the value of those disposed of, at the same time.* § 281. But cannot prove under bankrupt law and then replevy. A creditor who has proved his claim against an estate in 'bankruptcy, as for goods sold and delivered to the bankrupt, cannot maintain an action of replevin for the goods. To prove his claim, he must affii-m the sale ; to replevy the property, he must disaffirm the sale. The two acts are incon- sistent, and cannot be allowed.' § 282. May claim under assignment and replevy at the same time. Where a good part of goods sold are replevied ' Gregory r. Schoenell, 55 Ind. 101. '^ Steinwender v. Outley, 5 Mo. App. 588 ; Schwabacher v. Kane, 13 Mo. App. 126; Williams v. Given, 6 Gratt. (Va.; 268. = Cahn r. Raid, 18 Mo. App. 115; Pearsol v. Chapin, 44 Pa. St. 9; Melton r. Smith, 65 Mo. 315; Wilbur v. Flood, 16 Mich. 40; Thayer v. Turner, 8 Met. ■550; Wood v. Page, 7 Wis. 511; Moriarty v. Stafferan, 89 111. 528; Sanborn v. Osgood, 16 N. H. 112; Weeks v. Kobie;42 N. H. 316; White S. M. Co. r. McBride, 27 Mo. App. 470. <■ Hereey v. Benedict, 15 Hun. (N. Y.) 282. ^ Ormsby v. Dearborn, 116 Mass. 386 ; Cook v. Parrington, 104 Mass. 212; Bassett v. Brown, 105 Mass. 551; Seavey v. Potter, 121 Mass. 291. 138 TENDOE AND VENDEE. by the vendor on the ground that the vendee purchased them, intending not to pay for them, a subsequent general assign- ment by the vendee and a presentation and disallowance of a claim for the balance of the debt before the assignee is not a bar to a recovery in the replevin suit.' § 283. Where sold on execution vs. buyer, cannot be replevied. Where goods are bought by fraud and false pre- tenses, and are afterwards sold on execution against the buyer, to a bona fide purchaser, the original vendor of the goods cannot maintain replevin therefor against such purchaser.^ § 284. Will not lie against purchaser in good faith. An action of replevin will not lie by the owner of property against one who purchased the same in good faith for value without notice of any defect in the title of the seller, suppos- ing him to be the true owner, without a demand.^ Replevin lies to recover from even a bona fide purchaser property which had been taken by the latter's vendor without the con- sent or authority of the owner.* For a contrary view.^ Re- plevin will lie against the purchaser of a chattel from one who has tortiously obtained possession thereof, notwithstand- ing that the vendor may have been pecuniarily responsible, and the plaintiff nevertheless made no effort to hold him to accountability, where it is not shown that the purchaser was ignorant of the wrongful nature of the taking, or that he was in fact misled by the acts or neglect of plaintiff. ° ■ Florence Soap Co. v. Jacobus, 16 Mo. App. 560. " Claflin r. Cottman, 77 Ind. 58. 3 Torian v. McClure, 83 Ind. 310; ■Wood v. Cohen, 6 Ind. 455; Sherry V. Picken, 10 Ind. 375 ; Conner v. Comstock, 17 Ind. 90. See Mitchell v. Worden, 20 Barb. 253; Nichols, y. Pinner, 18 N. Y.295; Malcora y.Lov- eridge, 18 Barb. 872; Jennings v. Gage, 18 111. 611; 0. & M. E. R. Co. r. Kerr, 49 111. 458; Shufeldt r. Pease, 16 Wis. 659. * Parish v. Morey, 40 Mich. 417. 5 Butters r. Haughwout, 42 111. 18 ; Krauert v. Simon, 65 111. 344. Brundage v. Camp, 21 111. 330; Burton v. Curyea,40 111.320; Patton v. Campbell, 70 111. 72; Powell r. Bradlee, 9 Gill. & J. (Md.) 220. * Welker r. Wolverknehler, 49 Mo. 85. In this case the vendor took the horse without any show of right from plaintiff, and held it foranum- ber of years, though they lived near together. When it was purchased by VENDEE CAN SELL HIS INTEREST. 139 § 285. Goods obtained by fraud and levied on for debts of the vendee may be replevied by tbe true owner, the rea- son being that the only consideration in these cases is the extinguishment of a debt which can be revived by setting aside or rescinding the transfer, and the party levying is in no worse plight than he was before.' In such cases the cred- itor's only right to the goods is founded upon the fact that they belonged to their debtor, but his title having been ac- quired by fraud and misrepresentation, and having been re- scinded by the first and true owner, the attaching creditor's right falls to the ground.^ § 286. Goods obtained by fraud and used to pay a pre- existing debt may be replevied by the true owner. Where goods obtained by fraud are turned over to pay a pre-exist- ing debt of the vendee, either by actual sale or by pledge, such second vendee is not considered as an innocent pur- chaser for value, as, if he is compelled to surrender the goods to the true owner, he is in no worse position than before. In such cases it is well settled that the true owner may re- take his property.^ § 287. Conditional sale, vendee can sell his interest. Where, by the terms of a conditional sale of oxen, the vendee was to keep them without cost to the vendor, and return them in two years if not paid for, the vendor cannot maintain re- plevin for the cattle against a purchaser of the vendee's ■interest h&lore the expiration of the two years.* Where a vendee in possession of land under articles of sale removes defendant, plaintiff brought this action, never having attempted in any way to get satisfaction out of the vendor. 1 Durrell v. Haley, 1 Paige, 492; Adams r. Smith, 5 Cow. 280; Wig- gin r. Day, 9 Gray (Mass.), 97; Farley r. Lincoln, 51 N. H. 577. ^ Buffington r. Gerrish, 15 Mass. 158. ' Sargent v. Sturm, 23 Cal. 360 ; Somes r. Brewer, 2 Pick. 184 ; Eow- ley V. Bigelow, 12 Pick. 307; Lloyd v. Brewster, 4 Paige, 537; Boot r. French, 13 Wend. 570; Durrell v. Haley, 1 Paige, 492; Coddington v. Bay, 20 Johns. 637; Butters v. Haughwout, 42 111. IS; Parker r. Pat- rick, 5 D. & E. 102; Farley r. Lincoln, 51 N. H. 577. * Nutting V. Nutting, 63 N. H. 221. 140 VENDOB AND YENDEE. and sells a house from the land, the vendor, having no right of possession, cannot maintain replevin for the house against the purchaser thereof, though he could recover the value from the purchaser if he had knowledge of the facts.' § 288. What is wrongful detention. Where plaintifE establishes that he is the owner, and entitled to the imme- diate possession of the same, a wrongful detention by de- fendant is established by proof that he held the property on an attachment against a third party, and refused to give it up on demand. ^ Replevin may be brought for cattle taken up and condemned under the contagious disease law, and the finding that they were diseased, or had been exposed to contagion, in that ex parte proceeding, is not conclusive, but may be retried in replevin.' Replevin may be brought for animals distrained to test the legality of the law.* Where the pound has been broken open and the animals have either been driven away or have escaped, and are afterwards found outside the village limits, the poundmaster may bring replevin.'^ It will not lie against an officer who has made an excessive levy for the ex- cess of goods over a sufficient levy." Replevin lies in all cases where there has been a wrongful taking or detention of personal property, and the spirit of the law contemplates a full and complete remedy for the wrong by a recovery of the property and compensation of the injury.' Replevin lies against a sheriff for property seized by him under an execution, notwithstanding the plaintiff in execution has de- livered to the sheriff a bond of indemnity.* Replevin will not lie against a sheriff for property held by him in another replevin action commenced by the same plaintiff for the 1 "Weed V. Hall, 101 Pa. 592. 2 Kelley v. Burehfield, 27 Ka,n. 700. 3 Verner v. Boeworth, 28 Kan. 670. * Cook V. Bassett, 23 Mich. 113. ^ Grover v. Huckins, 26 Mich. 476. « Thompson v. Jones, 84 Ala. 279 (4 So. 169) ; Sexey v. Adkinson, 40 Cal. 408. ' Burrage v. Melson, 48 Miss. 237. ' Saunders v. Jordan, 54 Miss. 428 ; Swain v. Alcorn, 50 Miss. 320. DOES NOT LIE BY VENDEE, WHEN. 141 same property. In such case the officer holds the property as the agent of the plaintiff, and, i£ guilty of any breach of his duty, is liable to the court in the first action, which is still pending.' The ordinary remedies of a party against one who has wrongfully converted and wrongfully detains his chattels or choses in action is by an action of trover or replevin. But in peculiar cases, where from the nature of the case or of the property detained neither of such actions will give proper or sufficient relief, an equitable action may be instituted for the , specific delivery of the property, and judgment in such an action may be enforced by punishment for contempt, which cannot be done jn a replevin action.'' § 289. Does not lie by Vendee to enforce contract of sale. The fact that a vendor has not performed his contract to sell property, and where the purchaser has never had possession, nor had the right to possession, will not author- ize a suit in replevin. The vendee's remedy is by action to enforce the contract or damages for its breach.^ Will not lie to enforce an unexecuted contract.* A vendee of pig iron not yet separated or pointed out cannot maintain replevin against an officer who levies on execution against the vendor upon a part of the pig iron piled on the vendee's wharf." It will not lie to recover damages for a mere breach of contract in not delivering property. There must be an actual tor- tious taking or detention.^ But it may be brought where it is understood and intended that the title to the property should pass without any further act of the parties.' 1 Pollard V. Stovall, 60 Miss. 266. 2 Hammond F.Morgan, 101 N.Y.179 (4 N.E.328). This was an equi- table action, brought to compel the return of a written assignment of certain letters patent. See also Pomeroy's Eq. Jur. § 177, 1402. ^ Haverstiok v. Fergus, 71 111. 105 ; Low v. Freeman, 12 111. 467. * Updike r. Henry, 14 111. 878; Beckwith v. Phillips, 15 "Wis. 223; Boutell V. Waren, 62 Mo. 350; Mead t. Johnson, 54 Conn. 317 (7 Atl. 718) ; Sneathen v. Grubbs, 88 Pa. 147. ' First National Bank v. Crowley, 24 Mich. 492. ' Mead r. Johnson, 54 Conn. 317 (7 Atl. 718). ' Khea r. Eines, 21 111. 526. 142 EIGHT OF EEPLEVIN BY AND FEOM ASSIGNEE. CHAPTEE XII. RIGHT OF EEPLEVIN BY AND FROM AN ASSIGNEE FOE BENE- FIT OF CREDITORS. Section. An assignee isnot a purchaser for value .... 290 An assignee represents the as- signor 291 Need not allege his official character in petition . . 292 His right depends upon his complying with the law . 293 By assignor against assignee for exempt property ." . 294 Section. May replevy property retaken by the assignor Replevy lies, by the seller, against the assignee of a fraudulent purchaser . Rights of a purchaser — Volun- tary assignment — Title of assignee .... Assignee's suit subject to the same defenses as any other suit 295 296 297 298 § 290. An assignee is not a purchaser for value. An assignee takes the thing assigned subject to all the equities to which the original party was subject' He is not a pur- chaser for value, and at most his rights are not greater than an attachment or judgment creditor, and he acquires no title that will hold against the true owner. "Where, therefore, the circumstances are such that the vendor could have maintained replevin for the property against his vendee, he can main- tain replevin against his vendee's assignee.^ § 291. An assignee represents the assignor. A volun- tary assignee for the benefit of creditors has no greater title than his assignor to the latter's property, and cannot ques- tion the validity of a recorded mortgage made by him by ' Lord Mansfield in Peacock v. Rhodes, Dougl. 636. 2 Parley r. Lincoln, 51 N. H. 577; Lood v. Green, 15 M. & W. 216; Bristol Y. Wilsmore, 1 B. & C. 514; Van Cleef v. Fleet, 15 Johns. 147; Mowry r. Walsh, 8 Cow. 238 ; Root v. French, 13 Wend. 575 ; Buffing- ton r. Gerrish, 15 Mass. 156. NEED NOT ALLEGE OEEIOIAL CHAEACTEE. 143 suing in replevin for the chattels mortgaged. It would be different with an assignee in bankruptcy, or an involuntary assignment, who would represent the creditors rather than the assignor.^ Is a trustee for the creditors.^ An assignee for the benefit of creditors can not maintain replevin for property fraudulently conveyed by his assignor before the assignment, and if he surreptitiously obtain possession he cannot hold such possession against the grantee in the fraud- ulent conveyance. The proper remedy is in equity. ° An as- signee, under a voluntary assignment, cannot replevy personal property from an officer holding the same on execution against the assignor, levied prior to the recording of the assign- ment; his title passes by the recording of the assignment.* § 292. Need not allege his official character in petition. Where an assignee brings replevin for part of the assigned estate, he need not allege that he is the owner of the goods "as assignee." He may aver his title generally, and prove such facts as show a general or special property and right of possession.'^ Replevin lies at the suit of an assignee of a debtor against creditors who have attached the property cov- ered by the assignment after the assignment is executed, but before the assignee has taken possession." § 293. His right depends upon his complying with the ' Wakeman r. Barrows, 41 Mich. 36.3. " Lam Yip v. Ching Sing, 5 Hawaiian, 589. 3 Charles Baumbach Co. r. Miller, 67 Wis. 449 (30 N. W. 850). See Kloeckner r. Bergstrom, Id. 197 (Id. 118) ; Frost r. Citizens National Bank, 68 Wis. 234 (32 N. W. 110). But in many of the states, as in Ne. braska, conveyances made within a certain time prior to the assignment are void, unless for value. The remedy, though, would probably be in equity in mostcases, though, in such a case, if the property so fraudulently conveyed can be found, it is difficult to see why replevin would not lie by the assignee. Statutes providing for voluntary assignments usually provide that the assignee shall bring suit for property conveyed away in fraud of general creditors within a United time prior to the assignment. * Forkner v. Shafer, 56 Ind. 120. See "Wells v. Lamb, 18 Neb. 352 (24 N. W. 682) ; Id. 19 Neb. 355 (27 N. W. 229). s Krug V. McGilliard, 76 Ind. 28. » Wells 7. Lamb, 18 Neb. 352 (24 N. W. 682). 144 EIGHT OF REPLEVIN BY AND FROM ASSIGNEE. law. Property vests in an assignee upon the execution and delivery of the deed of assignment, and cannot be defeated by an execution coming to the hands of an officer after the delivery of the deed and before filing of bond or schedule, and replevin may be maintained by an assignee for goods taken by an officer under such circumstances if he file his schedule and give bond as required by statute.' But if he neglect to so file his bond and schedule, he has no right of possession, and cannot maintain the action.^ § 294. By assignor against assignee for exempt prop- erty. An assignment by an insolvent of all his real and per- sonal property, generally, does not pass to the assignee a crop growing at the time of the assignment, on premises consti- tuting a homestead, and the assignor may maintain replevin therefor when seized by the assignee on order of the county court after it was harvested.^ § 295. May replevy property retaken by the assignor. An assignee for the benefit of creditors is the general owner of the assigned goods until his trust is fully performed, and may maintain replevin against the assignor if he retake the assigned property.^ § 296. Replevin lies by the seller against the assignee of a fraudulent purchaser. The same rule holds in case of a voluntary assignment for the benefit of creditors. The as- signee can take no higher right to the property than his assignor had. The fact that in assuming dominion over the property of the assigned estate he acted in good faith makes it none the less an invasion of plaintiff's rights.^ § 297. Rights of a purchaser — Voluntary assignment — Title of assignee. If, in making the selection of the lum- ' Clayton v. Johnson, 36 Ark. 406. 2 Thatcher r. Franklin, 37 Ark. 64. ' Dascey v. Harris, 65 Cal. 357 (4 Pac. 204). * Kodman r. Nathan, 45 Mich. 607 (8 N- W. 562). ' Ban-ett v. Warren, 3 Hill, 350; Poor r. Woo(iburn,25 Vt. 240. See Thayer r. Turner, 8 Met. 550 ; Farley r. Lincoln, 51 N. H. 579. See Hil- liard on Torts, II., 143. WHAT assignee's SUIT SUBJECT TO. 145 ber according to the contract, the Tender sets apart more than is called for by the agreement, and notifies the vendee that it is so set apart and subject to his order, there is a good de- livery, and the title passes as to the quantity purchased, and the vendee has the right to take that much and refuse the balance; and if, before the property has been removed by the purchaser, but after it has been ordered shipped, the ven- dor makes an assignment of all his property for the benefit of creditors, the assignee acquires no title to such property, and the purchaser may maintain replevin.' An action of re- plevin to recover possession by virtue of a deed of trust, the condition of which is broken, must be brought in the name of the trustee who has the legal title, and not in the name of the beneficiaries." § 298. Assignee's suit subject to the same defenses as any other plaintiff. A replevin suit brought by a general assignee is subject to the same rules as those governing simi- lar suits brought by any other party ; and as the law entitles any other defendant in replevin to litigate not merely the right of possession, but the right of property, the assignee adopting that form of action must be held to have adopted it with all its incidents.' 1 Martz r. Putnam, 117 Ind. 392 (20 N. E. 270). 2 Garrett F.Carlton, 65 Miss. 188 (3 So. 376); Pollard r. Thomas, 61 Miss. 152. See Davis r. Scott, (26 Neb. ) 43 N. W. 407. « Boyden r. Frank, 20 Bradw. (111.) 169. 10 14:6 GOODS IN CUSTODY OF THE LAW. CHAPTEE XIII. GOODS IN CCSTODY OF THE LAW, Section. Goods in custody of law— Old rule— Contempt . . . 299 Modern rule — Not so strict . 300 A stranger to the writ of seiz- ure may replevin . . . 301 The same 302 A purchaser of property so taken is not protected from replevin 303 But where one's goods have been wrongfully seized by an officer and the owner there- after acquires peaceful pos- session, he is protected therein 304 Mere irregularities in the tak- ing insufficient . . . 305 Exempt property may be re- plevied 306 The same^Construction — Costs 307 Exempt properly may be re- plevied in any court having jurisdiction, notwithstand- ing the statute provides a special proceeding . . 308 Attached property may be re- plevied 309 But the action cannot be brought by the attachment plaintiff 310 Butif hepay claim of plaintiff, may then replevy from the officer 311 Where the process of seizure is void or the court had no jurisdiction .... 312 Section.. Property seized under an un- constitutional law . . 313 The writ must be lawfully exe- cuted 314 Lies for powder condemned by city officers . • . . 313 Liquors seized under a statute forbidding their sale cannot be replevied .... 316 Property seized by special officers of the law cannot be replevied . . . 317 Property seized by a revenue collector cannot . . . 318 An assignee in bankruptcy is only protected when he acts strictly within the scope of his duties and authority . SIO- Eeceivers — Comity of states — Will respect officers of sister states 320 Replevin lies against areceiver where he takes the wrong ' property .... 321 The legislature may bar the right by replevin . . . 322 Property held by special order of court— Fine . . . 323 Property held by U. S. mar- shal cannot be replevied in state court .... 324 But where the marshal has taken the wrong person's goods, or is proceeding il- legally, it will lie . . . 325 Replevin for property illegally seized may be brought in OLD RULE — CONTEMPT. 147 Section. any court having jurisdic- tion 326' May be brought where prop- erty is or where defendant resides 327 Removal oJ the property does not affect the jurisdiction . 328 The action may be brought in Section. any court of competent ju- risdiction .... 329 Replevin against attaching officer — Where brought . 330 Maybe removed from state to federal court . . . 331 When an execution defendant can replevy .... 332 § 299. Goods in custody of law — Old rule — Con- tempt. At common law, property in the custody of an offi- cer, under a valid, legal process, could not be tlie subject of replevin. ' But in order to exempt property from seizure under a writ of replevin, in such a case, it must be held by a valid process, and the rule does not apply if the law under which the first process issued is unconstitutional.^ And if it is apparent on the face of the process that it was issued without jurisdiction, it would not protect the goods taken thereon from a writ of replevin.^ Goods in custody of the law, or held by an officer, or by any legal process, are not or- dinarily the subject of replevin. Any attempt to interfere with them was formerly regarded as a contempt, and pun- ished severely.* It was formerly held that the re-caption by ' Smith V. Huntington, 3 N. H. 76 ; Perry v. Richardson, 9 Gray (Mass.), 216; Gardner r. Campbell, 15 Johns. (N. Y.) 401; Pott v. Old- wine, 7 Watts (Pa.), 173; Grist v. Cole, 2 N. & M. (S. C.) 456; Griffith y. Smith, 22 Wis. 646; Rayford v. Hyde, 36 Ga. 93; Goodrich v. Fritz, 4Ar]s. 525; Freeman f. Howe, 24How. (U.[S.) 450; Carroll r. Hussey 9 Ired. (N. C. L.) 89; Lathrop v. Cook, 14 Me. 414. 2 Cooley V. Davis, 34 Iowa, 128. 3 Wood V. Oser, 25 N. T. 348. *IChitty P1.164; Phillips v. Walker, 3 J. J.Marsh (Ky.),124; Phillips V. Harris, 3 J. J. Marsh, 123 ; Funk r. Israel, 5 Iowa, 450 ; Cooley v. Davis 34 Iowa, 128 ; Powell v. Bradlee, 9 Gill & J. ( Md.) 220 ; Hagan r. Deuell) 24 Ark. 216; Goodrich f. Fritz, 4 Ark. 525; Allen f. Staples, 6 Gray (Mass.), 493; Beer v. Wuerpul, 24 Ark. 273; Sh«arick>. Huber,6 Binn. 4; Morgan v. Craig, (Hardin) Ky. 101; Hall v. Tuttle, 2 Wend. 478 McLeod F. Gates, 8 Ired. (N. C.) 387; Jenuer v. Joliffe, 9 Johns. 384 Buckley v. Buckley, 9 Nev. 379 ; Watkins v. Page, 2 Wis. 97 ; Reeside v. Fischer, 2 Har. & G. (Md.) 320; Spring v. Bourland,;6 Eng. ( Ark.)658 Watson F. Todd, 5 Mass. 271; Mulholm v. Cheney, Addis (Pa.), 301 148 GOODS IN CUSTODY OF THE LAW. replevin of goods taken by an officer on execution was con- tempt of court.' § 300. Modern rule — Not so strict. But this rule, as interpreted and applied by the courts to-day, is considerably modified. That is, the proceedings of the court, tribunal, or officer seizing the property must be regular and valid, or the property is not now held to be protected from seizure by the true owner in replevin, and the bringing of this action to test the validity of the law, the appointment of the officer, or the regularity or legality of the proceedings, is no longer regarded as an infringement of the sacred prerogative of the court, but is favored as a ready and convenient method to test the legality of the first seizure. There are, too, some exceptions to the rule, as replevin may now be brought for property exempt from seizure for debt — directly by the judg- ment debtor. Replevin is the proper remedy where property has been seized by an officer, and is being held under a writ, and is about to be sold, and injunction will not lie to restrain the officer by one who claims to be the owner of the property.^ The general rule that a defendant in exe- cution cannot maintain replevin for the goods seized there- under only applies when the officer is proceeding rightfully.' If the officer levy on exempt property, the defendant may sue out the writ.* Property held under execution may be replevied in Connecticut,^ but not in New Hampshire.* Goodheart r. Bowen, 2 Bradw. (111.) 578; Badlam v. Tucker, 1 Pick. 389; Brownell v. Manchester, 1 Pick. 234; Milliken v. Selye,6 Hill,623; Squires v. Smith, 10 B. Mon. (Ky.) 33; Cromwell v. Owings, 7 Har. & J. 55; McLeod y. Gates, 8 Ired. (N.C.L.) 387; Musgrovey. Hall, 40 Me. 498; Armel v. Lendrum, 47 Iowa, 535. ' Winnard v. Foster, 2 Lutw. 1190 ; Rex r. Monkhouse, 2 Strange, 1184. 2 Richards r. Kirkpatrick, 53 Cal. 433. ' Sherron v. Hall, 4Lea (Tenn.), 499 ; Dearman r. Blackburn, 1 Sneed (Tenn.), 390. * Wilson V. McQueen, 1 Head. 17; Harris v. Austell, 2 Bax. 151; Westenberger v. Wheaton, 8 Kan. 169. « Hilton V. Osgood, 49 Conn. 110. 'Mitchell 7. Roberts, 50 N.H.486; Kellogg v. Churchill, 2 N. H. 412; STKANGEE TO WBIT OF SEIZURE MAY. 149 § 301. A stranger to the writ of seizure may replevy. Where a third person's property is taken on execution, he does not have to intervene as a claimant in that suit, but his proper temedy is replevin against the officer.' In Missis- sippi, by a statute passed in 1880, § 2633, replevin cannot be brought for property attached against an officer, but this is held to not protect a purchaser of the property under the attachment sale. Eeplevin may be brought against such purchaser by the true owner, though he made no claim to it ■while held by the officer.^ But this is not so in case of an attachment by landlord for rent due. In such special pro- ceeding, the claimant must intervene or be forever barred.' Where property held under execution was allowed to remain in the debtor's hands, and he represented to his creditors that it was his property, to their damage, they were allowed to maintain replevin.* § 302. The same. Eeplevin lies against the vendee of the sheriff for goods levied on and sold by virtue of an exe- cution against a third party. ^ Such sale passes no title to the purchaser." The rightful owner may replevy, from the officer after levy.' An action of claim and delivery of per- sonal property can be maintained by the owner against an officer taking the same under an execution against a third person.* The owner of property, having the right to posses- Smith V. Huntington, 3 N. H. 76; Melcher r. Lamprey, 20 N. H. 403; Sanborn v. Leavitt, 43 N. H. 473; Hilliard on Eemedies for Torts, 29; Kittridge r. Holt, 55 N. H. 621 ; Carkin v. Babbitt, 58 N. H. 579. ' State V. Booker, 61 Miss. 16. This is apparently overruled by Clark V. Clinton, 61 Miss. 337, on the ground that the court from which the execution issued is the only one that had jurisdiction to dispose of the matter, but no reference is made to the earlier case. 2 Armistead v. Bernard, 62 Miss. 180. ' Paine v. Hall, 64 Miss. 175 (1 So. 56). * Mulholm V. Cheney, Add. (Pa.) 301. = Ward V. Taylor, 1 Pa. St. 238; Shearick r. Huber, 6 Binn. (Pa.) 2; Huber v. Shearick, 2 Brown (Pa.), 160. « Hicks V. Britt, 21 Ark. 422; Crittenden r. Lingle, 14 Ohio St. 182; Coombs V. Gorden, 59 Me. 111. ' Angell r. Keith,-24 Vt. 371. « Jones V. Ward, 77 N. C. 337; Churchill r. Lee, 77 N. C. 341. 150 GOODS IN CUSTODY OF THE LAW. sion thereof, may take it by repleyin from an officer seizing it upon process issued against a third person as his property.' The faci, that the officer holds it under process issued by the circuit court will not deprive the district court of jurisdic- tion in the action of replevin.^ But in North Carolina it is held that where an execution is issued against A, and levied hona fide on property in B's possession on the allegation that the property really belongs to A, replevin will not lie against the sheriff.' But the general rule is that if an officer either by mistake or design take goods not the property of the de- fendant in his writ, or not liable to be taken on the writ, re- plevin will lie by the injured party.* Although the doctrine that a stranger to an execution, whose goods have been taken for the debt of another, may bring replevin, is well estab- lished, still, many authorities have laid down the rule thait while so held the true owner cannot take possession or main- tain replevin, but must ask their release on a proper showing try the rights of property, or sue for conversion.* § 303. A purchaser of property so taken is not pro- tected from replevin. Eeplevin will lie by the true owner for property purchased at a constable's sale. An actual and forcible taking from the plaintiff need not be shown. ° An ' Smith r. Montgomery, 5 Iowa, 370 ; Gimble v. Ackley, 12 Iowa, 27 Shea V. Watkins, 12 Iowa, 60.5 ; Cooley v. Davis, 34 Iowa, 128 ; Seaton V. Higgins, 50 Iowa, 305. '' Raiiisden v. Wilson, 49 Iowa, 211. ' Carroll v. Hussey, 9 Ired. (N. C. L.) 89. * Stone V. Bird, 16 Kan. 488; Chinn v. Eussell, 2 Blackf. 172; Gard- ner V. Campbell, 15 Johns. 401; Tison v. Bowden, 8 Fla. 70; Hunt v. Pratt, 7 E. I. 283 ; Gibson v. Jenny, 15 Mass. 205 ; Clark v. Skinner, 20 John. 468;Foss v. Stewart, 14 Me. 312; Bean v. Hubbard, 4 Cush. (Mass.) 85; Deyo v. Jennison, 10 Allen, 410; Leavitt v. MetcalF, 2 Vt. 343; Haskill v. Andrns,4 Vt.609; Mulholm f. Cheney, Addis (Pa.)j301. ^ Gloss V. Black, 91 Pa. 418 ; Goodrich v. Fritz, 4 Ark. 525 ; Spring v. Bourland, 11 Ark. 658; Raiiord v. Hyde, 36 Ga. 93; Lathrop v. Cook, 14 Me. 414; Perry v. Richardson, 9 Gray (Mass.), 216; Kellogg v. Churchill, 2 N. H. 412; Melcher v. Lamprey, 20 N. H. 403; Gardner v. Campbell, 15 Johns. (N. Y.) 401; Sharp v. Whittershall, 3 Hill (N. Y.), 576; Griffith v. Smith, 22 Wis. 646; Battis v. Hamlin, 22 Wis. 669. " Hardy v. Clendening, 25 Ark. 436. See Gibbs v. Chase, 10 Mass. MEEE IRKEGULAEITY INSUFFICIENT. 151 ■owner of property may bring replevin against one who pur- cliased the property at a sale upon an execution against a third person.^ § 304. But where one's goods have been wrongfully- seized by an officer, and the owner thereafter acquires peaceful possession, he is protected therein, and the officer <;annot replevy from him or take the property again on that process, and for such a taking the owner is not liable.^ And where goods come peaceably to the possession of the owner, who was a stranger to the execution, and they were retaken from him by the sheriff, he was allowed to maintain replevin for their recovery from the officer; that is, an officer who takes possession of property must keep possession, especially if that possession is wrongful. The law will presume noth- ing in his favor.^ § 305. Mere irregularity insufficient. A possessory war- rant will not lie against a purchaser at a judicial sale made under the forms prescribed by law, on the ground that a trespass was committed by the levying officer in taking pos- session of the property, the purchaser not being particeps in the toi't.'' It is no ground for replevin against a constable holding under an execution that the constable did not make an inventory, unless the property in fact be exempt, when it could be replevied anyway," or that- the attachment pro- ceedings under which defendant claims were irregular, as that the bond had but one surety. If the parties appeared 125; Robinson v. Mansfield, 13 Pick. 130; Phillips v. Hall, 8 Wend. 610; Allen V. Crary, 10 Wend. 349; Fonda v. Van Home, 15 Wend. 631; Noff V. Thompson, 8 Barb. 213. ' Dodd V. McCraw, 8 Ark. 83. - rpencei- v. McGowen, 13 Wend. 256; Marsh v. White, 3 Barb. 518; Sim r. Reed,12B. Mon. (Ky.) 51; Kunkle f. State, 32 Ind. 220; Wood r. Hyatt, 4 John. 313; Hyatt v. Wood, 4 John. 150; Bells v. Kinson, 1 Fost. (21 N. H.) 448; Merritt r. Miller, 13 Vt. 416; Barnes r. Martin, 15 Wis. 240. 3 Hall V. Tuttle, 2 Wend. 476. ■* Finney v. Fechtner, 54 Ga. 501. 5 Ferguson v. Washer, 49 Mich. 390 (13 N. W. 788). 152 GOODS IN CUSTODY OP THE LA.W. in the attaoliment suit, the judgment in that action is res ad- judicata as to them.' Or that the defendant who holds by virtue of an order in attachment was not a regular officer au- thorized to serve writs generally, against a trespasser claim- ing the property, his authority will be presumed.^ It is no ground for replevin against an officer holding under a writ issued by a court having jurisdiction that the property in that proceeding in his writ was insufficiently described as «'40O sheep.'" § 306. Exempt property may be replevied. But re- plevin will lie for exempt property againsb the purchaser at the execution sale.* It will lie for exempt property attached by an officer after inventory and appraisement under the poor laws.^ Where exempt property is attached, the owner may bring replevin without moving for a release of the property or a dissolution of the attachment.^ A judgment and order to sell property actually exempt is no bar to a replevin ac- tion.' But this privilege is only for citizens of the state.' "Where property levied on is claimed as exempt, the debtor, after proper demand and schedule, may maintain replevin for the exempt property against the officer. ° The exemption al- lowed by statute may be waived, the party entitled to it must claim it in time — before sale." If waived by the debtor, ' Bryant v. Hendee, 40 Mich. 643. 2 Miller v. Foy, 40 Wis. 633. ' Lawrence v. Coyne, 62 Cal. 124. * Harris v. Austell, 2 Bax. (Tenn.) 148. 6 Mann v. Welton, 21 Neb. 541 (32 N. W. 599); Willson r. McQueen, 1 Head. (Tenn.) 17. * Drummond v. Hopper, 4 Harr. (Del.) 327. 'Wilson V. Stripe, 4 G. Green (Iowa), 551; Wilson v. McQueen, 1 Head. (Tenn.) 17; Bean v. Hubbard, 4 Cush. 86. * Newell V. Hayden, 8 Iowa, 140; Sims v. Reed, 12 B. Men. (Ky.) 53; Moseley v. Andrews, 4 Miss. 55 ; Elliott r. Whitmore, 5 Mich. 532 ; Lynd y. Pickett, 7 Minn. 184; Douch v. Rahner, 61 Ind.,64. 9 Douch V. Rahner, 61 Ind. 64. i^O'Donnell v. Seger, 25 Mich. 371; Seaman r. Luce, 23 Barb. 240; Newell V. Hayden, 8 Iowa, 140 ; Bonsall v. Comly, 44 Pa. St. 442 ; Miches T. Tousley, 1 Cow. 114; Earl v. Camp, 16 Wend. 562. WHEEE EXEMPT PKOPEETY MAY BE. 153 it cannot be asserted by anotlier person." I£ only a certain amount of a particular kind of property is exempt, and it is all levied on, replevin will not lie until the debtor makes his selection and notifies the officer thereof.^ A mortgage is only a waiver as against the mortgagee.' The officer with the writ need not ask what property is exempt, but should levy and let the debtor make his claim under the exemption laws of his state.* § 307. The same — Construction — Costs. The exemp- tion laws are favored by the courts and are construed liber- ally ; thus, under a statute which exempts swine, the flesh of such swine, when killed and cured into meat, is also exempt." And the butter made from the milk of an exempt cow is ex- empt. ° And dental tools have been held to be within the scope of a statute exempting "mechanical tools," and exempt.' But where the statute exempts feed for domestic animals for a certain time, the debtor is not entitled to the feed unless he actually has the animals.' Costs should be allowed in replevin for exempt property the same as in other cases. If the offi- cer is in fault, he should be mulcted in costs. If the debtor has stood by and seen exempt property levied On without ob- jecting, he should pay the costs.' § 308. Exempt property may be replevied in any court having jurisdiction, notwithstanding the statute provides a special proceeding. A judgment debtor whose exempt property has been seized can maintain replevin therefor against the sheriff, and ife not confined to the special remedy ' Howland v. Fuller, 8 Minn. 50. 2 Tullis V. Orthwein, 5 Minn. 377. 2 Reynolds v. Salee, 2 B. Mon. (Ky.) 18. * Tvvinam v. Swart, 4 Lans. (N. Y.) 263. * Gibson r. Jenny, 15 Mass. 206. ' Leavitt r. Metcalf, 2 Vt. 342; Haskill v. Andros, 4 Tt. 610. ' Maxon r. Perrott, 17 Mich. 333. 8 Foss V. Stewart, 14 Me. 312. ° Whitaker v. Wheeler, 44 111. 447; Livor r. Orser, 5 Duer. 501 ; Poz- zoni V. Henderspn, 2 E. D. Smith, 146; Saffell t. Walsh, 4 B. Mon. (Ky.) 92. 154 GOODS IN CUSTODY OF THE LAW. provided by statute in such cases, or to the court fi'om whence the execution issued, but can bring his action in any court having jurisdiction.' § 309. Attached property may be replevied. Courts have been more liberal in allowing the replevin of attached propsrty than in property held by execution. It may be re- garded as settled that replevin lies for attached property by any claimant thereof except the defendant in the attach- ment writ. Although replevin lies for property attached if that property be converted into money, pending the litiga- tion, replevin does not lie for the proceeds. The money is to remain in court to abide the order of the court. ^ Property which has been attached can be taken out of the hands of the attaching officer by a writ of replevin, sued out by a third person who claims to be entitled to the property and the possession thereof, and he cannot be enjoined." § 310. Replevin cannot be brought by an attachment plaintiff for property taken under the attachment proceed- ings against the officer serving the attachment. It is his duty to hold the property subject to the result of that suit.* § 311. But if he pay claim of plaintiff, may then re- plevy from the officer. The assignee of goods under an attachment, having paid the claim of the first attaching cred- itor, may, after notice and demand, maintain replevin against the officer.^ § 312. Where the process of seizure is void, or the court had no jurisdiction. An execution, void on its face, is no protection to an officer making a levy on chattels ' Ross V. Hawthorn, 55 Miss. 551. 2 Gallagher v. Goldfraiik, 63 Texas, 473. 8 Hopkins v. Drake, 44 Miss. 619 ; Samuel v. Agnew, 80 111. 553 ; Clark F. Skinner, 20 Johns. 465; Thompson r. Butler, 14 Johns. 84; Garner V. Campbell, 15 Johns. 401; Judd v. Fox, 9 Cow. 259; Climer r. Rus- sell, 2 Blackf. 172; Daggett F. Robins, 2 Blackf. 415; 3 Robinson's Prac- tice, 477; Allen on Sheriffs, 272; Heagle v. Wheeland, 64111. 423. • Vaneter v. Grossman, 39 Mich. 610; Hawk v. Leppel (N. J.), 17 A, 351. "* Whipple V. Thayer, 16 Pick. (Mass.) 25. WHEN LIQUOES CANNOT BE. 155 thereunder, and lie is liable therefor in repleyin, trespass, or trover.' Or, if the court do not have jurisdiction, or the ■writ of seizure be void, replevin will lie.^ Eeplevin lies for property seized upon an execution issued in void garnish- inent proceedings.' Goods irregularly attached by an officer are not in the custody of the plaintiff in the suit, and re- plevin does not lie against him.* But if the plaintiff buy it in at the attachment sale^ knowing it to be exempt, and after- wards sells it, he thereby ratifies the act of the officer, and becomes jointly liable with him for the trespass.^ § 313. Property seized under an unconstitutional law cannot be said to be held under legal process, and may be replevied. ° Where liquors were seized under a void city or- dinance, held, that replevin would lie for their recovery by the owner.' § 314. The writ must be lawfully executed. When the levy is void for any wrongful act of the officer, replevin will lie by defendant in execution as though he were a stran- ger, as where it was levied on Sunday.* § 315. Lies for powder condemned by city officers. Where the city council, in attempting to regulate the sale of powder within certain limits, went outside of their powers and declared it condemned, and refused possession of it to the owner, held, that he could maintain replevin therefor.' § 316. Liquors seized under a statute forbidding their sale cannot be replevied. Where liquors were seized and were awaiting the action of the court, to decide whether they ' Munis V. Herrera, 1 N. M. 362. 2 Breckenridge v. John.son, 57 Miss. 371; White v. Jones, 38 111. 165; Campbell v. Williams, 39 Iowa, 646. 3 Iron Cliffs Co. v. Lahais, 5a Mich. 394 (18 N. W. 121). * Cogan V. Stoutenburgh, 7 Ohio, (Pt. II) 133. ^ Murphy r. Sherman, 25 Minn. 196. " Cooley V. Davis, 34 Iowa, 128. ' Sullivan v. Stephenson, 62 111. 290. 8 Pierce v. Hill, 9 Porter (Ala.), 151; Bryant r. The State, 16 Neb. ■651. 9 Cotter r. Doty, 5 Ohio, 395. 156 GOODS IN CUSTODT OP THE LAW. should be condemned or not under a statute forbidding tlieir keeping or sale, tliey cannot be replevied.' And even if the statute recognized tbe right to keep liquors for certain pur- poses, as for use in the arts, and defendant claimed to have them for a lawful purpose, still, this does not authorize him to bring replevin, as that defense can be as well made in the ac- tion for their condemnation.^ In Iowa, intoxicating liquors are governed by the common law rule, and when held i:n ier attachment or other legal process cannot be replevied.' The theory of these cases is that the property is brought into court for a specific purpose, and is not, therefore, repleviable as that would defeat the very object of the special proceed- ing. § 317. Property seized by special officers of the law cannot be replevied. A vessel seized under the act for the protection of clams and oysters is in custodia legis, and can- not be replevied. And a plea to the jurisdiction of the court from whence the writ of replevin issued is proper.* Where a sheriff as tax collector does not proceed strictly accord- ing to law, replevin will lie against him by the owner for property distrained, though the tax be valid and urpa,id.° Oil seized by an inspector of oil is in custodia legis, and can- not be replevied. The proper remedy is trespass.^ In replevin for meat taken by a health officer, the mere fact that he took it is not presumptive evidence that he condemned it in the legal discharge of his official duties. Such fact must be pleaded and proved, or his taking will be held wrongful.' 1 Funk et al. r. Israel, 5 Iowa, 450; Manty v. Arneson, 25 Iowa, 383. ^ Allen V. Staples, 6 Gray (Mass.), 491; State v. Barrels of Liquor, 47 N. H., 378. ^ Cooley V. Davis, 34 Iowa, 138 ; Weir v. Allen, 47 Iowa, 482 ; Fries v. Porch, 49 Iowa, 351. * Da,y V. Compton, 37 N. J. 514, citing Novion v. Hallett, 16 Johns. 327, and Gelston v. Hoyt, 3 Wheat. 329. "> Ray V. Horton, 77 N. U. 334. " Elkins V. Griesemer, 2 Pennyp. (Pa.), 52 ; Pott v. Oldwine, 7 Watts> 173 ; Stiles r. Griffith, 3 Yeates, 82. ' Kammon v. Lane, 55 Mich. 426 (21 N. W. 872). WHEEE ASSIGNEE IN BANKliUPTCY PROTECTED. 157 § 318. Property seized by revenue collector can not. Beplevin does not lie for property of the plaintiff seized un- der a warrant by a collector of internal revenue as the prop- erty of another. ' § 319. An assignee in bankruptcy is only protected where he acts strictly within the scope of his duties and authority. If he seize the property of a stranger, replevin will lie against him at once in the state court, without the twenty days' notice required by the bankrupt act.'' An action in replevin cannot be maintained against an assignee in bank- ruptcy until the demand and twenty days' notice required by the United States statutes, § 5056, be given, but if the as- signee took the property from plaintiff's possession, the act does not apply. The averment by defendant that he hold^ the property as assignee, and that he has no knowledge as to whom the property really belongs, puts plaintiff upon proof •of his title.' A trustee in bankruptcy can maintain replevin for property belonging to the bankrupt, but held by one who claims under a contract of purchase, but who has not fulfilled the terms of the contract.* He may also maintain replevin for property of the bankrupt sold on an execution against him after the decree in bankruptcy.* It would be different with a voluntary assignee under the state law, who represents the assignor, rather than the creditors or the court, and takes the same right the assignor had and none other." The proper way, however, is to move in the court appointing the assignee to release the property claimed.' 1 Treat v. Staples, 1 Holmes 1 (1st Circ). 2 Leighton r. Harwood, 111 Mass. 67. See In re. Noakee, 1 Bankr. Reg. 164=; Freeman v. Howe, 24 How. 450; Edge v. Parker, 8 B. & C. 697; Wiswall r. Lampson, 14 How., 52; Noe v. Gibson, 7 Paige, 515; Kobinson v. Atlantic, &c., By. 66 Pa. St. 160. 3 Erb V. Perkins, 32 Ark., 428; Leighton v. Harwood, 111 Mass. 69; Rowe v. Page, 54 N. H., 191. « Gordon v. Farrington, 46 Mich. 420 (9 N. W. 456). = Coats V. Farrington, 46 Mich. 422 (9 N. W. 456.) ' Wageman v. Barrows, 41 Mich. 363. ' Sawtelle v. Rollins, 23 Me. 199; Fowler v. Down, 1 Box. & Pull. 44; 158 GOODS IN CUSTODY OF THE LAW. § 320. Receiver — Comity of states — Will respect offi- cers of sister states. A receiver appointed by the courts of a sister state may maintain replevin in this state in his indi- vidual capacity to recover the property from an attaching creditor in this state.' A receiver cannot bring replevin in a law court against one having a right to possession of the property in question by virtue of the process of the law courf Neither can a receiver bring replevin for property seized under a paramount title.^ The court will enjoin an action of replevin against a receiver where it is brought with- out leave, if he was acting within the scope of his authority.* § 321. Replevin lies against a receiver where he takes the wrong property. A receiver of an insolvent national bank acquires no right to property in the custody of the bank, which it does not own, as against the owner, and he may maintain replevin therefor in a state court.'' Replevin will lie by the owner for property seized by a receiver, to which the debtor never had title, and the owner need not first ob- tain permission of the court to bring the suit.'* This is on the theory that as to this property he is a not a receiver, but a trespasser. The better way in such cases is to call the at- tention of the court whose officer he is to the facts by motion, and if its receiver has taken property to which he had no right, the court will always instruct him to release it.' § 322. The legislature may bar the right by replevin. Where the legislature enacted an agricultural lien law for the protection of landlords, and provided that on seizure of the crop under the claim of lien, all persons interested in the Hurst r. Gwennap, 2 Stark, 306 ; Webb v. Fox, 7 Term R. 392 ; Bolan. der V. Gentry, 36 Cal. 109. ■ Cagill V. Wooldridge, 8 Bax. (Tenn.) 580. 2 Conley v. Derre, 11 Lea (Tenn.), 274. ' High on Keceivers, 136. * High on Receivers, 256. See Beach on Receivers, § 249-290. s Corn Exchange Bank v. Blye, 101 N. Y. 303 (4 N. E. 635). " Hills V. Parker, 111 Mass. 508; Parker v. Browning, 8 Paige, 338- Paige v. Smith, 99 Mass. 395 ; Leighton v. Harwood, 111 Mass. 67. ' Parker r. Browning, 8 Paige, 388 ; In re Vogle, 7 Blatchf . 19. TROPEETY HELD BY U. S. MAKSHAL. 159 crop should intervene and should be bound by the judgment, property so taken is in custody of the law and cannot be re- plevied. The legislature could make the remedy by inter- vention exclusive.' But if the court do not have jurisdiction, or the writ of seizure be void, replevin will lie.^ In Virginia the legislature abolished replevin by statute. § 323. Property held by special ,order of court — Fine. Property claimed to have been stolen and held under orders of the court pending the trial of the alleged thief is in the custody of the law, and cannot be replevied by the owner.* "Where property is seized and sold for a fine, the party against whom the fine was recovered, and whose property was sold in satisfaction thereof, may contest the purchaser's title to the property and the jurisdiction of the court and the validity of the proceedings by which it was sold in an action of replevin.* If property be seized on a sheriff's fee bill, the action of replevin is not the proper remedy to try the legality of the seizure.^ § 324. Property held by United States marshal can- not be replevied in state court. A plea that the property replevied was held by the United States marshal by virtue of a writ of execution issuing out of the circuit court of the United States presents a complete defense as to the jurisdic- tion of the state court over the subject matter of the replevin suit.' A sheriff cannot replevy from a United States mar- shal holding an order of attachment from the United States court.' Where goods are seized and held by a marshal under valid process from a United States court, such process is a complete defense, and gives him the right to hold the prop- erty, against any writ issued from a state court. In such a ' Dogan V. Bloodworth, 56 Miss. 419. ^ Breckenridge v. Johnson, 57 Miss. 371. 8 Simpson v. St. John, 93 N. Y. 363. ■ * Heagle r. Wheeland, 64 111. 423. ^Morgan r. Craig, Hard. (Ky.) 101. * Hannebutt r. Cunningham, 3 Bradw. (111.) 353 ; Munson r. Harronn, 84 111. 422. 1 Freeman r. Howe, 24 How. 450. 160 GOODS IN CUSTODY OF THE LAW. suit tie state court cannot extend its inquiries beyond the question as to whetlier the federal process was valid ; and if so, the question of title to the goods is irrelevant. In such a case the state court has jurisdiction to order a return of the property to the marshal.' § 325. But where the marshal has taken the wrong per- son's goods or is proceeding illegally, it will lie. A United States marshal holding binder bankruptcy proceedings may not remove goods into another district before sale, and re- plevin will lie against him unless he proceed regularly.^ Ke- plevin lies against a United States marshal to recover goods belonging to the plaintiff and attached by defendant under process against another person.' Beplevin will lie in a jus- tice's court to recover property wrongfully seized on federal process by a United States marshal, if its value is below the jurisdictional limit of the federal court and within that of the justice.* § 326. Beplevin for property illegally seized may be brought in any court having jurisdiction. While it may be considered as the well settled rule of law that where an officer has levied upon the wrong property, or failed to make a valid levy, or for any reason has lost his possession under the levy, or is proceeding illegally, or- the writ or proceed- ings upon which it is based are void, replevin will lie. Much discussion has arisen over the proper tribunal in which the replevin suit should be brought, some courts holding that it ' Fensier r. Lammon, 6 Nev. 209 ; Freeman v. Howe, 24 How. 450 ; Peck V. Jenness, 7 How. 624; Buck v. Colbath, 3 Wallace, 334. Uuited States court may consent to replevin in state court. Mitchell v. Smith (Col.), 21 Pac. 1026. 2 Carr v. Phillips, 39 Mich. 319. See Maddux v. Usher, 2 Fox's Decis- ions, 261. 3 Cooper r. Tompkins, 43 Mich. 406(5 N.W. 456); Heyman v.Covell, 44 Mich. 332 (6 N. W. 846). * Carew v. Matthews, 41 Mich. 576. This decision is based on the ground that it plaintiff could not bring replevin, she was without remedy, and refers to Buck v. Colbath, 3 Wall. 334. A contrary doctrine is laid down in the case of Freeman r. Howe, 24 How. 450. EEPLEYIN FOR PEOPEETY ILLEGALLY SEIZED. 161 must be in the court from whicli the process issued under which the property is held ; others that it could be brought in any court having jurisdiction of the subject matter. One of the leading cases on this subject is Freeman v. Howe, which arose in this way: Process in attachment in an ordi- nary action for debt was issued from a United States court, and by- its marshal levied upon thirteen cars as the property of the Vermont & Massachusetts Eailroad Company, whose property the writ commanded him to levy upon. Replevin was brought in a state court of Massachusetts. The marshal defended under his writ, and that replevin would not lie. The supreme court of Massachusetts held, in a well con- sidered opinion, that replevin would lie in the state court, putting it upon the ground that the writ of attachment gave a general command to the marshal to levy on the prop- erty of the defendant therein named, and if he had made a mistake and levied on property of a stranger, and not the property of the defendant, he was entitled to no protection, and the property thus wrongfully seized in disobedience to the command of the writ was not in the custody of the law.' But the case was carried to the supreme court of the United States, where the supreme court of Massachusetts was re- versed, and the broad doctrine laid down that replevin would not lie against the marshal in a state court. The court seemed to overlook the distinction between writs of attach- ment, where the command to the officer is general to seize the property ef the defendant therein named, and writs where the officer is commanded to seize a specific chattel therein named. The rule laid down would be good law in the latter case, but in the former has nothing to support it but the pres- tige and authority of the court rendering the decision." This decision is a good example of the futility of courts attempt- ing to make or interpret laws contrary to reason and justice. ' Howe F. Freeman, 14 Gray (Mass.), 572. 2 Freeman r. Howe, 24 How. (U. S.) 450. 11 162 GOODS IN CUSTODY OF THE LAW. So far as the writer is aware, the decision has not been fol- lowed and approved by a single inferior court, though its binding force as a precedent has been recognized by some under protest. The supreme court of Minnesota, in referring to this subject, say of the case of Freeman v. Howe: "If we " understand this decision, it is based upon the sole ground " that one court cannot take the property from the. custody " of another by replevin, or any other process, for this would " produce a conflict extremely embarrassing to the adminis- " tration of justice. Whether this evil may be greater than " that of always compelling a party to resort to the court out " of which the process issued, upon which his property has " been seized, to assert his legal rights, may well be ques- "tioned."' TheWisconsin court say: " That the conclusions " of the court (in Freeman 'o. Howe) do not appear to be ".based upon any effect given to any provision of the consti- " tution or laws of the United States, so that its decision " would not, according to the prevailing opinion, be binding " in the state courts." ' It seems strange how the supreme court could arrive at such a decision in the face of Slocum v. Mayherry, 2 Wheat. 2, which was a case where a ship was seized for an alleged violation of law, the cargo being taken by the United States officer, with the ship. The owner of the cargo brought replevin in the state court of Rhode Island, and his right to do so was upheld by the United States su- preme court. And the supreme court has had occasion to explain Freeman v. Howe at least once, when Mr. Justice Miller said: "The decision in Freeman v. Howe took the " profession generally by surprise, overruling, as it did, the " unanimous opinion of the supreme court of Massachusetts, " as well as the opinion of Chancellor Kent." ^ It seems to the writer that the tendency of the United States courts to draw to themselves and hold all litigation possible, might ' Lewis V. Buck, 7 Minn. 104. 2 Kinney r. Crocker, 18 Wis. 79. 8 Buck V. Colbath, 3 Wal. (U. S. ) 334; 1 Kent Com. 410; Slocum v. Mayberry, 2 Wheat. 2. WHERE IT MAY BE BROUGHT. 163 have influenced this decision. This grasping tendency of the federal courts has in the past been made a subject for restrictive acts by Congress, and is readily apparent to any student of our system. The federal judicial system should be thoroughly revised, and its powers and jurisdiction more clearly defined and more strictly limited. The courts as far back as 1687' held that a sheriff with process directing him to levy on a defendant's property, therein named, must do so at his peril, arid if he made a mistake and levied on a stranger's goods he was liable, and would not be protected by the courts, whose commands he had disohejed. In such cases, the better rule is unquestionably that replevin will lie in any court having jurisdiction of the subject matter.^ § 327. May be brought where property,is or where de- fendant resides. An action of replevin may be brought in any county where the defendant resides. Where immediate delivery of the property claimed is not sought, no affidavit or bond need be filed. ^ An action of replevin may be brought either in the county where the defendant resides or where the property is situated, but the venue cannot properly be laid in a county other than one of these, upon an allegation that the property was wrongfully removed therefrom by the defendant.* And when so properly brought in the county where the property isjagainst two defendants, the action may be dismissed as to the defendant in that county, without dis- " Hallet V. Byrt, Cait'i. 380. 2SaniuelF.Agnew,80I11.554; Caldwell f. Arnold, 8 Minn. 265 ; Wefcer V. Henry, 16 Mich. 399; Hanna v. Steinberger, 6 Black, 521; Ward r. Henry, 19 Wis. 77; Booth y. Ableman, 16 Wis. 463; Id. 18 Wis. 496; Id. 20 Wis. 23 ; Id. 20 Wis. 633 ; Kinney v. Crocker, 18 Wis. 79 ; Bruen V. Ogden (11 N. J. L.), 6 Halst. 371; Davidson v. Waldron, 31 111. 121; Carew v. Matthews, 41 Mich. 576; Cooper v. Tompkins, 43 Mich. 406 (5 N. W. 456) ; Heyman v. Covell, 44 Mich. 332 (6 N. W. 846) ; Carr r. Phillips, 39 Mich. 319; Maddux r. Usher, 2 Pox's Decisions, 261 ; Ross V. Hawthorn, 55 Miss. 552. 3 Hodson V. Warner, 60 Ind. 214; Catterlin v. Mitchell,27 Ind. 298. *-Hibbs V. Dunham, 54 Iowa, 559 (6 N. W. 719). 164 GOODS IN CUSTODY OF THE LAW. missing as to the other defendant who resides in another county.' § 328. Removal of the property does not affect the jurisdiction. If the action be properly brought in the county where the property may be taken, the removal of the property to another county by the defendant before the ser- vice of the writ does not abate the action. If the venue was properly laid at the commencement of the action, it is suffi- cient.^ Where the action is commenced in the county where the property is against a defendant in another county, failure to get the property does not in Iowa defeat the action.' § 329. The action may be brought in any court of com- petent jurisdiction. As the plaintiff is the actor, he may in replevin, as in any other suit, choose in the first instance the forum he will trust with the settlement of the issue raised by him. If replevin would lie in the court from which the writ issued, under which his property has been wrongfully seized, it will lie in any court of competent jurisdiction.* In New Hampshire replevin is held to be a local action, and must be commenced in the county where the unlawful taking occurred.^ But in Georgia it is held that a possessory action may be • Porter v.Dolhoff, 59 Iowa, 459 (13 N. W. 420). But on this general subject of venue and dismissal of the action against the resident defend- ant, see Allen v. Miller, 11 Ohio St. 374, and Cobbey v. Wright, 23 Neb. 250 (36 N. W. 505), where a contrary rule is laid down, and in removal cases a contrary rule is followed ; Collins v. Wellington, 31 Fed. R. 244. ^ Croft r. Franks, 34 Iowa, 504. The Iowa Statute Eev. § 3853 pro- vides that actions of replevin may be commenced in any county wherein a portion of the property is found. Under this statute replevin was brought for, a horse in Fayette County. The defendant lived in Bu- chanan County and removed the horse there before service. Held, that this did not oust the court of its jurisdiction, and judgment for plaintiff upheld. 2 Laughlin r. Main, 63 Iowa, 580 (19 N. W. 673). *Ross V. Hawthorn, 55 Miss. 551; Samuel v. Agnew, 80 111. 554; Carew v. Matthews, 41 Mich. 576 ; Buck v. Colbath, 3 Wall. 334. ' Sleeper v. Osgood, 50 N. H. 331. This is based upon statute, but follows the common law rule. WHEN EXECUTION DEFENDANT CAN. 165 broTight in any county where the property to be recovered is found.' § 330. Replevin against attaching officer — Where brought. Replevin lies in favor of the owner against an officer who levies an attachment upon goods not the property of the defendant in attachment, if such owner is entitled to their possession. And such replevin suit need not be brought in the court from which the writ of attachment issued, but in any court of concurrent jurisdiction emanating from the same sovereignty.'' § 331. May be removed from state to federal court. A replevin suit which could not have been brought in the federal court may be removed from the state to the federal court under the same conditions that any other suit could be removed.^ § 332. When an execution defendant can replevy. An execution defendant cannot maintain replevin except where he shows that the property is not subject to seizure on exe- cution.* And this is so, even if the facts are such that he can enjoin the sale under the levy.' Eeplevin against the officer will lie by the execution debtor when his exempt prop- erty has been levied on.° Most of the states have followed the common law so far as to forbid an execution defendant the right to bring replevin against the officer, provided the proceedings are regular and valid and the property not ex- "empt.' Goods taken in execution are in the custody of the 1 Jordan v. Owen, 67 Ga. 616. 2 Samuel F. Agnew, 80 111. 553; Clark v. Skinner, 20 Johns. 465; Thompson v. Butler, 14 Johns. 84; Garner v. Campbell, 15 Johns. 401; Judd V. Fox, 9 Cow. 259; Climer v. Russell, 2 Blackford, 172; Doggett V. Robins, 2 Blackford, 415; 3 Robinson's Practice, 477; Allen on Sheriffs, 272 ; Heagle v. Wheeland, 64 111. 423. » Kern v. Huidekoper, 103 U. S. 485. * Hartlep v. Cole, 101 Ind. 458; McCoy v. Reck, 50 Ind. 283; Dowell V. Richardson, 10 Ind. 573. 5 Miller v. Hudson, 114 Ind. 550 (17 N. E. 122). See Climer r. Russell, 2 Blackf. (Ind.) 172; Lewisville r. Holborn, 2 Blackt. (Ind.) 267. ^ Wallingsford r. Bennett, 1 Mackey ( D. C), 303. ' Talbot r. DeForest, 3 G. Greon (Iowa), 586; Perry v. Richardson, 9 166 GOODS IN CUSTOBT OT THE LATV. law, and cannot be repleyied except under a statutory provi- sion authorizing it.' The reason of the rule is that it would be an unnecessary harassing and impeding of the officer in his official duties to allow replevin by a judgment defendant, and would be allowing the judgment defendant to litigate by replevin, in a court of his own choosing, matters which he should have litigated when sued for the debt by his creditor.' And a grantee of such a judgment defendant stands in no better light.' In some states a distinction is made in this matter between an execution and attachment,' but the deci- sions under such a statute are of no general value. Gray, 216; Melcher v. Lamprey, 20 N. H. 403; Morris r. De Witt, 5 "Wend. 71; Orner f. Hollman, 4 Whart. (Pa.), 45; Kellogg f. Churchill, 2 N. H. 412; Ilsley r. Stubbs, 5 Mass. 280; Wilson v. McQueen,! Head. (Tenn.), 19; Hopkins v. Drake, 44 Miss. 622; Yarborough r. Harper, 25 Miss. 112; Dearman v. Blackburn, 1 Sneed (Tenn.), 390. ' Howard r. Crandall, -39 Conn. 213 ; Pangbum v. Partridge, 7 John- son, 144, and cases cited by reporter; Hall r. Tuttle, 2 Wend. 478, and cases cited by the court; Smith v. Lyons, 44 Conn. 175; Thompson v. Button, 14 John. 84. 2 Hall F. Tuttle, 2 Wend. 478; Thompson f. Button, 14 John. 84 ; Gardner v. Campbell, 15 Johns. 402 ; J udd v. Fox, 9 Co w. 262 ; Shaddon F. Knott, 2 Swan (Tenn.), 358; Ilsley v. Stubbs, 5 Mass. 283; Kellogg F. Churchill, 2 N. H. 412; Griffith v. Smith, 22 Wis. 637; Deshler r. Dodge, 16 How. 622. 8 Talbot F. DePorest,3 G. Green (Iowa), 586; Saw v. Levy, 17 S.&R. (Pa.) 102; Hines v. Allen, 55 Me. 115; Gardner f. Campbell, 15 Johns. 401; Dunham v. Wyckoff, 3 Wend. 280. * Green v. Holden, 35 Vt. 315. OENEBAL BULE. 167 CHAPTEE XIV. REPLEVIN OF PROPERTY SEIZED FOR A TAX. The general rule Errors in the assessment orin the warrant of collection no ground for replevin Warrant must be regular and issued by proper authority Illegality of the tax no ground for replevin .... Expensive, double, or erro- neous assessments — No grround for .... WiU lie when tax is void Will not lie where part is valid and part invalid . Where A's property is taken on a warrant for B's tax, A may replevy Section. . 333 334 335 336 337 338 3.39 340 Section. A i)urchaser from theofBcer is not thus protected . . 341 The same is true in case of seizure for a fine . . . 342 Payment of tax after seizure no ground for replevin . 343 May tender the legal tax and bring replevin . . . 344 Property must be seized by an officer in his own district, or replevin will lie . . , 345 The illegality of tlie corpora- tionno ground for replevin — Writ must be executed by a regular officer . . . 346 No other remedy is prohibited 347 § 333. The general rule. In the case of property seized for a tax, the courts have gone further than in any other case to uphold and protect the seizure. The reason for this has been partly in legislative enactments, which in most if not all of the states have prohibited the replevin of property so seized by requiring the plaintiff in his affidavit for replevin to swear that the property was not taken for any tax, fine, or amercement, and partly for reasons growing out of the fact that it is necessary to the very existence of a government that the prompt collection of its revenue be not interfered with. "Disastrous indeed would be the consequences to the public, "was it allowed to every taxable inhabitant who may have "conceived a notion that alaw of general application imposing "taxes is void, and therefore he shall be permitted to arrest 168 REPLEVIN OP PEOPEETY SEIZED FOE A TAX. "its operation, and thus break down the financial system of "the state. If one may do it, the whole community may, and "ruin and disgrace would inevitably follow the extinction of "the state credit thus brought about. The law forbids the "consideration of the question of the legality of a tax, assess- "ment, or fine levied under any law standing on the statute "book, by means of the action of replevin.'" While the deci- sions of the courts are not uniform, it may be regarded as settled that, where property is seized for a tax upon a war- rant not void on its face, such property cannot be replevied by the defendant in the tax warrant from the officer so seiz- ing it. " The rule is one of protection merely, and beyond "that is not meant to confer any right. The armor which it "furnishes is strictly defensive. It is personal to the office^ "himself, and cannot be used to confer any right upon wrong- " doers, under color of whose void proceedings he is called " upon to act. Suppose he goes and sells the property levied "upon ; even the innocent purchaser takes no right." On this general subject see.^ ' McCIaughry v. Cratzenberg, 39 111. 122; Maple r. Vestal (Ind.), 16 N. E. 620. 2 Troy, &c., R. Co. v. Kane, 72 N. Y. 614; Hudler r. Golden, 36 N. Y. 446; Cheyary r. Jenkins, 5 N. Y. 376; O'Reilly r. Good, 42 Barb. 521; Stiles V. Griffith, 3 Yeates, 82; Bilbo v. Henderson, 21 Iowa, 56; Grind- rod V. Lauzon, 47 Mich. 584 (11 N. W. 396) ; Pott v. Aldwine, 7 Watts, 173; Daniels v. Nelson, 41 Vt. 161; Travers v. Inslee, 19 Mich. 98; Stockwell r. Veitch, 15 Abb. Pr. 412; Trask v. Maguire, 2 Dill. 182; McCoy V. Anderson, 47 Mich. 502 (IIN.W. 290); Buell F.Bali, 20 Iowa, 282; LeRoy V. East Saginaw Ey. 18 Mich. 234; Keyser v. Waterburry, 7 Barb. 650; White v. Dolliver, 113 Mass. 407; Cooley on Taxation, 818; Deaty on Taxation, 804-5 ; Brown on Assessment and Tax, 131-2; Dudley r. Ross, 27 Wis. 679; Macklot v. Davenport, 17 Iowa, 379; Traverse v. Inslee, 19 Mich. 98 ; Atlantic R. R. Co. r. Cleino, 2 Dillon 175; Cardinel v. Smith, Deady,197; Vocht r. Reed, 70 111. 491; Dunning r. James, 72 111. 78; Ross v. East Saginaw, 18 Mich. 233 ; Buell v. Ball, 20 Iowa, 282; Brackett v. Whidden, 3 N. H. 17; Emerick v. Stoon| 18 Iowa, 139 ; Enos v. Bemis, 61 Wis. 656. The affidavit that the prop- erty is not taken for a tax, is not conclusive. Kaehler v. Dobberpuhl, 60 Wis. 256. WAEBANT MUST BE KEGDLAB. 169 § 334. Errors in the assessment or in the warrant of collection no ground for replevin. EepleTin will not lie against an officer acting under a tax warrant for the collec- tion of taxes assessed by a board having competent authority, although the tax may have been erroneously assessed.' While an irregular warrant or a void assessment is no pro- tection to an officer in any other form of action, it has been held to be no ground for replevin of the property seized by him. Property taken for a tax cannot be withdrawn from the custody of the law for any such reason. If on its face the warrant give the officer authority to collect a tax, it ends the matter of replevin so far as the defendant in the tax war- rant is concerned.^ Although a warrant for the collection of a tax or assessment may have been issued erroneously or irregularly, if on its face it gives authority to the officer to collect the tax or assessment, replevin cannot be sustained for property taken by virtue of the warrant.^ § 335. Warrant must be regular and issued by proper authority. But the warrant must be regular on its face and purport to be issued by competent authority.* A warrant is- sued by some one not authorized to issue that class of war- rants would not be sufficient. Or where the warrant is for a tax assessed for a special purpose, and the warrant shows on its face that the body assessing it acted illegally or beyond their authority, replevin will lie.° And the plaintiff is not estopped from denying the validity of the tax because he has paid a similar tax at another time." ' Bilbo V. Henderson, 21 Iowa, 56. 2 Hudler r. Golden, 36 N. Y. 446; Niagara Elevator Co. y.McNamara, 2 Huu. (N.Y.)416; People v. Albany, &c., 7 Wend. 485; Buell v. Schaale, 39 Iowa, 293. In this case, plaintiff claimed his property was assessed in the wrong district. See also Hershey v. Fry, 1 Iowa, 593; Macklot v. The City of Davenport, 17 Iowa, 379. 2 T. & L. E. B. Co. r. Kane, 72 N. Y. 614; Hudler r. Golden, 36 N. Y. 446 ; O'Reilly r. Good, 42 Barb. 521. * Hudler v. Golden, 36 N. Y. 446. 5 Wright V. Briggs, 2 Hill, 77; Morford v. linger, 8 Iowa, 82. » Buell Y. Ball, 20 Iowa, 282. 170 EEPLEVIN OF PEOPEETT SEIZED FOE A TAX. § 336. Illegality of the tax no ground for replevin. Keplevin will not lie for property taken for a tax assessment. If the tax duplicate in the treasurer's hands-is regular on its face, it is not necessary for' him to show a legal assessment of taxes.' A collector of unpaid taxes levied under a regu- lar warrant, whereupon the property was taken from him in an action for the claim and delivery thereof, instituted by the owner against whom the tax was imposed. Held, that the plaintiff could not sustain the action by proving that the tax was illegally imposed, and that the collector, having ac- quired a special property, was entitled to judgment for re- delivery and damages for detention.^ If list and warrant are regular, and only the tax erroneous, replevin will not lie.* § 837. Excessive, double, or erroneous assessment no ground for. Replevin will not lie against the collector of taxes to recover personal property seized to satisfy a tax lev- ied by the proper officer, and it does not matter that the levy is excessive, and the fact is apparent on the face of the tax book.* The fact that the property taken for the tax has been twice assessed — once in the hands of an agent — is no ground for replevin.' Few assessments are regular in every way, and if errors of this kind could be reached by replevin, the number of such cases would be legion. Or it is no ground for replevin that plaintiff owes no tax to the town whose officer has made the seizure.^ Due process of law in 1 Adams v. Davis, 109 Ind. 10 (9 N. E. 162) ; People v. Albany C. P., 7 "Wend. 485; Hudlor v. Golden, 36 N. Y. 446; Mount Carbon, etc., v. Andrews, 53 111. 177; Willa.rd v. Kimball, 10 Allen, 211; Bringhurst v. Pollard, 6 Ind. 452; Maple f. Vestal, 114 Ind. 325 (16 N. E. 620); Amer- ican Tool Co. V. Smith, 32 Hun. (N. Y.) 121 ; O'Reilly v. Good, 42 Barb. 521 ; Hill V. Graham (Mich.), 40 N. W. 779. 2 Niagara Elevating Co. v. McNamara, 43 N. T. Sup. Ct. (1 Sheldon) 360; Id. 4 Thomp. & C. 604. 3 Buell V. Schaale, 39 Iowa, 293. * Mowrer v. Helferstine, 80 Mo. 23. 6 Palmer v. Corwith, 3 Chand. (Wis.), 297. " Mt. Carbon Coal Co. r. Andrews, 53 111. 177. "WILL LIE WHEEE TAX IS VOID. 171 the assessment of taxes does not require a judicial proceed- ing.' §338. Will lie where tax is void. Eeplevin lies against the tax collector when the assessment of the taxes for which the property was seized is void.^ The statutory prohibition against bringing replevin for property taken under a tax warrant does not apply where there was no jurisdiction to levy the tax.' Eeplevin will lie against an officer who has seized the property for an invalid tax, or upon a tax warrant void upon its face, but plaintiff cannot in such a case claim the immediate delivery of the property.* This case under the Wisconsin law only amounts to allowing the officer to be sued for damages, which can be done everywhere. It must appear that the tax is one that could by no legal possibility be levied. Where property of an incorporated company was seized for a tax which could not be levied on them under their charter, they were allowed to bring replevin.^ And where a tax was levied at a town meeting, and at another meet- ing rescinded in a legal manner, but the collector went on and attempted to collect the tax and seized property for that purpose, the owner was allowed to replevy it on the ground of no legal tax.' But the prohibition is not confined to prop- erty seized for a state tax, but applies with equal force to a ' Pullen r. Kensinger, 11 Int. Rev. Bep. 197. See Brown on Assess- ment and Tax, 131-2; Cooley on Taxation, 818; Desty on Taxation, 804-5. 2 A. & P. E. R. Co. r. Chino, 2 Dill. (8 Cir. Mo.) 175. 3 McCoy V. Anderson, 47 Mich. 502 (11 N. W. 290). In this case the property was assessed in thetownship where manufactured and stored, when the law required it to be assessed in the township where the part- nership had a place of business. * Dudley v. Ross, 27 Wis. 679. Chapter 128, § 1 and 2, of the Wiscon- sin statutp provides chat the plaintiff may at thetimeof issiling the sum- mons, or at any time before answer, claim the immediate delivery of the .property, and when he claims the delivery of the property, he must make affidavit that it was not taken for a tax, etc. ; but where the delivery of the property is not claimed, it proceeds as a damage suit. 5 LeRoy v. East Saginaw Ry., 18 Mich. 237. « Stoddard v. Gilman, 22 Vt. 570. 172 EEPLEVIN OP PEOPEBTY SEIZED FOB A TAX. city tax or tax levied by the federal government.' Where there was no authority to levy the tax, an action of replevin will lie to recover property seized by an officer for payment of same; but otherwise where the taxing authority is regu- larly exercised.^ § 339. Will not lie where part is valid and part invalid. A party cannot bring replevin for the seizure of personal property by the treasurer to pay taxes if a portion of the tax is legally assessed, although another portion is illegal.' § 340. Where A's property is taken on a warrant for B's tax, A may replevy. The rightful possessor of goods unlawfully seized under a tax warrant against another, for the collection of the tax, may maintaip. an action for their re- covery.* If the collector under his warrant illegally seize the property of A to pay the tax of B, A may bring replevin. ° A statute which provides that no replevin shall lie for any property taken by virtue of a warrant for the collection of a tax, must be construed to apply only to cases where the prop- ' Lavacool v. Boughton, 5 Wend. 178 ; PuUen v. Kensiuger, 11 Int. Rev. Eec. 197; Delaware E. E. Co. v. Prettyman, 7 Int. Eev. Eec. 101; Brice V. Elliott, 8 Legal News, 322; O'Eeilly v. Good, 42 Barb. 521. 2 Bull V. Ball, 20 Iowa, 282; Leroy v. East Saginaw E. E., 18 Mich. 233. 3 Emerick v. Sloan, 18 Iowa, 139. See Hudley v. Golden, 36 N. Y. 446; O'Eeilly v. Good, 42 Barb. (N. Y.) 521; Stiles v. Griffith, 3 Yeats (Pa.), 82. * Dubois V. Webster,? Hun. (N. Y.) 371; Halloek v. Eumsey, 22 Hun. 89. s L. S. & M. S. Ey. V. Eoach, 8 N. Y. 339; Stockwell i'. Veitoh, 15 Abb. Pr. 412; Thompson v. Button, 14 J. E. 84; Judd v. Fox, 9 Cow. 259. In Vocht F. Eeed, 70 111. 491, a contrary rule is laid down by a divided bench, but the reasoning of the court is not such as to commend the con- clusion they reach. They say the owner's remedy in such a case is by an action of trover or trespass against the officer, and the opinion cites McClaughry r. Cratzenberg, 39 111. 117; Mt. Carbon C. &E. Co. v. An- drews, 53 111. 179 ; Heagle v. Wheeland, 64 111. 423. But it is a question whether these cases cited support the extreme ground taken by a ma- jority of the court. In this particular case, as the levy was made upon personal property of one man to collect tax levied upon the land of an- other, it is difficult to uphold the position of the majority of the court, either in law or equity. PAYMENT OF TAX AFTEK SEIZURE NO GROUND FOB. -173 erty seized is that of the person, or one in privity with the person, against whom the tax is assessed.' But this rule does not apply where the tax collector finds the property seized in the possession of the delinquent named in his war- rant.^ He would be protected in his seizure unless his at- tention was called to the fact at the time. § 341. A purchaser from the officer is not thus pro- tected. The statute which prohibits the replevin of prop- erty seized for taxes only protects while in the officer's hands. The purchaser under a tax warrant sale, like a purchaser at a judicial sale, must depend upon the strength of the title which he thereby acquires, and replevin will lie for the property in his hands by the true owner.' A purchaser at such a sale when sued for the property must show the validity of the proceedings under which the sale was made, as well as the legality of the sale. Nothing is presumed in its favor.* § 342. The same is true in case of seizure for a fine. And the same is true where property is seized and sold for a fine or statutory penalty; the purchaser is not protected, and the true owner may bring replevin against him." The statute which prohibits the replevin of goods seized for a tax also embraces goods seized for payment of a fine, and the same rule of law is applicable." § 348. Payment of tax after seizure no ground for. The payment of taxes, after the commencement of an action to replevy personal property seized by the treasurer for such taxes, cannot be given in evidence to sustain the action. Such payment of taxes, without protest, after the bringing of the ' Travers v. Inslee, 19 Mich. 98. See also Stockwell v. Veitch, 15 Abb. Pr. 412. 2 Palmer 7. Corwith, 3 Chand. (Wis.) 297. ' Power V. Kindschi, 58 Wis. 539 (17 N. W. 689). This is a leading case on this subject, and will well repay perusal. Dudley r. Ross, 27 Wis. 679; Macklot v. Davenport, 17 Iowa, 379; Heagle r. Wheeland, 64 III. 423; Stiles v. Griffiths, 3 Yeats (Pa.), 82. * Clark V. Lewis, 35 111. 422. » Heagle v. Wheeland, 64 111. 423. « Pott V. Oldwine, 7 Watts, 173; Martin y. Mott, 12 Wheat. 19. 174 REPLEVIN OF PKOPEETY SEIZED FOE A TAX. action of replevin, estops the plaintiff from denying that the taxes are legal.' § 344. May tender the legal tax and bring replevin. Where goods are seized by a tax collector, and the owner ten- ders the legal amount of tax and keeps that tender good, he may replevy the goods.'' But this is contrary to the general rale laid down in tax cases. Where property was taken for a tax, and defendant paid what he claimed was the tax, and cost, and replevied, held, it was proper to render judgment against him for the difference between what he had paid and the amount found due by the jury only.' § 345. Property must be seized by oflBcer in his own district, or replevin will lie. Where an officer goes outside of his district and seizes property, of course his act is as a private individual, and replevin will lie. The seizure should be by an officer who -is, at least, an officer de facto, at the time and place where the seizure is made.* A plaintiff's wagon was seized for a school tax. The facts were that after the tax was levied a new school district was created, and plaintiff resided in the new district and claimed that the seizure by the secretary of the old district within the limits of the new was illegal ; held, that the t^ was no lien until seizure, and that the seizure in this case was unauthorized and illegal — that there must be some color of authority for the seizure. ' An officer without his bailiwick is without au- thority, and his seizure by distress for a tax is illegal.' But, of course, the warrant of collection could be sent to the proper officer of the new district, if the statute permits it, which it usually does. § 346. The illegality of the corporation no ground for ' Busby r. Noland, 39 Ind. 234. 2 Miller v. McGelm, 60 Miss. 903. ' Ryan-Ream Cattle Co. v. Slaughter (Ultah), 21 P. 997. ♦ Martin v. Mott, 13 Wheat. 19. 6 McKay v. Batchellor, 2 Col. 591. See Marford v. Unger, 8 Iowa, 82; Wright r. Briggs, 2 Hill, 77; Hudler v. Golden, 36 N. Y. 446, and per contra Styles v. Griffith, 3 Yates, 82 ; People r. Albany, 7 Wend. 484 ; Mt. Carbon Co. v. Andrews, 53 111. 176. NO OTHEE EEMEDY PEOHIBITED. 175 replevin — Writ must be executed by a regular officer. The title of the officer cannot be adjudicated in a replevin action. It is sufficient if he be either de jure or de facto collector; neither can the validity of the corporation be determined in such an action, and the plea of mil tiel corporation is bad on demurrer, nor can the validity of the tax be questioned in such proceeding.' The officer must at least assume to act by due authority. "Where, on the trial of a replevin suit for property seized by a town treasurer, for the satisfaction of taxes assessed against plaintifp, it appears that the property is rightfully assessed in defendant's township, and was held under tax process valid upon its face, replevin will not lie.^ In replevin for property held by a village marshal for taxes, under a tax warrant duly issued upon an assessment prop- erly and regularly made, the validity of the organization of the village, or the constitutionality of its charter cannot be raised.' § 347. No other remedy is prohibited, the object of the law being not to deprive the plaintiff of his day in court, but to protect the ingathering of the public revenue. The tax-payer who claims that he has been wronged by the seiz- ure of his property may sue the officer in trespass or any other proper form of action. He is liable on his bond the • same as a sheriff or other officer, and the value of the goods and damages for the taking, and detention, and costs, may be recovered.* Where a tax levy inflicts an injury cognizable by law, the injured party must seek redress otherwise than by replevin for the property taken. The levy cannot be de- feated by a mere claim that the tax is invalid, if it is appar- ently regular.* ' Mt. Carbon C & R. Co. r. Andrews, 53 111. 177; McClanghy v. Crat- zenberg, 39 111. 117. 2 Hood- r. Judklns, 61 Mich. 577 (28 N. "W". 689). 3 Coe V. Gregory, 53 Mich. 19 (18 N. W. 541). * Cardinal v. Smith, Deady (C. C), 197 ; Ware r. Percival, 61 Me. 391 ; Dow V. Sudbury, 5 Met. 73; Shaw v. Becket, 7 Cush. 442; People v. Su- pervisors of Chenango, 11 N. Y. 563; Supervisors, &c., v. Manny, 56 111. 161; Lanman v. Des Moines, 29 Iowa, 310. 5 Hill r. Wright, 49 Mich. 229 (13 N. W. 528), 176 EEPLEVIN OF IMPOUNDED ANIMAIS. CHAPTER XV. EEPLEVIN OF IMPOUNDED ANIMALS. Section. Replevin does not lie for im- pounded or distrained ani- mals if the proceeding is reg- ular 348 The same— Illustrations . 349 If the distrainor lose posses- sion, his lien is lost . . 350 Impounded cattle cannot be Section replevied for mere irregu- larities if taken damage feasant 351 Where the statute gives a special remedy for testing the legality of the distraint, replevin will not lie . . 352 § 348. Replevin does not lie for impounded or dis- trained animals, if the proceeding is regular. If the pro- ceeding is regular, the property impounded or distrained is regarded as in the custody of the law and cannot be replev- ied. This does not preclude the owner from testing the le- gality of the procedure. If regular, the lion of the impounder is merely suspended during the attempt to replevy. Or, if the owner admit the regularity of the proceeding, but dis- putes the amount claimed &b damage or rent, as the case may be, he can tender the correct amount and demand the prop- erty, and, on a refusal, bring replevin, and thus try this issue. If he tendered sufficient, he will get the propertyj otherwise not. If the property so impoimded get away from the im- pounder in any manner, he loses his lien and cannot retake them ; or if he confine them in a place other than that pro- vided by law, replevin will lie. In other words, the lien is statutory, and the statute must be followed strictly.' § 349. The same — Illustrations. The owner of dis- trained animals may maintain replevin after tender of pay- ment of damages as fixed by appraisers,'' or claimed by the 1 Bills V. Kinson, 1 Frost (21 N. H.), 449 ; Gate v. Gate, 44 N. H. 211. « Anderson v. "Worley, 104 Ind. 165 (3 N. E. 817). DOES NOT LIE FOB IMPOUNDED ANIMALS. 177 one taking them up/ or if appraisers find no damage.'' Ani- mals seized under the highway act cannot be replevied by the owner if the proceeding is regular.' If one who attempts to distrain animals does not proceed lawfully, the detention is unauthorized, and the owner may replevy them.* Possessory warrant will not lie for animals impounded under a village ordinance. ° Replevin will lie for animals distrained illegally, and the legality of the distraint may be determined in the re- plevin suit.° Beplevin will not lie for an animal detained by one who has taken it damage feasant. If the damages claimed are excessive, he must have them assessed under the statute.' Where defendant in replevin for impounded cattle does not dispute title, but only claims a lien, he is not entitled, on failure of the action in replevin, to any larger recovery be- sides his costs.' The owner of cattle taken up in accordance with law must make demand and offer to pay legal charges before he can maintain replevin.' An owner of an animal impounded for trespass cannot maintain replevin until he has proved property and tendered the damage under the im- pounding law.'° A writ of replevin against the impounder of swine lawfully impounded cannot be sustained when the pound-keeper, without the knowledge of the impounder, has been tendered the damages and refused to surrender the swine." An action of replevin will lie for distrained animals if the fence through which they broke was not a lawful 1 Jones V. Clouser, 11-4 Ind. 387 (16 N. E. 797). 2 Osgood V. Green, 33 N. H. 318. ^ Cropsy V. Perry, 1 How. Pr. (D. S.) 40. See Johnson v. Wing, 3 Mich. 163. ■ * Armbruster v. Wilson, 43 Hun. N. T. 261 ; ~ Brown v. Smith, 1 N. H. 36; Morse v. Reed, 28 Me. 481. 5 King V. Ford, 70 Ga. 628. 6 Syford v. Shriver, 61 Iowa, 155 (16 N. W. 56). ' Norton v. Eockey, 46 Mich. 460 (9 N. W. 492). 8 Marx V. Woodruff, 50 Mich. 361 (15 N. W. 510), 9 Holcomb V. Davis, 56 III. 413. i» Phelan v. Bonham, 9 Ark. 389. " Hall V. Hall, 12 Conn. 358. 12 J. 1 BEPLEVIN OF IMPOUNDED ANIMALS. fence.' In an action of replevin to recover certain hogs that had been taken damage feasant, it was held, that upon tender and demand the plaintiff became entitled to possession of the hogs, and that the tender was kept good by depositing the amount due for damages with the justice.^ § 350. If the distrainor lose possession, his lien is lost. Where cattle had been distrained without authority of law, and the owner retook them with force, held, that replevin would not lie by the distrainor.' But if the owner recapture them unlawfully, he has been allowed to replevy them.* § 351. Impounded cattle cannot be replevied.^ In New York it Tias been held to not lie for beasts taken damage feasant, even if the distrainor has failed to have the damage assessed within the time limited by statute." Where A took up B's stock damage feasant, B tendered the amount of the damage, which A refused, demanding an additional sum, but shortly thereafter notified B that he would accept that sum, and, notwithstanding, replevied the stock, held, that replevin would not lie.' Where the animals are taken in the actual act of trespass, the law implies some damage, and will look over slight irregularities in the proceeding. In Michigan, in case of non-suit in replevin of a distress, the defendant may have an assessment covering every claim arising out of the dis- tress and damages done him by the beasts.* § 352. Where the statute gives a special remedy for testing the legality of the distraint, replevin will not lie. In Michigan, by special statute, stock distrained may be re- 1 Clark r. Stipp, 75 Ind. 114; Blizzard v. Walker, 32 Ind. 437. 2 Nelson t. Smith, 26 III. App. 57. ^ Taylor v. Welby, 36 Wis. 42. *Ford r. Ford, 3 Wis. 399; Morse r. Reed, 28 Me. 481; Barnes v. Tannehill, 7 Blackf. 606; Bayless v. Lefaivre, 37 Mo. 119; Hendricks r. Decker, 35 Barb. 298. ^ Johnson v. Wing, 3 Mich. 163. « Cresson v. Stout, 17 Johns. (N. Y.) 116. ' Allen V. Van Ostrand, 19 Neb. 579 (27 N. W. 642). 8 Sterner r. Hodgson, 63 Mich. 419 (30 N. W. 77), How. Stat. § 8375. WHEEE STATUTE GIVES A SPECIAL EEMEDT. 179 pie-vied to test the validity of the distraint, but to do this the plaintifE must proceed under the special law, and not under the general law o£ replevin.' > Campan r. Konon, 39 Mich. 363. 180 THINGS WHICH lilAY BE REAL OR PEESONAXi. CHAPTBE XYI. THINGS WHICH MAY BE EEaL OR PERSONAL PROPERTY ACCORDING TO CIRCUMSTANCES. Section. General rule in regard to houses, trees, crops, grass, and other property which may be either real or per- sonal property according to circumstances . . . 353 When maintainable for prop- erty severed from the realty 354 Timber cut on land sold for taxes 355 A growing crop passes with a judicial sale of realty . . 356 Crops growing on mortgaged land are covered by the mortgage .... 357 A purchaser .at a foreclosure sale cannot, before the sale is confirmed, replevy th|e crop 358 The general rule . . . 359 Mortgagee cannot maintain replevin for property severed before he took possession . 360 Where title is in litigation — Effect on crops . . . 361 Right of mortgagee to re- plevy house removed unlaw- fully 362 When buildings are replevia- ble 363 The same 364 Where the intention of the par- ties make a building person- alty 365 Fixtures may be removed by Section, owner while in possession — not after The landlord's right to those fixtures originated in an im- plied gift .... Fixtures part of the realty — Illustralions . Fixtures severed from the realty become personal property Trade fixtures . The same . . . , Personalty — Where attached to land without owner's con- sent A building or other fixture placed on the land of an- other with his consent is personal property Cannot be maintained for timber severed fromthefree- hold by an adverse claim- ant The same, and other property 375 Proof necessary — Title — What is adverse possession . Replevin does not lie by one of two claimants of govern- ment land for the crops raised or grass cut by an- other claimant Where a person claiming to own the land severs chat- tels Property severed under con- 366 367 368 369 370 371 372 373 374 376 377 378 GENEBAL KULE IN BEGAKD TO HOUSES, .ETC. 181 Section. tract of sale can be replevied by the vendee, not by the vendor 379 But where nothing was paid for the land and timber was fraudulently sold, the owner can replevy .... 380 In cages of disseizin . . 381 Chattels severed from realty . 382 Section. The same in case of tres- passer 383 Owner may replevy property illegally severed by a tenant 384 Actual severance not neces- sary .... 385 Chattels severed by mistake . 386 Rights of the holder of a color- able title merely . . . 387 Instances 388 § 353. General rule in regard to houses, trees, crops, grass, and other property which may be real or personal property, according to circumstances. It is not the prov- ince of this work to enter into a discussion of what is or what is not real estate. Under the authorities it is allowable in a re- plevin action to examine into the title of the real estate, where the title to the chattel depends upon the title to the real estate, just far enough to determine whether or not there are adverse claimants to the real estate. If there are, the val- idity of their claims cannot be tried in the replevin action; but if there are not adverse claimants to the realty, the title may be shown in the replevin action for the purpose above stated. "So much depends on the situation and nature of the "property, the uses to which it can be applied, or to which "the owner or claimant may choose to apply it, that it is "difficult to lay down any precise rule adapted to all cases.'" In the following pages I have endeavored to classify the de- cisions as well as the dissimilarity of the cii'cumstances out of which they arose will permit, without much effort at logi- cal order. § 354. When maintainable for property severed from the realty. The action for the recovery of specific chattels is founded upon the right of property, and to maintain it the plaintiff must .show that he is the owner of the property claimed, or that it has been wrongfully taken from his pos- session by the defendant. It is well settled that it lies for ' Ewing V. Burnet, 11 Pet. 41. 182 THINGS WHICH MAY BE REAL OE PEESONAL. things whicli were a part o£ the realty, but which have been severed therefrom by the wrongdoer and converted to his use. The owner of the land does not lose his title by the severance, but his ownership attaches to the property in its changed character, and it vests in him as a chattel interest, and he can pursue it by the ordinary remedies given by law to the owner of personal property. It is an incident to the right to the realty that the owner may claim the severed property. A claimant whose only claim to the property sev- ered rests upon his interest in the land from which it was taken must show that he was in the actual or constructive possession of the land when the severance occurred. Where the land is wild, uninclosed, the plaintifE must show a good legal title, as constructive possession follows the legal title.' § 355. Timber cut on land sold for taxes. The original owner of land sold to pay taxes cannot maintain replevin for timber cut by the purchaser between the time of sale and re- demption.^ § 356. A growing crop passes with a judicial sale of realty, and the purchaser can maintain replevin for the crop, corn ungathered.' He wko is in possession of and cultivates a piece of land and harvests a crop grown thereon, and sev- ers the same from the soil, cannot be dispossessed of said crop by the owner of the land in an action of replevin.* But where, after ejectment, the unsuccessful party or a member of his family enters upon the land without permission and sows > Johnson r. Elwood, 53 N. T. 431; Cresson r. Stout, 17 J. E. 116; Schermerhorn v. Buell,4Den. 422; Moody F.Whitney, 34 Me. 563; Kiley r. Boston Water Power, 11 Cush. 11. 2 Cromeline v Brink, 29 Pa. St. 522. 8 Salmon r. Fewell, 17 Mo. App. 118; Garth r. Caldwell, 72 Mo. 627 ; Scriven v. Moote, 46 Mich. 66 ; Hecht v. Uettman, 56 Iowa, 679 ; Jones on Mortgages, § 780, 697; Shepard v. Philbrick, 2 Denio, 175; Steele v. Farber,37 Mo. 80; Howell v. Skink,4 Zab. (N.J.) 92; Downard y.Groff, 40 Iowa, 597; Crews r. Pendleton, 1 Leigh. 305; Ling r. King, 8 Wend. 585; Anderson v. Strauss, 98 111. 490; Jones v. Thomas, 8 Blackf. 428; Aldrich r. Eeynolds, 1 Barb. Ch. 615; Hall r. Durham (Ind.), 20 N. E. 282. * McAllister v. Lawler, 32 Mo. App. 91; Renick r. Bojd, 99 Pa. 555. WHEN PUBOHASEB AT FOEECLOSUEE SALE CAN NOT. 183 a crop on the land, and, after ouster under the execution in ejectment, cut and stack the crop on the land, the crop passes with the land, and the judgment owner may maintain replevin for the crop.' § 357. It is a well settled rule of law that crops grow- ing on mortgaged land are covered by the mortgage, whether planted before or after its execution, and until they are severed the mortgage attaches as well to the crops as to the land ; and if the land be sold for condition broken be- fore severance, the purchaser is entitled to the growing crops, not only as against the mortgagor, but against all persons claiming in any manner through or under him, subsequent to the recording of the mortgage.^ And whenever this right is interfered with he may maintain replevin for the crop.' But where the tenant was in rightful possession at time of sale, and the purchaser suffer him to remain and to harvest the crops then growing, he cannot maintain re- plevin for the grain.* Where trees were severed from the realty before the purchaser under a foreclosure sale was en- titled to possession, he was not allowed to maintain replevin for their recovery.^ § 358. A purchaser at a foreclosure sale cannot, before the sale is confirmed and before he has acquired possession of the land, maintain replevin for crops growing thereon at the time of sale, but afterwards severed therefrom by the person in possession of the land.^ A purchaser of land at sheriff's sale under a decree of foreclosure, upon receiving 1 Oyster v. Oyster, 32 Mo. App. 270. 2 Rankin v. Kinney, 7 Bradw. 215 ; Harman v. Fisher, 9 Bradw. 22 ; Lugden v. Beasby, 9 Bradw. 71; Anderson v. Straub, 98 111. 485; Jones r. Thomas, 8 Blackford, 428; Jones on Mortgages, § 676, 699, 780; Washburn's Real Prop. 106. 8 Yates r. Smith, 11 Bradw. 459; Waterman r. Matteson,4 R.I.539; Wiltsie on Mortgage Foreclosure, § 587. * Bowen v. Roach, 78 Ind. 361. 5 Berthold r. Holman, 12 Minn. 335. s Woehler f. Endter, 46 Wis. 301; W^iltsie on Mortgage Foreclosure, §587. 184 THINGS WHICH MAT BE EEAL OE PERSONAL. a deed, becomes entitled to the immediate possession of the premises, and crops thereafter sown and harvested by the mortgagor or his lessee, without the purchaser's consent, belong to the latter, and he may maintain replevin therefor, Avithout first making a demand.' § 359. The general rule. As a general rule in sCates where the mortgage is by law regarded as an absolute con- veyance of the land, with a condition of defeasance on pay- ment of the debt, chattels severed from the realty before dis- charge of the mortgage are the property of the mortgagee, and, of course, he may replevy them. But when the mort- gage is regarded as a security only, and the legal title of the property still remains in the mortgagor, chattels severed be- long to the mortgagor until default or condition broken, or, in some instances, until foreclosure.^ §360. Mortgagee cannot maintain replevin for prop- erty severed before he took possession. A mortgagee of real estate, whose debt is due, but who has not entered into possession, cannot maintain replevin for a specific chattel which the mortgagor or his assigns has severed and re- moved from the realty, and which, before severance, was a fixture or part of the realty, and subject to the mortgage.' ' Hall V. Durham, 117 Ind. 429 (20 N. E. 282). This is the well set- tled rule where the mortgage is regarded, as it now generally Is, as con. veying no title, but a lien merely until after foreclosure. " Adams v. Corrieton, 7 Minn. 456 ; Smith v. Goodwin, 2 Me. 173 ; Hemenway r. Bassett, 13 Gi-ey, 378; Brotton v. Olawson, 2 Strobh. (S. C.) 478; Fernald v. Linscott, 6 Me. 234; Buss^ v. Page, 14 Me. 132; Frothingham r. McKusick, 24 Me. 405 ; Gore v. Jenness, 19 Me. 53 ; Rob- erts F. Dauphin Bank, 19 Pa. St. 75 ; Cope v. Roraeyne, 4 McLean, 384 ; Latham r. Blakely, 70 N. C. 368; Gray v. Holdehip, 17 S. & E. 413; Goff r. O'Conner, 16 111.421; Sanders v. Reed, 12 N. H. 561; Thomas v. Crofut, 14 N. Y. 474 ; Van Pelt F.McGraw, 4 Comst. Ill; Waterman 7. Matteson, 1 Ames (4 E. I.), 540; Langdon v. Paul, 22 Vt. 210; Lull v. Matthews, 19 Vt. 322; Morey v. McGuire, 4 Vt. 327; Clark r. Reyburn, 1 Kan. 281; Northampton Paper Mills v. Ames, 8 Met. 1; Tates v. Joyce, 11 Johns. 136; Jackson v. Bronson, 19 Johns. 326; Hatch v. Dwight, 17 Mass. 299; Gardner v. Heartt, 3 Denio, 233; Luha v. Holt, 5 Hawaiian, 182. 3 Kircher v. Schalk, 39 N. J. 335. See Luha v. Holt, 5 Hawaiian, 182. WHEN BUILDINGS ARE EEPLEVIABLE. 185 Trees cut on mortgaged land without the consent of the mortgagee may be taken possession of by the mortgagee, and replevin will not lie against him by the mortgagor or the one who wrongfully cut them, or any one claiming un- der him.' ' § 361. Where the title is in litigation, effect on crop. Where the title or possession of land is in litigation, and a person with full knowledge puts in a crop, the crop will go with the land and replevin will lie for it by the one entitled to the possession of the land, even after it is harvested.^ A crop of wheat cut and removed by defendant may be re- plevied by the one in possession of the land.' When a tenant rents land from one against whom a suit in ejectment is pend- ing, of which the tenant has notice, and the suit is deter- mined against his landlord, the growing crops pass with the soil, and the party recovering in ejectment may recover them in replevin even after they are harvested.* Eeplevin will lie for corn gathered by one of two claimants of the land on which grown, in favor of the one who planted and culti- vated it.° § 362. Right of mortgagee to replevy house removed unlawfully. Where a house has been severed from mort- gaged premises without the consent of the mortgagee, he may maintain replevin at any time before it becomes at- tached to and forms a part of other realty ; and if the building is afterward severed from the realty, before his mortgage is satisfied, he may regain it by the action of replevin.^ § 363. When buildings are repleviable. A building placed upon the land of another under an agreement for a con- ' Mosher v. Vehue, 77 Me. 169. ' Samson r. Rose, 65 N. Y. 411. The court discuss the doctiine of em- blements quite fully In this opinion. " Conner r. Bludworth, 54 Cal. 635. *RowelI V. Klein, 44 Ind. 290. ^ Kenney v. Degman, 12 Neb. 237 (11. N W. 318). « Dorr F. Dudderar, 88 111. 107; Matzon v. Griffin, 78 111. 477 ; Salter V. Sample, 74 111. 430. 186 THINGS WHICH MAY BE EEAL OB PEESONAL. veyance of the land, -wliicli agreement is broken by the owner of the land, may be replevied.' A frame building erected upon and attached to the realty and used as a tannery is not repleviable/ In California a building which was placed on blocks not in any way attached to the soil was regarded as personal property/ A party bought a lot, making but a small payment thereon, and built a house on it. After several installments of the purchase money were overdue and unpaid, he moved the house off. Tke owner of the ground demanded it as personal property and replevied it. It was held the action was proper and could be sustained so long as the house was not permanently attached to other realty.* § 364. The same. Buildings while fixed are ordinarily part of the realty, and dwelling-houses and such buildings are prima facie real estate, and cannot be replevied.^ They are never considered as fixtures in the ordinary meaning of that term," and ordinarily heavy machinery, as that of a mill or factory, is regarded as real estate.' But if it was clearly the intention of the parties to regard it as personal prop- erty when the same was placed thereon, it will be so regarded by the law, and replevin will lie by the owner.' Property ordinarily real estate may by the agreement of the parties ' Commissioner's Eush Co. v. Stubbs, 25 Kan. 322. ^ Eddy V. Hall, 5 Col. 576. The court takes the ground that the building could not become personalty until severed from the ground, no matter what the agreement of the parties in regard to it, and cite Claf- lin V. Carpenter, 4 Met. 580, and Lawson v. Patch, 5 Allen, 586. ^.Pennybecker v. McDougal, 48 Cal. 162; Mills v. Eedick, 1 Neb. 437. * Ogden V. Stock, 34 El. 522; Salter v. Sample, 71 111. 432. ^Davis V. Taylor, 41 111. 405; Meyers v. Schemp, 67 111. 469; Chat- terton v. Saul, 16 111. 151; Madigan v. McCarthy, 108 Mass. 376; Smith V. Benson, 1 Hill (N. T.), 176; Vausse v. Russell, 2 McCord (S. C), 329. « Goff T. O'Conner, 16 111. 423. ' Harlan v. Harlan, 15 Pa. St. 513. 8 Salter v. Sample, 71 111. 431; Fahnestock v. Gilham, 77 HI. 637; Dooley v. Crist, 25 111. 551 ; Doty v. Gorham, 5 Pick. 487; Ashmun v. Williams, 8 Pick. 402; Wells v. Bannister, 4 Mass. 514; Kicker r. Kel- ley, 1 Gr. (Me.) 117; Tale v. Seely, 15 Vt. 221; Beers v. St. John, 16 Conn. 822 ; Nalor v. Collinge, 1 Taunt. 19 ; Mansfield v. Blackburn, 6 Bing. 426. WHEN FIXTUBES MAY BE KEMOVED BY OWNEB. 187 become personalty without actual severance, and as such sub- ject to replevin.' Keplevin does not lie for property fixed to the freehold, but if, after the sheriff has levied on it, it is severed, it becomes personal property, and may be re- plevied.^ Where a contractor had prepared timbers for a house he was building, and they were removed temporarily to an adjoining house, and there levied upon on a writ against him, the employer, owner of the house, was not allowed to replevy the timbers as part of the house.' Replevin will not lie to oust a tenant from the occupancy of a building.* Re- plevin will lie to recover the possession of a building erected on a lot of ground by a party claiming title thereto, who by judicial determination has been evicted therefrom, if the building were not at the time of the eviction affixed to the soil, although another person, being afterward in possession, had moved it and affixed it to the soil.° A house fraudu- lently removed may be replevied by the owner. ° § 365. Where the intentions of the parties make a build- ing personalty, neither the manner of its annexation to the land nor any other matter will prevent this intention from being carried out, and replevin will lie for a building under such circumstances, though on a permanent foundation.' § 366. Fixtures may be removed by owner while in possession — not after. It is undoubtedly the settled rule of law that, where a tenant has the right to remove fixtures, he must exercise his right during the continuance of his term, or before he surrenders the possession of the premises. He cannot re-enter for such purpose.* 1 Shell V. Haywood, 16 Pa. St. 527; Piper r. Martin, 8 Barr. (Pa.) 211. 2 Cresson v. Stout, 17 Johns. (N. Y.) 116. 3 Johnson r. Hunt, 11 Wend. (N. Y.) 137. * McCormick v. Eiewe, 14 Neb. 509 (16 N. W. 832) ; Riewe r. McCor- mick, 11 Neb. 261 (9 N. W. 88). 5 Mills V. Kedick, 1 Neb. 437. « Crum V. Hill, 40 Iowa, 506. ' Waters r. Reuber, 16 Neb. 106 (19 N. W. 687); Rush Co. r. Subbs, 25 Kan. 322. 8 Torrey r. Burnett, 9 Vroom (38 N. J. L.), 459— a leading case; 188 THINGS WHICH MAY BE EEAL OB PEESONAL. § 367. The landlord's right to these fixtures origi- nated in an implied gift on the part of the tenant, such im- plication arising from the fact that the tenant, at the end of his term, abandoned the property without removing them. And if it is shown that the landlord consented to allow the fixtures to remain for a certain time, even by implication, this would overcome the implication of an abandonment by the tenant, and probably the same rule would be followed where the tenant, on leaving, notified his landlord that he would return for the fixtures not yet removed by him.' § 368. Fixture part of the realty — Illustrations. A wooden half partition, nailed at the ends to blocks let through the plastering, and at the bottom to a strip of board nailed to the floor, put up by the tenant by the landlord's con- sent and sold to him afterwards, is a fixture, and not subject to levy as personalty, nor to replevin as goods and chattels.^ It will not lie to recover possession of houses that had been ei^ected upon posts, and afterward removed from land against which the plaintiff had enforced a mechanic's lien for the in- debtedness of one who had only an equitable interest in the premises.^ Replevin will lie for fixtures in the basement of a building, 'and plaintiff cannot be restrained by injunc- tion from asserting his right in that way.* It is a funda- mental rule that all improvements or additions placed upon land, of a permanent nature, adapted to its use and better enjoyment, become a part of the land. If a house be built Elves r. Mawe, 2 Smith's Lead. Cas. 228 and note, Year Book 20 Henry VII; Poole's Cases, 1 Salk. 368; Penton r. Robart, 2 Bast. 88; Josslyn V. McCabe, 46 Wis. 591; Keog r. Daniel, 12 Wis. 164. 1 Torrey v. Burnett, 9 Vroom (38 N. J. L.), 459. See Marston v. Roe, 8 A. & E. 59. See Charlotte Furnace Co. v. Stouffer (Pa.), 17 A. 994. 2 McAuliffe V. Mann, 37 Mich. 539. On the general proposition, see O'Brien r. Kusterer, 27 Mich. 289; Guthrie r. Jones, 108 Mass. 191; Brown v. Wallis, 115 Mass. 156. ^Wagar v. Briscoe, 38 Mich. 587. See Ewell on Fixtures, 414-17 ; Eggleston on Dam. 292. < Hamilton v. Stewart, 59 111. 330. FIXTURES SEVERED FROM THE REALTY. 189 upon land witli the intention of attaching it to the land per- manently, it becomes a part of the realty, and replevin -will not lie; but where the owner detached such a house from the land and moved it to another lot, while in transit it would be personal property, and replevin would lie therefor.' § 369. Fixtures severed from the realty become per- sonal property and are subject to replevin as though never attached to the soil.^ Where two persons leased land for a salt well on shares, and petroleum came up with the salt water, which they saved and sold, and the owner of the land sued in trover, the court held that only the salt was granted, and everything else not mentioned reserved, but that, as the lessees could not run the salt water without the petroleum, that the severance of the petroleum from the real estate was inevitable and lawful, that trover would not lie, that equity alone could give relief.' When one built a mill on the land of another under an agreement that it was to be the property of the builder until a certain judgment should be paid, which was not paid, but the land with the mill thereon was sold on execution, the mill was held to be the personal property of the builder.* Where a person purch- ased a mill at sheriff's sale, and the real estate only was sold, and another person claimed the machinery and severed and took it, with the knowledge of the purchaser at the sheriff's sale, who afterwards brought replevin, claiming it as part of the real estate, the purchaser was allowed by the court to show that it was in fact part of the real estate, and that it was in fact sold by the sheriff with the realty and bought by him, and upon making such proof he was ' Salter v. Sample, 71 111. 430; Ogden v. Stock, 34 III. 522; Dooley v. Crist, 25 111. 551 ; Evvell on Fixtures, 414-17. = Brown v. Caldwell, 10 S. & R. 118; Heaton v. Flndlay, 12 Pa. St. 304; Mather v. Trinity Church, 3 S. & R. 509. See Salter v. Sample, 71 111. 431; Pyle v. Pennock, 2 Watts and Serg. 290; Voorhis r. Free- man, 2 Watts and Serg. 116 ; Baker v. Howell, 6 S. & R. 476. 8 Kier v. Peterson, 41 Pa. St. 358. * Yater r. Mullen, 24 Ind. 277. 190 THINGS WHICH MAY BE EEAL OB PEESONAL. allowed to sustain replevin against the party who wrong- fully severed it' Eeplevin lies for mill machinery severed from the real estate.'' Eepleyin will lie for such articles as mills, barns, steam engines, offices, and sheds. Such arti- cles may or may not be fixtures, and whether they are or not is a matter of evidence unnecessary to be stated in pleading.' § '610. Trade fixtures. Eeplevin will not lie for a counting-room built in a store-room ; it is part of the realty.* Mere utensils or machines, or other articles of a similar na- ture, being themselves of a chattel nature and capable of being detached without material injury to the freehold or to themselves, and of being set up and used elsewhere, are re- movable by the tenant or his vendee during his term. On the other hand, there may be annexations made by a tenant occupying premises for trade purposes of so intimate and per- manent a character as to furnish satisfactory evidence that the annexations were intended to be permanent accessions to the realty. In the first case, replevin would lie; in the latter, it would not lie.° The principle laid down by these cases is that where the fixture or other thing is attached to the land with the intention of making it a part thereof, it belongs to the land, and replevin will not lie ; but where the intention of the parties is to not so attach it, and that it shall remain personal property, it is personal property, and replevin will lie for it. § 371. The same. And the right to bring replevin and 1 Harlan r. Harlan, 15 Pa. St. 513; Heaton v. Findlay, 12 Pa. St. 304. " Cresson v. Stout, 17 Johns. 116. For a contrary view, see Powell v. Smith, 2 Watts (Pa.), 261. ' Brearly v. Cox, 24 N. J. L. (4 Zab.) 287; Kirch r. Davis, 55 "Wis. 287 (11 N. W. 689). * Brown r. Wallis, 115 Mass. 156. See Guthrie r. Jones, 108 Mass. 191; Neblet v. Smith, 4 T. E. 504; Cresson r. Stout, 17 Johns. 116; Hanrahan r. O'Beilly, 102 Mass. 201; Bliss r. Whitney, 9 Allen, 114; Cong. Soc. V. Fleming, 11 Iowa, 533. "^ Ewell on Fixtures, pp. 91-3. WHERE PERSONALTY ATTACHED TO REALTY. 191 tliixs have the character of the fixtures judicially determined as to whether they were attached to the realty or were not intended to be so attached cannot be restrained by injunction.' In the case of a frame dwelling, the court say that the action of replevin should not be dismissed until the court could first determine from the evidence whether it was real or personal property.'' So it was held no cause for demurrer to a declaration in replevin that the action was for a shingle mill office building and barn. They might be real estate, and they might be personal property. This was the very question in issue, and could only be determined after hear- - in'g all the facts brought out at the trial. ^ Eeplevin lies for trade fixtures wrongfully detached and removed, such as shaft- ing, pulleys, belting, etc.'' § 372. Personalty — where attached to land without owner's consent. An owner of personal property cannot, against his will, be deprived of his property by having it attached to the real estate of another, without his consent, by a third party, and may bring replevin for his property so at- tached.^ Where a house which is a chattel, and belongs to ' Hamilton v. Stewart, 59 111. 331. This was an action to restrain a party from entering upon certain real estate and removing an icebox,' counter, and shelving, etc., used in the business he had carried on there. 2 Elliott V. Black, 45 Mo. 373. 2 See Briarly v. Cox, 4 Zab. (24 N. .1.) 287, and Reynolds v. Schuler, 5 Cow. 323; Goodrich v. Jones, 2 Hill, 142; Fahnestock r. Gilham, 77 111. 637; Guthrie r. Jones, 108 Mass. 193; Hanrahan r. O'Reilly, 102 Mass. 201. * Kirch V. Davis, 55 Wis. 287, 11 N. W. 689. An inclined plane for loading coal may be replevied. Charlotte, &c., v. Stouffer (Pa.), 17 A, 994. * Shoemaker r. Simpson, 16 Kan. 43. In this case railroad iron was taken by a railroad company without consent of owner, and used inlay- ing a temporary track across a stranger's land, spiking it down to cross- ties. The owner of the land claimed it as a part of the realty. On this subject see Haven r. Emery, 33 N. H. 66; Dame v. Dame, 38 N. H. 429; Hunt r. Bay State Iron Co., 97 Mass. 279; Wagner v.G. & T. R. R. Co., 22 Ohio St. 503; Hines v. Ament, 43 Mo. 298; TuUer r. Tabor, 39 Me. 519. Where the intent of the parties is held to govern— where the prop- erty was taken without the knowledge of the owner, of course his consent 192 THINGS WHICH MAY BE REAL OE PERSONAL. A, is -wrongfully removed and placed by B upon a stone foun- dation upon his land with the intention of converting it to his own use, A may bring replevin for the house.' A build- ing set upon blocks resting on the ground is personal prop- erty, and replevin lies to recover it. A portable fence made of posts and boards, and resting on the surface, is personal property, and may be replevied.^ Where the owner of chat- tels fixes them to the real estate of another without his con- sent, they become a part of that real estate, and cannot be taken by replevin ; and if one aoc[uire possession of his neigh- bor's chattels and fix them to his own land, so that they are a part of the real estate, they cannot be retaken by replevin, the remedy being to sue in conversion.^ A building placed on the land of another by mistake, without the owner's eon- sent or knowledge, would be personal property and liable for the debts of the builder.* § 373. A building or other fixture placed on the land of another with his consent, with the intention of removal, is personal property, and may be replevied by the owner thereof.* Where a fence was built upon the land of another will not be presumed — Conklin r. Parsons, 1 Chandler, 240, and other cases which lay down the rule that personal property thus attached to the real estate cannot be replevied by the owner, all seem to rely upon Sparks V. Spicer (Mich. 10 Will. III.), 1 Lord Raymond, 7-38. This case was decided 192 years ago, and reads as follows : " If a man be hung in "chains upon my land, after the body is consumed I shall have gibbet "and chain." The sooner a rule of law resting upon such a foundation is changed, the better for the credit of our judicial system. 1 Central R. R. Co. v. Fritz, 20 Kan. 430. ^ Pennybecker v. McDougal, 48 Cal. 160. In this case, plaintiff settled upon a piece of public land, but the patent was issued to another, and he brought replevin for his cabin and fence, and itwas held that, as they were not attached to the soil, the United States had no interest in them, and would convey no title to them by its patent. 3 Fryatt r. The Sullivan Co., 5 Hill (N. Y.), 117. * Pennybecker v. McDougal, 48 Cal. 162. In this case the ovraer of the land made no objection to the prpceedings by the creditors to sub- ject the building to payment of their claims. M^'eathersby v. Sleeper, 42 Miss. 732; Toy v. Reddick, 31 lud. 414; Russell V.Richards, 10 Me. 429; Ashmun v. Williams, 8 Pick. 402; Hines V. Ament, 43 Mo. 300. FOE WHAT IT CANNOT BE MAINTAINED. 193 by mistake, and remained there for fifteen years with the con- sent of the owner of the land ; the owner of the land then re- quested the owner of the fence to remove it, which he did not do, when the owner of the land took the fence away himself, claiming it as a part of the realty. The owner of the fence brought and was permitted to sustain replevin.' § 374. Cannot be maintained for timber severed from the freehold by an adverse claimant. While the general rule is that when things which, in their natural state, form part of the freehold, are severed therefrom and converted into chattels, they belong to the owner of the land, mere changes in the form of such things, so long as the identity of the original material can be traced, not working a change of ownership, and he may maintain detinue for them, if they are removed from the freehold; yet, the law not permitting the title to land to be inquired into directly in personal ac- tions, the owner of the freehold cannot maintain that action if he can show title to the things severed from it only by showing title to the land, and, at the time of the severance, he had not actual or constructive possession of the land, but it was then held and occupied adversely to him.^ § 375. The same, and other property. Trees, while standing, are a part of -the realty, but when severed become personal property of the person who owned and had the I'ight of possession of the real property. He can maintain replevin for them unless they were so severed by one claim- ' Hines v. Ament, 43 Mo. 300. See also Eing r. Billings, 51 111. 475; Oibbons v. Dillingham, 5 Eng. (Ark.) 9 ; Hensley v. Brodie, 16 Ark. 511 ; but see Vausse v. Russell, 2 McCord (S. C), 329. 2 Cooper V. Watson, 73 Ala. 252; Carpenter v. Lewis, 6 Ala. 682; 1 Smith's Lead. Cas. (7 Ed.) 660; Curtis v. Groat, 6 Johns. 168; Brown V. Sax, 7 Cowen, 95; Wright v. Guier, 9 Watts, 172; Mather v. Trinity Church, 3 Serg. & E. (Pa.) 509; Baker r. Howell, 6 Id. 476; Brown v. Caldwell, 10 Id.ill4; Brothers r. Hurdle,10 Ired.(N. C. L.) 490; Branch F.Morrison, 5 Jones (Law), 16; Harrison v. Hoff,102 N. C. 126 (8 S. E. S87) ; Adkison v. Hardwick (Col.), 21, P. 907. 13 194 THINGS WHICH MAY BE KEAL OE PEKSONAL. ing adverse possession.' Grass cut from the freehold is per- sonal property, and in an action for it the plaintiff need not show title to the land.^ And where the owner of the land wrongfully cut trees thereon which, by agreement, belonged to another, the owner of the trees was allowed to maintain replevin for the trees so cut.° And where timber was law- fully cut, but illegally sold before being paid for, replevin will lie by the owner of the land against the purchaser, but the measure of his damages is not the value of the timber cut, but the purchase price under the contract.* Where one in possession tlaiming title to the land, with full knowledge of an adverse claim, and in defiance of a notice from the claim- ant, cuts bark from trees thereon, and in replevin executes a claim and delivery bond, the measure of damages is the value of the bark at the time and place where replevied.' § 376. Proof necessary — Title — What is adverse pos- session. In replevin for logs cut and removed by defend- ants from the land to which plaintiff claims title, proof that the plaintiff was in the actual possession and occupancy of the land at the time of such cutting and removal is sufficient to enable him to maintain the action, without proof of a paper title, unless the defendants proved an adyerse title thereto of a higher character than a mere possessory title. But where the land was unoccupied when the logs were taken, plaintiff must show that he is the real owner, and trace his title to the government." Where a trespasser settled on timber land for the purpose of cutting the timber thereon, such settlement does not constitute him an adverse claim- ant, and the true owner may bring replevin for the logs and timber so cut.' ■ Washburn r. Cutter, 17 Minn. 335 ; Richardson v. York, 2 Shep. (Me.) 216; Bower v. Higbee, 9 Mo. 260. 2 Johnson r. Barber, 5 Gilm. (111.) 426. ' Warren, v. Leland, 2 Barb. (N. Y.) 613. * Lillie V. Dunbar, 62 Wis. 198 (22 N. W. 467). 5 Phillips V. Stroup (Pa.), 17 A. 220. « Hungerford v. Bedford, 29 Wis. 345. ' Austin V. Holt, 32 Wis. 478. ■WHERE CLAIMANT SEYEES CHATTELS. 195 § 377. Replevin does not lie by one of two claimants of government land for the crop raised by another. Ee- plevin for hay cut on the public lands does not lie when the defendant is in adverse possession, under a claim of right by virtue of the preemption laws. The title to land cannot be tried in this way.' An adverse claimant of government land cannot bring replevin for the crop raised on the land by one in possession and claiming the land also.^ Hay cut on pub- lic land cannot be replevied by one of two claimants of the land.' § 378. Where a person claiming to own the land sev- ers chattels. Where the land was in the actual possession of W. under a claim of right and adverse to plaintiff, who it was held had the title, he cut a quantity of grass and sold the hay to defendant, and plaintiff brought replevin against defendant, it was held that as W. was in possession under a claim of right he would be regarded as the owner until decreed otherwise, and that W. would convey a good title to the hay so sold.* The courts have gone so far as to hold that where the defendant was in possession in good faith and severed property therefrom, the real owner could not maintain replevin therefor, basing it on the ground that, the title to the land could not be settled in this way." Where there is no adverse possession, the owner of the land may always bring replevin, or he may always bring it against a trespasser." One who claims to be the owner of 1 Page V. Fowler, 28 Cal. 603. 2 Rathbone v. Boyd, 30 Kan. 483 (2 Pac. 664). 5 Page 7. Fowler, 28 Cal. 603. But see Laurendan r. Fugelli (W. T.) 21 P. 29. * Stockwell 7. Phelps, 34 N. Y. 363. See Mather v. Trinity Church, 3 S. &. B. 309 ; Lehman v. Kellerman, 65 Pa. St. 489 ; Ralston 7. Hughes, 13 111. 469. = Snyder v. Vanx, 2 Eawle (Pa.), 427; Harlan v. Harlan, 15 Pa. St. 513; DeMott v. Hagerman, 8 Cow. 219; Halleok 7. Mixer, 16 Cal. 575; Page 7. Fowler, 28 Cal. 608; Anderson 7. Hopler, 34 111. 439. 6 Brewer 7. Fleming, 51 Pa. St. Ill; Saunders f. Reed, 12 N. H. 558; Langdon 7. Paul, 22 Vt. 205; Sands F.Pfeiffer, 10 Cal. 258; Anderson V. Hopler, 34 111. 436; Vausse 7. Enssel, 2 McCord, 329. 196 THINGS WHJCH MAT BE BEAL OB PEESONAL. land cannot maintain replevin for shock oats against one who sowed and harvested them, and who had been in posses- eion of the land several years.' The true owner cannot main- tain replevin for crops raised on his land by others who are holding the possession of the land adversely to him/ The remedy in such cases is by action of trespass for mesne profits.' § 379. Property severed under contract of purchase of the land can be replevied by the vendee, not by the vendor. The vendee of land under contract of sale is the proper one to maintain replevin for logs unlawfully cut on the land, not the vendor.* If one who is rightfully in possession of land under a contract of sale after a default in payment, but, be- fore any foreclosure of his equity, disposes of a house at- tached to such land, the vendor in the land contract, having no possessory title to the house, cannot maintain replevin or trover therefor.^ § 380. But where nothing was paid for the land and timber was fraudulently sold, the owner can replevy. Li- cense to a grantee of land to cut and carry away the timber would not prevent the licensor from maintaining replevin against one who had purchased the timber from the licensee, where the latter had paid nothing for the land, and it was understood and agreed by all parties that ownership should remain in the licensor until payment.* § 381. In cases of disseizin. Where one disseizes the owner of land and cuts and removes the crop, replevin will not lie. The remedy is trespass.' Where defendant was the 1 Caldwell v. Custard, 7 Kan. 303. 2 1'eiinybecker r. Dougal, 46 Cal. 661; Page v. Fowler, 39 Cal. 412. 3 Han-ison v. Hoff, 102 N. C. 126 (8 S. E. 887). See Brothers v. Hur- dle, 10 Ii-ed. 490; Ray r. Gardner, 82 N. C. 454. * Martin v. Scofleld, 41 Wis. 167. 5 Noithrup V. Trask, 39 Wis. 515. The proper remedy is to enjoin the waste. ^ Ortman r. Lovereign, 42 Mich. 1 (3 N. W. 223): ' UeMott V. Hagermann, 8 Cow. (N. Y.) 220; Rich r. Baker, 3 Den (N. Y.) 79. CHATTELS SEVERED EEOM REALTY. 197 owner in fee of land of which the plaintiff in replevin had disseized him and sowed a crop, after which the defendant had re-entered and had possession of land and wheat, held, plaintiff could not maintain replevin.' "Where plaintiff was in possession of 800 acres of land, but the fences were not well kept up, and several persons entered thereon, built houses, and attempted to preempt it, but were defeated, and judgment of ouster rendered against them, but while they were in possession they cut and put up hay which plaintiff replevied, held, that the suit would not lie, that the owner of the land was out of possession, and the defendants in posses- sion claiming to own it when they made the hay. The rem- edy of the owner was an action for the rents and profits, and not for the crops themselves or their value. It would be unjust and oppressive to the public to require them to exam- ine the title to the real estate before buying the crops grown thereon.^ Where a trespasser attached a building to land, and, after he had been evicted, tortiously removed the build- ing, it became after such severance, and while in the hands of the trespasser, personal property for which the land owner could maintain replevin.^ § 382. Chattels severed from realty. No matter how heavy or large the articles may be, they may be replevied if they have been severed from the real estate of which they once formed a part.* On the other hand, personal property may become attached to the real estate in such a manner as to become a part thereof, as boards may be built into a house. In such case replevin will not lie, but plaintiff must ^ Hoover v. Hays, 10 B. Mon. (Kj'.), 72. As to house erpcted under some circumstauoes, see Huebschmann v. McHenry, 29 Wis. 659. 2 Page V. Fowler, 39 Cal. 415; Id. 28 Cal. 608. See Adams on Eject, 141-186; Harrison v. Hoff, 102 N. C. 126 (8 S. E. 887). ^ Huebschmann v. McHenry, 29 Wis. 655. * Foy V. Eeddick, 31 Ind. 414; Reese v. Jared, 15 Ind. 142; Huobsch- mann v. McHenry, 29 Wis. 659; Pennybccker v. McDougal, 48 Cal. 162; Mills v. Eedick, 1 Neb. 437; Dubois v. Kelly, 10 Barb. 496; Om- bony V. Jones, 21 Barb. 520; Gear r. Bullendick, 34 111. |74; GuUett v. Lamberton, 1 Eng. (Ark.) 118. 198 THINGS "WHICH MAY BE EEAL OK PUESONAL. resort to some other form of action.^ But the severance of chattels alone does not change the title. If trees be cut by a tenant without authority, the -vrood or logs belong to the owner of the land, and he may replevy it.'' § 383. The same— In case of a. trespasser. When a tres- passer entered on land and scwad grain, aad the land was afterward sold by the sheriff upon execution against the owner, held, that the purchaser at such sale Avas entitled to the grain.' In California this doctrine haa been carried so far as to hold that the owner of laod cannot sustain replevin for crops raised on the land by ome who holdy possession with adverse claim of right, even though without color of title.* "Where crops of wheat or corn axe wrongfully severed by a trespasser, the owner is not divested of hio property, but may maintain replevin.^ Replevin may ba maintained by the owner of the land for wheat which has been threshed and stored on another's premises without his consant.* One who purchases logs of the owner of the land may maintain replevin against the vendee of the one who wroD.gful.ly cut them.' The owner of land may maintain replevin for wood cut thereon wrongfully, so long as the wood can be identified.' There is an exception to this rule. Where the person tmt- 1 Fryatt r. The Sullivan Co., 5 Hill (N. T.), 117; Ricketts r. Dori'vU, 55 Ind. 470. ^Halleck v. Mixer, 16 Cal. 578; Nichols v. Dewey, 4 Allen (Maso.), 386; Schuleiibprg v. Harriman, 21 Wall. 44; Snyder v. Vaux, 2 Eawle (Pa.), 427; Gillerson v. Mansur, 45 Me. 26; Bower v. Higbee, 9 Mo. 260. 2 Hillings r. Wright, 14 Pa. St. 375. * Pennybocker v. McDougal, 46 Cal. 662. = Bull 7. Griswold, 19111.632; Anderson v. Hapler, 34 111. 439; Sands r. Pfeiffer, 10 Cal. 258; Langdon v. Paul, 22 Vt. 205; Congregational Soc. V. Flemming, 11 Iowa, 538. 6 Smith V. Hague, 25 Kan. 246. ' Brewster r. Carmichael, 39 Wis. 456. 8 Merrill r. Dixon, 15 Nev. 401; Harlan r. Harlan, 15 Pa. St. 513; Wincher v. Shrewsbury, 2 Scam. 284; Kimball v. Lohmas, 31 Cal. 158; Street r. Nelson, 80 Ala. 230; Snyder v. Vaux, 2 Rawle(Pa.),423; RioJi- ardson r. York, 14 Me. 216 ; Davis r. Easley, 13 111. 192. EIGHTS OF HOLDEE OF OOLOEABLE TITLE. 199 ting the timber is in adverse possession of the land, title can- not be tried in this way.' Nor can damages for conversion be recovered.'* § 384. Owner may replevy property illegally severed by a tenant. Where a tenant illegally severs property fi'om the freehold, the owner may at once bring replevin therefor, notwithstanding the tenant's lease of the freehold has not yet expired.' § 385. Actual severance not necessary. Thus where, •upon a sale of land, the deed reserved the crops and plants growing thereon, it "Was held that they thereby became per- sonal property and the subject of replevin.* Thus a simple consent or agreement of the owner of the real estate has usually been held sufficient to change the nature of the prop- erty and this consent may be inferred from acts, as where an engine and boiler were sold without reference to the land and possession given and acq[uiesced in, it was held to amount to a severance.^ § 386. Chattels severed by mistake. Where in case of timber lands a party made a mistake as to the boundary line, and cut trees on the land of another, it was held that replevin would lie by the true owner, and that the occupancy of the land from which they were cut by the defendant could not be urged by him as a defense to the replevin suit. Nothing but an adverse claim of title will defeat the true owner or prevent him from asserting his right to his own property in this manner." § 387. Rights of the holder of a colorable title merely. The holder of a colorable title merely, without other right 1 Streets. Nelson, 80 Ala. 230; Beattyr. Brown, 76 Ala. 267. But see Kimball v. Lohmas, 31 Cal. 154. 2 Seymour v. Van Curen, 17 How. Pr. (N. Y.) 94. ^Leonard v. Stickney, 131 Mass. 541; Clark r. Holden, 7 Gray, 8; Phillips r. Allen, 7 Allen, 115. *Ring V. Billings, 51 111. 475; Gibbons v. Dillingham, 5 Bng.(Ark.)9. 5 Hensley v. Brodie, 16 Ark. 511 ; Waters r. Reuber, 16 Neb. 106 (19 N. TV. 687) ; Rush Co. r. Stubbs, 25 Kan. 322. 6 Young V. Herdic, 55 Pa. St. 172. 200 THINGS WHICH MAY BE EEAL OE PEESONAL. than possession, cannot recover against the real owner by a resort to replevin any more than he could in any other form of action.' Where plaintiff cleared and prepared land and put it in wheat, and was in possession when defendant en- tered and cut it, the defendant on trial offered to prove the land was his, and the plaintiff was a trespasser in sowing the crop, and the court admitted the evidence and its ruling was sustained.^ § 388. Instances. Replevin lies by the owner of swamp land incapable of occupancy, for trees cut thereon.' But a person claiming land who has not taken the legal steps to perfect his claim cannot maintain replevin for timber cut thereon.* And where lumber is drifted down stream and lodges upon adjacent land, if the owner of the land disclaims damages, the owner of the lumber is not bound to tender damages in order to maintain replevin for the lumber.' Fence rails and stakes, though xmlawf uUy taken by a wrong- doer, when used by him in the construction of a fence upon his real estate, thereby become a part of such realty, and cannot be replevied by the owner as personal property.'' It will not lie where defendant is the owner and in possession of real estate on which plaintiff has personal property which defendant does not claim, but offers to allow plaintiff to re- move, but refuses to allow plaintiff possession of the real es- tate where the property is. There must be an actual unlaw- ful detaining.' 'Hungerford v. Eedford, 29 Wis. 347; Hart v. Vinsant, 6 Heisk. (Tenn.) 616; Harlan r. Harlan, 15 Pa. St. 513. 2 Elliott V. Powell, 10 Watts (Pa.), 454. " Phillips r. Gastrell, 61 Miss. 413; Wright v. Guier, 9 Watts, 172. * Bower r. Higbee, 9 Mo. 259. 'Flanders v. Locke, 53 Cal. 20. « Ricketts r. Dorrel, 55 Ind. 470. » Bent V. Bent, 44 Vt. 633. CHANGE IN FORM GENEKALLI, 201 CHAPTEE XVII. "WHERE THE GOODS HAVE BEEN CHANGED IN FORM OR ENHANCED IN VALUE. (See also Cliapter on Damages.) Section. Change in form generally — Rule under the civil law . 389 Rule now where property is changed in form . . . 390 Rule — Description should be as it is in its new form . . 391 Right to replevin unaffected by change in form . . 392 Application of rule — lUustra- trations .... 393 Right of plaintiff not affected by change made by agree- ment 394 Owner should move to reclaim Section^ his property as soon as he knows of its loss . . . 39& Where an innocent purchase!' for value changes the form and adds to the value, re- . plevin will not lie . . . 39& The natural increase of live animals may be replevied by the owner of the animals . 397 Animals — Increase of may.be replevied by the owner of the dam. Exception: Where dam is hired for a term, increase belongs to the usufructuary . . . 39S § 389. Change in form generally. The rule under the civil law was that where one wrongfully took the property of another and by his labor enhanced its value by changing its form, the owner of the property so wrongfully taken could claim the property in its changed form with the en- hanced value; that is, the wrongdoer received nothing for his labor.'' While this was a salutary rule in many cases, in many cases it would work a hardship upon the defendant wholly disproportionate to the wrong done to plaintiff by him, as where trees were wrongfully cut and manufactured into furniture at great cost and expense. The tendency of the later decisions, as we shall presently see, has been to com- 1 Justinian Inst. ; Dig. Liber. 10 Tit. 4 Leg. 12 ; Puftendort's Law of Nature, Leber. 4, Ch. 7, § 10; Snyder r. Vaux, 2 Rawle, 427. 202 WHEEE GOODS HAVE BEEN CHANGED IN EOEM. pensate the original owner fully for all loss, and to stop at that. § 390. Rule where property is changed in forin. The owner of timber taken and converted by a willful trespasser into cross-ties may recover the ties or their value in an ac- tion of replevin, from the trespasser or his vendee, with or without notice.' The doctrine of these cases is that where the first taking is wrongful, without any shadow of right or title, the enhanced value passes to the rightful owner. ^ But where the first taking was bcma fide under a claim of right or title, the original owner should have his property or its value as taken,- and the defendant the value of his labor in enhancing the value,' and this rule violates the rights of the respective parties as little as any general rule could. ' ' What- "ever alterations of form any property has undergone, the "owner may seize it in its new shape if he can prove the iden- " tity of the original materials, as if leather be made into " shoes, or cloth into a coat, or a tree be squared into tim- " ber."* A party may replevy boards made from trees wrong- fully cut on his land. The owner of property wrongfully taken may pursue it so long as it can be identified, whatever alterations in form it may assume.' §391. Rule as to description. The plaintiff in such cases should describe the property as in the form in which it exists when the action is commenced, and the declaration will be supported by proof of the ownership of the original material and proof tracing it into its changed form.° 1 McKlnnis v. L. E. M. R.& T. E. E., 44 Ark. 210; Woodenware Co. r. U. S., 106 U. S. 432; Ely v. U. S., 4 Dill. 464; Wetherby f. Green, 22 Mich. 311; Nesbitt v. St. Paul L. Co., 21 Minn. 491; Heard v. James, 49 Miss. 236 ; Potter v. Mardre, 74 N. C. 36 ; 1 Suth. on Dam. 164. 2 Silsbury r. McCoon, 3 Comst. (N. Y.) 380. ' Herdic v. Young, .55 Pa. St. 178; Young v. Herdic, Id. 172; Bull r. Griswold, 19 111. 631; Heard v. James. 49 Miss. 236; Snyder v. Vaux,2 Eawle, 427. < Street v. Nelson, 80 Ala. 230; Cooper f. "Watson, 73 Ala. 252; Wright V. Guier, 9 Watts, 172 ; Eiley v. Boston Power Co., 11 Cush. 11. 5 Snyder v. Vaux, 2 Eawle (Pa.), 423. ° Wingate r. Smith, 20 Me. 287. APPLICATION OF BULE — ILLUSTBATIONS. 203 § 392. Right to replevy not affected by change in form. Plaintiff's right to pursue and replevy is unaffected by any change made in the shape or form. The rule is the same as in trespass or trover.' § 393. Application of rule — Illustrations. Property which has undergone a change of form in the hands of the defendant may be recovered by the true owner only so long as it remains substantially the same, and the court is able to say that the one article is composed of the materials of the other ; but replevin is never maintainable where there has been a complete change of articles, as the exchange of one horse for another, so that there no longer remains any iden- tity. In such cases the party aggrieved must resort to some other remedy." But where the contract of sale allows the vendee to exchange the property for other with the assent of the vendor, and this is done, the vendor may maintain detinue for the substituted property whenever he could for the other under the contract.' Eeplevin will not lie for a canoe by the owner of the trees from which it was made. If a person be- stows his labor upon the property of another, thereby chang- ing it into another species of article, the property is changed, and the owner of the original material can not recover the article in its altered condition, but is only entitled to its value in the shape in which it was taken from him.* It is not essen- tial that it remain in its original form so long as it can be identified.^ But if the change has been wrought in good faith by an innocent party, and it has been materially in- creased in value or has become incorporated with another thing, which is the principal and it is only a part, replevin would not be allowed." In Pennsylvania the courts hold re- ' Heard r. James, 49 Miss. 236; Harris v. Newman, 5 How. 6.58; Brown v. Sax, 7 Cow. 95; Wingate r. Smith, 26 Me. 287; Davis v. Eas- iey, 13 m. 198; Silsbury v. McCoon, 3 Comst. 380. 2 Power V. Telford, 60 Miss. 195; Silsbury r. McCoon, 3 N. Y. 379. > McGinnis v. Savage, 29 W. Va. 362 (1 S. E. 746). * Potter F. Mardre, 74 N. C. 36. 5 Wingate v. Smitli, 20 Me. 287. « Gray r. Parker, 38 Mo. 165; Ricketts r. Dorrel, 55 Ind. 470, 204 WHEEE GOODS HAVE BEEN CHANGED IN FORM. pleyin will not lie if the property lias undergone an essential change so that its identity cannot be traced, but will lie where there is only a change of form.' A plaintiff in re- plevin, entitled to the possession of certain pictures, left with an artificer to be framed, cannot also take the, frames, upon which the artificer claims a lien; nor is the latter bound to remove the frames from the pictures. The plaintiff must act at his peril in the matter.^ Where timber is cut upon the public lands willfully, fraudulently, or negligently, and without authority, and made into saw logs, the government may replevy such logs even when they have reached the boom, without deducting for their enhanced value after sever- ance from the freehold, arising from the labor of the wrong- doer.' But where the timber has been converted into boards- and they into a house, the house cannot be replevied ; the change is too great.* Where trees growing on plaintiff's unenclosed land were cut by an unknown party, and by de- fendant hauled to a saw mill and converted into boards which defendant took to his house, the owner of the land was al- lowed to replevy the boards, on the ground that no alteration, in form should prevent the owner from reclaiming his prop- erty by replevin so long as he could identify it.^ In a simi- lar case in New York the court say that in case of wrongful taking the defendant cannot, by any act of his, change the title to the property.^ But the leading case is Silsbury vs. > Snyder v. Vaux, 2 Eawle (Pa.), 427; Curtis v. Groat, 6 Johns. 168 j Babcock v. Gill, 10 John. 287 ; Brown v. Sax, 7 Cow. 95. ' Faulkner v. Harding, 9 Mo. App. 12. 3 Bly V. United States, 4 Dill. (8 Circ. Minn.) 464; Johnson v. Mcin- tosh, 8 Wheat. 574; United States v. Cook, 19 Wall. 593; Nesbit v. St. Paul Lutn. Co., 21 Minn. 491. * Snyder v. Vaux, 2 Eawle, 423; Kicketts v. Dorrel,55 Ind.470; Betts r. Lee, 5 Johns. 348; Brown v. Sax, 7 Cow. 95; 2 3la. Com. 404. ^ Davis V. Easley, 13 111. 198. ^ Brown r. Sax, 7 Cow. 95. See Kicketts r. Dorrel, 55 Ind. 470; Bab- cock V. Gill, 10 John. 287; Curtis v. Groat, 6 John. 168; Wild v. Holt, 9 Mees. & W. 672; Hyde v. Cookson, 21 Barb. 92; Martin v. Porter, 5 Mees. & W. 352 ; Betts v. Lee, 5 Johns. 348 ; Riglitmyer v. Raymond, 12 Wend. 51. OWNEB SHOULD MOVE TO KEOLAIM IMMEDIATELY. 205 McCoon, 3 Comst. 380, where defendant took corn by a will- ful trespass and converted it into whisky after two decisions to the contrary," the court finally held that the whisky be- longed to the owner of the corn. The case will be more fully considered under the title "Damages," which see. § 394. Rights of plaintiff not affected by change made by agreement with defendant. Where a levy had been made on gold coin, and by agreement it was converted into paper money for convenience, and the paper money was then replevied by a stranger to the process under which the coin was taken, held, that the substitution of the bills by agree- ment would not defeat the action.^ § 395. Owner should move to reclaim his property as soon as he knows of its loss in such cases. The tendency of the courts in applying the rule last laid down has been to require of plaintiff in such cases a reasonable diligence in asserting his rights, and where the defendant is not a willful wrongdoer, without the shadow of legal excuse, this should always be required of plaintiff.' Where timber worth twenty-five dollars had been made into hoops worth twenty-eight times as much, by a party acting in good faith, upon a supposed legal right, the Michigan court refused to allow the defendant's labor to be appropriated by the plain- tiff, the owner of the timber, and denied his right to replevy the hoops.* So in Pennsylvania, where plaintiff, the owner ,of the ground, brought trover for coal taken out of his mine by mistake, the court restricted his recovery to the value of the coal before it was mined. ^ But in Illinois a contrary doctrine has been held.^ 1 4 Denio, 332 ; 6 Hill, 326. See Gray r. Parker, 38 Mo. 160. 2 St. L., A. & C. R. E. r. Castello, 28 Mo. 380. ' Weymouth r.C. & N. W. R. R., 17 Wis. 550; Hungerford v. Redtord, 29 Wis. 345 ; Single v. Schneider, 30 Wis. 572. See Austin r. Craven, 4 Taunt. 644. * Wetherbee r. Green, 22 Mich. 311. = Forsyth y. Wells, 41 Pa. St. 291. * Robertson r. Jones, 71 111. 405. 206 WHEEE GOODS HATE BEEN CHANGED IN FOEM. § 396. Where an innocent purchaser for value changes the form and adds to the value, it has usually been held replevin would not lie. In a case of this kind, where the change is not an intentional wrong to the original owner, it stands on the same footing as if the original articlahad been destroyed, and the true owner is not allowed to trace its identity into a manufactured article, for the purpose of appropriating the skill and labor thus added to the original material innocently, but he is put to his action for damages as in conversion, and he may recover its value as it was when it left his possession. And this rule is eminently just, and will work a hardship in very few cases.' § 397. The natural increase of live animals may be replevied by the owner of the animal. In an action to re- cover a band of ewe sheep, or their value, held, that their increase and the wool subsequently shorn from the band are proper subjects of litigation in the same action. As to the lambs, the rights of the parties are precisely the same as to the original flock, and as to the wool, the remedy is judgment for the value of their use, and the court should allow sup- plemental pleadings to be filed raising these claims.'^ Re- plevin brought- for a female slave entitles the plaintiff to her child, born after the commencement of the action." The is- sue follows the mother.* § 398. Animals, increase of may be replevied by owner 'Wetherbeev. Green, 22 Mich. 311; Betts F.Lee, 5 Johns. 348; Heard V. James, 49 Miss. 237 ; Martin v. Porter, 5 Mees. & W. 352 ; Eyder v. Hathaway, 21 Pick. 305; Riddle r. Driver, 12 Ala. 590; Snyder v. Vanx, 2 Rawle,427; Baker v. Wheeler, 8 Wend. 508; Hyde v. Cookson, 21 Barb. 92 ; Chandler r. Ed8on,'9 Johns. 362 ; Curtis v. Groat, 6 Johns. 168 ; Rightmeyer v. Raymond, 12 Wend. 51 ; Baker v. Wheeler, 8 Wend. 505; Wild v. Holt, 9 Mees. & W. 672; Harris v. Newman, 5 How. (Miss.) 658; Putnam v. Gushing, 10 Gray (Mass.), 334; Mallory r. Willis, 4 Comst. 76; Hiscock v. Greenwood, 4 Esp. 174; Linch v. Welsh, 3 Pa. St. 294. 2 Buckley v. Buckley, 12 Nev.423. ° Jordan v. Thomas, 31 Miss. 558; Scay r. Bacon, 4 Sneed, 103. 'Newman y. Jackson, 12 Wheat. 570. INOEEASE OF ANIMALS MAI BE. 207 of the dam — Exceptions. The law is well settled that the increase of the female of live stock belongs to the owner of the dam at the tinae.' The only exception to this rule is where the dam may be hired temporarily for a term. The increase during the term belongs to the usufructuary.^ The brood of an animal belongs to the owner of the dam, and replevin may be maintained for them with their dam.^ But when the dam of an unborn foal is sold, reserving the foal, such re- serve is valid, and replevin maybe brought for the foal after its birth, against the purchaser of the dam, or against one purchasing her from him, although he purchased without notice of the reservation.* 1 White V. Storms, 21 Mo. App. 288; Stewart r. Ball's Admrs., 33 Mo. 156. 2 Kent. Com. 360-1. 3 Phipps r. Martin, 33 Ark. 207. * Andrews r. Cox, 42 Ark. 473. 208 CONFUSION 01' GOODS OF DIFFERENT OWNEBS. CHAPTER XVin. CONFUSION OF GOODS OF DIFFERENT OWNERS. Section. 'Generally . . . • . 399 'Of articles separable into ali- quot parts, as pounds, bush- els, etc. — Where the confu- sion is without malice, each ownertakes his just propor- tion 400 Replevin can be maintained for part of mass it it can be identified .... 401 The same— When for apart of cotton in mass . . . 402 Loss, if any, must fall on the one causing the mixture . 403 States or United States may replevy their property from mass 404 Section. Where the confusion is occa- sioned by the willful act of one party, he must bear the loss .' 405 Articles that can be identified can be replevied — As to them, it is not a confusion . 406 One who willfully mixes prop- erty can only replevy that he can identify . . . 407 Where the confusion is by agreement — Rule . . . 408 Commingling of property — ■Right of part owner against a stranger .... 409 § 399. General rule. Where goods of different owners become confused or mixed, the general rule is, that if they can be separated -without injury or loss to either party, the separa- tion may be made by either party bringing a replevin suit for his share. But if the property cannot be so divided, or if loss is to occur, the solution is not quite so simple. If the goods were willfully mixed by one party, he must bear -all the loss, and the other can bring replevin for his prop- erty, or for the whole, if necessary. If the confusion occurred by the neglect of one party, but not willfully, then the other party may take his share by replevin, but not the whole property. § 400. Of articles separable into aliquot parts as jpounds, etc., and where the confusion is without malice. When a mixture of cereal grains occurs by consent of the ARTICLES SEPARABLE INTO ALIQUOT PARTS. 209 owners, or under circumstances in wliicli the mixture would be reasonably expected by the parties, and the property mixed is of the same nature and value, although not capable of an actual separation by identifying each particle, yet if a division can be made of equal value, as in the case of corn, oats, and wheat, the law will give to each owner his just proportion, and such owner may recover his share by replevin.' When articles like wheat and the flour manufactured therefrom, wine, oil, fruits, etc., which are sold not by a description which refers to and distinguishes the particular thing, but in quan- tities which are ascertained by weight, measure, or count, and which are undistinguishable from each other by any physical difference in size, shape, texture, or quality, and there are dif- ferent owners of the common mass, each having a separate property in his share, and each entitled to sever it from the share or shares of the others, each may bring replevin for his share of the same, subject to deductions for any loss or waste properly falling to his share, while the property remains in mass.^ Replevin may be maintained for grain in bin with other grain where plaintiff is entitled to a certain quantity,, as a number of bushels.' Where the property is severable by the pound or bushel, etc., one party may maintain replevin for his part without regard to the others.* It is undoubtedly true that in an action in the nature of replevin, for the recovery of specific chattels, > Piajzek v. White, 23 Kan. 621. 2 Young V. Miles, 20 Wis. 646; Kimberly v. Patchin, 19 N. Y. 330 Kautmann v. Schilling, 58 Mo. 218; Wilson r. Nason Bosw. (N. Y.) 155 Ryder v. Hathaway, 21 Pick. 298 ; Story on Bailments, same title Morgan v. Gregg, 46 Barb. 183; Bristol v. Burt, 7 John. 254; Ingle- bright V. Hammond, 19 Ohio, 387; Moore r. Brie R. R. Co., 7 Lans. (N. Y.) 39. 'Groff r. Belche, 62 Mo. 400; Kaufman v. Schilling, 58 Mo. 218; Henderson v. Lauck,21 Pa. St. 359; Inglebrightr. Hammond, 19 Ohio, 337; Ryder v. Hathaway, 21 Pick. 805. * Forbes r. Shattuck, 22 Barb. 568; Tripp r. Riley, 15 Barb. 834; Morgan v. Gregg, 46 Barb. 184; Ames r. Mississippi Boom Company, 8 Minn. 473. 14: 210 CONFUSION OF GOODS OF DIFFERENT OWNEBS. their identity must be shown before they are liable to seiz- ure.' But where the goods are mixed, and are of the same nature and value, although not capable of an actual separa- tion by identifying each particle, yet if a division can be made of equal value, as in the case of oats, corn, or wheat, each party may claim his aliquot part^ § 401. Replevin can be maintained for part of mass if it can be identified. Property part of a mass can be replev- ied if it can be identified, even though it has not yet been received and weighed, nor an ascertained quantity agreed upon/ Replevin lies only for specific property distinguish- able from other property of the same kind.* It is not a bar to an action of replevin that the plaintiff's goods have been commingled with like goods of the defendant's by the wrong- ful act of a third party. It seems, however, that if the char- acter of the goods is so essentially changed by the mixture that one aliquot part would not be the equivalent of another, the case would present a different question.^ § 402. The same — When for a part of cotton in mass. Keplevin cannot be maintained for cotton mixed in the same bale with the defendant's." "Where plaintiff bought 900 pounds 1 Gray v. Parker, 38 Mo. 160. 'Kaufmann r. Schilling, 58 Mo. 218; Inglebright v. Hammond, 19 Oliio, 337; Eyder r. Hathaway, 21 Pick. 305; Henderson r. Lauck, 21 Pa. Sfc. 359; Story on Bailm., § 40; Eldred r. The Oconto Co., 33 "Wis. 141. ' Landler v. Bresnaham, 53 Mich. 567 (19 N. W. 188). This was for a car-load of iron, but partly loaded when bought. *Mead v. Johnson, 54 Conn. 317 (7 A. 718). This was replevin for twenty-eight gallons of proof brandy, when defendant had no proof brandy, but more than twenty-eight gallons of bra;ndy above proof. * Wilkinson v. Stewart, 85 Pa. 255. This was oil which had been drawn off by agreement to return a like amount, but benzine and oil of an inferior qualityhad been returned in part. An ownerof oil in tank or pipe line may take out his aliquot part. Hutchison r. The Common- wealth, 1 Norris,472. May replevin whether he ever had possession oi not. Harlan r. Harlan, 3 Harris, 507. See also "Wood v. Fales, 13 Harris, 246; Tripp v. Eiley, 15 Barb. 333; Forbes v. Shattuck, 22 Id. 568; Kimberly v. Patchin,19 N. Y. 330. 'McKennon r. May, 39 Ark. 442. LOSS MUST FALL ON PARTY CAUSING MIXTURE. 211 of cotton to be delivered at a certain gin, and 1,100 pounds were delivered at the gin and put in a separate place, tlie extra 200 pounds being sold to the ginner by the one who delivered the cotton, held, that this was a sufficient identification and delivery of the cotton, and replevin would lie. ' Replevin cannot be maintained for a mass of cotton in which the plaintiff's has been innocently mixed by the defendant, nor for an undivided share of the mass. It must be first separated and capable of identification.^ § 403. Loss, if any, must fall on the one causing the mixture. Where defendant has mixed other grain of his own with that claimed by plaintiff, he cannot thus by his own act defeat the action, but must bear the loss resulting therefrom.' Where plaintiff's logs had been mixed with those of defendant, and there was no evidence that the for- mer differed in description, quality, or value from the latter, and plaintiff was unable to identify his own, he was allowed to recover a quantity of logs out of the common mass, equal to the quantity owned by him.* But this principle should not be carried farther than is absolutely necessary to pro- tect an innocent party from injury. The loss upon the other party should be made as light as possible, and should not be carried to the extent of revenge or punishment unless the confusion was willful or with malice.^ If the property claim- ed be so mixed with other property that a delivery of the specific article cannot be made, and the plaintiff fails to ask ' Graves v. Cowan, 43 Ark. 134. 2 Hart V.Morton, 44 Ark. 447; Person v.Wright,35 Ark.169; Wash- ington r. Love, 34 Ark. 93; Ward v. Worthington, 33 Ark. 830; Eyrler r. Hathaway, 21 Pick. 306; The "Idaho" 93 U. S. 5T5; 2 Schouler's Pers. Prop. § 49; Story on Bailment, § 40. 3 Samson r. Rose, 65 N. Y. 411. * Eldred v. The Oconto Co., 33 Wis. 133 ; Newton r. Howe, 29 Wis. 531; Stearns v. Raymond, 26 Wis. 74; Schulenberg v. Harriman, 21 Wall. 44. = Halbrook v. Hyde, 1 Vt. 286 ; Simmons r. Jenkins, 76 111. 483. See Rose V. Gallup, 33 Conn. 338, a trespass case where tools of A and B were mixed, and A sold his to C without separating those sold, and C took part of B, and B brought trespass and was defeated. 212 CONFUSION OF GOODS OF DIFFERENT OWNEES. judgment for its value in case it cannot be delivered, the ac- tion of claim and delivery can not be maintained.' § 404. State or United States may replevy. Where logs cut from the lands of the state without license have been intermingled with logs cut from other lands, so as not to be distinguishable, the state is entitled to replevy an equal amount from the whole mass.^ The United States may main- tain replevin for logs or lumber, the product of trees wrong- fully cut on its public lands.' § 405. Where the confusion is occasioned by the will- ful act of one party, he loses all right to the common mass as against the innocent party ; thus, where defendant changed the mark on plaintifE's logs and put a mark on them like his own, and mixed them with his own, plaintiff was. allowed to replevy the entire lot.* As where a mortgagor carelessly or purposely mingles the mortgaged property with like property not mortgaged, and sells both, the mortgagee may replevy the whole, and the purchaser in such a case must point out the goods and furnish the proper proof to distinguish the part claimed by him as not mortgaged, or on his failure to do so lose all, so far as the replevin suit is concerned.' Or where an officer mixes goods attached by him with similar goods attached by another officer, he loses his special property as against the other officer. ° "If one willfully intermixes his "money, corn, or hay with that of another, without his appro- 1 Hull V. Hull, 1 Idaho, 861. ^Schulenberg r.Harriman, 21 "Wallace (U.S.S.Ct.),44:. Id.2Dill.398. »Bly F. U.S., 4 Dill. (Sth C.Minn.) 464; Johnson r. Mcintosh, 8 Wheat. 574; U. S. r. Cook, 19 Wall. 593. * Wingate v. Smith, 20 Me. 287; Jenkins v. Steanka, 19 Wis. 127; WillardV. Eice, 11 Met. 493 ; Ryder v. Hathaway, 21 Pick. 299 ; S*avy r. Dearborn, 19 N. H. 351; Stephenson f. Little, 10 Mich. 433 ; Gilman r. Hill, 36 N. H. 311; Thorne v. Colton, 27 Iowa, 427; Weil v. Silver- stone, 6 Bush. (Ky.) 698; Beach v. Schmultz, 20 111. 185. ^ Adams v. Wildes, 107 Mass. 124; Johnson y. Neale, 6 Allen, 227; Hopes r. Lane, 9 Allen, 502; Hyde v. Cookson, 21 Barb. 92; Barron v. Cobleigh, 11 N. H. 557; Seibert r. McHenry, 6 Watts (Pa.), 301; Rock- well V. Saunders, 19 Barb. 473. ' Gordon r. Jenny, 16 Mass. 469. WILLFUL MIXER CAN REPLEVY IDENTIFIED GOODS. 213 "bation or knowledge, or casts his gold in alike manner into "another's melting-pot, our law, to guard against fraud, al- "lows no remedy in such case, but gives the entire property, "without account, to him whose original dominion is invaded, "and endeavored to be rendered uncertain, without his con- "sent. But if the mixture be by consent, then both have a "common interest in proportion to their respective shares.'" Or where a person bought a stock of mortgaged drugs and mixed them with his own, and the mortgagee, in attempting to take the mortgaged property, took some not mortgaged, he would not be chargeable in trespass.^ § 406. Articles that can be identified can be replevied; as to them, it is not a confusion. But of course a party would be allowed to take such specific articles in such case as he could identify. As to such goods, no mixture or con- fusion has occurred, and the party has lost none of his rights as to those articles. § 407. One who willfully mixes property can only re- plevy that he can identify. "Where one person adds mill logs of his own to a pile of logs belonging to another person, and marks them in the same manner as others are already marked, he cannot afterward maintain replevin against such other person for his portion of the logs, but only for such logs as he can identify as his own.^ Where a man fraudu- lently took logs, made them into boards, and mixed them with his own boards with a fraudulent intent to thereby de- prive the owner of his property, the owner of the logs th«is taken was allowed to maintain replevin for the whole pile of boards, and in the writ the property was described as boards, and not as logs.* 1 2 Black. Com. 405; Sims v. Glazner, 14 Ala. 699; McDowell v. Bis- sell, 37 Pa. St. 164; Low v. Martin, 18 111. 286; Dodge v. Brown, 22 Mich. 451; Root v. Bonnema, 22 Wis. 539 ; Ward r. Myie,2 Bulst. 323; Lupton F. White, 15 Ves. 432 ; Hart v. Ten Eyck, 2 John. Ch. 62. 2 Fuller V. Paige, 26 111. 359; Dillingham v. Smith, 30 Me. 372; Col- will V. Reeve, 2 Campb. 575; Smith v. Morrill, 56 Me. 566. 8 Dillingham v. Smith, 30 Me. 370. * Wingate v. Smith, 20 Me. 287, 214 CONFUSION OF GOODS OF DIFFEBENT OWNEBS. § 408. Where the confusion is by agreement, it is usually loolied upon as creating a tenancy in common, and each party may replevin his aliquot part of the whole, loss if any, to fall upon them in the proportion their several parts are to the whole.' Where wheat was stored in a warehouse, and, by consent of the owner, it was mixed with that of the warehouseman, after shipment from the bulk, until an amount not more than that stored by the plaintiff remained, he was held the absolute owner ; and a sale by the warehouseman of such remainder was a wrongful conversion, and the owner would have a right to follow it as long as he could identify it.^ § 409. Commingling' of property right of part owner against a stranger. In the absence of a proper objection by answer or demurrer, an owner of personal property in common with others may, without joining his co-owner, maintain an action of claim and delivery to recover posses- sion of the common property from a stranger having no right to the possession of the same or any part thereof.' 1 Nowlen r. Colt, 6 Hill, 461; Low r. Martin, 18 HI. 286; "Warner v. Cushman, 31 111. 283 ; Pai-ker v. Garrison, 61 111. 252 ; Stevenson v. Lit- tle, 10 Mich. 433; Buckley v. Buckley, 9 Nev. 379; Lupton v. White, 15 Ves. 432; Forbes r. Shattuck, 22 Barb. 568; Tripp v. Eiley, 15 Barb. 334. 2 Young r. Miles, 20 Wis. 615; Id. 23 Wis. 644. ' Miller v. Darling, 22 Minn. 303. See also Wright r. Bennett, 3 Barb. 451; Eussell v. Allen, 13 N. T. 173; White r. Brooks, 43 N. H. 402; Shouler on Pers. Prop. 198. OWNEE MAY BEPLEVY STOLEN GOODS ANYWHEEE. 215 CHAPTER XIX. GOODS ACQUIRED BY THEFT OR FRAUD. Section. Owner may replevy stolen goods wherever found . . 410 Against a thief, an innocent purchaser may elect to af- firm the sale or exchange and keep the property . 411 Ratification cannot be in- ferred by lapse of time . . 412 Owner may replevy chattels obtained from him by fraud wherever found . . . 413 It lies for goods obtained by the fraudulent use of the process of a court . . 414 Replevin will not lie for goods obtained by fraud, in the hands of innocent purchas- ers 415 Distinction between acquiring goods by theft and by fraud- ulent purchase . . . 416 Section. When property traded for sto- len property may be replev- ied Trade or barter of property — Frau]d — Rescission of con- tract .... Replevin will lie where posses- sion is obtained by fraud of defendant Markets overt, unknown in- this country . One who has participated in the fraud, or his representa- tives, cannot regain jjosses- sion by replevin A purchaser of stolen property cannot maintain replevin against the owner who has acquired possession 417 418 419 420 421 422 § 410. Owner may replevy stolen goods wherever found. A thief can acquire no title to the goods he has stolen, and can convey none by any sale or delivery he may make, and the owner may replevy them wherever he can find them.' Under the common law, before the owner could '2 Black. Com. 449; Arrendale v. Morgan, 5 Sneed (Tenn.), 703; Johnson r. Peck, 1 Wood & M. U. C, 334; Lance , v. Cowen, 1 Dana (Ky.), 195; White v. Spettigue, 1 Carr & Ker. 673; Courtis v. Cane, 32 Vt. 232; Florences. M. Co. v. Warford, 1 Sweeny (N. Y.), 433; Hoff- man V. Carow, 20 Wend. 20; Saltus r. Everett, 20 Wend. 275; Beaz- ley V. Mitchell, 9 Ala. 780; Parham v. Riley, 4 Cold. (Tenn.) 9; Sharp r. Parks. 48 111. 513. 216 GOODS ACQUIBED BY THEFT OE FEAUD. replevy stolen property, he must con net the thief. This was to make it an inducement for him to prosecute the thief, but if the goods were found in the hands of a third party, not the thief, or in collusion with him, the rule did not ap- ply, and replevin might be brought at once. But now the owner has his civil action without regal'd to the criminal action.' § 411. Against a thief an innocent purchaser may elect to aflBrm the sale or exchange and keep the property. Thus, if one buy or exchange for a stolen horse, the owner can recover the horse, and the purchaser may elect to re- scind the contract and recover the consideration (property traded to the thief) or he may affirm the contract and re- cover the value of the horse from the thief who sold him.^ § 412. Ratification cannot be inferred by lapse of time. In replevin for a mare, alleged to have been stolen and sold by the plaintiff's son, it is error for the court to instruct the jury that they might infer a ratification of the sale by the plaintiff from his delay to sue for more than a reasonable time, to be judged of by them.' § 413. Owner may replevy chattels obtained from him by fraud wherever found. Defendant by forged letters of recommendation, and other false representations, bought goods and paid in bills which he represented to be accepted by responsible men, but which were in fact accepted by ' Foster v. Tucker, 3 Gr. (Me.) 458; Newkirk v. Dalton, 17 111. 415; Boston, etc., v. Dana, 1 Gray, 83 ; Wells v. Abraham, L. E., 7 Q. B., 554; Boody v. Keating, 4 Gr. (Me.) 164; Hoflman v. Carow, 22 Wend. 285; Gordon f. Hostetter, 37 N. Y. 99; Pettingill r. Hideout, 6 N. H. 454; Short f. Barker, 22 Ind. 148; Crosby v. Leng, 13 East. 409; White V. Spettigue, 13 M. & W. 608. But see, for contr.ary rule, Har- wood F. Smith, 2 T. R. 750; Gimson v. Woodfall, 2 Carr & P. 41. See Stat. Victoria, 24-25, chap. 96, § 100, and 7 and 8 George IV., chap. 20, § 57. 2 Titcomb v. Wood, 38 Me. 561 ; Lee f. Portwood, 41 Miss. Ill ; Smith F. Graves, 25 Ark. 458; Spraights v. Hawley, 39 N.Y.441; Stan ley F. Gaylord, 1 Cush. 536 ; Dudley v. Hawley, 40 Barb. 397. A ooa trary rule was followed in Kogers v. Hine, 2 Cal. 571. » Watkins v. White, 4 111. (3 Scam.) 549. BEPLEYIN FOB GOODS OBTAINED BY FEAUD. 217 an accomplice and were worthless. The goods were deliv- ered, and shortly after levied on by the sheriff with an execution. In trover against the sheriff, it was held no property passed, and that the owner could recover.' So where the purchaser represents himself to be solvent when he is not, such fraudulent representations avoid the sale, and replevin will lie by the seller.^ For a full discussion of this subject, see chapter on =' Vendor and Vendee" (XI). § 414. It lies for goods obtained by the fraudulent use of the process of a court. Thus where a party falsely and maliciously and without probable cause sue out a warrant and cause the arrest of another, and thereby induce him to deliver goods to obtain his release, the party so defrauded may sustain replevin for his goods. The law will not per- mit the use of its process to aid in the perpetration of a fraud.' § 415. Replevin for goods obtained by fraud, in the hands of an innocent purchaser for value, will not lie. Thus where a party, by personating another, procured pos- session of leather, shipped it to Chicago, and sold it in open market, the real owner was allowed to maintain trover against the purchaser for the value, the court holding that the vendor had not parted with his title. Bare possession is not title, and when that possession is obtained by force or fraud, as in this case, it confers no right.* Notwithstanding the above cases, the almost universal rule is that where goods have been procured by fraud, and sold to an innocent third party, replevin will not lie by the owner on the familiar prin- ciple that, where one of two innocent parties mast suffer, he by whose act such a state of circumstances arose must be ' Tomplin v. Addy, in iiote to Mowry v. Welsh, 8 Cow, 238. 2 Ash r. Putnam, 1 Hill (N. Y.), 308; Powell v. Brat^leo, 9 Gill & .1. (Md.) 220; Bristol v. Wilsmore, 1 Barn. & Cress. 515; Kilby r. Wilson Ry. & M. 178 ; Atkins v. Barwick, 1 Stra. 165 ; Johnson v. Peck, 1 Wood & M. 334. 3 Foshay r. Ferguson, 5 Hill, 156; Watkins v. Baird, 6 Mass. 506. * Fawcett v. Osborn, 32 111. 411. See McKnight v. Morgan, 2 Barb. 171 ; Galvin v. Bacon, 11 Me. 28 ; Lee v. Portwood, 41 Miss. 109. See chapter on "Vendor and Vendee" (XI). 218 GOODS ACQUIEED BT THEFT OB FEAUD. tlie one to suffer.' Until the seller has made use of his op- tion to rescind the sale, the purchaser, no matter what fraud has been practiced, takes a title which may or may not be ratifi!ed by the vendor ; and if, while so holding, he sell to a bona fide purchaser for value, it will pass title. ^ § 416. Distinction between acquiring goods by theft and by fraudulent purchase. Where goods are stolen, the original owner has not parted with his title, and the thief has no title and can convey none ; but where they are purchased by fraudulent representations, the purchaser takes a title voidable at the option of the seller, but, until declared void by him, is perfectly valid as to all others, and if the goods are transferred to an innocent third party for value in due course of business, and without notice, he takes a good title, and the seller cannot replevy them from him.' § 417. When property traded for stolen property may be replevied. A traded his mule to B for one that was stolen. B sold A's mule to C, an innocent purchaser for value. Held, that A could not replevy from C* Where prop- ' Harrison v. Mcintosh, 1 Johns. 384; Jennings r. Gage, 13 111. 610; Harris v. Smith, 3 S. & E. (Pa.) 21; Ditson v. Bandall, 33 Me. 202; Bristol V. Wilsmore, 1 Bar. & C. 515; Kilby v. Wilson By. & M. (N. P.) 178; Brundage v. Camp, 21 111. 331; Caldwell v. Bartletfc, 3 Duer. 341 ;, Smith v.Lynes, 1 Seld. 41; Powell v. Bradlee, 9 Gill. & J. (Md.) 220; Butters v. Haughwout, 42 111. 18; Burton v. Curyea, 40 01.320; Kings- ford V. Merry, 34 E. L., & Eq. 607; Williams v. Given, 6 Qratt. 268; Keyser v. Harbeck, 3 Duer. 373; Arendale v. Morgan, 5 Sneed (Tenn.), 704; Malcom v. Loveridge, 13 Barb. 373. 2 Chicago Dock Co. v. Foster, 48 111. 507 ; State r. Wells & Fargo, 15 Cal. 340; Meers v. Wa,ples, 3 Houst. (Del.) 581; Hoffman r. Noble, 6 Met. 75; Boot r. French, 13 Wend. 570; Smith v. Lynes, 1 Seld. (N. T.) 47. "Saltus V. Everett, 20 Wend. 267; Sargent v. Sturm, 23 Cal. 362; Covin V. Hill, 4 Denio, 323; Deshon v. Bigelow, 8 Gray, Mass. 159; Wil- liams V. Merle, 11 Wend. 80; Cobb y. Downs, 10 N. Y. 339; Farley v. Lincoln, 51 N. H. 576, Neal v. Williams, 18 Me. 391; Mowrey r. Walsh, 8 Cow. 238; Boot v. French, 13 Wend. 570; Hurst v. Gwennap, 2 Starkie, 306; Hyde v. Noble, 13 N. H. 494; Nash v. Mosher, 19 Wend. 433; Ingersoll v. Emmerson, 1 Carter (Ind.), 77; Johnson v. Peck, 1 Wood & M. C. C. 334. * Jackson v. Sparks, 36 Ga.445; Brown v. Campbell, 6 Har.&J. (Md.) WHEEE POSSESSION OBTAINED BY PKAUD. 219 erty is exclianged for other property, known by the party giving it in exchange to have been stolen, and the stolen property is retaken by the rightful owner, the party injured may maintain replevin for his property so wrongfully obtained from him.' Where one purchased goods and paid for them with other goods, which were stolen, he was allowed to main- tain replevin for his property, which by the fraud he had been induced to part with, and this is the general rule.^ So where goods were purchased and paid for with counterfeit money, replevin will lie.' § 418.' Trade or barter of property — Fraud — Rescission of contract. Whete, in a trade or barter of property, the trade is procured by one of the parties by false and fraudu- lent representations as to the quality of the property disposed of by him, the defrauded party may, upon the discovery of the fraud, rescind the contract and maintain replevin for the property procured by such fraud, and this may be done with- out returning the property received by the defrauded party when such return is impossible, or where the party guilty of the fraud has by his own act put it out of the power of such defrauded party to make such return, and this fraud may consist in words, acts, or the suppression of material facts with the intent to mislead and deceive.* § 419. Replevin will lie where possession is obtained by fraud of defendant. Where one obtains possession of 491. See Doe v. Martyr, 4 BoSs. & Pull. 332. This was not a case where the owner of the stolen property brought suit, but the plaintiff was seek- ing to recover property which he had voluntarily sold and delivered, and which had come into the hands of a bona Me purchaser for value. 1 McDonald v. Smith, 21 Ark. 460. 2 Titcomb v. Wood, 38 Me. 563 ; Lee r. Portwood, 41 Miss. Ill ; Manning v. Albee, 11 Allen, 520. 2 Green v. Umphrey, 50 Pa. St. 213. See chapter on "Vendee and Vendor." * Faulkner v. Klamp, 16 Neb. 174 (20 N. W. 220). In this case the defendant traded a diseased mule to plaintiff, representing that he was sound, and moved to another county before plaintiff discovered the de- ception, and the mule died of the disease while in the plaintiff's posses- sion. 220 GOODS ACQUIBED BY THEFT OB FRAUD. property on the pretext of hiring it, but for the real purpose of taking it to another state for the purpose of having an at- tachment levied upon it, it is a fraud ah initio, and replevin will lie by the true owner.' Where the defendant, by his en- couragement, procured a messenger to leave a machine with him, knowing that it was intended for another, the taking was regarded as wrongful, and the owner might sustain replevin without demand.^ Where a willful trespasser cut logs on an- other's land and sold them to one who sold them to p,n inno- cent purchaser for value, the owaer was permitted to recover their value, with interest, from such purchaser, or he might have recovered the logs, had he been able to identify them." § 420. Markets overt unknown in this country. The common law forbids the sale of anything above the value of twenty pence, except in market overt. Sales in market overt were very formal affairs — were required to be open after no- tice, and the sale of an article was preceded by proof of own- ership on the part of the vendor. So that there was little danger of stolen goods being offered, or if offered, the true o'rt'ner was likely to claim them before sale. So that a pur- chase in market overt conveyed a good title to the purchaser even of stolen goods.* But markets overt are unknown in this country, and consequently the exception founded there- on in the common law is unknown in our law." § 421. One who has participated in the fraud, or his representatives, cannot regain possession by replevin. A. delivered notes to B. on a trust secret and fraudulent as to A.'s creditors. A. died. His representatives were not allowed » Joplin V. Carrier, 11 S. C. 327. 3 Purvis V. Moltz, 5 Robt. (N. Y.) 653. * Nesbitt V. St. Paul Lum. Co. 21 Minn. 491. See Gibbs r. Jones, 46 111. 320; Riley F.Boston Water Power Co., 11 Cush.ll; Riford v. Mont- gomery, 7 Vt. 418 ; Courtis 7. Cane, 32 Vt. 232; Schulenberg y. Harri- man, 21 Wall. 44; Williams v. Merle, 11 Wend. 80. * 2 Black. Com. 449; Hoffman v. Carow, 22 Wend. 285. 5 Griffith v. Fowler, 18 Vt. 390; Dame v. Baldwin, 8 Mass. 518; Par- ham V. Riley, 4 Cold. (Tenn.) 9; Ventres v. Smith, 10 Peters, 161; New- kirk V. Dalton, 17 111. 415; Lowry v. Hall, 2 W. & S. (Pa.) 134. PUKOHASEB OP STOLEN PROPERTY CANNOT. 221 to bring repleTin for the notes.' When the defendant rec- ommended L. as a man of means, and induced the plaintiff to sell him furniture, L. soon after absconded, after having transferred the furniture and other goods to the defendant. The plaintiff was permitted to prove that the defendant had recommended L. in like manner to others, and that the goods so Obtained were transferred to the defendant, as a circum- stance to show knowledge on his part, and to recover.^ "When an apparent state of 'ownership of property produced " by consent or collusion is the means of deceiving third " persons, the owner cannot enforce his rights against such "persons in replevin."' Where a party sought to recover intoxicating liquors from the possession of the sheriff, who had seized them on process of attachment against the pur- chaser, on the ground that he had made fraudulent repre- sentations, which induced plaintiff to sell them, but it ap- peared that the sale was a device to evade the law, the court refused to allow the plaintiff to recover them.* § 422. A purchaser of stolen property cannot maintain replevin against the owner who has acquired possession. A purchaser of stolen property from a pawnbroker in good faith cannot support replevin for the property against the true owner, or one to whom the property has been delivered for identification by him with the consent of the owner.' Where property has been stolen, the trespasser cannot main- tain replevin for the detention of it ; nor can his vendee, when it appears that it was thus acquired.' 1 Gibbins r. Peeler, 8 Pick. (Mass.) 254. ' Allison V. Matthieu, 3 Johns. 235. 'Daniels v. Fitch, 8 Pa. St. 497; Payne r. Bruton, 5 Eng. (10 Ark.) 53. *Marienthal v. Shafer, 6 Iowa, 226. 6 Weller r. Ely, 45 Conn. 547. ' Parham r. Riley, 4 Coldw. (Tenn,) 5. 222 ON PARTIES — PLAINTIFF AND DEFENDANT. CHAPTEE XX. ON PAETIES— PLAINTIFF AND DE FEND ANT— INTERVENTION AND SUBSTITUTION. Section. Plaintiffs generally . . . 423 Trustees— Executors— Admin- istrators 424 The action must be brought in name of real party in in,- terest 425 Wife may maintain in her own name .... 426 Non compos mentis . . . 427 Assignment of the right to replevy property— Sale . 428 Joint owners must join as plaintiffs 429 Where property is owned by two jointly .... 430 Defendants generally . . 431 Who is the proper defendant. 432 Defendant must have posses- sion at the time the suit was commenced . . . 433 But will lie against one hav- ing the legal title, though the property has not been moved by him . . . 434 But if he wrongfully took it and disposed of it to avoid the replevin, he is a proper defendant .... 435 An officer who levies upon Bectlon. property wrongfully is the proper defendant, and not the party he represents — Constructive possession. . 436 The same — Execution — Con- structive possession . . 437 Constructive possession — Mere paper levy insufficient 438 Power and authority of the officer as a defendant in such cases . . . .439 Where judgment plaintiff di- rects the officer to levy on specific property, he is liable 440 Co-defendants— Who may be 441 One of two wrongdoers may be sole defendant . . . 442 The one having the actual possession the proper de- fendant, though acting for another 443 Intervention — Cha,nge and substitution of new defend- ants — Lienholders — Costs . 444 Trial of the right of property cannot be turned into re- plevin — Intervener . . 445 Intervention— Substitution . 446 § 423. As a general rule, any person in fact or in law may bring replevin when his legal right o£ possession over personal property has been denied, interfered with, or abridged unlawfully, and the party whose legal rights have GENERAL RULE. 223 been thus unlawMly invaded, and who has the right to the immediate and exclusive possession, is the proper plaintiff. It has been held that the state was the proper party to bring replevin for logs wrongfully cut from land the title of which was in the state.' Where the law makes it the duty of an officer to preserve all books and papers belonging to his office, he may maintain replevin for them against any one who as- sumes to take them.^ A church or other society may main- tain the action.' In Massachusetts, where the parochial system prevails, a parish may maintain the action by its parish name for the recovery of its records.* It will lie by a corporation.'" A corporation should sue in its corporate name and capacity.' A father, being the natural guardian of his minor children, may sustain replevin for their property when they have no legal guardian.' Or an infant may sue by a next friend.' A guardian may bring replevin for the property of his ward.' A minor should bring the action by guardian or next friend." An officer may bring replevin for goods he has seized under process if his possession be interfered with." Whether or not a receiptor to the officer for property thus taken by him has such a right as will support replevin has been decided both ways, but the better rule is that laid down in Miller vs. Adsit, that where the receiptor is accountable to the officer "Hall V. White, 106 Mass. 599; Richardson v. Eeed, 4 Gray, 441; Schulenberg v. Harriman, 21 Wallace, 44. 2 Phenix r. Clark, 2 Gibbs (Mich.), 327. ' Holliday r. Camsell, 1 Durnf. & E. 658; Newton 7. Gardner, 24 Wis. 232; Corbett r. Lewis, 53 Pa. St. 322. * Sudbury v. Stearns, 21 Pick. 148. ^ Buch V. Fulton Bank, 7 Cow. (N. Y.) 485; Maund v. Monmouth, 1 Carr & Marsh, 606; Fayette Ins. Co. v. Rogers, 30 Barb. 491. « Bartlett r. Brickett, 14 Allen, 62. ' Newman v. Bennett, 23 111. 427 ; Smith v. Williamson, 1 Har. & J. (Md.) 147. 8 Tifft V. Tifft, 4 Denio, 175. » Deacon v. Powers, 57 Ind. 489; Newman r. Bennett, 23 111. 427. i» Keegan v. Cox, ll6 Mass. 290. " Brownell r. Manchester, 1 Pick. 232. 224 ON PABTIES — PLAINTIFF AND DEFENDANT. . he can maintain replevin/ A mere servant who has posses- sion at the will of the owner has not such a right of posses- sion as will sustain the action.^ But if the servant is in fact a bailee, and responsible for the goods as such, he could replevy them from a stranger who interfered with his right.' § 424 Trustees, executors, administrators. The ac- tion may be sustained by trustees when they are entitled to the possession of chattels in that capacity.* One entitled to possession for the use of another may bring replevin.^ An executor or administrator, as a representative of the deceased, can maintain the action.* Where the alleged taking was from the deceased in his lifetime, the plaintiff (administra- tor) must show that the deceased had the right of possession, at his death, and the appointment of plaintiff as administra- tor or executor.' But an administrator has been allowed to sue in his individual capacity on the ground of his individual liability.* Where plaintiffs brought an action of replevin as executors of B, and during the trial were on motion allowed to strike out the word executors and substitute the words heirs at law, and to add the names of other heirs at law as co-plaintiffs, held proper, and to not release the sureties on defendant's property bond for retention of the property.' In the absence of one having a higher right, a surviving part- 1 Miller v. Adsit, 16 Wend. 335: Ludden v. Leavitt, 9 Masa. 104; Warren r. Leland, 9 Mass. 265; Commonwealth v. Morse, 14 Mass. 217; DiUenback v. Jerome, 7 Cow. 294; Norton v. People, 8 Cow. 137. "Ludden v. Leavitt, 9 Mass. 104; Brownell v. Manchester, 1 Pick. 232; Clark v. Skinner, 20 Johns. 465. 8 Harris F.Smith, S. & B. (Pa.) 23. * Baker r. Washington, 5 Stewart & P. (Ala.) 144. ' Pearce v. Twitchell, 41 Miss. 344. " Allen V. White, Admr., 16 Ala. 181; Cummings F.Tindall,4 Stewart & P. (\la.) 361; Hambly r. Trott, 1 Cowp. 374; Cravath r. Plympton, 13 Mass. 454. ' Halleck v. Mixer, 16 Cal. 574; Branch v. Branch, 6 Fla. 315. ' Patchen v. Wilson, 4 Hill, 59; Carlisle v. Burley, 3 Gr. (Me.) 250; Hollis r. Smith, 10 East. 293. » Jamieson v. Capron, 95 Pa. 15, HON COMPOS MENTIS. 225 ner may bring replevin in his individual name for firm prop- erty.' § 425. The action must be brought in name of real party in interest. It is well settled that an action of re- plevin cannot be brought -in the name of one person for the use of another, for the action involves nothing but legal rights, and if equities are to be settled, another form of action must be resorted to. While the name of the usee might be treated as surplusage, a recovery can only be had where it is shown that the plaintiff is entitled to recover. The usee's title can not be considered in the action, and if the plaintiff have no title, the action must fail.^ § 426. Wife may maintain in her own name the action to recover the possession of exempt property, and consent given by the husband and father to defendant's possession while in jail is no defense, and does not bar the wife's right to the action.^ In Missouri it has been held that a married woman could not maintain replevin in her own name.* And in some states it has been held that where, under the statutes, the hus- band and wife should be joined as plaintiffs to maintain the action, and the action was started in the name of the wife alone, the husband could be joined as party plaintiff on ap- peal.^ The husband and wife, both being interested in the preservation of exempt property, may join as plaintiffs to re- plevy it.^ In detinue by the wife for her own separate prop- erty, the husband is neither a necessary nor a proper party.' § 427. A non compos mentis who has no guardian should bring the action by a next fx'iend. His mental oon- 1 Smith r. Wood, 31 Md. 293. 2 Meyer v. Hosier, 64 Miss. 610; Hundley v. Buckner, 6 S. & M. 70; Brown v. Thomas, 28 Miss. 286; Pearce r. Twitchell, 41 Miss. 344. 3 Tucker r. Edwards, 71 Ga. 602. * Hayes r. Miller, 81 Mo. 424. ^Sherron v. Hall, 4 Lea (Tenn.), 498; Koss v. Draper, 55 Vt. 404; Herzberg v. Sachse, 60 Md. 426. » Shepard v. Cross, 33 Mich. 96. ' Wortham v. Gurley, 75 Ala. 356; Seibert r. McHenry, 6 Watts, Pa. 301. 15 226 ON PARTIES PLAINTIFF AND DEFENDANT. dition does not bar his right to maintain replevin.' An in- sane person under guardianship can not maintain replevin in his own name. It must be by guardian.^ ^ § 428. Assignment of the right to replevy property — Sale. Under the common lavr, the right to bring replevin could not be assigned. The action sounding in tort was not assignable.' But the tendency of modern decisions is to re- gard the assignment as a sale of the property, and not as a transfer of a cause of action, as the older decisions regarded it, and to allow the action to be maintained by the assignee.* It may now be regarded as t^ie rule that when the owner of property elects to part with it, and does sell it to one who is competent to acquire title, the wrongful act of a third party shall not be permitted to defeat a contract otherwise valid and complete.'^ Besides, owners of personal property are not bound to treat the acts of third persons, who invade their rights of property or possession, as a conversion. They may always elect to waive the tort, and in such cases may sell the property, and the purchaser may, after demand, sus- tain trover or replevin.^ The assignee of a note and mort- gage, after condition, broken, may sustain replevin for the mortgaged property.' Replevin will lie for the possession of mules stolen from the owner in favor of one to whom the 1 Jetton r. Smead, 29 Ark. 372. 2 Hayes v. Miller, 81 Mo. 424. = lCh. Plea. 15; O'Keefe y. Kellogg, 15 El. 352; McGoon v. Ankeny, 11 111. 558; Clapp v. Shepard, 2 Met. 127; Nash v. Fredericks, 12 Abb." Pr. 147. * Cummings r. Stewart, 42 Cal. 230; Cass v. N. Y. & N. H. B. E,, 1 E. D. Smith, 522; DeWolf r. Harris, 4 Mason, 530; North r. Turner, 9 S. & R. (Pa.) 244; McKee v. Judd, 2 Kernon, 622; Hoyt v. Thompson, 1 Seld. 347; Hall v. Robinson, 2 Com.st. 295. ^ Hanauer r. Bartels, 2 Col. 522; Webber v. Davis, 44 Me. 147; Mor- gan V. Bradley, 3 Hawks (N. C), 559; Lazard v. Wheeler, 22 Cal. 140; Cortland v. Morrison; 32 Me. 190; Parsons r. Dickinson, 11 Pick. 354; Carpenter v. Hale, 8 Gray (Mass.), 157; The Brig Sarah, &c., 2 Sumn. (U. S. C. C.) 211. « Tome V. Dubois, 6 Wall. (U. S.) 548. 'Barbour v. White, 37 111. 165; Hopkins v. Thompson, 2 Port (Ala.), 434. See Sawtelle v. Rollins, 23 Me. 196 ; Coghill v. Boring, 15 Cal. 218. WHEEE PEOPEETT IS OWNED BY TWO JOINTLY. 227 owner has assigned his right of action therefor.' Where property is wrongfully detained, the owner may assign his title thereto, and his assignee can maintain replevin therefOr whether he ever had possession of the property or not, whether his property in the goods is absolute or qualified.'' § 429. Joint owners must join as plaintiffs. Where partnership property is levied on under a writ against one only, both partners should join in a replevin suit for pos- session of the property, and the non- joinder of one may be pleaded in bar. A part owner cannot alone maintain re- plevin.' A joint owner of a chattel cannot maintain replevin without joining his co-owners.* Where parties jointly cul- tivate lands, they may be regarded as joint owners of the crop, and should all join in an action to recover it.^ So, when mills are worked on the shares, the owner and occupant are tenants in common, and should join in replevin for the product.* §430. Where property is owned by two jointly, and not susceptible of separation, replevin can only be maintained in the joint name of the two owners, and cannot be brought by one for his two-thirds.' Where two parties are joint owners of personal property, they should be united as par- ties plaintiff in an action to recover possession.* So an ' Doering v. Kenamore, 86 Mo. 588. 2 Lazard v. Wheeler, 22 Cal. 139. 2 Fay V. Duggan, 135 Mass. 242; Hart v. Fitzgerald, 2 Mass. 509 Ladd r. Billings, 15 Mass. 15 ; Kimball v. Thompson, 4 Cush. 441 Hackett v. Potter, 131 Mass. 50 ; Reinheimer v. Hemingway, 35 Pa, St. 432; Chambers v. Hunt, 3 Harr. (N. J.) 339; Co. Litt. 145 b.; Wil. son V. Fray, 8 Watts, 25; De Wolf v. Harris, 4 Mason, 539; Kindy v. Green, 32 Mich. 310. * Corcoran r. White, 146 Mass. 329 (15 N. E. 636)'; Wright r. Ben- nett, 3 Barb. 455; Wilson v. Gray, 8 Watts, 36. 5 Putnam v. Wise, 1 Hill, 235. «Eioh F. Penfleld, 1 Wend. 379. ' Collier v. Tearwood, 5 Bax. (Tenn.) 581. This was replevin fortwo- ■fchirds of some cotton in bulk; the other third belonged to a stranger to tiie suit, and a stranger to execution proceedings also. « Seip r. Tilghman, 23 Kan. 289. 228 ON PAETIES — PLAINTIFF AND DEFENDANT. agent having authority, by agreement, over property belong- ing to several joint owners, may maintain replevin against one of them if the authority given him be irrevocable ; if not, the refusal to let him have it would be treated as a revo- cation of his authority.' § 431. Defendants generally. As the action of replevin sounds in tort, the person who actually detains the property should be made the defendant,^ though, where one person acts in good faith as the agent of another, the courts have sometimes allowed the principal to be made defendant. The decisions are by no means uniform on this question, as will be seen presently. As the plaintiff cannot tell certainly by what right one interfering with his right of possession claims to act, the only safe way is to make the person interfering with his right of possession the defendant, and let him plead his agency, or official character, as a defense, if he be not acting for himself. The defendant must have actual pos- session of the chattel, or constructive possession thereof, which is the same in law. If he have neither, he is not a proper defendant, and cannot be subjected to costs, and no order can be made regarding the property. § 432. Who is the proper defendant. Any person having the unlawful possession of personal property belongy ing to another is the proper party from whom to replevy it, whether he claims it as owner, agent, administrator, trus- tee, custodian, or in another capacity. An administrator as such cannot commit a tort, and any tort committed by him is committed and renders him liable individually.' But it will not lie against one holding merely as the servant of another, and claiming no interest or right himself.* To be protected, the agent should state on demand the character of his possession, and for whom he is acting. A creditor, ' Rich V. Rider, 105 Mass. 307. See Hunt r. Rousmanier, 8 Wheat. 174; Robertfi v. Wyatt, 2 Taunt. 268. 2 Berghoff v. McDonald, 87 Ind. 549. » Rose V. Cash, 58 Ind. 278. * McDougali V. Travis, 24 Hun. 590. DEFENDANT MUST HATE POSSESSION. 220 at whose suit an attachment is levied upon goods not thjB property of his debtor, is not liable in replevin for the goods attached, either alone or jointly vi^ith the attaching officer.' The action of replevin sounds in tort, and an agent who, for his principal, wrongfully detains the goods of another, is personally liable in the action.^ In replevin, parties cannot, with any propriety, be made -defendants merely because they claim "some interest" in the property in controversy, but have none, and a general denial by such a defendant makes no issue to try.' Eeplevin is essentially a possessory action, and does not lie against one who is not, either actually or constructively, in possession of the property described in the complaint.* If B'sell goods to ^ by a conditional sale, and afterward take possession of them for an alleged breach of condition, and sell them to 0, in whose possession they are when taken by A, by a writ of replevin, B is not a proper party defendant to this replevin suit against 0." § 433. Defendant must have possession at the time the suit was commenced. Where the defendant in the writ of replevin was not in possession of the things sued for at the time the writ issued, and refused to give bond, no recovery can be had against him, though unauthorized persons gave a bond of redelivery and received the property." One who does not claim property, but offers to surrender it, cannot be made liable in a replevin action, and the fact that after it was taken in replevin he gave a bond and retained it does not enable plaintiff to maintain the action against him.' Where defendant after his refusal to deliver the cow to plain- 1 Blatchford v. Boyden, 18 Bradw. (111.) 378; Eichardson v. Keed, 4 Gray, 441. 2 Berghoff r. McDonald, 87 Ind. 549. 3 Van Gorder f. Smith, 99 Ind. 404. * Baer v. Martin, 2 Ind. 229 ; Carpenter v. Starr, 1 Mackey (D. C.>, 417. ^ Swett T. Boyce, 134 Mass. 381; Hall y. White, 106 Mass. 599; Bich- ardson v. Reed, 4 Gray, 441. « Myers v. Credle, 63 N. C. 504. » Church r. Frost, 3 Thomp. & C. (N. T.) 818. 230 ON PARTIES PLAINTIFF AND DEPENDANT. tiff, but before the plaintiff could procure the writ, drove the cow from his premises, replevin cannot be maintained against him. The plaintiff must show that at the time the writ is- sued the property was in the defendant's possession.^ Re- plevin cannot be maintained against a person who has no possession or control of the goods to be replevied. Replevied goods cannot be restored and returned to a person from whom they were not taken, and such person cannot rightfully be made a defendant, sole or joint, in an action of replevin.^ A party cannot be made liable in an action of replevin if he was not in possession of the property when the action was begun, and did not claim any interest in it, or collude with a co-de- fendant in regard to it.^ § 434. But will lie against one having the legal title, though the property has not been moved by him. Replevin will lie against the assignee of property, even though he al- low it to remain in the assignor's hands, unless he clearly make known that he does not claim it.* § 435. But if he wrongfully took it and disposed of it to avoid the replevin, the suit will lie, and such a person is a proper sole defendant.^ One wrongfully detaining property and refusing to give it up may be sued in replevin, though he has parted with it before trial." Ordinarily, an action of detinue can only be maintained against the person who has possession of the chattel at the commencement of the suit. It might, perhaps, be maintained against one who had wrong- fully transferred it to avoid the action by the owner.' ' Rogers v. Davis, 21 Mo. App. 150. ' Hall V. White, 106 Mass. 599 ; Richardson v. Reed, 4 Giay, 441. ' Ramsdt'll V. Berswell, 54 Me. 546. * Coomer r. Gale Mfg. Co., 40 Mich. 691. ^ Laysvard v. Warren, 27 Me. 453 ; Badger v. Phinney,15 Mass. 359; Baker v. Fales, 16 Mass. 147; Schmidt v. Bender, 39 Kan. 437 (18 P. 491). « Harkey v. Tillman, 40 Ark. 551; Washington v. Love, 34 Ark. 93; Nichols V. Michael, 23 N. T. 266 ; Brockway v. Burnap, 16 Barb. N. Y. 309. ' Lightfoot r. Jordan, 63 Ala. 224; Gelbreath v. Jones, 66 Ala. 129; Henderson v. Feltz, 58 Ala. 590; Graham v. Myers, 74 Ala. 432. EXECUTION — CONSTRUCTIVE POSSESSION. 231 § 436. An officer who levies on property wrongfully is the proper defendant, and not the party he represents — Constructive possession. Where an officer returned that he levied on the right, title, and interest of the judgment debtor in certain property, and notified the person, in whose possession it appeared to be, of his levy, but did not move it or take other possession, held, that he had sufficient pos- session of the goods to sustain an action of replevin against him by the owner.' The sheriff holding the writ of attach- ment is the proper defendant in replevin, and not the attach- ment plaintiff.'' § 437. The same — ^Execution — Constructive possession. The plaintiffs in execution are not necessary or even proper parties to the replevin suit.^ Where a constable levied an ' execution on standing corn and notified the plaintiff of what he had done, held, that the constable had such a possession that replevin would lie against him, and that he was estopped to deny that he had the property in his possession.* Where an officer, under a general promise of indemnity from an exe- cution plaintiff, but without directions to levy upon specific property, has taken chattels in execution under a void judg- ment, the execution plaintiff not having had such goods ia his actual possession or control, is not liable, either sepa- rately or jointly, with the officer in replevin.^ But where the sheriff has sold the property under his writ, and delivered possession to the purchaser, he is no longer a proper party to a replevin suit by the true owner.' In Connecticut replevin 1 Waid r. Gaylord, 4 Thomp. & C. (N. Y.) 41; Alvord v. Haynes, 13 Hun. (N. Y.) 26; Stewart v. Wells, 6 Barb. 79; Knapp v. Smith, 27 N. Y. 277; Richardson v. Reed, 4 Gray, Mass. 441; Ladd v. North, 2 Mass. 516; Maxon v. Perrott, 17 Mich. 3-32. 2Maxfy V. White, 53 Miss. 80; Griffln v. Lancaster, 59 Miss. 340; Brock way v. Burnap, 12 Barb. 347; Grace v. Mitchell, 31 Wis. 533; Richardson v. Reed, 4 Gray, 441; Gallagher yj Bishop, 15 Wis. 276. 3 Blatchford v. Boyden, 122 111. 657 (13 N. E. 801). ' Godfrey v. Brown, 86 III. 454. See Hadley r. Hadley, 82 Ind. 75; Id. 95; Louthain v. Fitzer, 78 Ind. 449. = Grace v. Mitchell, 31 Wis. 533. ' Moses V. Morris, 20 Kan. 208. See Eaton v. Munroe, 52 Me. 63. 232 ON PAETIES — PLAINTIFF AND DEFENDANT. cannot be brougM against the attaching ojBQcer, but must be brought against the plaintiff in attachment whom the officer represents.' The same rule has held in Indiana.^ § 438. Constructive possession — Mere paper levy insuf- ficient. A replevin suit before a justice was dismissed for want of a sufficient bond, and a judgment of return entered. "Without first restoring the property, the plaintiff began an- other suit. Taking the property and going with the officer, he returned it to defendant and then demanded it of him, and, on refusal, the officer seized it under his writ. Held, that when the second suit was commenced the property was con- structively in the defendant's possession, and that actual pos- session is not necessary to make one a proper defendant in a replevin suit.^ A mere paper levy by a county treasurer on chattels for delinquent taxes, without taking actual posses- sion, or taking a delivery bond for it, or putting some one in charge, is not a possession by him which will sustain re. plevin against him.* § 439. Power and authority of the officer as a defendant in such cases. An officer who has seized goods by virtue of legal process is a merely nominal defendant to an action of replevin for them, and, unless the real party in interest has refused to indemnify him, cannot prejudice the latter' s rights by stipulating with the plaintiff to dismiss the suit without judgment.' In an action against a sheriff for the re- covery of property taken under an execution, the sheriff is not only the actual, but the real party defendant, where the ^ McDonald v. Holmes, 45 Conn. 157; Bowen r. Hutohins, 18 Conn. 550; Hathaway y. St. John, 20 Conn. 343. This is contrary to the gen- eral rule, and is regulated by the code. Per contra, see Mitchell v. Rob- erts, 50 N. H. 486, and cases cited, and Gary v. Hotailing, 1 Hill, 311. 2 Firestone v. Meshler, 18 Ind. 439. 2 Teeple v. Dickey, 94 Ind. 124; Louthain r.Fitzer,78 Ind. 449; Had- ley V. Hadley, 82 Ind. 75. * The Standard Oil Co. v. Bretz, 98 Ind. 231. • Casper r. Kent, Circuit Judge, 45 Mich. 251 (7 N. W. 816). WHO MAY BE 00-DEFENDANTS. . 233 judgment creditor makes no application to be made defend- ant, and is not substituted as the defendant.* § 440. Where judgment plaintiff directs the officer to levy on specific property, he is liable, and replevin may be brought against him alone.^ It has been held that a person "who is plaintiff in attachment or execution, and goes with the officer, and insists that he levy on certain property, not the property of the defendant in the writ, may be made the sole defendant in an action of replevin by the true owner for the property.' But it has been held that it would not lie against the attachment plaintiff alone or against him jointly with the attaching officer,* and the reasoning of Mr. Justice Metcalf is certainly sound. He says : "In our opinion, re- " plevin cannot be maintained in this commonwealth against "a person who has no possession or control of the goods " to be replevied. Replevied goods cannot be restored and " returned to a person from whom they were never taken, " and such person cannot rightfully be made a defendant, " sole or joint, in an action of replevin." § 441. Co-defendants — Who may be. The execution plaintiff may be with the officer when he has the goods re- plevied in his possession, or they are upon his premises.' While the person in possession of personal property is the only proper defendant, the joinder of a person not in posses- sion as a defendant is a defect which may be cured by strik- ing out the misjoined defendant.^ It is proper to join an officer and his custodian as defendant in a replevin suit.' ' Hoisington v. Brakey, 31 Kan. 560. 2 Myers v. Credle, 63 N. C. 504; Knapp f. Smith, 27 N. T. 277; Allen V. Crary, 10 Wend. (N. Y.) 349. ' Tripp V. Leland, 42 Vt. 487; Allen v. Oary, 10 Wend. 349. In the Tripp case the court base their decision partly on the ground that de- fendant claimed the property by an independent title also. * Richardson v. Reed, 4 Gray, 441 ; SkiJton v. Winslow, Id. ^ McMillan v. Larned, 41 Mich. 521; Valle r. Cerre, 36 Mo. 575j Estiy F. Love, 32 Vt. 744. « Herzberg v. Sachse, 60 Md. 426. ' Tuttle F. Robinson, 78 111. 332. 234 ON PARTIES PLAINTIFF AND DEFENDANT. Where two parties are connected witli the detention of the property, it is proper to join them as defendants.^ The ac- tion of claim and delivery is properly brought against the parties by whom the property sought is wrongfully detained.'* A party interested in the result of a suit in replevin may be made a party defendant.^ The plaintifB in the execution may be a party defendant in a replevin suit against an officer, but, if he claims nothing in his answer, no costs can be taxed against him.* A national bank that makes a loan upon the se- curity of a warehouse receipt for merchandise is a proper de- fendant to a suit in replevin, by the consignor and owner of the merchandise, against the warehouse keeper to whom the same has been committed by the consignee for storage.^ § 442. One of two wrongdoers may be sole defendant. Where one of two partners distrained a cow, and replevin was brought against the other partner, who did not expressly disclaim the detention or the act of his co-partner, held, that the action was properly brought, as he was jointly interested in the damage to recover which the distraint was made.' Where a father, who was assisting his son at haying, took up cattle found on the son's premises, and confined them on the son's premises, and both father and son refused to sur- render them on demand, held, that action of replevin was properly maintainable against the son alone.' § 443. The one having the actual possession the proper defendant, though acting for another.' Eeplevin will lie against one who has control of property, although it is in the hands of another.^ A possessory warrant will lie against anyone who receives or takes possession of a personal chat- ' Deyoe v. Jamison, 33 Mich. 94. 2 Bennett v. Schuster, 24 Minn. 383. ^ Hall V. .Tcnness, 6 Kan. 3G1. * Fun-ovv V. Chapin, 13 Kan. 107. ^ ClBveland v. Shoeman, 40 Ohio St. 176. ^ Riley v. Noyes, 44 Vt. 455. ' Rowe F. Hii'ks, 58 Vt. 18 (4 Atl. 563). 8 Flatner f. Good, 35 Minn. 395 (29 N. W. 56). « Bradley f. Gamelle, 7 Miun. 331. INTEEVENTION, CHANGE, AND SUBSTITUTION. 235 tel Tinder a pretended claim and without lawful warrant or authority. Where the writ issued against the husband for a canary bird, and it appeared that the bird was under his control, it was sufficient, though his wife had the personal, actual care of the bird.' § 444. Intervention, change, and substitution of new defendants — Lienholders^ — Costs. A party claiming a lien as by mortgage on property taken in replevin will be allowed to intervene and set up his claim. ^ A landlord who has a lien for rent may be made a party defendant, and his lien may be asserted in an action of replevin, in which the ten- ant's goods have been seized by an alleged owner.^ In a re- plevin action, all parties having an interest in the subject in controversy may be made parties plaintiff or defendant on the order of the court.* Co-heirs or joint tenants, with de- fendant in replevin, may come in and defend an action abated by his death. ^ A corporation chartered and organized in a sister state may be made party defendant to an action of re- plevin in place of its agent, against whom the action is brought, and may recover in said action the value of the property replevied.^ Where replevin is brought for property against one who has bought the property under a warranty of title, and the warrantor pays back to defendant on demand the purchase money, it is proper for the court to substitute this warrantor as the defendant in the replevin action instead of the original defendant.' A third party claimiug the own- ership of replevied property has the right to be made a de- fendant in the suit, and assert his claim. And in his answer he does not have to state the evidence of his title, but it is sufficient if he assert title in himself and deny ^ Manning v. Mitcherson, 69 Ga. 447. 2 Albright F. Brown, 23 Neb. 136 (36 N. W. 297). 5 Edwards v. Cottrell, 43 Iowa, 194. ^Earle v. Burch, 21 Neb. 702 (33 N. W. 254). 6 Talvonde v. Cripps, 2 McCord (S. C), 164. « Hanna v. International Petroleum Co., 23 Ohio St. 622. "I Vinton v. Mansfield, 48 Conn. 474. 236 ON PAETIES — PLAINTIFF AND DEFENDANT. plaintiff's title or right to possession.' In an action of re- plevin, plaintiff, to whom the property had been deliTered, established title in himself to only a portion of the same, and redelivered the balance to the alleged owners thereof. Held, that there is no such thing as a vicarious right of re- plevin; that the alleged owners had an absolute right to be joined as parties to the action, and that they must be brought in before the title to such property could be litigated.^ To an action of replevin by a mortgagee against an officer who has levied writs of attachment on the property, the creditor may be made a party defendant at his request, and may enforce his right to relief by counter claim.' It is not necessary for a mortgagor to be made a defendant in a suit by the mort- gagees against the vendees for the mortgaged property.* In replevin by a mortgagee of chattels against a trustee, under an assignment by the mortgagor for the benefit of creditors, a creditor as such is not a proper defendant, and it is error to admit him as a defendant.* A surety upon a redelivery bond, given by a defendant in replevin for the detention of the property, is not a party to the action or privy thereto, and has no right to control the action.' § 445. A trial of the right of property cannot be turned into an action of replevin by substituting new pleadings and making other parties, but a writ of replevin must issue regularly and bond be regularly taken.' § 446. Intervention — Substitution. On the trial of an inter plea in an action of replevin, no verdict or judgment for either property or money (except for costs) can be rendered against the interpleader where the property has never been delivered to him.* A plaintiff cannot recover against a person ' Hamilton v. Duty, 36 Ark. 474. 2 Wilde V. Paschen, 67 Wis. 90 (30 N. W. 279). ' Morgan v. Spangler, 2 Otiio St. 38. « Person v. Wright, 35 Ark. 169. » Antrim v. Gilson, 79 Ind. 339. 6 Boyd V. Moore, 34 Kan. 119 (8 Pae. 255). 'Douglas V. Newman, 5 Bradw. (III.) 518. » Chandler v. Smith, 34 Ark. 527. IXTERVENTION SUBSTITUTION. 237 who, after the issuing of the writ, appears and claims tho property, and receives it upon giving bond. The obligor by- giving bond does not become a party to the replevin suit.' Where the plaintifE brought suit in replevin as the mother of the real parties in interest, asserting no right in herself, and subsequently the children, by their guardian ad litem, filed a complaint setting up the same cause of action, the subsequent appeai'ance was not an intervention, but merely a substitution ; and a stipulation made by the first plaintifi will bind the second.'' » Myers r. Credle, 63 N. C. 504. ' Temple F. Alexander, 63 CaJ. 8. 238 DEMAND AND TENDEE TO DISCHAEGE LIEN. CHAPTEE XXI. DEMAND AND TENDER TO DISCHAEGE LIEN. Section. Demand necessary— When — Rule 447 Reason of the rule — Plea of ti- tle in defendant waives de- mand . . . . . 448 Effect of demand and refusal 449 When both parties claim an absolute title, demand not necessary .... 450 Want of demand must be taken advantage of in time — Willingness to surrender 451 Office of demand — By whom made 452 Where plaintiff relies upon a wrongful detention and tak- ing, demand unnecessary . 453 Demand necessary when title is acquired in good faith for value, but not neces- sary where title is acquired in fraud 454 Demand not usually neces- sary to sustain replevin on ground of wrongful deten- tion 455 Not necessary against an in- nocent purchaser of a fraud- ulent vendee — Necessary to terminate a right of posses- sion 456 When a rightful possession becomes wrongful — When demand necessary . . 457 When the original taking is not wrongful, demand must be made , , , , , 458 Section. Acts of dominion on part of defendant will excuse de- mand 459 Title of record no excuse for . 460 Assignee must give notice and make demand . . . 461 Demand must be made where plaintiff put property in de- fendant's possession, and he merely allows it to remain 462 Not necessary where trespass committed in the taking — Stolen goods .... 463 That the possession of the de- fendant is in good faith of no avail if original taking was fraudulent . . . 464 Where possession obtained by fraud, demand is unneces- sary 465 To be protected, an officer must keep strictly within the command of his writ . 466 Demand need not be made on wrongdoer, but must on a bovSj fide holder — Demand on agent of limited author- ity insufiBcient — Waiver of demand 467 To i-ecover costs, demand must be made — Waiver of demand — A general denial not . . • . . . 468 Possession of goods by mis- take—Lien .... 469 Taker up of strays— or to save property . ... 470 DEMAND AND TENDER TO DISCHARGE LIEN. 239 Section. Necessary from a borrower of lost goods .... 471 Possession acquired in good faith — Demand necessary . 472 But a contrary rule has been laid down .... 473 Conversion — Refusal to de- liver in advance of demand 474 Excusefornotcomplyingwith v demand— True reason . . 475 When derrland should be made — When action com- menced 476 Demand after affidavit signed — Defective, how cured . 477 Demand after issuance of writ 478 Proof of — when made . . 479 Time when demand should be made — where defendant has a right for a limited time . 480 A demand of one not having authority .... 481 If proved, failure to allege is cured after trial . . . 482 Written demand must be spe- cific . . . «. . . 483 Of person in charge sufficient — In case of decedent . . 484 Acts and notice equivalent to demand — Intervenor . . 485 Of the indices of ownership sufficient 486 A demand made in violation of an injunction . . . 487 A mortgagee of chattels must make demand of an officer . 488 Mortgagee must make de- mand of one in possession — Absconded mortgagor . 489 Action against sheriff . . 490 Action by mortgagee v. mort- gagor 491 Trustee after default need not demand 492 A mortgagor to replevy back must demand . . . 493 Section Where property taken under an illegal mortgage, demand not necessary by the owner 494 Also where plaintiff repudiates a delivery made under a void agreement .... 495 Must be made of a purchaser at an execution sale, or au officer 496 When demand of an officer proceeding under a writ of attachment or other pro- cess is necessary — Execution 497 When the property of a stran- ger to the writ is sold . . 498 But where property is found by the officer in the actual custody of the defendant in execution .... 499 In replevin for exempt prop- erty 50O But purchaser when entitled to demand .... 501 Conditional sale — Part pay- ment 502 Fraud by vendee — Attaching or other creditor — No de- mand necessary . . . 503 Vendee must make demand of third party in possession . 504 When demand necessary to put the vendor in the wrong 505 If vendee's possession lawful, demand must be made . 506 But if he violate the contract of sale, not .... 507 Purchaser must demand and tender amount of his bid . 508 Same of sheriff's sale . . 509 Sufficient demand, claim of ownership by defendant— A waiver 510 Where a person known to be an agent exceeds his author- ity 511 Not necessary where bailee 240 DEMAND AND TENDER TO DISCHABGE LIEN. Section. Of note or property received in payment .... 517 Tender must be iinconditional 518 So must refusal . . . 519 Tender before action brought 520 Where defendant has a lien — ■ Inn-keeper or carrier . . 521 Landlord's Hen— Mortgagee . 522 Where a tradesman has a lien 523 Expenses advanced under a wrongful levy caimot be re- covered 524 Section. wrongfully sells property or convertsjt .... 512 The manner of defendant's possession does not affect the necessity of demand . 513 Tender when necessary to dis- charge lien before suit brought against common carrier 514 The same — What issues tria- ble—Offset . . . .515 Excessive charges — Tender of proper amount . . . 516 § 447. Demand necessary when — Rule. The decisions upon the question when a demand is necessary are neither uniform nor entirely reconcilable; but I think the better doctrine is that a demand is only required when it is neces- sary to terminate the defendant's right of possession, or to confer that right upon the plaintiff; but when the plaintiff claims the ownership of the property, and the right of pos- session as incident to that ownership, and the defendant's right claimed is precisely the same, no demand is necessary.* If the property claimed by a person is in the rightful pos- session of another, as where it was delivered to him by the owner, or where he has innocently purchased the same from one who obtained it wrongfully, it is usually required that a demand of the property be made before an action of replevin in the detinet is brought, and in some states this is required by statute.^ A failure to demand where demand is neces- sary prevents the recovery of costs at least.' 1 Lamping v. Kunon, 9 Col. 390 (12 Pac. 434) ; Smith v. McLean, 24 Iowa, 322; Eldred v. Oconto Co., 33 Wis. 140; Shoemaker v. Simp- son, 16 Kan. 43 ; Pyle v. Warren, 2 Neb. 241 ; Homan v. Laboo, 1 Neb. 204. 2 Millspaugh v. Mitchell, 8 Barb. (N. Y.) 333; Talcott v. Belding, 46 How. (N. Y.) 419; Connor v. Comstock, 17 Ind. 90 ; Rawley v. Brown, 18 Hun. (N. Y.) 456; Roberts v. Berdell, 61 Barb. 37 (52 N. Y. 644); Gillett V. Roberts, 57 N. Y. 28; Darling v. Tegler, 30 Mich. 54; Ingalls V. Bulkley, 13 111. 315; Railroad Co. r. Noe, 77 111.513; Windsor y. Boyce, 1 Houst. (Del.) 605; Bearing v. Ford, 21 Miss. 269. ' Homan v. Laboo, 1 Neb. 210; Gilchrist v. Moore, 7 Iowa, 9; McNeil DEMAND AND REFUSAL NOT A CONVERSION. 241 § 448. Reason of the rule— Plea of title in defendant waives demand. The rule which requires demand is a technical one. The reason of it is that the law presumes that the party in possession of property not his own will respect the rights of the true owner when informed of them, and that upon demand being made he will surrender without suit. But where defendant pleads ownership in himself he cannot defeat a recovery under the pretence that he would have surrendered, the property if demand had been made.' "Where the defendant came into possession rightfully, the law presumes that possession to be rightful until he does some act inconsistent with that presumption, or until some other person with a better right to possession attempts to assert that right by a demand which defendant refuses to comply with.^ Where the defendant in replevin with the general issue pleads property in himself, it is not necessary to prove demand previous to the suing out of the writ.^ Where a defendant in a replevin action places his defense upon title in himself and the "right of possession incident thereto, and does not rely on want of demand by the owner, and it appears that a demand would have been vain and unavailing if made, no proof of demand and refusal is required.* § 449. A demand and refusal is not a conversion. The demand is an assertion by the plaintiff that he claims the immediate right to possession. The refusal is a denial of plaintiff's right to the same, and is interpreted by the law as a declaration on the part of the person refusing that he in- tends to make use of the property for his own benefit, and for this the law will hold him responsible as for an actual r. Arnold, 17 Ark. 154; Bolon v. O'Brien, 20 Mich. 304; Lewis v. Mas- ters, 8 Blackf. 244; Prinn r. Cobb, 63 Me. 200. J Myrick r. Bel], 3 Dak. 284 (17 N. W. 268). 2 Woodward v. Woodward, 14 111. 466; Pringle v, Phillips, 5 Sandf. (N. Y.) 161; Poole v. Adkisson, 1 Dana (Ky.), 310. ' O'Neil V. Bailey, 68 Me. 429; Homan v. Laboo, 1 Neb. 210; Morris on Eeplevin, § 78; Newell v. Newell, 34 Miss. 385. * Koper r. Harrison, 37 Kan. 243 (15 P. 219). 16 242 DEMAND AND TENDER TO DISCHARGE LIEN. conversion. Proof of an actual conversion will always ob- viate the necessity of proving a demand and refusal.' When the defendant has notice of plaintiff's rights, any act done for the purpose of defeating them will amount to a conversion, and no demand need be made ; but when defendant acts in- nocently, in ignorance of plaintiff's claim, he is usually enti- tled to demand.^ § 450. Where both parties claim an absolute title, de- mand not necessary. Where both parties claim title to per- sonal property, -and the right of possession thereunder, a de- mand is not necessary to enable either to maintain replevin against the other.' Where plaintiff's right is contested by defendant on a claim of a superior right, the defendant can- not set up a want of demand as a reason for his failure to surrender.* This claim of ownership by defendant is incon- sistent with the theory that he might have surrendered them on demand, and removes the necessity, for demand if one had been necessary. ° Where the defendant in replevin with the general issue pleads also property in himself and in third parties whose bailiff he is, avows the taking and demands a return, it is not necessary for the plaintiff to prove a demand for the goods previous to suing out the writ of replevin." § 451. Want of demand must be taken advantage of in time — Willingness to surrender. But this want of notice or demand, must be taken advantage of at the proper time. ' Savage V. Perkins, 11 How. Pr. 17; Perkins v. Barns, 3 Nev. 557; Bruner r. Dyball, 42 111. 35; Lockwood v. Bull, 1 Cow. 322; Hill v. Co- veil, 1 Comst. (N. y.) 523; Jeasup i^.'Miller, 1 Keyes (N. Y.), 321; Bris- tol V. Burt, 7 Johns. 257; Gilmore v. Newton, 9 Allen (Mass.), 171; Morris r. Pugh, 3 Burr, 1241. 2 Kennet v. Robinson, 2 J. J. Marsh (Ky.), 84. This is a very inter- esting case on what acts constitute a conversion. 3 Smith & Co. V. McLean, 24 Iowa, 322 ; Redding v. Page, 52 Iowa, 406 (3 N. W. 427). * Myrick v. Bill, 3 Dak. 284 (17 N. W. 2^8). i^Seaver r. Dingley, 4 Greenl. (Me.) 307; Pierce r. Van Dyke, 6 Hill, 613; Perkins r. Barnes, 3 ^\'v. 557; Cranz v. Kroger, 22 111. 74; New- ell V. Newell, 34 Miss. 385 ; Smith v. McLean, 24 Iowa, 337. ' Lewis V. Smart, 67 Mo. 206 ; Scares v. Dingley, 4 Me. 306. WHEKE PLAINTIFF RELIES ON WRONGFUL DETENTION. 2-13 After the case lias been submitted, it is too late.' If defend- ant desire to rely upon tlie omission to make demand, he ■ should show a willingness to surrender upon proper demand made.^ § 452. OfiBce of demand — By whom made. The office of a demand may be, not to make the defendant's possession wrongful, but to furnish evidence that it is wrongful. In such case it is unnecessary that it be made by the plaintiff, but demand by another and refusal may be shown as evidence of the wrongful detention.' A demand by a father or one who stands in loco parentis is sufficient for property of his minor children.* A demand serves no purpose except to es- tablish a conversion or a wrongful detention. When that can be established without showing a demand, a demand is unnecessary. When, therefore, the defendant in his answer admits the detention and claims title in himself, the title alone is put in issue, and no demand need be shown. ^ Demand serves only to establish a conversion or wrongful detention, and when that can be established without showing a demand, demand is not necessary.* § 453. Where plaintiff relies on a wrongful detention and taking, demand unnecessary. Where the complaint alleges property in plaintiff and that defendant wrongfully detains it, it is not necessary to allege a demand, and plain- tiff may prove either a wrongful taking, a demand and re- ' Warder v. Hoover, 51 Iowa, 491; Homan v. Laboo, 1 Neb. 207. 2 Homan r. Laboo, 1 Neb. 207. 5 Brown v. Poland, 54 Conn. 313 (7 Atl. 719) ; Lathrop v. Locke, o9 N. H. 532; Cass v. N. Y. &N. H. E. E., 1 E. D. Smith, 522. * Newman r. Bennett, 23 111. 428; Smith v. Williamson, 1 Har. & J. (Md.) 147. ^ Perkins v. Barnes, 3 Nev. 557; Seaver v. Dingley, 4 Greenleaf. 300; Francisco v. Benepe, 6 Mont. 242. "Perkins v. Barnes, 3 Nev. 557; Woodworth f. Knowlton, 22 Cal. 164; Ledby v. Hays, 1 Cal. 160; Hecks r. Britt, 21 Mich. 422; Latimer V. Wheeler, 30 Barb. 485; Pease r. Smith, 61 N. Y. 477; Gillett v. Eob- erts, 57 N. Y. 28; Shoemaker v. Simpson, 16 Kan. 43; Strong r. Bank, 45 N. Y. 718; Lawrence v. Maxwell, 53 N. Y. 19 ; Toft v. Chapman, 50 N. Y. 445; Laverty v. Snethen, 68 N. Y. 522. 244 DEMAND AND TENDEll TO DISCHAEGE LIEN. fnsal, or facts which render a demand unnecessary where th® original taking was lawful.' Where one who has no title retains goods in his possession under claim of ownership, his possession is wrongful, and no demand is required.^ Where the plaintiff's case depends upon a wrongful detention with- out a wrongful taking, an averment in the complaint of a demand and refusal is neceesary.' Where the taking of the property was wrongful, and the action is the common law remedy of replevin in the cepit, it is not generally necessary to show a demand before the action was brought, and if the defendant assert a right to the property, though it was not wrongfully obtained, no demand by the plaintiff and refusal to deliver by the defendant need be shown. As a general rule, whenever the action of trover or other equivalent action could be maintained without demand, replevin will lie without demand.* § 454. Demand necessary when title is acquired in good faith for value, but not necessary where title is ac- quired in fraud. As against a fraudulent vendee, and as against one obtaining possession under such vendee, in bad faith and without value, the bringing of the suit is a suffi- cient demand. In many cases of fraudulent purchases a demand before suit wbuld be impracticable or very difficult, and might tend to defeat the vendor's right to reclaim his property. In case, however, of a bona fide purchaser for value, if the original vendor can reclaim the property from 1 Oleson V. Merrill, 20 "Wis. 462. ' Oswald V. Hutchinson, 26 111. App. 273. = Scofleld F. Whitelegge, 49 N. T. 259; Stillman r. Squire, 1 Denio, 328; Pringle v. Phillips, 5 Sandf. 157; Zachrissan r. Ahman, 2 Sandf. 68; Pierce r.Van Dyke, 6 Hill, 613; Lewis r. Masters, 8 Blackf. 245; Cummings r. Vorce, 3 Hill, 282; Oleson r. Merrill, 20 Wis. 462; Paul v. Luttrell, 1 Col. 320. ♦ Clark V. Lewis, 35 111. 417; Butters f. Haughwout, 42 Dl. 18; Tut- tle r. Robinson, 78 111. 332; Prime v. Cobb, 63 Me. 200; Blanchard r. Child, 7 Gray (Mass.), 155; Whitney y. McConnel,29 Mich. 12; TrudoF. Anderson, 10 Mich. 357; Delancy v. Holcomb, 26 Iowa, 94; Purver r. Moltz, 32 How. (N. Y.) 478; Field's Briefs, § 200. DEMAND USUALLY UNNECESSARY TO SUSTAIN. 24:5 him at all, it can be done only after demand and a reason- able time to comply with the demand.' Where it ia apparent that defendant shifted the property for the purpose of pre- venting the plaintiff from getting the property on replevin, it is not necessary that actual manual possession of the prop- erty in defendants be shown, nor is it necessary that demand of him be, shown/ § 455. Demand not usually necessary to sustain re- plevin on ground of wrongful detention. In an action of replevin for wrongful detention, proof of demand and re- fusal is necessary to establish such detention.' It is not often that a demand is necessary to sustain an action of re- plevin for an unlawful detainer of goods. Where the defend- ant has the goods by leave of the plaintiff, a demand may be necessary to establish wrongful detention, but wherever, with- out such demand, there is a wrongful possession of goods, as where they were obtained by force, fraud, or otherwise, without the owner's consent, no demand need be made.* In an action to recover personal property or its value, where it appears that the property came lawfully into the possession of the defendant, a demand and refusal to deliver must be shown. ^ But this rule does not extend to stolen goods, nor has it been uniformly adhered to at all times by the courts." If goods be found in the possession of a thief or trespasser ' Lynch v. Bucher, 38 Conn. 490; Woodruff v. Adams, 37 Conn. 233; Parker v. Middlebrook, 24 Conn. 207; Brown v. Fitch, 43 Conn. 512. 2 Schmidt v. Bender, 39 Kan. 437 (18 P. 491). Defendants defended on a line wholly inconsistent with the theory that a demand would have been complied with if properly made. See also Eaper v. Harrison, 37 Kan. 243; Collier v. Beckley, 33 Ohio St. 523. nngalls V. Bulkley, 13 111. 315; Windsor v. Boyce, 1 Houst. (Del.) 605. * Lewis V. Masters, 8 Blackf. (Ind.) 244. ^ Bacon r. Kobson, 53 Cal. 399; Stanchfleld v. Palmer, 4 Green (Iowa), 24; Wood v. Cohn, 6 Ind. 455; Ingalls v. Bulkley, 13 111.315. « Hall V. Eobinson, 2 Comst. (N.Y.) 295; Kelsey v. Griswold, 6 Barb. 440; Hudson v. Maze, 3 Scam. 582; Harding v. Coburn, 12 Met. 342; Riley r. Boston Water Co., 11 Cush. 11; Courtis v. Cane, 32 Vt. 232; Lewis V. Masters, 8 Blackf. 245. 246 DEMAND AND TENDEE TO DISCHAEGE LIEN. wlio has taken them from another thief or trespasser, no de- mand is necessary.' To maintain replevin, the party entitled to possession need not prove demand and refusal if the prop- erty was either obtained unlawfully or purchased by a de- tainer privy to his vendor's 'fraud.'' § 456. Not necessary against an innocent purchaser of a fraudulent vendee, but necessary to terminate a right of possession. A demand must be shown only where de- fendant had a right of possession which was liable to be terminated by such demand, and where chattels unlawfully taken from the possession of the owner have passed into the hands of innocent third parties, who purchased, supposing the vendor to be the owner, an action to recover the posses- sion thereof may be maintained without previous demand made. It makes no difference in such a case that the com- plaint charges merely an unlawful detention, and not an unlawful taking. The plaintiff may still prove the unlawful taking, and thus show that, although no demand was made, the detention was unlawful.' No demand is necessary against one who is a hona fide purchaser of one who had no right to sell. Such purchaser has no lawful possession as against the owner.* No demand is necessary before bringing replevin for property purchased by the defendant at an illegal sale by a pound master. ° § 457. When a rightful possession becomes wrongful — , When demand is necessary. Whenever one person obtains possession of the personal property of another without the consent of the owner, and then, without any right which the law will recognize, asserts a claim to the property incon- sistent with the owner's right of property and right of possession, the possession of such person will immediately 1 Barrett v. Warren, 3 Hill (N. Y.), 348. 2 Butters v. Haughwout, 42 111. 18. 8 Eldred v. The Oconto Co., 33 Wis. 133; Stanley v. Gaylord, 1 Cush. 536; Galvin v. Bacon, 11 Me. 28; Smith v. McLean, 24 Iowa, 322. « Prime v. Cobb, 63 Me. 200. ' Clark V. Lewis, 35 111. 417. WHERE ORIGINAL TAKING IS NOT WRONGFUL. 247 become illegal and wrongful, and no demand for the prop- erty will be required to be made by the owner before he commences an action of replevin for the recovery of the same, although the possessor thereof may ever so honestly entertain the belief that his claim to the property is both legal and just.' § 458. Where the original taking is not wrongful, de- mand must be made. "Where the original taking is not tortious, but only the unlawful detainer is complained of, a demand of the property before action is essential, unless de- fendant is claiming or using it as his own.^ When the plaintifE relies upon a wrongful detention alone, demand must be made, but when on a wrongful taking and detention, no demand is necessary.' In Iowa proof of demand is only ' Shoemaker v. Simpson, 16 Kan. 43; Trudo v. Anderson, 10 Mich. 357; Ballou r. O'Brien, 20 Mich. 304; Clark v. Lewis, 33 III. 417; Mc- Neill V. Arnold, 17 Ark. 155; McDonald v. Smith, 21 Ark. 422; Galvin F. Bacon, 11 Me. 28 ; Newell v. Newell, 34 Miss. 386 ; Smith v. McLean, 24 Iowa, 322; Gilchrist v. Moore, 7 Clark (Iowa), 11; Newman v. Jenne, 47 Me. 520; Stanchfleld v. Palmer, 4 Greene (Iowa), 25; Hudson v. Maze, 3 Scam. 578; Wood v. Cohen, 6 Ind. 455; Conner f. Comstock, 17 Ind. 90. 2 Person r. Wright, 35 Ark. 169; Brown v. Cook, 9 Johns. 361; Pierce r. Van Dyke, 6 Hill, 613; Sluyter v. Williams, 1 Sweney (N. Y.), 215; Boughtou v. Bruce, 20 Wend. 234; Stanchfleld v. Palmer, 4 Greene (Iowa), 25; Smith r. McLean, 24 Iowa., 323; Gilchrist F.Moore, 7 Iowa, 11; Johnson v. Johnson, 4 Har. (Del.) 171; Windsor f. Boyce.l Houst. (Del.) 605; Stapleford f. White, 1 Houst. 238; Sopris v. Truax, 1 Col. 90; Eoach v. Bender, 1 Col. 322; Seaver v. Dingley, 4 Green (Me.), 307; Newman v. Jenne, 47 Me. 520; Piraini v. Barden, Pike (5 Ark.), 81; Burr F. Daugherty, 21 Ark. 564; Hudson f. Maze, 3 Scam. 582; Ingalle F. Bulkley, 13 111. 317; Root f. Bonnema, 22 Wis. 539; Smith v. Welch, 10 Wis. 91 ; Stratton F.Allen, 7 Minn. 502 ; Walpole v. Smith, 4 Blackf. 306, Litterel v. St. John, Id. 327; O. & M. R. R. v. Noe, 77 111. 512; Bond F. Ward, 7 Mass'. 127; Sawyer r. Merrill, 6 Pick. 478; Conner v. Corastock, 17 Harrison (Ind.), 90. ^ Moser v. Jenkins, 5 Ore. 447 ; Ayers v. Hewett, 19 Me. 281 ; Seaver F. Dingley, 4 Green (Me.), 314; Partridge r. Swazey,46 Me. 414; Bald- win F. Cole, 6 Mad. 212 ; Parsons v. Webb, 8 Me. 39 ; Fernald v. Chase, 37 Me. 292; Bussing f. Rice, 2 Cush. 48; Thurston F.Blanchard, 22 Pick. 18; Foshay r. Ferguson, 5 Hill, 158; Stillman v. Squire, 1 Denio, 328; Cummings r. Vorce, 3 Hill, 282 ; Pierce r. Van Dyke, 6 Hill, 613; Trudo 248 DEMAND AND TENDEB TO DISOHABGE LIEN. necessary to terminate the defendant's right of possession where that right was rightfully obtained, and is not necessary where both parties claim title and the right of possession is incident thereto.' In Mississippi no demand is required by statute, but if the plaintiff without demand bring suit against defendant, whose original possession was lawful, and the de- fendant offer to deliver the property with the proper plea, the action of replevin will be discharged at cost of plaintiff.^ In Tennessee no demand is necessary under any circum- stances, the service of the writ being sufficient demand in all cases. ^ § 459. Acts of dominion on part of defendant will ex- cuse demand — Conversion. Where D. and H. both claimed to be the owner of a steer, and D., who had possession, re- fused to let H. have the animal, and H. separated it fi'om D.'s drove and took it away, D. was allowed to maintain replevin without demand.* No demand is necessary if defendant has exercised continued acts of ownership over it.° Where de- fendant has converted the property wrongfully taken pos- session of, no demand is necessary." So where the circum- V. Anderson, 10 Micli. 358; Ballon f. O'Brien, 20 Mich. 304; LeEoyr. East Saginaw, &c., 18 Mich. 239; Clark v. Lewis, 35 111. 417; Bruner V. Dyball, 42 111. 36; Gibbs v. Jones, 46 111. 320; Hicks r. Britt, 21 Ark. 422; Farrington v. Payne, 15 .Johns. 432; White v. Brown, 5 Lans. 78 Connah v. Hale, 23 Wend. 462; Bates v. Conkling, 10 Wend. 390 Lewis F. Masters, 8 Blackf. 246; Delaucey v. Holcorab, 26 Iowa, 96 Smith r. McLean, 24 Iowa, 322; Lawson v. Lay, 24 Ala. 188; Gardner V. Boothe, 31 Ala. 190; Oleson v. Merrill, 20 Wis. 462; Griswold v. Bo- ley, 1 Blake (Mont.), 546; Whitney F.McConnpll, 29 Mich. 13; Gilmore y. Newton, 9 Allen, 171 ; Stanly v. Gaylord, 1 Cush. 549; Henry v. Fine, 23 Ark. 419; Courtis v. Cane, 32 Vt. 232. ' Smith V. McLean, 24 Iowa, 322. " Dearing v. Ford, 21 Miss. (13 Smead & M.) 269. * Draper v. Moseley, 3 Bax. (Tenu.) 201. * Delancey v. Holcomb, 26 Iowa, 94. 5 Henry v. Fine, 23 Ark.417. ^Deeter v. Sellers, 102 Ind.458(lN. F.854). See Mitchell v. Williams, 4 Hill (N. Y.), 16; Holbrook v. Wight, 24 Wend. 169. As to just what constitutes a conversion upon the part of the defendant, whose original possesBion was rightful, the authorities are not very uniform ; but there WHEN DEMAND MUST BE MADE. ' 249 stances are such as to show that a demand would have been unavailing, no demand is necessary.^ § 460. Title of record no excuse for want of demand. The fact that plaintiff's title and right of possession appear of record will not relieve him of the necessity of giving notice.' § 461. Assignee must give notice and make demand. The assignee of goods under an attachment, who pays off the first attaching creditor, must give notice and make de- mand before he can bring replevin against the officer.^ § 462. Demand must be made where plaintiff put prop- erty in defendant's possession, and he merely allows it to remain. The rule of law is well established that where the •plaintiff has delivered property to defendant, and defendant merely detains it, it is necessary for plaintiff first to make de- mand for it, in order to maintain replevin. And in such case a refusal, in order to excuse defendant, must be a qualified re- fusal based upon reasonable grounds. It must not be abso- lute; otherwise, he will be guilty of conversion, unless he can establish an adverse right to the immediate possession.* Where the defendant first obtains possession of the property can be no conversion by defendant unless he had actual control of the property, or actually interfered with it contrary to plaintiff's wishes. The following authorities will throw some light on the question: Pack- ard V. Getman, 4 Wend. 615; Lockwood v. Bull, 1 Cow. 322; Jones v. Allen, 1 Head. (Tenn.) 628; Gilmore v. Newton, 9 Allen, 171; Youl v. Harbattle, Peak's N. P. Cases, 49; Presley r. Powers, 82 111. 125; Kerk- ham V. Hargroves, 1 Selw. 425; Ross r. Johnson, 5 Burr, 2827; Dwight T. Brewster, 1 Pick. 50; Holbrook v. Wight, 24 Wend. 169; Bent v. Bent, 44 Vt. 634; Fuller v. Taber, 39 Me. 521;. Simmons v. Lettystone, 4 Exch. 442; Rogers v. Huie, 2 Cal. 571; Herron v. Hughes, 25 Cal. 556; Hutchins v. Hutchins, 7 Hill (N. Y.), 104; Van Valkenburgh v, Thayer, 57 Barb. 196; Smith v. Archer, 53 111. 244; Ripley v. Dolbier, 18 Me. 382; Hutchinson r. Bobo, 1 Baily (S. C), 546; Eldredge v. Ad- ams, 54 Barb. 417; Bogan v. Stoutenburgh, 7 Ohio, 213; State v. Jen- nings, 14 Ohio St. 77; Nelson v. Iverson, 17 Ala. 219. 1 Simpson v. Wrenn, 50 111. 224; Shoemaker v. Simpson, 16 Kan. 43; Smith V. McLean, 24 Iowa, 322. 2 Peterson v. Espeset, 48 Iowa, 262. ' Whipple F. Thayer, 16 Pick. (Mass.) 25. * Cole F. W. St. L. & P. Ry., 21 Mo. App. 443. 250 DEMAND AND TENDER TO DISCHARGE LIEN. with the consent of the plaintiff, the latter must demand the property before he can maintain replevin.' § 463. Not necessary where trespass committed in the taking — Stolen goods. Demand need not precede an action of replevin for goods the taking of which by defendant constituted a trespass, unless the trespass has been satisfied or the plaintiff is estopped from asserting it; but where the wrongful taking arises out of contract relations, and de- fendant holds in good faith, demand is necessary. Demand and refusal before bringing replevin will not make defend- ant's lawful possession unlawful.^ This rule has been carried so far that it has been held that one who innocently purchased at a sale goods that had been stolen was guilty of conversion, and no demand necessary, the purchaser's remedy being against the auctioneer or other salesman for the amount paid by him.' Demand before bringing replevin is unnecessary where defendant's possession is wrongful,* or where the origi- nal taking was wrongful," or where the owner does not part with it voluntarily. Where the owner of personal property does not part with it voluntarily, but it is tortiously taken from his possession) or any act is done which makes the possession of the person having it wrongful, no demand is 1 Peake v. Conlan, 43 Iowa, 297. , 2 Adams V. Wood, 51 Mich. 411 (16 N. W. 788). ' Hoffman v. Carow, 22 Wend. 285; Courtis f. Cone; 32 Yt. 233; Leon- ard V. Tidd, 3 Met. 6; Bowen v. Turner, 40 Barb. 383; Spencer r. Black- man, 9 Wend. 167; Everett v. Coffin, 6 Wend. 605; McCombie v. Davies, 6 Bast. 538 ; Thorp v. Burling, 11 Johns. 285 ; Farrar v. Chauftetete, 5 Denio, 527; Williams v. Merle, 11 Wend. 80; Pearson v. Graham, 6 Ad. & Ell. 899 ; Spraights v. Hav.iey, 39 N. Y. 441. For a contrary view, see Rogers r. Hine, 2 Cal. 572. * Bertwhistle v. Goodrich, 53 Mich. 457 (19 N. W. 143). In this ease it is held that cattle in anybody's charge are not " running at large," and if on the highway, they are not trespassing on the premises of the adjacent owner. The depasturing of the herbage of the highway is not a nuisance to the adjacent owner, and he cannot impound them. = Bartels v. Arms, 3 Col. 72 ; Moorhouse v. Donaca, 14 Ore. 430 (13 Pac. 112), WHEEE POSSESSION OBTAINED BY EEAUD. 251 necessary.' Where the property has been wrongfully taken by the defendant from the plaintiffs possession, no demand is necessary to maintain replevin.'' Where proved to have been wrongfully taken and wrongfully detained, no demand is necessary.^ § 464. That the possession of defendant is in good faith of no avail if original taking was fraudulent. In re- plevin, when the original taking was wrongful, the fact that the defendant came into the possession of the property without any imputation of fraud or intention to do wrong cannot make his possession lawful as against the true owner. The wrongful taker could have no lawful possession against such owner, nor could he convey any to another, and unless a party obtains possession lawfully a demand is not necessary. The necessity of demand is to put the defendant in the wrong when he acquired the possession legally.* § 465. Where possession obtained by fraud, demand is unnecessary. Where the defendant has deliberately ob- tained the goods by a fraudulent promise to pay for them, which he did not mean to perform, no demand before bring- ing the action is necessary.^ ' Whitman v. Tritle, 4 Nev. 494; Stanley v. Gaylord, 1 Cush. 536, and cases cited; Eiley v. Boston Water Co., 11 Cush. 11; Galvin v. Smith, 2 Fairfield, 28; Hyde f. Noble, 13 N. H. 494; Trudo v. Anderson, 10 Mich. 357. and cases cited; Griswold v. Boley, 1 Mont. .545. • ^Hamilton v. Browning, 94 Ind. 242; Simmons v. Lyons, 35 N. "X. Sup. Ct. 554; Cunningham v. Baker, 84 Ind. 597; Eobinson v. Skip- worth, 23 Ind. 311; Gilmore v. Newton, 9 Allen, 171; LeEoy v. East Saginaw, &c., 18 Mich. 233; Cooley on Torts, 453-4; Yates 7. Smith, 11 Bradw. (111.) 459. ^ Robinson v. Shatzley, 75 Ind. 461; Robinson v. Skipworth, 23 Ind. 311; Oswald v. Hutchinson, 26 111. App. 273. * Surles V. Sweeney, 11 Ore. 21 (4. Pac. 469). See also Shoemaker v. Simpson, 16 Kan. 52; Ballon y. O'Brien, 20 Mich. 304; Prime v. Cobb, 63 Me. 202; McNeil v. Arnold, 17 Ark. 155; Smith v. McLean, 24 Iowa, 322; Newell v. Newell, 34 Miss. 386; Clark v. Lewis, 35 111. 423; Farley F. Lincoln, 51 N. H. 577; Stanley v. Gaylord, 1 Cush. 536. A contrary view prevails in New York. Barrett v. Warren, 3 Hill, 348; Tallman r. Tweck, 26 Barb. 167. 6 Carl V. McGonigal, 58 Mich. 567 (25 N. W. 516). 252 DEMAND AND TENDER TO DISCHAEGE LIEN. § 466. To be protected an officer must keep strictly within the command of his writ. Thus, where a consta- ble seizes B's property for A's debt without B's knowledge, and asserts a claim to it by virtue of his levy inconsistent with B's rights, B may maintain replevin without demand.' Where an officer under process against the property of B seizes the property belonging to A, and at the time of the seizure is notified by A that it is his property, and forbidden to take it, held, that A can maintain replevin against the officer for the property without any other or further demand.^ It is not necessary to make demand of a constable who levies on goods not the debtor's, but in the debtor's possession.' Where property in the possession of the agent of the owner is levied on by an officer under an execution against a third per- son, and then turned over by the officer to such agent, to hold as his custodian, it is not necessary for the owner to make a demand before bringing replevin against such officer and custodian, as the original taking by the officer was wrongful.* § 467. Demand need not be made on wrongdoer, but must on a bona fide holder. Demand on agent of limited authority insufficient. — Waiver of demand. No demand need be made upon one who comes wrongfully into possession of personal property, previous to an action by the owner to recover possession thereof. But a demand before action is necessary to be made upon one who purchases or receives such property in good faith from a wrongdoer. The same rule applies to bona fide purchasers at public sales under pro- cess. A demand made upon an agent simply entrusted with property for safe keeping is insufficient. But where a de- ' Dickson v. Randal, 19 Kan. 212 ; Buck v. Colbath, 3 Wall. (U. S.) 334 ; Gimble v. Ackley, 12 Iowa, 27; Chinn v. Eussell, 2 Blackf. (Ind.) 172; Ledley v. Hays, 1 Col. 160; Tuttle v. Robinson, 78 111. 332. 2 Stone V. Bird, 16 Kan. 488. ^ Bancroft v. Blizzard, 13 Ohio, 30 ; Vose v. Stickney, 8 Minn. 75 ; Dou- niiel V. Gorham, 6 Cal. 43; Taylor v. Seymour, 6 Gal. 512; Killey v. Soannell, 12 Cal. 73 ; Bond v. Ward, 7 Mass. 123 ; Shuinway v. Rutter, 8 Pick. 443. ♦Tattle V. Robinson, 78 111. 332; Clark v. Lewis, 35 111. 417. DEMAND NEED NOT BE MADE ON WEONGDOEB. 253 fendant in his answer sets up a claim of ownership and right of possession in himself, and demands a return of the prop- erty and proceeds to trial on this issue, he thereby waives the objection that no demand was made. Such affirmative claim of ownership is sufficient evidence that demand is not relied upon, and would have been unavailing.' Proof of any circumstances that would satisfy a jury that a demand, if made, would not have been complied with, has been held sufficient to excuse this proof. ^ So if a bailee set up owner- ship of the property in himself, this is equivalent to a con- version, and no demand is necessary.^ The plaintiff offered to prove that the defendants gave a general order to all their hands not to deliver the horse in dispute to him, or any one for him. Held, proper to go to the jury as tending to prove a conversion by defendants.* Where parties stipulated that the goods should be sold and the proceeds paid over to the party who was entitled to them, this obviated the necessity for proof of a demand. ° Where the defendant by his plead- ing admits a demand, proof of one is unnecessary.^ Where the property is in the hands of a bona fide purchaser from a wrongful taker, demand is necessary before replevin will lie by the rightful owner.' ' Kellogg V. Olsoh, 34 Minn. 103 (24 N. W. 364) ; Mount v. Derick, 5 Hill, 455; Pringle v. Phillips, 5 Sandf. 157; Pierce v. Van Dyke, 6 Hill, 613; 1 Wait. Pr. 718; Talmadge v. Scudder, 38 Pa. St. 517; Gillet v. Eoberts, 57N. Y. 28; Johnsony. Howe, 2 Oilman, 342; Smith f. McLean, 24 Iowa, 322; Shoemaker v. Simpson, 16 Kan. 43; Toucre V. Reynolds, 35 Minn. 476 (29 N. W. 171); Ellengbor v. Brackken, 36 Minn. 156 (30 N. W. R. 659). 2 Johnson v. Howe, 2 Gilm. 344; Cranz v. Kroger, 22 111. 74; Apple- ton V. Barrett, 29 Wis. 221; Lutz v. Yount, Phill. (N. C. L.) 367; La Place V. Aupoix, 1 Johns. Ca. 407. s Simpson v. Wrenn, 50 111. 224. * Johnson r. Howe, 2 Gilm. 344. ^ Butters r. Haughwout, 42 111. 24. * Jones V. Spears, 47 Cal. 20. ' Connor v. Comstock, 17 Ind. 90 ; Wood v. Cohen, 6 Ind. 455 ; Stanch- fleld r. Palmer, 4 Greene (Iowa), 23; Stratton r. Allen, 7 Minn. 502; Gil- christ V. Moore, 7 Iowa, 9 ; Newman v. Jones, 47 Me. 520 ; Millspaugh V. Mitchell, 8 Barb. (N. Y.) 333. 254 DEMAND AND TENDEB TO DISCHAEGE LIEN. § 468. To recover costs demand must be made — Waiver of demand — A general denial not. Where a defendant is rightly in possession of property, the plaintiff must demand possession thereof before bringing replevin; otherwise, the defendant will not be liable for costs,' and a mere denial by the defendant in his answer of the facts stated in the petition is not an assertion of ownership of the property, and does not waive a demand where such demand is necessary before bringing suit.' § 469. Possession of goods by mistake — Lien. Where goods are delivered by mistake to one who has no right to the possession of them, and he, instead of endeavoring to correct the mistake, lends himself to favor it, and performs without authority services respecting them, and claims there- by a lien, he may be regarded as a wrongdoer from the be- ginning, and replevin will lie without demand.^ § 470. A taker of stray animals who does not fully comply with the law has no lien, and no demand is necessary.' But where the taker up complies with the law fully, he ac- quires a lien for damage and charges, and a demand and tender is necessary before replevin can be maintained by the owner.' Where one takes possession of property as an act of charity or kindness, or for the purpose of preserving it from damage, there is no conversion, and a demand is neces- sary. ° § 471. Necessary from a borrower — Lost goods. De- mand is necessary before bringing replevin for an article which defendant has borrowed from one who did not know whose it was and did not claim ownership, but who found it on his premises, where it had been put for safety long before by another stranger to the title, who found it exposed near 1 Peters v. Parsons, 18 Neb. 191 (24 N. W. 687). = Purvis V. Moltz, 2 Abb. Pr. (N. T.) N. S. 409; Id. 32 How. Pr. 478. 3 Curamings r. Qaun, 52 Pa. St. 484. ♦ Holcomb V. Davis, 56 111. 416. ' Kennett v. Robinson, 2 J. J. Marsh (Ky.), 84. KEFUSAL TO DELIVEB IN ADVANCE OF DEMAND. 255 by.' A borrower or bailee for hire cannot set up a title in himself adverse to the owner. He must first return the property according to the contract under which he acquired the possession.^ A finder of lost property is entitled to a demand, but has no lien for services gratuitously expended upon it, but may have for any reward offered for its recapture. Salvage is an exception to this general rule.' § 472. Possession acquired in good faith, demand nec- essary. In replevin against one who has acquired the prop- erty in good faith, it is necessary to prove a demand before suit brought, or something equivalent to it.'' Where one purchases personal property in good faith fi'om one not the owner, a demand must precede a suit against him in replevin, but it is otherwise if he had notice of the facts. ^ § 473. But a contrary rule has been laid down. Where property is found in the possession of a third peirson, who has purchased it, and believes he has good title, the owner may maintain replevin for it without demand." § 474. Conversion — Refusal to deliver in advance of de- mand. Where property originally came rightfully into de- fendant's possession, a demand is usually necessary, but proof of any circumstances showing that a demand would have been unavailing, as the refusal by defendant to listen to one, or a statement in advance that he will not deliver, or proof that he has converted the property will excuse demand, and where the answer alleges that defendant would not have delivered the property if demand had been made, it waives all proof of demand.' So, too, where defendant testified that 1 Becker v. Vandercook, 54 Mich. 114 (19 N. W. 771). 2 Simpson v. Wrenn, 50 III. 224 ; Loeschman v. Machin, 2 Starkie, 310. ' Etter V. Edwards, 4 Watts (Pa. ) , 66 ; Hartford v. Jones, 1 Lord Ray- mond, 393; Nicholas v. Chapman, 2 H. Bla. 254; Cummings f. Gann,52 Pa. St. 484; Binsted r. Buck, 2 W. Blacks. 1117. * Rooch V. Binder, 1 Colo. 322 ; Ingalls v. Bulkley.lS 111. 315 ; Clark r. Lewis, 35 111. 423. 5 Kuhns r. Gates, 92 Ind. 66. 8 McNeill V. Arnold, 17 Ark. 154. 'Wood r. McDonald, 66 Cal. 546 (6 Pac. 452); Bristol r. Burt, 7 Johns. 257 ; Gilmore v. Newton, 9 Allen, 171. 2o6 DEMAND AND TENDER TO DISCHARGE LIEN. he would not have surrendered ihe property if demand had been made, unless his counsel had ordered him to, held, that this was evidence of a conversion which would make a de- mand unnecessary.' If the defendant have the goods at another place and offer to go with the plaintiff and deliver them, it is sufficient. A refusal to deliver at the place of demand is not a refusal that will support replevin where de- mand and refusal are necessary.^ The true ground of a re- fusal to deliver must be stated. If the authority of the one making the demand is questioned, he should state his author- ity so that defendant can act advisedly.'* Asking time to take counsel is not a refusal to comply with demand.* A forci- ble seizure is not necessary to constitute a wrongful taking or a conversion.'' But any unlawful or unauthorized inter- meddling with or exercise of authority over the property of another is an act of trespass, and, if accompanied by taking and detention, will amount to a conversion. ° § 475. Must state true reason for not complying with demand. Defendant cannot give one reason to the person making the demand, and defend on another reason;' cannot pretend that he had the property and induce plaintiff to sue ' Dugan V. Nichols, 125 Mass. 576. 2 O'Connell v. Jacobs, 115 Mass. 21. ' Jacoby v. Loussatt, 6 S. & E. 305; Green r. Dunn, 4 Camb. 215; Solomon v. Dawes, 1 Esp. 83; Watt v. Potter, 2 Mason C.C. 77; Ingalls V. Bulkley, 13 111. 316; St. John y. O'Connell, 7 Porter (Ala.), 466; Zach- ary v. Pace, 4 Eng. (Ark.) 212; Connah v. Hale, 23 Wend. 463; Solo- mon V. Dawes, 1 Esp. 83. * Page V. Crosby, 24 Pick. 216. s Lee r. Gould, 47 Pa. St. 398 ; Haythorn v. Eushtorth, 4 Har. 160 ; Kefley v. Hume, 3 T. B. Mon. (Ky.) 181; Marchman v. Todd, 15 Ga. 25 ; Skinner v. Stouse, 4 Mo. 93. "Eolston V. Black, 15 Iowa, 48; Squires r. Smith, 10 B. Mon. (Ky.) 33; Ely 7. Ehle, 3 Corast. 506 ; Hardy 7.Clondenning,25 Ark.436; Gibbs V. Chase, 10 Mass. 125; Eobinson v. Mansfield, 13 Pick. 139; Phillips v. Hall, 8 Wend, 610; Allen v. Crary.lO Wend. 349; Fonda r. Van Home, 15 Wend. 631; Netf r. Thompson, 8 Barb. 213; Miller r. Baker, 1 Met. 27 ; Wilson v. Barker, 4 B. & Adolph, 614. ' Holbrook v. Wjght, 24 Wend. 169 ; Isaac v. Clark, 2 Bulst. 312 ; Jacoby v. Loussatt, 6 S. & R. (Pa.) 304. "WHEN DEMAND SHOULD BE MADE. 257 him, and then defend on the ground that he did not have them.' Where W. and E. hired cows, and W. took them to his farm, some miles from E.'s, and at the end of the time the owner demanded them from E., who said he would have nothing to do with the cows, held, it was for the jury to de- termine whether, by the reply, he intended to withdraw from a dispute about the property or to collude with W. to hinder the owner from recovering his property, which latter would be equivalent to a positive refusal.^ § 4:76. When demand should be made — When action commenced. The gist of the action of replevin is the wrong- ful detention, and this relates to the time of the commence- ment of the action. Where demand and refusal are necessary to make the ' detention by the defendant wrongful, such de- mand and refusal must be prior to the commencement of the action, and evidence of a subsequent demand is properly re- jected.' The issuance of a writ of replevin to the sheriff is the commencement of the suit, and a demand, if necessary, must be made before that time." Under a statute which re- quires the affidavit to be made after the cause of action has accrued, in a case where demand is necessary, a demand made by the officer after the issuing of the writ, and while he has it in his possession ready for service, is not good.^ The demand must be made upon the defendant while the property is in his possession. His ability to comply with the demand is necessary to give the demand force and effect." 1 Hall r. "White, 3 Cor. & P. 136. 2 Mitchell r. "Williams, 4 Hill, 16. ' Brown v. Holmes, 13 Kan. 482 ; Cheny worth f. Daily, 7 Porter (Ind.), 284 ; Storms v. Livingston, 6 John . 44 ; Powers v. Bassford, 19 How. Pr. 309; Purves v. Moltz, 5 Robt. (N. Y.) 653. * Underwood v. Tatham, 1 Ind. 276 ; Alden v. Carver, 13 Iowa, 254 ; Darling v. Tegler, 30 Mich. 54; Boughton v.Bruce, 20 Wend. 234; Cum- mings V. "Vorce, 3 Hill (N. Y.), 285; Badger v. Phinney, 15 Mass. 364. '5 Darling r. Tegler, 30 Mich. 54. » "Whitney r. Slouson, 30 Barb. 276 ; Bowman v. Eaton, 24 Barb. 528 ; Hawkins r. Hoffman, 6 Hill, 586; Harris r. Hillman, 26 Ala. 380; Mc- Arthur v. Corrie, 32 Ala. 87; "WhiteweU r. "Wells, 24 Pick. 29. 17 258 DEMAND AND TENDER TO DISOHAEGE LIEN. But it would seem, if defendant had parted with the goods fraudulently or in anticipation of the demand, the rule would be otherwise.' § 4:77. Demand after affidavit signed — Defective, how cured. Where a demand was made after the affidavit in re- plevin was signed, but before the writ was served, if demand was necessary the proceedings are defective and a general appearance by defendant does not waive the defect, but it may be cured by plaintiff's filing a new affidavit dated since the demand.^ § 478. Demand after issuance of writ. "Where a writ of replevin was sued out and given to the officer to be served only if defendant refused to give up the property on demand of the plaintiff, it was held that the suit was not prematurely commenced, and that this was a sufficient demand.' § 479. Proof of, when made — Failure to prove. Where demand is prerequisite to the bringing of an action, the court may, in its discretion, allow plaintiff to prove demand after the evidence is in and out of time.* The plaintiff should not lose his property simply because he failed to prove that he made a demand before suit commenced.' A demand and re- fusal made shortly after the writ issues is ordinarily good evidence of a conversion before the writ issued, and that a demand then would not have been complied with." But where defendant recovers on the ground of want of proof of demand alone, he ought not to be awarded a return, unless he was clearly entitled to the possession of the property. § 480. Where defendant's right limited by time — Property purchased on installment plan. Where personal property was leased to defendant by plaintiff to January 1st, and on the preceding 31st of December plaintiff made demand 1 Fenner F. Kirkman, 26 Ala. 653; Andrews f. Shattuck, 32 Barb. 397. 2 McAdam v. Walbran, 8 N. Y. (Civ. Proc. R.) 451. ' O'Neil V. Bailey, 68 Me. 429; Gremer v. Brigge, 110 Mass. 446. * Crawford r. Furlong, 21 Kan. 698. ^ Jessop V. Miller, 1 Keys (N. Y.), 321; Morris v. Pugh, 3 Burr, 1241. ' Badger v. Piiinney, 15 Mass. 364. DEMAND OF ONE NOT HAYING AUTHOBITT. 259 for a return, and on the 1st of January brought replevin •without further demand, held that, defendant having ac- quired possession rightfully, demand was necessary, and that the demand must be made after plaintiff had a right to re- turn under the contract, and that he must fail in this action for want of a proper demand.' Where A bought a sewing machine, and was to pay for it by installments, and, after pay- ing the first, refused to pay the others, claiming it was not the machine she had bought, held, the company must make demand and offer to refund the money paid before replevin could be maintained.'' § 481. On whom made — A demand of one not having authority to deliver or refuse and having no control over the chattel is insufficient.' It should usually be made personally upon one in possession and who has power to comply. De- mand on wife or servant is not sufficient demand on husband or master.* Demand at the house of a bailee in his absence is not good unless knowledge of the demand is brought home to him before the action commenced.* But where the evidence goes to show that defendant absented himself to avoid de- mand, it might be sufficient. ° When there are two or more defendants acting severally, demand should be on both. When acting jointly or as partners, demand on one is suffi- cient.' Where there was no evidence that B., the husband, was keeping out of the way to avoid demand, demand of the wife and her refusal to surrender, alleging that the sewing machine was the property of B., was not a demand of B. upon which replevin could be based.' Where goods are entrusted to a > White r. Brown, 5 Lous. (N. Y.) 78. 2 Hamilton r. Singer Sewing Machine Company, 54 Dl. 370. » Barns v. Gardner, 60 Mich. 133 (26 N. W. 858). * Storm V. Livingston, 6 John. 44; Mount r. Derick, 5 Hill, 456; Poth- onier v. Dawson, Holt, N. P. 383. ' White V. Demory, 2 N. H. 546. 6 Goldsmith v. Bryant, 26 Wis. 39. 'Niebet v. Patton, 4 Kawle, 119; Newman r. Bennett, 23 111.427;^ Mitchell r. Williams, 4 Hill, 13 ; Holbrook v. Wight, 24 Wend. 169. * Wheeler & Wilson Manufacturing Company r. TertzlaEE, 53 Wis. 211 (ION. W. 155). 260 DEMAND AND TENDEE TO DISOHAEGE LIEN. servant, and lie refusps to deliver them to a servant, because lie had no authority to do so, this is no evidence of a conver- sion in action of replevin against the servant. And if the master approve of this refusal afterward, on the ground that the servant had no authority, it is no evidence of a conver- sion by the master.' § 482. If proved, failure to allege is cured, after trial. Where property comes rightfully into the possession of the defendant, to maintain replevin for the wrongful detention thereof, a demand and refusal must be alleged and proved; but if demand and refusal be proved, it is too late on appeal to insist that they were not alleged in the complaint.^ § 483. Written demand must be specific — No particu- lar form necessary. Where plaintiff in replevin makes a written demand on an officer for the property covered by a certain mortgage referred to in t^e notice, and under which he claims, but, in listing the articles, he omits from the no- tice one, it is not a good demand as to that one article, and he will be defeated as to that article.' No particular form is necessary. Defendant must be given to understand the possession of some specific chattel is wanted.* A demand for Bi's stock, if not objected to as not specific enough, is suffi- cient.' "I have come to demand my property; here is a "list of it" is good.' § 484. Of person in charge sufiBcient. — Decedent. De- mand made of a person in charge of the effects of an intes- tate, under an order of court, by the owner of the property, which was lawfully in the intestate's possession at his death, is sufficient to sustain replevin against both him and the ad- ' Mount V. Derick, 5 Hill, 456; Mires r. Solebay, 2 Mod. 242; Alex- ander F. Southey, 5 B. & Aid. 247; Storm r. Livingston, 6 John. 44. 2 Treat v. Hathorn, 3 Hun. (N. Y.) 646. 3 Woodward v. Ham, 140 Mass. 154 (2 N. E. 702). * La Place v. Aupoix, 1 John. Ca. 47; Thompson v. Shirley, 1 Esp. N. P. 31; Smith r. Young, 1 Comp. 440; Colegrove v. Dias, Santos, 2 B. & C. 76. ' Newman v. Bennett, 23 III. 428. • Logan v. Houlditch, 1 Esp. N. P. C. 22. DEMAND OF INDICES OF OWNERSHIP SUFFICIENT. 261 ministrator impleaded with him.' Where demand is neces- sary, it is sufficient if made of the agent in possession of the property.^ § 485. Acts and notice equivalent to demand — Inter- vener. Where plaintiff and defendant had had trouble, and each notified the other to keep off his premises, and plaintiff's horses escaped on to defendant's premises, and plaintiff sent his agent to defendant, who asked if the horses were there and received an evasive answer, and no permission to look or to go on to the premises and get them if there, held, a sufficient demand to maintain replevin.^ Where A under- takes in a lawful manner to remove chattels, as his own, from the possession of B, and the latter objects to his doing so, denying that A has any property there, this is equivalent to a formal demand and refusal.* A written notice of the intervenor's ownership, served upon the deputy who levied upon the property, is sufficient demand to entitle the inter- venor to recover, the plaintiff having abandoned the suit.' Where articles of personal property belonging to plaintiff, but in defendant's possession, are numerous and scattered in different places, and defendant peremptorily refuses to surrender any part thereof, it is not necessary, in order to make a sufficient demand before suit, that plaintiff should endeavor to compel defendant to go with him to where the articles are, or hear a list of them read.° § 486. Of the indices of ownership sufficient. A de- mand of the bills of lading of cotton is equivalent to a de- mand of the cotton itself, and is sufficient to support replevin for the cotton, though the possession of the defendant did not originate in tort.' ' Lills & C. Co. V. Russell, 22 Wis. 178. 2 Derter v. Sellers, 102 Ind. 458. 8 Kiefer v. Calrier, 53 Wis. 404 (10 N. W. 562). *Merriam r. Lynch, 53 Wis. 82 (10 N. W. 1). 6 Burrows r. Waddell, 52 Iowa, 195 (3 N. W. 37). « Appleton V. Barrett, 29 Wis. 221. ' Zachrisson v. Ahman, 2 Sandf. (N. T.) 68. 262 DEMAND AND TENDEB TO DISCHAEGE LIEN. § 487. A demand made in violation of the injunction of a court cannot be made the foundation of a right. ^ § 488. A mortgagee of chattels cannot replevy them from an officer who has attached them as the property of the mortgagor, without first making demand, although the mortgage provides that upon the property being attached he may take immediate possession." § 489. Mortgagee must make demand of one in pos- session — Absconded mortgagor. One holding a mortgage of a span of horses remaining in use on the farm of the mort- gagor's wife where they both reside together, and where the horses were when mortgaged, cannot, upon default of the mortgagor, bring replevin against the wife alone without first making a demand of her.' § 490. An action against a sheriff who holds property under execution cannot be maintained by the mortgagee with- out a written notice served on the officer of his claim of the property.* § 491. Action by mortgagee v. mortgagor. Eeplevin rests upon a tortious taking or detention, and cannot be brought until after demand made where the property is in the hands of the mortgagor. A demand of payment before the debt is due is not a demand for the goods, and will not support replevin.' § 492. Trustee after default need not demand. Where ' Smith V. Smith, 52 Mich. 538 (18 N. W. 347). 2 Hunt V. Williams, 106 Mass. 114; Wing 7. Bishop, 9 Gray, 223. The Statute of Massachusetts requires a written demand to be made by a claimant before he can replevy from an attaching ofiBcer. Gen. Stat., Ch. 123, § 62-8. ' Campbell v. Quackenbuah, 33 Mich. 287. In this case the mortgagor had abKoonded, but the team remained on the place, and the wife had done nothing to claim the team. •• Finch V. Hollinger, 43 Iowa, 598 ; Kaster v. Pease, 42 Iowa, 488. § 3055 of the Iowa Code provides that the ofHcer must levy on property pointed out, unless written notice be served on him that it is claimed by some one other than the defendant in execution. ' Cadwell v. Pray, 41 Mich. 307. ON WHOM DEMAND MUST BE MADE. 263 by the terms of a deed of trust on personal property the trus- tee is authorized to take possession on default of payment, he may after default bring replevin without demand. Where the deed is so drawn that a demand is necessary, it need not be made if the grantor has delivered the property to a third person. Neither the grantor nor his grantee, in such a case, is entitled to have demand made upon him for the prop- erty before replevin.' A mortgagee of chattels may main- tain replevin for them after they are taken by trustee pro- cess against the mortgagor without making demand.'* § 493. A mortgagor to replevy back must demand. The plaintiff gave a chattel mortgage to defendant, who took pos- session. Held, that replevin would not lie without demand or in the absence of any provision for the payment of the claim secured.' § 494. Where property taken under an illegal mort- gage, demand not necessary by true owner. Where de- fendant took possession of a cow claimed to be the property of plaintiff under a chattel mortgage given by her husband, and the jury found specially such ownership, held, that no demand was necessary before replevying the animal.* § 495. Also, where plaintiff repudiates a delivery made under a void agreement. Where notes are delivered as col- lateral upon an usui'ious agreement, and the party deposit- ing them desires to repudiate the agreement, he must demand the notes before he can replevy them.'* § 496. Must be made of a purchaser at an execution sale or an officer. Demand must be made before replevin can be brought by the owner against an officer or a purchaser at an execution sale on the ground that the property was ex- empt when it was not claimed on that ground, but upon other ' Morris v. Bucks, 62 Miss. 76. 2 Putnam v. Gushing, 10 Gray (Mass.)', 334. 8 Brown v. Coon,' 59 Mich. 590 (26 N. W. 780). ^Denton v. Smith, 61 Mich. 431 (28 N. W. 160). ^ Boughton Y. Bruce, 20 Wend. (N. T.) 234. 264 DEMAND AND TENDER TO DISCHAEGE LIEN. grounds before the sale.' A mere purchaser at a sheriff's sale is not a trespasser, and is entitled to demand even though the officer's seizure and sale was wrongful.^ But where the purchaser is the plaintiff in the execution, the law does not look upon him as a bona fide purchaser, and the want of de- maiid alone will not defeat the true owner.' A detention of property purchased at judicial sale is not wrongful even against the true owner, until after demand has been made.* § 497. When demand of an ofiBcer proceeding under a writ of attachment or other process is necessary — Execu- tion. Where an officer is proceeding according to law under a valid writ of attachment, a demand must be made of him for the property seized under the writ before one claiming to be the owner can maintain replevin.' But where the offi- cer levies an execution upon the propeity of one not named in the writ, a demand is not necessary by the owner before bringing replevin." Where an officer levies upon one per- son's property to pay the debt of another person, no demand is necessary by the true owner before bringing replevin.' When the original taking was wrongful, and the officer tak- ing was not in the proper discharge of his duty, no demand is necessary.' In action of replevin brought against the sher- iff to recover property illegally seized on execution, no de- mand is necessary.^ Demand is not necessary before bring- ' Twinam v. Swart, 4 Latia. (N. T.) 263 ; Storm v. Livingston, 6 Johns. (N. Y.) 44; Barrett v. Warren, 3 Hill (N.Y.), 351; Millspaugh v. Mitchell, 8 Barb. 335, Pierce v. Van Dyke, 6 Hill, 614; Fuller r. Lewis, 13 How. Pr. 220. 2 Talniadge r. Scudder, 38 Pa. St. 518. = Sargent r. Stnrin, 23 Cal. 360. 'Artliur V. Wallace, 8 Kan. 267. 6 Hines r. Chambers. 29 Minn. 7 (11 N. W. 129). « Leonard v. Maginnis, 34 Mimi. 506 (26 N. W. 733). . ' Sharon v. Nunan, 63 Cal. 234; Boulware v. Craddock, 30 Cal. 190; Wellman v. English, 38 Cal. 583; Hexter v. Schneider, 14 Ore. 184 (12 Pac. 668). 8 King V. Orser, 4 Duer. (N. Y.) 431. » Ledley r. Hays, 1 Col. 160. EEPLEVIN BEOUGHT BY JUDGMENT DEBTOR. 265 ing replevin against an officer whose seizure of goods is an abuse of his authority.' § 498. Where the property of a stranger to the writ is sold. No demand is necessary of one who purchased at a sale of property attached as the property of one other than the owner, if the purchaser claim to own it by virtue of the said purchase.^ "Where plaintiff's horse, in the possession of a third party, has been sold on an execution against such third party, plaintiff can maintain replevin against the pur- chaser, or the proprietor of a stable in whose charge it was pltwed, without demand.' § 499. But where property is found by the oflScer in. the actual custody of the person named in his execution, the levy thereon gives the officer lawful possession, and a demand is an essential prerequisite to suit in replevin against the officer ; but when ihe property is found in the custody of a stranger to the writ, the officer's possession under his levy is wrongful, and no demand is necessary.* § 500. In replevin brought by a judgment debtor to recover exempt property seized by an officer under an exe- cution where no similar property is owned by the debtor, and no selection or separation necessary to distinguish the ex- empt from the non-exempt property, no notice to the officer at the time of the levy that it is claimed as exempt, and no demand for a return prior to suit against the officer, is nec- essary.^ Where an officer with an attachment levies upon a horse which is exempt, and which is the only horse owned by the debtor, the taking is unlawful, and no demand before suit is necessary." Demand alleged by petition and admitted by answer need not be proved.' ^ Vanderhorst v. Bacon, 88 Mich. 669. 2 Edmunds v. Hill, 133 Mass. 445. See also Blanchard f. ChUd, 7 Gray, 155 ; Gihnore v. Newton, 9 Allen, 171. 8 Hicks r. Britt, 21 Ark. 422. * Stone r. O'Brien, 7 Col. 458 (4 Pac. 792), = Seip V. Tilghman, 28 Kan. 289. ' Murphy v. Sherman, 25 Minn. 196. ' Jones V. Spears, 47 Cal. 20. 266 DEMAND AND TENDEE TO DISCHAEGE LIEN. § 501. But purchaser when entitled to demand. The purchaser of property exempt from execution, at an execu- tion sale, is not liable in an action for its recovery, brought without demand by the owner, who, being present, failed to claim the exemption.' § 502. Conditional sale — Part payment. Where a sew- ing machine was sold and delivered to the purchaser, a part of the price being paid in hand, and the balance to be paid in installments, the vendor cannot maintain replevin for the machine, upon the refusal of the purchaser to make further payment on the ground the machine was not such as he had contracted for, without refunding the money already paid, and a demand for the machine and refusal by defendant are necessary prerequisites to commencing the action in such a case.^ Where an executory contract for the sale of chattels provides that the purchase price shall be paid in install- ments, and that title shall not pass until the price is fully paid, and the vendor permits the vendee to retain posses- sion and make other payments after the whole contract price is due, he may not seize the property and terminate the contract for non-payment until he has demanded pay- ment.^ A delivered to B a sewing machine under a con- tract of sale by which title was not to pass to B until full payment in installments was made. On default in any pay- ment, A had the option to take the machine away. Held, that on default of a payment A could not replevy the ma- chine without demand and notice to B of his option, and B's refusal to surrender it.* § 503. Fraud by vendee — Attaching or other creditor — No demand necessary. Where the vendor seeks to rescind a sale of goods for fraud, no demand is necessary before bringing replevin, even if the goods have been attached by 1 Twinam r. Swart, 4 Lans. (N. Y.) 263. ^ Hamilton v. Singer Manufacturing Company, 54 111. 370. » O'ltourke v. Hadcock, 114 N. Y. 541 (22 N. E. 33). * Wheeler & Wilson Manufacturing Company v. Teetztaff, 53 Wis. 211 (ION. W. 155). VENDEE MUST DEMAND OF THIED PARTY. 267 a creditor of the vendee; an attaching creditor parts with no consideration and acquires no greater right to the prop- erty than the vendee had.' H the vendee of goods sold on a condition procures them to be sold, on an execution against him, to one who has knowledge of the condition, the original vendor may maintain replevin against the second purchaser without demand.^ Obtaining goods by fraudulent pretenses is a tortious taking, and replevin will lie for them without a demand.' Where one claimed to have a warrant and pre- tended to make an arrest under it, and took certain property in settlement, AeZd, that replevin would lie without demand.* Where the original possession is obtained by fraud and under circumstances which did not transfer the title from the owner, demand is not necessary against a purchaser, as he cannot claim title and resist plaintiff's title for the want of demand at the same time. But if possession was originally acquired under circumstances which make it necessary for the original owner to rescind the bargain or give notice, demand is nec- essary against a purchaser.^ Where goods which have been obtained by means of a fraudulent purchase are seized under a warrant of insolvency, as the property of the buyer, the seller may maintain replevin therefor without a previous ■demand.^ § 504. Vendee must make demand of third party in possession. Proof of demand by the vendee and refusal ' OsweRO F. Lendrum, 57 Iowa, 573 (10 N. W. 900). Many authori- ties are cited by the tourt as to what fraud will avoid a sale. Buffiing- ton V. Gerrish, 15 Maes. 158; Bussing v. Eice, 2'Cush. 48; Acker v. Campbell, 23 Wend. 372. But see HoHraan r. Noble, 6 Met. (Mass.) 75; Trudo V. Anderson, 10 Mich. 357; Prime r. Cobb, 63 Me. 202; Farwell V. Hanchett, 120 111. 573 (9 N. E. 58). 2 Blanchard v. Child, 7 Gray (Mass.), 155. ' Ayers v. Hewett, 20 Me. 281; Bussing v. Eice, 2 Cush. 48; Acker r. ■Campbell, 23 Wend. 372. '■ Foshay v. Ferguson, 5 Hill, 158. ^ Sargent F. Stuim, 23 Cal. 360; Priam v. Barden, 5 Ark. 81; McNeill r. Arnold, 17 Ark. 173; Trapnall v. Hattier, 6 Ark. 18; O'Neill v. Hen- dersoD, 15 Ark. 235. ' Trudo r. Anderson, 10 Mich. 357. 268 DEMAND AND TENDER TO DISCHAEGE LIEN. to deliver is necessary to entitle the purchaser of a chattel^ whicli at the time of the purchase was in the possession of a third party, to recoTer against such third party for its wrongful detention.' § 505. Where demand necessary to put vendor in the wrong. Where the vendee places lumber upon the prem- ises of the vendor, and they disagree in regard to the in- spection of the lumber, the vendee cannot maintain replevin for the lumber until he has asked and been refused permis- sion to remove it. The property having been put volun- tarily upon the vendee's premises by the vendor, the vendee cannot be made a wrongdoer by simply letting it remain there." § 506. If vendee's possession lawful, demand must he made. When personal chattels are sold, to remain the vendor's until paid for, and time is given for payment, which is extended on the understanding that the vendee may ac- quire a full title by subsequently completing payment, the vendee's possession of the property is lawful, and the vendor cannot reclaim it nor maintain replevin without first having made demand for it.' § 507. But if he violate the contract of sale, not nec- essary. The transfer of property to another city, and there pawning it for money borrowed by the vendee, is a direct violation of his duty as bailee, which makes him a wrong- doer; and the vendor may bring replevin against such per- son without making a previous demand, as his possession originated in a tortious taking.* § 508. Purchaser must demand and tender bid. To entitle a party who has bargained for the purchase of per- sonal property, but has pa,id no part of the purchase money, and there is no time or place fixed for the delivery, to main- 1 Howell r. Kroose, 4 E. D. Smith (N. Y.), 357. 2 Darling F. Tegler, 30 Mich. 54. « Kimball v. Farnum, 61 N. H. 348. 'Whitney v. McConnell, 29 Mich. 13. WHERE BAILEE WEONGFULLY SELLS PEOPEETY. 269 tain replevin for the possession of tlie property, a tender of the purchase price and a demand for the property must be made before commencement of the suit' § 509. Same at sheriff's sale. A purchaser of goods at a sheriff's sale may maintain replevin for the property so bought after demand.^ § 510. SuflBcient demand — Claim of ownership by de- fendant, a waiver. Where A, the vendor, states to C that he is the owner, and that the property was not to be removed from the specified place, and C replies that he has bought it from B, that he should keep it and would not give it up, held, that this was sufficient demand to maintain replevin.' § 511. Where a person known to be an agent exceeds lis authority, in delivering wheat to a carrier, it is not nec- essary for the real owner to make demand or tender the carrier his charges before bringing replevin.* § 512. Not necessary where bailee wrongfully sells property or converts it. A was the bailee of plaintiff's horse and wrongfully sold him to B, and B sold him to the defendant. Held, that the plaintiff could maintain replevin without demand.' When a bailee denies the title of the owner and sets up title in himself, no demand is necessary, and if defendant answer title in himself he is precluded from objecting the want of demajid." Or where a bailee of a horse drove it beyond the point for which he had hired it, held, a conversion and no demand necessary.^ Where the owner of machinery demanded it of defendant in whose possession he had placed it, and defendant refused to let it go until he got other in its place, held, a sufficient demand.' Where one's ' Hart V. Livingston, 29 Iowa, 217. 2 Hazzard v. Burton, 4 Harr. (Del.) 2. »Hall V. Draper, 20 Kaa. 137. * Hayes v. Campbell, 63 Cal. 143. 5 Galvin v. Bacon, 11 Me. (2 Fairf.) 28. « Felton V. Hales, 67 N. C. 107. ' Jacoby v. Loussatt, 6 S. & E. 300. « Haytliorn v. Rushforth, 4 Har. (19 N. J.) 160. 270 DEMAND AND TENDER TO DISCHAEGE LIEN. property lias been disposed of, by the one having it in charge without authority, the owner may bring replevin for it with- out a previous demand.' A entrusted his horse to B for sale. B gave the horse to his servant who exchanged it. A was allowed to maintain replevin against the holder of the horse without demand.^ § 513. The manner of defendant's possession does not affect the necessity of demand. That the defendant in an action of replevin obtained possession of the goods in con- troversy by virtue of a writ of replevin against a third per- son, in whose possession they were, does not affect the plain- tiff's right to maintain the action without a demand, if he is the owner of the goods and entitled to the immediate pos- session of them.^ § 514. Tender when necessary to discharge lien before suit brought against common carrier. The law is well set- tled that where a party obtains the possession of property lawfully, an action of replevin cannot be maintained to re- cover it until a demand has been made and the possession refused. So where goods are shipped by rail, the railway company, having obtained possession lawfully, will have the right to hold them until the freight actually due is paid or tendered, and a demand is made. If too much freight is charged, the owner should tender the proper amount before bringing replevin. The tender is too late after the suit is commenced.* And the tender should be followed up by bringing the money into court. ^ A consignee of goods sent C. O. D. cannot maintain replevin against the carrier before payment or tender of the proper charges.^ An owner of > Ballou r. O'Brien, 20 Mich. 304; Trudo v. Anderson, 10 Mich. 357. 2 Trudo V. Anderson, 10 Mich. 357. 2 Kelleher v. Clark, 135 Mass. 45. * 0. & M. By. Co. V. Noe, 77 111. 513; Ingalls f. Bulkley, 13 111. 315; Clark r. Lewis, 35 111. 417. 6 E. & C. R. R. Co. V. Marsh, 57 Ind. 505. 6 Lane v. Chadwick, 146 Mass. 68 (15 N. E. 121). In this case defend- ant was an express agent, who refused to deliver the goods or allow them to be examined until charges were paid, and plaintiff claimed the right to examine them first. EXCESSIVE CHABGES. 271 goods transported by an express company may, after tender of legal charges for transportation, etc., and after demand and refusal, maintain replevin for tlie goods.' A shipper may maintain replevin for a cargo where the master wrong- fully refuses to proceed on the voyage.^ But where goods are delivered into the hands of defendants as carriers, re- plevin will not lie against them for the mere detention of the goods. ^ § 515. The same — What issues triable — Offset. The right of a carrier to retain property until its charges for car- riage are discharged, rests upon the performance of the con- tract of carriage upon its part. If it has negligently de- layed the delivery of the property at its destination, or other- wise subjected itself to liability for damages to the con- signee in respect to the property carried, that would disen- title it to the extent of such liability to demand and recover freight, and if the damage should exceed the amount of the freight to which it would otherwise be entitled, of course it would not be entitled to demand and recover anything for the carriage of the property. And in such cases the owner or consignee may maintain replevin without a tender, and the claim for freight by defendant, and the claim for damage by the plaintiff, at least to the extent of the freight charge, may be adjudicated in the replevin suit.* § 516. Excessive charges — Tender of proper amount. One who brings replevin and seeks to break a lien on the ground that the charges were excessive must show that he tendered what he claimed was a reasonable charge. A lien- holder cannot be said to refuse to state the amount he claims when he merely refuses to vary from schedule rates which both parties know and understand.^ Where the service was ' Eveleth r. Blossom, 54 Me. 447. 2 Portland Bank v. Stubbs, 6 Mass. 422. » "Woodward v. Grand Trunk, 4G N. H. 524. * Dyer r. Grand Trunk Railway, 42 Vt. 441 ; Humphreys v. Reed, 6 Wharton, 435; Cutting- r. Grand Trunk Railway, 13 Allen, 381; Boston & M. B. Company v. Brown, 15 Gray, 223. e Hall 7. Tittabawassee Boom Company, 51 Mich. 377 (16 N.W. 770). •272 DEMAND AND TENDEE TO DISCHABGE LIEN. performed under such circumstances that no lien was acquired on the freight, a tender made of charges may be withdrawn at any time and is not binding. The tender must have re- lation to some issue in the case.' § 517. Of note or property taken in exchange. If one who exchanges property desire to recoyer it back, he must lender back what he received, although the exchange may have been an enforced one, produced by Tiolence. The fact that the defendant, upon demand, refused to surrender the property gotten by him, does not excuse a tender back by the plaintiff of what he received.^ Where the vendor of goods brings replevin against a fraudulent purchaser, with- out having rescinded the sale by an offer to return the note given for the price, he must fail; but if, after suit brought and before trial, he offer to return the note, and thereby rescind the sale, the court should not order a return of the property, but should only give judgment against the plain- tiff for costs, and such damages, if any, .as the defendant may have sustained.' If the note is forged, it need not be tendered back.* § 518. Tender must be unconditional. The tender made as the foundation of a demand upon which to base a replevin suit must be unconditional.' § 519. So must refusal. D. consigned goods to M., who pledged them to a third party who knew they were owned by D. Held, that T>. could recover in replevin with- out tendering repayment of the loan. When a party de- clines to accept payment or performance, except in a way to which he is not entitled, he cannot insist that the action is prematurely brought.' § 520. Tender before action brought. A tender other- wise sufficient to change a rightful into a wrongful posses- 1 McCuUough V. Hellwig, 66 Md. 269 (7 A. 455). 2 Reynolds v. Copeland, 71 Ind. 422. ' Doom V. Lockwood, 115 111. 490 (4 N. E. 500). * Haase f. Mitchell, 58 Ind. 213. 6 Kitchen v. Clark, 1 Mo. App. 430. "Macky v. Bellinger, 73 Pa. 85. LANDLOED's lien — MOETGAGEE. 273 sion of property must, in order to avail a plaintifE in an action to recover sncli property, be made before the com- mencement of the action. A tender made after the filing of the petition and the issue of process, and by the officer who has the process in his possession, is not made before the commencement of the action." § 521. Inn-keeper or carrier's lien — Where defendant has a lien upon property in his possession, it cannot be re- plevied without payment or tender of the amount of his lien, and it is no excuse that such a tender would have been useless, as defendant would have refused to surrender the goods.^ An inn-keeper or a carrier has a lien, and replevin cannot be maintained without tender of the amount of their charges, except where the property has been placed in their possession by one who has stolen it, when they would have no lien against the true owner, and on tender would be necessary by him.' § 522. Landlord's lien — Mortgagee. "Where the statute gives the landlord a lien on the crop for rent, a mortgagee of the tenant cannot replevy the crop without fi.rst paying the landlord his rent.* A tender after default, but whilte the mortgagor is in possession, if kept good by the pay- ment of the money into court, is a good defense to an action by the mortgagee for the property.' A tender of the full amount due destroys the lien of a chattel mortgage, and the mortgagor may thereafter bring trover or replevin for the property against the mortgagee in possession." ' Smith y. Woodleaf, 21 Kan. 717. This was replevin by the owner for cattle taken up by defendant for trespass, and the offlcersclaiming to act for the owner, when he went to serve the writ of replevin, tendered as damages a greater amount than the jury allowed, which was refused. 2 Fowler v. Parsons, 143 Mass. 401 (9 N. E. 799). ' Kobinson v. Baker, 5 Cush. 137 ; Fitch v. Newberry, 1 Doug. (Mich.) 1. ♦ Eoth V. Williams, 45 Ark. 447; Buck v. Lee, 36 Ark, 525. " Musgat Y. Pumpelly, 46 Wis. 666, ' Flanders v. Chamberlain, 24 Mich. 305. See also Moychan v. Moore, 9 Mich. 9; Caruthers v. Humphrey, 12 Mich. 270; Van Husen r.Knouse, 13 Mich. 303. In states like New York and Wisconsin, where a chattel 18 274 DEMAND AND TENDEB TO DISCHABGE LIEN. § 523. Where a tradesman has a lien for work done on goods deposited with him for manufacture, replevin can- not be maintained by the owner until his charges for the work done have been first paid or tendered.' Where a boiler maker claimed a lien upon a boiler for work done thereon, and also for a balance on account, and insisted upon holding it until this balance was paid, he could not on the trial set up the particular lien as a defense and win on the ground of no tender. In other words, he must state his reasons for his refusal to deliver truthfully, and will be held to that state- ment on the trial. Had he placed it on the ground of his specific lien for work done on the boiler, plaintiff could not recover without tender, but as he claimed to hold it for a debt for which he had no lien, no tender was necessary.^ § 524. Expenses advanced under a wrongful levy can- not be recovered. Where a sheriff levied on A's growing wheat for B's debt, and, without A's consent, harvested, threshed, and marketed it, held, that A could bring replevin without demand or tender of amount so expended, and that A could not be compelled to pay the expenses so incurred by the sheriff.' So where a constable levied on goods shipped to the debtor before delivery, by the carrier to him, and the seller ordered them shipped back, and brought replevin for them against the constable, held, that the constable could not recover the freight he had paid the carrier.* mortgage is treated as a transfer of the legal title, and the effect ol de^ fault in payment of the money secured th*ereby is to render the title of the mortgagee absolute, atender thereafter made does not operate to re- invest the title in the mortgagor, unless accepted, and replevin would not lie. 1 Mathias r. Sellers, 86 Pa. 486. 2 Thatcher r. Harlan, 2 Houst. (Del.) 194; Thompson v. Trail, 6 B. & C. 36 ; White v. Gainer, 2 Bing. 23 ; Jacoby r. Loussatt, 6 S. & E. (Pa.) 304; Isaac v. Clark, 2 Bulet, 312, ' Sims V. Mead, 29 Kan. 124. * Keep T. Moore, 11 Lea. (Tenn.) 285. PAET SECOND. QUESTIONS AEISING IN THE PEOSEOUTION AND DEFENSE OF AN ACTION IN BEPLEVIN. ATFIDATIT, COMPLAINT, DECLAEATION, AND PETITION. 277 CHAPTEE XXTL THE AFFIDAVIT, COMPLAINT, DECLAEATION, AND PETITION. \ Section. The affidavit— Its history and what it is .... 525 Importance of the affidavit, complaint, declaration, or petition 526 An affidavit must be ffled in all cases .... 527 The defendant alone can take advantage of failure to file affidavit .... 52S Jurisdiction depends upon affidavit .... 529 It must be signed and Sworn to 530 Allegations of the affidavit should be in the present tense 531 Eight of possession must be alleged— Illustrations . 532 "Owner" and "ownership" defined 533 Affidavit must allege the prop- erty was not taken for tax, etc 534 Must allege that it was not taken on execution or at- tachment .... 535 Or all facts making the prop- erty exempt from seizure must be alleged . . . 536 This allegation need not be in the exact words of the stat- ute 537 Must state that it was not taken on a writ of replevin 538 The affidavit should state the valueof the property . .539 Section. Allegations of value are not binding on the trial . . 540 When value in affidavit gov- erns proper practice . . 541 Must allege wrongful deten- tion—Illustrations . . 542 Distinction between "he de- tains" and "he detained" 543 The law requires a more par- ticular description in re- plevin than in trespass or trover 544 A variance in description is fatal 545 Copies of written instruments need not be set out . . 546 A description which can be made definite is good . . 547 Description may be amended to correct mistake . . 548 What description sufficient — The best possible will do . 549 Description by kind or quan- tity 550 Undivided interest — Frac- tional part as a description 551 Where articles are numerous, a general description . . 552 Sufficiency of— Defects waived by pleading .... 553 When sufficiency is a question of fact, and when of law . 554 Nature of plaintiff's interest need not be particularly al- leged 535 Special interest must be pleaded 556 278 APFIDAYIT, COMPLAINT, DECLAKATION, AND PETITION. Section. Allegations in the alternative not fatal .... 557 But they must be definite as to the person entitled to possession .... 558 PlaintiH cannot take incon- sistefi* positions . . . 559 The affidavit may be made by an agent or attorney . . 560 Agency, how stated . .' 561 How made when corporation is the complaining party . 562 There is a distinction between a good cause of action de- fectively stated and a defect- ive cause of action . . 563 Venue should be laid in the county 564 Plaintiff ma,y replevy property held by different titles in one action 565 Redundant or irrelevant mat- ter may be stricken out . 566 The statutory allegations of the affidavit are not conclu- sive of the facts stated . 567 Fatal defects in affidavit- Illustrations . . . . 568 An affidavit in replevin may be amended .... 569 Damages claimed may be en- larged by amendment . 570 The proper way to amend is by a new affidavit . . 571 Signature and jurat may be added auno pro tunc by amendment .... 572 Amendment sworn to by differ- ent agent of plaintiff from original affidavit may be filed as a matter of right . 573 Effect of failure toamend sub- stantial defect . . . 574 Cannot thus add a new cause of action .... 575 Section Cannot strike out part of the property by amendment on appeal 576 May amend by adding new ar- ticle 577 Jurisdictional defects cannot be thus cured . . . 578 Cannot amend bymakingnew parties 579 '^'otal lack of affidavit cannot be cured by amendment ■ . 580 Statutory form of affidavit is but a general guide . . 581 Need not follow particular form 582 Requisites of affidavit . . 583 Approved form of affidavit . 58 i Another form of action sh ould not be joined with replevin . 585 The affidavit need not be sep- arate from the complaint . 586 Affidavit takes the place of all other pleadings by plaintiff 587 A complaint may be used as an affidavit .... 588 Complaint — Affidavit . . 589 Sufficiency of complaint . 590 What constitutes a good com- plaint — Illustrations . . 591 By sheriff, in case of attached property .... 592 "What the declaration or com- plaint should contain . . 593 Declaration .... 594 Declaration must follow affi- davit 595 Must make issuable allega- tions 596 Artificial words not to govern 597 When both affidavit and peti- tion are used, petition need not be as specific as the affi- davit 598 Where both are used, the affl- THE AFPIDATIT, ITS HISTOBY AND WHAT IT IS. 279 Section, davit is not a part of the pleadings .... 599 Petition— Illustrations . . 600 Plaintiff must stand or fall by- title alleged in his petition 601 Section. Petition should be construed as a whole .... 602 Special damages must be spe- cially pleaded . . . 603 § 525. The affidavit, its history and what it is. At common law a writ of replevin was issued out of the court of chancery and could be sued out only at Westminster. After- wards, by the statute of Marlbridge, 52 Henry III., Ch. 21, the sheriff of each county, "fipon plaint to him made," was authorized to replevy the goods. 3 Blacks. Com. 147. The affidavit now takes the place of this common law plaint, or, rather, it is the plaint, the word affidavit as used in replevin having the same meaning as the word plaint in the statute of Marlbridge." The affidavit required by the statute, there- fore, is the complaint of the common law.^ In replevin, where the object of the action is to obtain a delivery of the goods which it is claimed are wrongfully detained by the de- fendant, the filing of an affidavit setting forth substantially the facts required by the statute is a condition precedent to the issuing of the order of delivery, and without it the order would be a nullity if issued. ° The affidavit is, under most of the codes, the foundation of the action of replevin, and is jur- isdictional. But under the reformed mode of procedure the courts have been quite liberal in allowing it to be amended. Where the statute required that plaintiff swear that the prop- erty had not been taken in execution on any order or judg- ment against the plaintiff, and the affidavit alleged that the property was taken by execution issued on a void judgment ' Bardn-ell v. Stubbert, 17 Neb. 487 (23 N. W. 344). 2 Anderson r. Hapler, 34 111. 439. 3 Bard well r. Stubbert, 17 Neb. 485 (23 N. W. 344) ; Wilbur r. Flood 16 Mich. 40; Phenix v. Clark, 2 Mich. 327; Perkins v. Smith, 4 Blaekf 302; Milliken r. Selye, 6 Hill, 623; Bridges v. Layman, 31 Ind. 385 Payne r. Bruton, 5 Eng. (Ark.) 57; Cutler v. Rathbone, 1 Hill, 204 Kehoe v. Rounds, 69 111. 352; McClaughray v. Cratzenberg, 39 111. 123 Stacy V. Farnham, 2 How. Pr. 20; Berrien F.Westervelt,12 Wend. 194, 280 AFFIDAVIT, COMPLAINT, DECLARATION, AND PETITION. against him, held, that the affidavit was defective, that plain- tiff could not question the validity of the judgment in this way, but that he should have been allowed to amend his affidavit on application.' In an action for the recovery of personal property, the affidavit is the foundation of the juris- diction. If it be regular, subsequent mistakes are not fatal.'' The affidavit is essential, and must show a wrongful deten- tion.^ The affidavit and bond in replevin are in New York essential to the sheriff's right to serve the writ* The juris- diction in replevin is not derived from the complaint, but the affidavit and giving of the bond.^ § 526. Importance of the affidavit — Complaint — Dec- laration or petition. As we have seen, the affidavit is the basis of the action, and is jurisdictional. In some states it is called complaint. In some the petition takes the form of an affidavit and the first pleading is a petition, but it is in such cases an affidavit in fact, though called something else. In some states the affidavit is all that need be filed by plaintiff; in others, the same pleadings are required as in any action, and the affidavit is additional. In these states it is not a part of the record, but is treated the same as an affidavit in an attachment case, with the exception that the jurisdiction de- pends upon it. Where the affidavit is the only paper filed, it must state the title of the case and other facts usually stated in the petition. But with all these statutory differences, the affidavit or the pleading which takes its place, though called by another name, must state all the facts which go to confer jurisdiction on the court. While in the lower courts, the affidavit is frequently the only pleading filed by plaintiff in the courts of record. The prevailing practice seems to be to file an affidavit setting up the statutory grounds alone, and with it, or at a subsequent time, also a petition, declara- ' Wilson V. Macklin, 7 Neb. 50. 2 Carlton r. Dixon, 12 Ore. 144 (6 Pac.500). « Wilbur V. Flood, 16 Mich. 40. « Milliken v. Selye, 6 Hill (N. Y.), 623. * Hecklin v. Ess, 16 Minn. 38 ; St. Martin v. Desnoyer, 1 Minn. 25. DEFENDANT CAN TAKE ADVANTAGE OE FAILURE. 281 tion, or other pleading more fully setting up the cause of action, but omitting the purely formal matters alleged in the affidavit, as that the property was not taken for a tax, etc. There seems to be no necessity for this double pleading in most cases, as the affidavit might easily be made to contain all it is necessary for the pleader to allege. § 527. An affidavit must be filed in all cases, the only exception being where the property is not taken, and the case proceeds under a statutory provision as an action for damages. If there has been a petition filed, it is held, in such cases, that no affidavit is necessary, as it is really not a re- plevin action if the property is not taken.' Where the prop- erty is not taken or delivered to plaintiff, the want of an affidavit is not fatal, as the action may proceed in case.^ In a case in justice court where a bill of particulars was filed, as well as an affidavit in replevin, and all the papers were regular except the affidavit, which was very defective, held, that the proceeding was not void, and, as the property was not taken, the court could go on and hear the case as one for damages. '^ In Missouri the affidavit is only to anticipate the delivery of the 'property to plaintiff. If no delivery is had, an affidavit is not necessary, and the suit may proceed with- out one, and the status of the property will remain the same until final judgment.^ A plaintiff may omit the negative averments from his petition, and proceed without taking out the writ of replevin.^ § 528. The defendant alone can take advantage of fail- ure to file affidavit. The affidavit in replevin is for the • Baker v. Dubois, 32 Mich. 92. 2 Stone V. Hopkins, 11 Heis. (Tenn.) 190; Catterlin v. Mitchell, 27 Ind. 298 ; Hadson v. Warner, 60 Ind. 214. s Williams v. Gardner, 22 Kan. 122. * Bingham v. Morrow, 29 Mo. App. 448; Eads v. Stephens, 63 Mo. 90. « Batchelor r. Walburn, 23 Kan. 733. The Kansas Code, § 176, says : "The plaintiff in an action to recover the possession of specific personal property may, at the commencement of the suit, or at any time before answer, claim the immediate delivery of such property, as provided in this chapter." The order of replevin is held to be ancillary to the action, and at plaintiff's option. 282 AFFIDAVIT, COMPLAINT, DECLAEATION, AND PETITION. benefit of the defendant, and failure of plaintiff to comply with the law in this respect does not render the proceed- ing void, but only voidable at defendant's election. The plaintiff can take no advantage of it.' The first step in the proceeding is the afiSdavit, and, as it is the foundation upon which the suit is built up, it must be good and true, or plain- tiff will be cast in his suit. Without the affidavit, the writ is a nullity if issued.^ § 529. Jurisdiction d"epends upon aflBdavit. In replevin before a justice of the peace, as in forcible entry and de- tainer, there must be an affidavit sworn to or affirmed, con- taining all the statutory requirements, to give the justice jurisdiction to issue the writ, and this must affirmatively ap- pear, as nothing can be presumed in favor of his jurisdiction.' § 530. Must be signed and sworn to. Complaint must be verified to give the court jurisdiction.* A petition must be sworn to before a writ can legally issue.^ In order to sustain a judgment by default, the affidavit in replevin must have been sworn to.* There are cases, however, which hold that affidavits actually sworn to and so certified are good with- out being signed.' Must be in writing and signed by plain- tiff or his agent." Must be sworn to before an officer quali- fied to administer oaths. ° The office of an affidavit in replevin ' Nichols V. Standish, 48 Conn. 321. 2 Wilbur V. Flood, 10 Mich. 40; Milliken v. Selye, 6 Hill, 623; Bridge V. Layman, 31 Ind. 385; Cutler v. Eathbone, 1 Hill, 204; Payne v. Bruton, 5 Eng. (Ark.) 57; Perkins v. Smith, 4 Blaekf. 302; Kehoe v. Rounds, 69 111. 352; Phenix v. Clark, 2 Mich. 327; Lacy r. Farnham, 2 How. Pr. 26; McClaughry v. Cratzenberg, 39 111. 123. s Evans v. Bouton, 85 111. 579; Stolberg v. Olmmacht, 50 HI. 442; Center v. Gebney, 71 111. 557. «Uowell V. Richardson, 10 Ind. 573. s Cure T. Wilson, 25 Iowa, 205. s Kehoe v. Rounds, 69 111. 351. ' Crist V. Parke, 19 Tex. 234; Shelton v. Berry, 19 Tex. 154; Haff v. Spicer, 3 N. Y. Term (Ca. Ca.) 190; Jackson v. Virgil, 3 Johns. 540. See Hoover v. Rhoads, 6 Iowa, 506 ; 3 Blk. Com. 304. 8 Eddy V. Beal, 34 Ind. 161. • Berrien v. Westervelt, 12 Wend. 194. EIGHT OP POSSESSION MUST BE ALLEGED. 283 is to confer jurisdiction, and it is not fatally defective because not signed by plaintiff. It is sufficient if it appear from the body of the affidavit and from the jurat that the affidavit was made by the plaintiff.^ § 531. Allegations of the affidavit should be in the present tense. In an action of claim and delivery, the plain- tiff's ownership and right to possession are properly alleged in the present tense.^ Plaintiff must plead a right to the property in himself at the time the action commenced." The entire investigation in replevin has reference to the status of the property at the commencement of the action. A cohi- plaint in replevin alleging a cause of action existing more than four years prior to the commencement thereof and not at that time is bad.* § 532. Right of possession must be alleged — Illustra- tions. When the plaintiff sues to recover the possession of a specific share and certain quantity of wheat, of which he alleges that he is the owner and entitled to the possession, and that defendant has possession thereof without right, and unlawfully detains the same from the plaintiff, the complaint is sufficient to withstand a demurrer thereto for the want of facts. The joint ownership of the wheat by the plaintiff and defendant, if it exists, is not apparent upon the face of the complaint, and is matter of defense to be shown by an- swer. '^ The plaintiff, in order to maintain replevin, must al- lege interest in himself, right of immediate possession, and de- tention on the part of defendant. A general denial on part of defendant puts in issue all these allegations and throws upon plaintiff the burden of proving them.^ An affidavit in justice court "that plaintiff is the owner and entitled to the posses- > Bloomingdale r. Chittenden (Mieh.), 42 N. W. 836. 2 Tancre r. Beyuolds, 35 Minn. 47 (29 N. W. 171, as Tancre v. Pull- man). ^ Loamis r. Toule, 1 Minn. 175. *Afflerback v. McGovern (Cal.), 21, p. 837. 5 Ingel r. Scott, 86 Ind. 518 ; Sohenck r. Long, 67 Ind. 579. « Wilson V. Fuller, 9 Kan. 176. 284 AITIDAYIT, COMPLAINT, DEOLABATION, AND PETITION. » sion"is sufficient without an averment that he was lawfully entitled to it.' An affidavit containing no averment of pos- session in the plaintiflP, or that the property was taken from him unlawfully and without his consent, is bad.'' Where the complaint alleged that the plaintiffs were possessed of the goods, described " as of their own proper goods, " it was said to be sufficient.* An allegation that the plaintiff on a certain day owned and possessed certain property, and that the de- fendant on that day took and wrongfully detained it, is suffi- cient.* A complaint in replevin is sufficient if it allege gener- ally plaintiff's ownership without stating particulars of hie title, or that it had been levied on, but was exempt. ° § 533. Owner and ownership defined. The term owner, as used in the replevin statutes, does not mean absolute and unqualified title, but means a right to possession. Any in- terest coupled with a right of immediate possession consti- tutes ownership under these statutes.' It must allege owner- ship of the goods and chattels. It is not sufficient to say they were taken out of plaintiff's possession,' or to simply allege that plaintiff is entitled to possession." Ownership without right to immediate possession is of no avail.'' But proof of absolute ownership is not necessary to support such an alle- ^ Stoker f. Crane, 46 Ma. 264. 2 McArthur r. Hagan, Hempst. 286. * Stickney v. Smith, 5 Minn. 486. See Hunter v. Hudson Eiver, &c., 20 Barb. 493 ; Marshall v. Davis, 1 Wend. 109 ; Prosser v. Woodward, 21 Wend. 206. * Adams v. Corriston, 7 Minn. 456 ; Hurd v. Simonton, 10 Minn. 423. ^ Carlson v. Small, 32 Minn. 492 (21 N. W. 737). « Johnson r.Carnley, 6 Seld. (N. Y.) 578; Eogers v. Arnold, 12 Wend. 35; Williams v. West, 2 Ohio St. 83; Sprague v. Clark, 41 Vt. 6! ' Bond V. Mitchell, 3 Barb. 304; Vandenburgh v. Van Valkenburgh, 8 Barb. 217; Prosser f. Woodward, 21 Wend. 205; Johnson v. Neale, 6 Allen (Mass.), 227; Eobinson f. Calloway, 4 Ark. 101; Fontleroy v. Aylmer, 1 Lord Eaymond, 239. 8 Pattison f. Adams, 7 Hill (N. T.), 126; Webb f. Fox, 7 Dumf. & East, 392; Bond v. Mitchell, 3 Barb. 304. » Williams f. West, 2 Ohio St. 83. MUST ALLEGE THAT IT WAS NOT TAKEN ON EXECUTION. 285 gation,' The allegation of ownership does not mean by ab- solute title; proof of an interest or right to possession is suf- ficient.^ § 534. Affidavit must allege the property was not taken for tax, etc. In replevin the affidavit should state that the property had not been distrained for taxes assessed.' The contrary has been held.* It is not necessary to prove such averments unless the pleadings raise an issue on them." A provision common to all the states is that the affidavit must allege that the property was not taken for any tax, fine, or assessment, and this requirement must be complied with very strictly.' Thus, where it was averred that the property had not been seized for a legal tax, it was held that the case should be dismissed on motion.' So where it was alleged that it was not taken in execution for any tax, etc., the court held it insufficient, as it might have been seized for a tax on other process than execution.' § 535. Must allege that it was not taken on execution or attachment against plaintiff. A complaint in replevin which does not allege that the property has not been taken by virtue of any execution or other writ against the plaintiff, or, if it has been so taken, that the same is exempt from exe- cution, is bad on demurrer,' A complaint which alleges the ownership and right of possession in plaintiff, the unlawful ' Johnson v. Camley, 6 Seld. (N. T.) 570; Sprague v. Clark, 41 Vt. 6; Cleaves v. Herbert, 61 HI. 127; Adams r. Corriston, 7 Minn. 456; Hurd r. Simonton, 10 Minn. 423; Loomis r. Toule, 1 Minn. 175. 'Wilson V. Eoyston, 2 Ark. 315; Prater r. Frazier, 11 Ark. 249; Johnson v. Camley, 6 Selden (N. Y.), 570; Sprague r. Clark, 41 Vt, 6; Moorman y. Quick, 20 Ind. 68; Shoneo v. Caldwell, 21 Ala. 448. • Phenix y. Qark, 2 Mich. 327; CampbeU y. Head, 13 III. 122, • Brueghurst y. Pollard, 6 Ind. 452. • Carney y. Doyle, 14 Wis. 270. • 1#. Carbon y. Andrews, 53 111. 182 ; Phenix y. Clark, 2 Mich. 327, ' McClaughry y. Cratzenberg, 39 111. 123. » Phenix y. Clark, 2 Mich. 327. ' McCoy y. Beck, 50 Ind. 283. See Reynolds y. Copeland, 71 Ind. 422 ; Dowell y. Bichardson, 10 Ind. 678; Bridges y. Layman, 81 Isd. 385. 286 AFFIDAVIT, COMPLAINT, DECLABATION, AND PETITION. detention by defendant, and that tlie property has not been taken on execution, etc., is good.' But if it fails to allege these facts, it is bad on demurrer.'' § 536. Or all facts making the property exempt from seizure must be alleged. In replevin for property levied upon on the ground that the property is exempt, the plain- tiff must allege all the facts that make the property exempt and entitle him to maintain replevin therefor.' To maintain replevin for property attached upon the ground that it is ex- empt, plaintiff must allege and show affirmatively all the facts required by statute, entitling him to hold the property as exempt.* "To show" means more th&n to simply allege. The facts must be set up.^ Where plaintiff's possession by virtue of a special property, the affidavit must show the facts constituting such special property. If they rest in a writing, it should be set out.° This requirement of the statute is im- perative. Thus, where a supervisor brought replevin for the books and papers of his office, which were not subject to and could not be seized for a tax, the court held that he must state in his affidavit that they were not taken for a tax.' § 537. This allegation need not be in the exact words of the statute. It is not necessary that an allegation that the property was not taken upon execution, etc., be in the exact words of the statute if in substance it is sufficient and covers all the ground required by the statute.* But a dec- laration in the form of the statute has been held good.' § 588. Must state that it was not taken on a writ of ' Deacon v. Powers, 57 Ind. 489. 2 Entsminger v. Jackson, 73 Ind. 144. 'Newcomer r. Alexander, 96 Ind. 453; Chinn v. Riissell, 2 Blackf. 172; Hartlep v. Cole, 101 Ind. 458; The L. E. & St. L. By. v. Payne, 103 Ind. 183 (2 N. E. 582). * O'Donnell v. Segar, 25 Mich. 367. ' Spalding V. Spalding, 3 How. Pr. (N. T.) 297. " Depew V. Leal, 2 Abb. Pr. (N. Y.) 131. ' Phenix v. Clark, 2 Mich. 327. ' Auld V. Kimberlin, 7 Kan. 601. « Elliott F. Whitmore, 5 Mich. 532. _ ALLEGATION OF VALUE NOT BINDING ON TEIAL. 287 replevin against plaintifE or any order of deliTsry issued in replevin. The object of this provision is to prevent cross or double replevins.' (See chapter XXXIX.) The law will not pei'mit property once taken in replevin to be again seized in replevin, to try the same questions involved in the first action.^ But where a new title has accrued to the plaintifE since the first seizure, it has been permitted, but is an excep.- tion to the rule.^ § 539. The affidavit should state the value of the prop- erty. This statement of value is not only a guide in iden- tifying the property, but where the statute does not provide for an appraisement, is a guide in fixing the amount of bond to be given. It also determines the jurisdiction of the court in cases where that is limited by the amount involved; but if not stated, the clerk issuing the writ has no authority to fix it.* The value of property as stated in the affidavit for a writ of replevin ,is presumed to be its true value until other- wise shown in subsequent proceedings.' § 540. Allegation of value not binding on trial. An allegation in the declaration in replevin of the value of the property is a matter of form in the pleading, and not an ad- mission by the plaintiff in an inquiry by the jury as to its value. ° The statement of value is but a form of pleading; even if not denied is not admitted, and plaintiff must prove the value, and may prove a greater value than that alleged, ■ ' Auld r. Kimberlin, 7 Kan. 601; Westenbergeri r. Wheaton, S Kan. 169. 2 Wilson V. Macklin, 7 Neb. 51. ' Williams v. West, 2 Ohio St. 89. * Watkins r. Page, 2 Wis. 92; Caldwell v. West, 1 Zab. (N. J.) 411 ; People V. Core, 85 111. 248; Deardorff v. Ulmer, 34 Ind. 353; Schaffer v. Faldwesch, 16 Mo. 339; Kimball v. True, 34 Me. 88; Roach v. Moulton, 1 Chand. (Wis.) 187; Murdock v. Will, 1 Dall. 341; Pomeroy p. Trim- par, 8 Allen, 398; Darling v. Conklin, 42 Wis. 478. ^Carew v. Matthews, 41 Mich. 576; Henderson v. Desborongh, 28 Mich. 170. » Bailey v. Ellis, 21 Ark. 488; Hawkins r. Johnson, 3 Blackf. (Ind.) 46. 288 AFFIDAVIT, COMPLAINT, DECLAEATION, AND PETITION. if he can.' The objection, that the complaint does not state the value is cured after verdict of damages for its detention.^ § 541. When vajue in aflBdavit governs — Proper prac- tice. Where the value is not found by the justice, on ap- peal, the value stated in the affidavit must govern for the purpose of fixing the bond.' The better practice is to state the value of each separate article claimed.' But this has been held to not be absolutely necessary. ° The affidavit must allege the value of the property. If it do not, and if objected to by defendant and overruled by the court, verdict will not cure the defect." But failure to allege value is cured by verdict assessing the value of the articles replevied, or by a verdict assessing the value of the detention thereof to the plaintiff.' § 542. Must allege wrongful detention — Illustrations. A complaint which alleges that the defendant unlawfully and wrongfully took from the plaintiffs and converted to their own use the property shows with sufficient certainty, at least, after verdict, that the property was taken without leave and had not been returned.' It is only necessary in the affidavit to charge the wrongful detention, and this is the rule in re- gard to the petition, as well as the affidavit, and the petition in replevin may be amended as in any other case.° Unlaw- ful detention, as well as an illegal caption, will support the writ." The plaintiff must allege that the defendant wrong- fully took the property." This requirement is imperative." 1 C. iSc S. TV. E. E. r. N. W. Packet Co., 38 Iowa, 377. ' Bales V. Scott, 26 Ind. 202. ' Bradley r. Morse, 21 Wis. 680. * Knox V. Noble, 25 Kan. 449. « Eoot r. Woodruff, 6 Hill (N. Y.), 418. • Barruel r. Irwin, 2 N. M. 223. ' Bales v. Scott, 26 Ind. 202. Eoberts v. Porter, 78 Ind. 130. « Hale F. Wigton, 20 Neb. 90 (29 N. W. 177); Oleson r. Merrill, 20 Wis. 487. >» Douglas r. Gardner, 63 Me. 462. " Coit V. Waples, 1 Minn. 134; Wllhite v. Williams (Kan.), 21 P. 256. "Paul v. Luttrell, 1 Col. 318; Childs r. Hart, 7 Barb. 370; Wilson r. DISTINCTION BETWEEN ''DETAINS" AND "DETAINED." 289 In an action to recover personal property wrongfully de- tained, the complaint must allege a general or special own- ership in the plaintifp ;^ otherwise, the complaint will be bad on demurrer.^ A complaint alleging that on a certain day the plaintiff owned and possessed certain property, that on or about the same day the defendant took it away, and detains it against sureties and pledges to the damage, etc., is good.^ A complaint which alleges merely that the property is the prop- erty of plaintiff, that the defendant has become possessed of and wrongfully detains it, is sufficient.* Under an averment of. wrongful detention plaintiff may prove a demand and refusal. The affidavit alleged that defendant had the property in his possession, " unlawfully from the possession " of the plain- tiff. Held, that the omission of the word "detained," after "unlawfully," was not a fatal defect.'' The allegation of wrongful detention is essential, and evidence to sustain it is equally as essential.' If goods were restored before the action was commenced, it will not lie.' An allegation that defendant was about to take possession is not sufficient.^ A "wrongful taking" should always be alleged if the facts warrant it.^ § 543. Distinction between "he detains" and "he de- tained." The allegation "he detains" implies that the Fuller, 9 Kan. 177; Leroy v. McConnell, 8 Kan. 273; Brown v. Holmes, 13 Kan. 482; Draper v. Ellis, 12 Iowa, 31 6; HurdF.Simonton,10 Minn. 423 ; Adams v. Corriston, 7 Minn. 456. iScliofield V. Whitelegge, 12 Abb. Pr. (N.Y.) 320; Gardner v. Scovill, 1 How. Pr. (N. S.) 272. 2 Baker v. Card well, 6 Col. 199; Wilson v. Fuller, 9 Kan. 177; Tandle 'T. Crane, 13 Kan. 344; Beckwith v. Phillis, 15 Wis. 223; Bliss, Code Ptead. § 212; Hilliard on Rem. 20-77; Maxwell's P. & P. 232-424. ^ Adams v. Corriston, 7 Minn. 456. * Oleson V. Merrill, 20 Wis. 462. 6 Smith V. Dodge, 37 Mich. 354. 8 Brown v. Holmes, 13 Kan. 482. ' Paul V. Luttrell, 1 Col. 317. " Herron v. Hughes, 25 Cal. 555. 'Keynolds r. Lounsbury, 6 Hill, 534. 19 290 AFFIDAVIT, COMPLAINT, DECLARATION, AND PETITION, goods are still detained by defendant, and under sucli an al- legation damages down to the time of trial may be recovered. But if the allegation be "he detained," it implies that they were taken on the writ, and damage can only be recovered prior to the return of the writ.' Proof of wrongful taking is not admissible under an allegation of wrongful detention ex- cept as an excuse for proving demand.^ § 544. The law requires a more particular description in replevin than in trespass or trover, but where the action is brought by one in his representative capacity for property never in his possession, a less particular description is required than in other cases.' The following descriptions: "Divers "goods and chattels;"* "A quantity of corn, about two "hundred bushels;"^ "A lot of goods in the store of A; "° "Forty ounces of mace, nutmeg, and cloves;"' "Fourteen " skimmers and ladles and three pots "^ — are good in trover where the only object is to notify the defendant upon what the cause of action is founded, but in replevin, where the ob- ject is to enable the officer to seize certain property, would be insufficient unless aided by something outside of the pleading itself." For that reason, great care should be taken to fully identify and designate the property in replevin.'" "One lot 'Fox y. Prickett, 5 Vroom (N. J.), 13; Petre r. Duke, Lutw. 360; Potter V. North, 1 Wm. Saurd. 3476, n. 2. 2 Eldred v. The Oconto Company, 33 Wis. 141; Newell v. Newell, 34 Miss. 385; Coit v. Waples, 1 Minn. 134. ^ David r. David, Administrator, 66 Ala. 139; Kenaston v. Moore Cro. Car. 89; Hartford r. Jones, 2 Salk. 654; Gordon v. Hostetter, 37 N. Y. 103; Taylor v. Wells, 1 Mod. 46; Farwell v. Fox, 18 Mich. 169; Sned- eker v. Quick (6 Halst.), 11 N. J. 179; Pope r. Tillman, 7 Taunt. 642; Davis V. Easley, 13 III. 192. * PoDB V. Tillman, 7 Taunt. 642 ; Warner v. Aughenbaugh, 15 S. & R. (Pn.) 9". - Stevens v. Osman, 1 Mich. 92. ' Edgerly r. Emerson, 3 Foster (23 N. H.), 555. ' Hartford v. Jones, 2 Salk. 651. ' Bern V. Mattaire Co., Temp. H. 119. ' « Buck V. Morris, 28 Pa. St. 245. '" Stevens v. Osman, 1 Mich. 92; Wilson r. Gray, 8 Watts (Pa.), 39; DESOEIPTION WHICH CAN BE MADE DEFINITE IS GOOD. 291 " o£ seed cotton, about 6,000 pounds, twelve stacks of fodder, "one load of corn, about fifteen bushels, of the total value of "|250," is insufficient, and is not aided (where objected to) by verdict and jtidgment with the same description.' § 545. A variance is fatal. "Where a plaint in replevin describes the property in suit as two bay horses, and the proof shows that one of them was a sorrel, the variance is fatal." § 546. Copies of written instruments need not be set out, if they can be described so as to be identified without. Thus in replevin for a promissory note a copy need. not be set out.^ § 547. A description which can be made definite is good. Although the description is indefinite, if the property can be pointed out, it is sufficient ;* it need not be so definite that the sheriff can find the property without aid.^ The object of a "specific description" is to enable the officer to execute his writ.' "One white shoat" has been held a sufficient de- scripiionf so also, "A box of skins and furs marked 'J. "'Winders, Logansport, Indiana'";* so also, "One promis- "sory note for one hundred dollars, executed by James Saw- "yers to Agnes White";' "Six oxen";'" "Heifer" has been Welch V. Smith, 45 Cal. 230; Eoot v. Woodruff, 6 Hill (N. T.), 418; Snj'der y. Vaux, 2 Kawle,427; Kaufmann f. Schilling, 58 Mo. 219; Gray V. Parker, .38 Mo. 160 ; Ryder v. Hathaway, 21 Pick. 305 ; Hart v. Fitz- gerald, 2 Mass. 509; Carlton v. Davis, 8 Allen (Mass.), 94; Low F.Martin, 18 111. 286; Reese r. Harris, 27 Ala. 306; Farwell r. Fox, 18 Mich. 169; Stanchfleld r. Palmer, 4 G. Green (Iowa), 25; Brown r. Sax, 7 Cow. 95. ' Lockhart v. Little (S. C), 9 S. E. 511. 2 Taylor v. Riddle, 35 III. 567. 8 Bales V. Scott, 26 Ind. 202. * Warner v. Aughenbach, 15 Serg. & R. 11; Rood v. Woodruff, 6 Hill, 418; Foredice r. Rinehart, 11 Ore. 208 (8 Pac.285.); Rueh f. Morris, 28 Pa. St. 249; More v. Clipson, Allen, 33; Smith f. McLean, 24 Iowa, 324; Lawrence v. Coates, 7 Ohio St. 194; Buckley r. Buckley, 9 Nev. 379. = Lea F. Terry, 15 La. (Ann.) 159. « Smith F. Stanford, 62 Ind. 392. ' Onstatt F. Ream, 30 Ind. 259. « Minchrod v. Windoes, 29 Ind. 288. » Highnote v. White, 67 Ind. 596. ^0 Farwell r. Fox, 18 Mich. 169. 292 AFFIDAVIT, COMPLAINT, DECLARATION, AND PETITION. held a proper term to be used in describing a cow;' "All " articles of household furniture now contained in a certain "house [describing it], consisting of carpets, chairs," etc., is good f a description in the complaint of the property sought to be recovered as "Sixty-eight head of hogs on the macad- "amized road in said county, on the place formerly kept by ""Wong Hin Sjou," is reasonably certain;' "Five hundred "and seventy-two three-year-old Texas cattle, now in posses- "sion of, etc., in Morris County, Kansas," held, sufficient;* " Two carriages and two horses of the value of $700, and the "same unjustly detains," etc., held, sufficient on demurrer;" "All the stock, tools, and chattels belonging to the mort- "gagor, in and about the wheelwright shop now occupied by "him," is sufficient;^ "Fifteen hundred pounds of cotton "seed" was held sufficient as to substance and quantity, but not as to location.' "Where the sheriff levied on coin which was exchanged for bank bills, by consent, this change was held not to prejudice the rights of a third party who brought replevin for the bills." § 548. Although description may he amended to correct a mistake and in the furtherance of justice,' as the writ and ' Pomeroy v. Trimper, 8 Allen (Mass.), 403. ^ Beach v. Derby, 19 111. 619. » Guille V. Wong Fook, 13 Ore. 577 (11 Pac. 277). * Brown v. Holmes, 13 Kan. 492. ' Ruch V. Morris, 28 Pa. St. 245. "Harding r. Coburn, 12 Met. 333; Wlnslow r. Merchants Iu.siirance Company, 4 Met. 306; "Wolfe v. Dorv, 24 Me. 104; Burdett v. Hunt, 25 Me. 419; Morse v. Pike, 15 N. H. 529. ' Hill y. Robinson, 16 Ark. 90. 8 St. Louis & A. Railroad v. Castello, 28 Mo. 380. But see Hurd v. West, 7 Cow. 752; Ames v. Mississippi Boom Company, 8 Miun. 470; Snyder v. Vaux, 2 Rawle (Pa.), 423. As to bank bills, see Dows r. Beg- nall, Lalor's Suplmt. 408; Warner r.Sauk Company Bank, 20 Wis. 492; Jackson v. Anderson, 4 Taunt. 24; Skidmore v. Taylor, 29 Cal. 619. As to coin, see Holiday v. Hicks, Cro. Eliz. 061; Griffith v. Bogardus, 14 Cal. 410; Clark v. Shee.l Cowp. R. 200; Sager v.Blain,44 Hand. (N.Y.) 448; Bull N. P. 32; Draycot v. Piot, Cro. Eliz. 818; Rapalje v. Emory, 2 Ball. 51. « Perkins v. Smith, 4 Blackf. (Ind.) 802 ; .\pplewhite v. Alien, 8 Humph. DESOKIPTION BY KIND OE QUANTITY. 293 bond and all other proceedings are based on the affidavit, great care should be taken to describe the property claimed just as the witnesses will describe it.' Application to amend must be made before the motion to quash the writ is sus- tained, as then the case is only pending for the purpose of assessing damages.^ § 549. What description sufficient — The best possible will do. A description of property in a petition in replevin which would pass the title in a chattel mortgage is sufficient.' And where the complaint alleges a sufficient reason why a particulaa- description of the property cannot be given, a gen- eral description will be sufficient on demurrer.* § 550. Description by kind or quantity. Where the party is definitely located, it has been held that the exact number of bushels or pounds need not be stated if this is not necessary to separate it from other property of the same kind, as "a pile of wheat," "a quantity of barrels of pork.'" The plaintiff must identify the particular property claimed, even if mingled with other property.^ Where wheat was de- scribed as growing in a certain year and harvested on a cer- (Tenn.) 698; Baker t. Dubois, 32 Mich. 93; Parks v. Barkham, 1 Mich. 95; Campbell v. Head, 13 111. 126; Wilson v. Maekliu, 7 Neb. 52. ' Taylor v. Riddle, 35 III. 567; Boregesh v. Keevil, 19 Mo. 128. 2 Campbell v. Head, 13 III. 126 ; Perkins f. Smith, 4 Blackf. 302 ; Smith r. Emerson, 16 Ind. 355; Eddy v. Beal, 34: Ind. 161; Kirkpatrick v. Cooper, 77 111. 566. " The City of Fort Dodge r. Moore, 37 Iowa, 388. In this petition the description was as follows: " Three piles of hardwood lumber, lying on Plumb Street, north of Block No. 7, in Carpenter, Morrison & Vincent's Addition to Fort Dodge, estimated as containing 3,000 feet in the aggre- gate, more or less, and of the value of $25 per thousand feet; one pole scraper of the value of $20; one keg spikes of the value of |6; one axe of value' of $1," etc., etc., all of the property being in the possession of the defendant as sheriff. * Hoke V. Applegate, 92 Ind. 570. i^Scudder v. Worster, 11 Cush. 573; Groat V. Gile, 61 N. Y. 431; Sus- quehanna, &c., V. Finney, 58 Pa. St. 200. " Ames V. Mississippi, &c., 8 Minn. 467. See Hotchkiss v. Hunt, 49 Me. 213 ; Mohn r. Stoner, 14 Iowa, 115. 294 AFFIDAVIT, COMPLAINT, DECLAEATION, AND PETITION. tain date, on a certain piece of land (described), fee W, that it was not too indefinite.' § 551. Undivided interest — Fractional part as a de- scription. WJiere property sought to be recovered in an action of claim and delivery is a certain undivided fractional part of a certain specified quantity of property, uniform in quality and value, and susceptible of a fair and equal divi- sion by count, measurement, or weight (as grain in bulk), the description and proof of the property sought to be re- covered, as such undivided fractional part of the specified quantity, is sufficiently specific, and under such a description in his writ the officer may properly seize such part of the whole quantity as is equal to the undivided fractional part claimed.^ The description and valuation should be reasona- bly certain. The description of a mare and colt together is sufficient.^ § 552. Where articles are numerous a general descrip- tion has been held sufficient, as "All other articles of personal " property in and about the mortgagor's shop."* "A certain "storehouse, warehouse, and the goods therein contained, "being the store in Council Bluffs, in said state and county, "known and designated as the store of your petitioner," is sufficient for the store and contents. ° The description of the goods in a complaint in replevin, as " Gne stock of dry goods, " notions, fancy articles, etc., now in store occupied by the " defendant, on Main Street, in the city of Valparaiso, Porter "County, Indiana," held, sufficient.* A complaint for "One 1 Hall V. Durham (Ind.), 20 N. E. 282. ' Ellingboe v. Brakken, 36 Minn. 156 (30 N. W. 659). See also Kauf- mann v. Schilling, 58 Mo. 218; Sutherland v. Carter, 52 Mich. 471 (17 N. W. 780 and 18 N. W. 22.3); Read v. Middleton, 62 Iowa, 317 (17 N. W. 532); Stone v. Quail, 36 Minn. 46 (29 N. W. 326). 3 Pi-escott V. Heilner, 13 Ore. 200 (9 Pac. 403). * Pilkington v. Trigg, 28 Mo. 98. ^ Ellsworth V. Henehall, 4 G. Green (Iowa), 148; Lltchman v. Potter, 116 Mass. 373. " Malone r. Stickney, 88 Ind. 594; citing Minchrod r. Windoes, 29 Ind- 288; Onstatt v. Ream, 30 Ind. 259; Smith v. Stanford, 62 Ind. 392. SUFFICIENCY OF — DEFECTS WAITED BY PLEADING. 295 "chest or box of tools, containing one complete set of car- "penter's tools, embracing all tools used in the carpenter's "trade; one complete set of carving tools, embracing all tools "used for scroll work or carving; two sets of drawing tools, "used for drawing plans of buildings by architects; also, " one set of turning tools, used by carpenters in turning "lathes," is a sufficient description of the property sued for.' § 553. Sufficiency of — Defects waived by pleading. A complaint in replevin will be sufficient if it will inform the defendant of the nature of the plaintiff's cause of action, and be so explicit that a judgment in the suit may be used as a bar to another action for the same cause, and the description will be sufficient if it enable the officer "to take the property " described and deliver it forthwith."^ An objection to the sufficiency of the description in the complaint comes too late after verdict.' Uncertainty in the descwiptiou is waived by pleading over.* Mere uncertainty, in the description of the property affords no ground for a motion in arrest of judg- ment.^ To take advantage of defect in description the de- fendant must object at the first opportunity, and usually, if the right property is taken by the officer, it cures any defect in the description, and objection then comes too late. So consent to the taking of half barrels for barrels of mackerel is a waiver of the right to object for that reason, and "barrels " will be considered as a measure of quantity without regard to vessel in which packed." So giving bond for retention of the property is a waiver of objections to the description.' ' Thompson v. Pearce,49 Ala. 210; Haynes v. Crutclifield,7 Ala.189. 2 Smith V. Stanford, 62 Ind. 392; Milholland r. Pence, 11 Ind. 20.3; Clark r. Beneflel,18 Ind. 405; Powell f. DeHart, 55 Ind. 94; The United States Express Company v. Kiefer, 59 Ind. 263; Hewitt v. JenliiiiR, 60 Ind. 110; Entsminger v. Jackson, 73 Ind. 144. 8 Powell V. Stickney, 88 Ind. 310. *Soiithall r.Gariiey, 2 Leigli (Va.), 372; Hawes y.Robinson, 44 Ark. 308. = James f. Fowler, 90 Ind. 563. ^ Gardner v. Lane, 9 Allen (Mass.), 493. ' Rucii V. Morris, 28 Pa. St. 245 ; WaHier v. Aughenliangh, 15 S. & R. (Pa.) 9. 296 AFFIDAVIT, COMPLAINT, DECLAEATION, AND PETITION. An affidavit in replevin must describe the property sued for in such manner as to identify it. But after trial and verdict on the merits it is too late to object to the insufficiency of the affidavit. In justice court the first office of the affidavit is to procure the order of delivery. When that is accom- plished it has performed its office as an affidavit, and there- after serves as a complaint.' § 554. When sufficiency is a question of fact and when of law. When the question is one of sufficiency of a given description to pass title at all, it is a question of law for the court. But where the question is as to the identity of the property with that described, or the correctness of the de- scj'iption, it is a question of fact for the jury.^ § 555. Nature of plaintiff's interest need not be partic- ularly alleged. When the affidavit in justice court contains all the averifients required by the statute, it is sufficient. The nature of plaintiff's interest need not be stated in the affidavit.' In replevin for a crop of wheat, cut and taken from the land by defendants, it is sufficient if the complaint allege plaintiff's possession of the land without alleging the particular means or title by which he had possession.* A petition which states facts showing that the plaintiff is the general owner of the property sought to be recovered suffi- ciently describes his ownership, although it erroneously de- nominates it as a special property.^ In an action to recover specific personal property, it is not necessary to allege the consideration of the assignment by which the plaintiff claims title to the property, although such assignment was made after the conversion and during the retention. ° In repleviii ' Hawes v. Robinson, 44 Ark. 308; Hannah r. Baily, 30 Ark. 681; Perkins v. Smith, 4 Blackf. (Ind.) 299; Kirkpatrick r. Cooper, 77 111. 365; Warner v. Aughenbangh, 15 .S. & R. 9. 2 Vennum v. Tl)omi«on, 38 111. 144. ' Hass r. Prescott, 38 Wis. 147. « Conner v. Bludworth, 54 Cal. 635. s Robinson v. Fitch, 26 Ohio St. 639. See also Hill r. Butler, 6 Ohio St. 216. « Vogel F. Badcock, 1 Abb. Pr. (N. Y.) 176. ALLEGATIONS MUST BE DEFINITE. 297 for a steam saw mill and its appurtenances', the affidavit must aver that the property in question is personal estate.^ Evi- dence of plaintiff's title should not be pleaded, but the fact stated in an issuable form." § 556. Special interest must be pleaded. Where a plaintiff claims possession by virtue of a special property he must allege the facts which give him the right to bring re- plevin.' Thus a mortgagee of chattels who brings replevin against another mortgagee, without alleging the conditions of his mortgage or breach thereof, fails to state a cause of action.^ § 557. Allegations in the alternative not fatal. In an action to recover exempt property in justice court, an affida- vit which states in the statutory language that the property in question was not taken from the plaintiff "by any process "legally or properly issued against him, or, if so taken, it was "exempt from seizure on such process," is not invalid on ac- count of the retention of the alternative clause, and substan- tially states that the property was exempt, whether taken un- der lawful process or not.'* § 558. But they must be definite as to the person enti- tled to possession. But an allegation that " they were entitled ' Chattei-ton v. Sanl, 16 111. 149. 2 Fidler v. Delavan, 20 Wend. 57; Bond v. Mitchell, 3 Barb. 304; ^U- wood V. Euckraan. 21 111. 200; Pattison v. Adams, 7 Hill (N. Y.), 126; Prosser V. Woodward, 21 Wend. 205; Robinson r. Calloway, 4 Ark. 101; Martin v. Watson, 8 Wis. 315; Johnson v. Neale, 6 Allen (Mass.), 227; Vogle V. Babcock, 1 Abb. Pr. (N. Y.) 176. See on general subject, Ely v. Ehle,3 Comst. 507; Dunham y.Wykoff,3 Wend. 280; Stickney v. Smith, 5 Minn. 486; Marshall y. Davis, 1 Wend. 109; Hunter v. Hudson, otc, 20 Barb. 493; Brockway v. Burnap, 12 Barb. 347; Id. 16 Barb. 309: Hendricks f. Decker, 35 Barb. 298; Wilson r. Royston, 2 Ark. 315; Hatch V. Fowler, 28 Mich, 210; Vandeuburgh 7. Van Valkenburgh, 8 Barb. 217; Ice r.Lockridge, 21 Texas, 461. But a party having no title may replevy against a wrcmgdoer. Prater v. Frazier, 11 Ark. 249. = Curtis T. Cutler, 7 Neb. 315. * Madison National Bank v. Farmer (Dak.), 40 N. W. 345. 5 Carlson v. Small, 32 Minn. 492 (21 N. W. 737). In this respect it differs from an affidavit in attachment. Tessier v. Englehart, 18 Neb. 167 (24 N. W. 734). 298 AFFIDAVIT, COMPLAINT, DECLAEATION, AND PETITION. io the possession," etc., was held bad.' A declaration in re- plevin by husband and wife should show specially the interest of each in the gccds.^ In a replevin suit brought jointly by a husband as trustee of his wife, and by the wife in her own right, the affidavit, which was signed by the husband alone, stated that he believed that he, as trustee of his wife, or his wife in her own right, was entitled to the immediate posses- sion of the property. Held, insufficient, as uncertain and indefinite. The affidavit must show a right of possession in some one person, or a joint right in several.' § 559. Plaintiff cannot take inconsistent positions. The plaintiff cannot allege in his complaint that defendant is in possession, and on the trial recover judgment against him on the ground that he was not in possession, but had permitted another to take it.* § 560. The affidavit may be made by an agent or at- torney on behalf of plaintiff in most states, and in some by " another " person on hehalf of plaintiff.'* The affidavit was insufficient in that it did not state that the person making it was the agent of plaintiff. Held, that the plaintiff should have been allowed to amend it on appeal to the district court.* Where the affidavit is made by an agent, it should be as pos- itive as when made by the plaintiff himself.' § 561. Agency — How stated. While the addition of the ' Pattison v. Adams, 7 Hill, 126. 2 Gentry v. Boi-gis, 6 Blackf. (Ind.) 261. ^ Spencer v. Bidwell, 49 Conn. 61. The statute under which this decis- ion was rendered is in substance that no writ shall issue until the plaintiff or some credible person shall subscribe an aiBdavit that the affiant be- lieves that the plaintiff is entitled to the immediate possession of the goods sought to be replevied, which affidavit shall be attached to the writ. Gen. Statutes, Title 19, Chap. 17, Part 15, Sec. 2. 'Hawkins v. Roberts, 45 Cal. 38. ' Johnson v. Mason, 16 Mo. App. 271 ; Hall v. Durham, 117 Ind. 429 (20 N. E. 282). See Powell v. Stickney, 88 Ind. 310; Malone v. Stick- ney, 88 Ind. 594; Hall v. Durham (Ind.), 20 N. E. 282. ' Martinez v. Martinez, 2 N. M. 464. ' Frink v. Flanagan, 6 111. (1 Gilm.) 35. See Branch v. Branch, 6 Fla. 315. WHERE A COEPaBATION IS COMPLAINING PAETY. 299 agency as a matter of description, thus: "J. L. Jackson, " agent for plaintiff, makes oath and says," is not a fatal •error;' still, the better form is: " J. L. Jackson, being first, "duly sworn, upon oath says he is agent for plaintiff," etc.^ The rule is the same in attachment as in replevin affidavits. An affidavit to a petition, and also to the affidavit in replevin, was signed: "Frank Delone & Co., per P. B. Murphy, agent." Held, that it is sufficient, it being apparent that the required oath in both cases was made by said Murphy as agent, although it should have been signed by the agent alone. ^ § 562. Where a corporation is the complaining party, the affidavit must negative the consent of the corporation (not the officer) to the disappearance of the property, and allege that the corporation claims, etc.* And where the pro- ceeding is by a firm the affidavit should allege that the pos- session violated is the possession of the firm, and not of the affiant, and must be made by one individual. "Where an af- fidavit describes affiant as a member of a firm, but alleges ihe possession violated as that of affiant, it is a proceed- ing in favor of affiant .>is an individual, and not of the firm.' A petition signed " G. "W. & B. Hoover" (the plaintiffs) held not good, but allowed to be amended to show that it was sworn io by one of plaintiffs. ° § 563. There is a distinction between a good cause of action defectively stated and a defective cause of action. The latter defect can be taken advantage of at any time, ' Eernington v. Cushen, 8 Mo. App. 528. See Tessier v. Crowley, 1.6 mb. 369 (20 N. W. 264)^ 2 Miller v. Chicago, Minneapolis & St. Paul Railroad (Wis.), 17 N. W. 130; Anderson v. Wehe (Wis.), 17 N. W. 426; Sloan v. Anderson, 57 Wis. 135; Manley v. Headley, 10 Kan. 88; Willis v. Lyman, 22 Tex. 268; Pool V. Webster, 3 Mete. (Ky.) 278; Dean v. Oppenheimer, 25 JId. -368; Wiley v. Aultman, 53 Wis. 560; Tessier v. Crowley, 16 Neb. 360 .(:20N. W. 264). 2 Hereliiser v. Delane, 24 Neb. 380. * McEvoy V. Hussey, 64 Ga.. 314. ^ McClain v. Cherokee Iron Company, 58 Ga. 238. ' Hoover v. Ehoads, 6 Iowa, 505. 300 AFFIDAVIT, COMPLAINT, DEOLAEATION, AND PETITION. while defects of tlie former class are waived unless objectci? to at the proper time. A good cause of action defectively stated will be cured by judgment.' § 564. Venue should be laid in the county. An affi- davit upon which a possessory warrant issues is sufficiently specific as to the county in which the property is, if it shows of what county the defendant is, and that the property has been received or taken possession of by him.^ In replevin for articles not distrained, it is sufficient if the taking be laid in the county.' Formerly the close must be stated for the reason that a distress could only be made upon the land out of which the writ issued,* In some states the town must be stated.* If the allegation is at a house on Gay Street, proof that the taking was on Gay Street, though not at this partic- ular house, held, good.' Under the reforiiied codes of proced- ure, it is only necessary to lay the venue within the jurisdiction of the court where the action is brought. (See sections 32& to 331. ) § 565. Plaintiff may replevy property held by differ- ent titles in one action. A petition in replevin may allege a special property as lessee of part of the property, and ab- solute ownership of the rest, if it allege that plaintiff is en- titled to immediate possession of all.' § 566. Redundant or irrelevant matter may be stricken out of a petition in replevin, the same as in any other case.* ' Wadley v. Harris, 25 Ark. 36. 2 Clayton v. Ganey, 63 Ga. 331. s Mui;k V. Folkroad, 1 Brown (Pa.), 60. * Gardner v. Humphrey, 10 Johns. 53; Staph. Nisi Prius, Vol. 2, p. 1333. 5 Muck V. Folkroad, 1 Brown (Pa.), 60; Ely v. Ehle, 3 Comst. (N. Y.> 510; Williams v. Welch, 5 Wend. 290. « Faget V. Brayton, 2 Har. & J. (Md.) 350. 'Everett v. Buchanan, 2 Dak. 249; Gaynor v. Blewitt, 69 Wis. 582 (34N. W. 725). « Joint School District v. Kernen, 65 Wis. 282 (27 N. "W. 81). FATAL DElfEOTS IN AFFIDAVIT. 301 In replevin, issues should be made by the pleadings, tlie same as in any other form of action.^ § 5G7. The statutory allegations of the affidavit are not conclusive of the facts stated. An affidavit for the de- livery of property in replevin is not conclusive of the fact that such property was not taken for a tax, and if, upon a trial, it appears that it was so taken, the plaintiff has no right to delivery on final judgment, or, if already delivered, he can derive no advantage therefrom.^ The question is not as to the truth or falsity of the affidavit, and it in no wise affects the result. The question on the trial is whether or not plaintiff was entitled to possession at the commencement of the suit.' § 568. Fatal defects in affidavit^— Illustrations. An affidavit for the possession of personal property, which al- leges that the property is wrongfully, instead of unlawfully, detained, as required by the statute, seems to b.e bad.* An affidavit for an order of delivery in an action of replevin, which sets forth all the requisite averments, but omits that the plaintiff " is entitled to the immediate possession of the property," and uses no words equivalent thereto, is fatally defective." The wrongful detention is the gist of the action, and a failure to allege the fapt may be taken advantage of on demurrer, in arrest of judgment, or in. error." A petition which fails to state that the property is wrongfully detained, or facts from which a wrongful detention may be implied, will not support a judgment for the plaintiff. Siich'a defective 1 Garrett v. Carlton, 65 Miss. 188 (3 So. 376) ; Maxey v. White, 58 Miss. 82. 2 Kaehler 7. Dobberpuhl, 60 Wis. 256 (18 N. W. 841). ' Payne v. Bruton, 5 Eng. (Ark.) 57; Dennis v. Crittenden, 3 Hand. (42 N. Y.) 544. * L., E. & St. L. Railway v. Payne, 103 Ind. 183 (2 N. E. 582). ' Panl V. Hodges, 26 Kan. 225. •Draper v. Ellis, 12 Iowa, 316. 302 AFFIDAVIT, COMPLAINT, DECLAEATION, AND PETITION. petition is not aided by verdict.' An omission to allege damage is fatal.' § 569. An affidavit in replevin may be amended at any time before trial, or on the trial, even where such amend- ment will be in furtherance of justice.' Thus, where the pe- tition and affidavit in replevin were for "One frame building "now in process of erection, size 22x50, with the appurte- " nances thereunto belonging, and of the value of $350," the petition was amended so as to describe the property "as all "the lumber, lath, shingles, nails, joists, boards, and ma- "terial," etc., held, not to set forth a different cause of action,* may be amended even after it has been attacked by motion. "* § 570. Damages claimed may be enlarged by amend- ment on appeal. An affidavit in replevin may be amended in the circuit court on appeal from a justice court, so as to enlarge the damages claimed.* Where the property is re- turned to defendant upon his giving bond, and he disposes of it, pending the suit, it is proper to allow plaintiff to amend his petition and increase the alleged value of the property.' § 571. The proper way to amend is by a new affidavit containing all that was proper in the first one and curing its defects.' Such amendments are within the discretion of the court, and should be granted if in the interest of justice, but if the proposed amendment will bring in issues not properly triable, leave should be denied." ' Staley Furnishing Company f. Wallace, 21 Mo. App. 128. 2 Faget V. Bray ton, 2 Har. & J. (Md.) 350. s Crans v. Cunningham, 13 Neb. 204 (13 N. W. 176). * Waters v. Eeuber, 16 Neb. 99 (19 N. W. 687). f^DePew F.Leal,2 Abb. Pr. (N. T.) 131; Frink f. Flannegan, 6 111. 35. « Houf V. Ford, 37 Ark. 544. ' McKesson v. Sherman, 51 Wis. 303 (8 N. W. 200). 'Applewhite f. Allen, 8 Humph. 698; Kirkpatrick f. Cooper, 77 111. 566; Frink v. Flanagan, 1 Gihn. 38; Parks f. Barkb am, 1 Mich. 95; Phenix f. Clark, 2 Mich. 327; Jackson f. Virgil, 3 Johns. 540; Shelton F. Berry, 19 Tex. 154; Crist f. Parks, 19 Tex. 234; Eddy v. Beal, 34 Ind. 161. « McClaughry f. Cratzenberg, 39 111. 123 ; Hellings f. Wright, 2 Har. EFFECT OF FAILURE TO AMEND DEFECT. 303 § 572. Signature and jurat may be added nunc pra tunc by amendment. In replevin before a justice of the peace, the statement and affidavit contained all the required averments, but neither was signed by the plaintiffs, or either of them, and the justice's jurat to the affidavit certified that both had sworn to it; and on motion in circuit court to dis- miss for this defect the evidence showed plaintiffs- had not signed because the justice had advised it was unnecessary. Held, that the defect was formal and under the evidence sub- ject to amendment nunc pro tunc, and raises no question of jut-isdiction, and there was no error in permitting plaintiffs to sign the statement and affidavit and in overruling the mo- tion to dismiss.' § 573. Amendment — Sworn to by different agent of plaintiff from original affidavit may be filed as a matter of right. Where an affidavit in an action of replevin was made by A as agent of appellant, and a motion to quash the writ of replevin was entered by eippellee, because the affi- davit was insufficient, not containing the statutory require- ments that the property in question was not held by virtue of any writ of replevin against the plaintiff, and a cross motion was made for leave to file an amended affidavit, which was granted, and such amended affidavit was sworn to by B as agent of appellant, held, that the right to amend was undeniable, and it was immaterial whether the amended affi- da^dt was made by the same agent making the original affi- davit or not.^ § 574. Effect of failure to amend substantial defect. If there be a substantial variance, and the defect be either (14 Pa. St.) 374; Poyen v. McNeill, 10 Met. 291; Simcoke v. Frederick, 1 Carter (Ind.), 54; East Boston Company 7. Persons, 2 Hill, 126; Apple- white V. Allen, 8 Humph. 698 ; Cutter v. Rathbone, 1 Hill, 205 ; Cassidy r. Fleck, 20 Kan. 54. '"Crum r. Elliston, 33 Mo. App. 591. See Bergesch r. Keirl, 19 Mo. 127; Morgan v. Morgan, 31 Miss. 546. "Colborn r. Barton, 14 3radw. (111.) 449. 304 AFFIDAVIT, COMPLAINT, DECLAEATION, AND PETITION. not amendable, or, if amendable, be not in fact amended, in the trial court the plaintiff must fail in his suit.' § 575. Cannot thus add a new cause of action. It is not error to refuse to allow plaintiff to amend and allege that the judgment upon which the writ defendant claims under issued, has since the levy become barred by the statute. The only question is as to the facts at the time the levy was made.^ The original affidavit in replevin may be amended so as to state sufficiently what is already stated therein indefinitely.' § 576. Cannot strike out part of the property by amendment on appeal. It is error for the court to allow plaintiff to amend and strike out as to a part of the property claimed, when defendant has answered claiming a return of that property.^ § 577. May amend by adding new articles. In re- plevin for fixtures wrongfully severed and removed, it is not error to permit plaintiff to amend his complaint and insert other articles not enumerated in the first complaint, and the denial in the answer filed before the amendment do not re- late to the articles inserted by amendment, and a failure to answer the amended complaint is an admission as to the arti- cles so added.* § 578. Jurisdictional defects cannot be thus cured. In replevin before a justice, where the affidavit does not show that the property was detained by defendant, and that it had not been seized on execution, etc., it is a fatal defect, and can not be cured by amendment on appeal. ° § 579. Cannot amend by making new parties. Where A brought suit in replevin against B, he cannot, after taking the property, amend his petition by making G a joint def end- ' Picklns T. Oliver, 29 Ala. 528. 2 Paulson V. Nunon, 72 Cal. 243 (13 Pac. 626). s Meyer Brothers v. Lane, 40 Kan. 491 (20 P. 258). * Howell V. Foster, 65 Cal. 169. ' Kirch V. Davios, 55 Wis. 287 (11 N. W.esg); Kelly v. Bliss, 54 Wis. 187(11N. W. 488). « Gist 7. Loring, 60 Mo. 487. STATUTORY FOEM OF AFFIDAVIT IS GENBEAL GUIDE. 305 ant, when the affidavit, like the first petition, charged B alone •with the wrongful detention.' § 580. Total lack of aflBdavit cannot be cured by amendment. Under a statute allowing an affidavit to be amended to supply, any omission or deficiency,^ the entire omission of an affidavit can not be cured by supplying one on appeal.' § 581. Statutory form of affidavit is but a general guide. For a form the pleader should always consult works on pleading for his own state. In some states the statute gives a form. In such cases it is regarded only as a general guide, and must be followed with care and judgment. The pleader must adapt the form to the facts of his particular case.* The forms provided by the code need not be strictly followed. A petition equivalent thereto is sufficient. ° Where the stat- ute gives a particular form for a particular case, it is suffi- cient if the pleader follow it exactly. Where the legislature has said a particular form of affidavit in replevin is sufficient, the courts cannot say it is insufficient. * In some instances courts have laid down a form of affidavit. In such cases the same care should be taken in following the prescribed form as in following statutory form.' The plaintiff in replevin for detaining property must adopt the form prescribed by the statutes, and allege a receipt of the property by the de- fendant from the plaintiff, and refusal to deliver.' I think no other court has required a statutory form to be followed so strictly, and this declaration has been held by the same court to be a mere fiction of law, and not necessary to be sus- ' Bardwell v. Stubbert, 17 Neb. 486 (23 N. W. 344). 2 Missouri Revised Statutes, 1879, § 3060. * Turner v. Bondalier, 31 Mo. App. 582. * Reigert r. Voelker, 6 Mo. App. 53. 6 Crittenden v. Steele, 3 G. Green (Iowa), 538; Busick f. Bumm, 3 Iowa, 63; Smith v. Montgomery, 5 Iowa, 370. 6 Brown v. Poland, 54 Conn. 313 (7 Atl. 719). ' Vogel r. Babcock, 1 Abb. Pr. 176. * Piron V. Barden, 5 Ark. 81. 20 306 AFFIDAVIT, COMPLAINT, DECLABATION, AND PETITION. tained by proof.' Where a petition in replevin pursues the form given by statutes, it must be construed as claiming such an interest in the property sued for as may be recovered in that action by the plaintiff. If, on the trial, the proof fails to show such an interest, it becomes a question of variance between the allegations and proof, which, if not amended, will prove fatal. ^ § 582. Need not follow any particular form. The com- plaint in an action for the claim and delivery of personal property does not have to be in any specific form ; all that is required is that it shall contain a plain and concise state- ment of the cause of action.^ But where a statutory form is followed, it is understood that the plaintiff asserts such a title and claims such an interest as may be recovered in that form of action and none other.* And the pleader should be careful not to depart from the jrecognized mode of proced- ure, and to follow the statute strictly where the matter is purely statutory.^ The affidavit should be drawn to meet the proof. ° § 583. Requisites of afBdavit. As a general rule, the statutes require the affidavit to state (1) A description of the property; (2) That the plaintiff is the owner or has a special ownership therein, and that he is entitled to the im- mediate possession thereof; (3) That the property is wrong- fully detained by the defendant; (4) That it was not taken in execution or attachment on any order or judgment against > Beebe r. DeBaum, 8 Ark. 510. 2 Pickens v. Oliver, 29 Ala. 528. ' Western Railroad Company v. Bayne, 75 N. Y. 1. In this case no de- livery was had or demanded, but the prayer was for the surrender of cer- tian securities or for their value. Puterbaugh's Pleadinss, 526. * Pickens v. Oliver, 29 Ala. 528; Halleck v. Mixer, 16 Cal. 574; Smith r. Montgomery, 5 Iowa, 370. ^ McPherson v. McElhinch, 20 Wend. 071 ; Austice v. Holmes, 3 Donio, 245 ; Pirani v. Barden, 5 Ark. 81 ; Smith v. Montgomery, 5 Iowa, 371 ; Busick V. Bumm, 3 Iowa, 63; Auld r. Kimberlin, 7 Kan. 601. « Oleson V. Merrill, 20 Wis. 462 ; Stillman v. Squire, 1 Denio, 327 ; Cummiugs v. Vorce, 3 Hill, 282; Pierce v. Van Dyke, 6 Hill, 613; Cox v. Grace, 10 Ark. 87. APPEOTED POEM OF AFFIDAVIT. 307 plaintifp; (5) That it was not taken for the payment of any- fine, tax, or amercement assessed against him; (6) That it was not taken by virtue of any order of delivery issued in replevin or any other mesne or final process issued against plaintiff; (7) Provided that where exempt property is taken on a writ against plaintiff, the affidavit may be changed to show that fact, and replevin will lie for the exempt property. §584. Approved form of affidavit. This chapter was prepared without a form for affidavit, but at the suggestion of a friend of experience, a form is inserted here that it is believed will be held to contain all the essential averments. John Doe, Plaintiff, In {Title of court) vs. Richard Roe, Defendant. State of , County op \ ss. John Doe, being first duly sworn according to law, says upon oath that he is the (// made by an agent, or iittorney, or other authorized person, say Abe Smith, being duly sworn, etc., sajs he is agent or attor- ney, etc., for John Doe, who is, etc.) owner and entitled to the immediate possession {If not the owner, state fully the special ownership and right to possession) of the following described goods and chattels. {Here de- scribe them as pa.rticnlarly as the circumstances will permit, stating pres- ent location, if known, and particular brands, spots, marks, or numbers. If a particular desciijytion cannot be given, give the reason why a.nd a general description. Give the value of each article, if practicable; if not, of the whole.) That the said goods and chattelsareunjnstly detained from theposses- sion of said .John Doe by said Richard Roe, and have been so unlawfully detained by said Richard Roe for days, to plaintiff's damage in the sum of $ {If more than nominal damages are claimed, the elements of damage should be stated here.) That the said goods and chattels were not taken in execution, or attachment, or on any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement assessed against said plain- tiff, or by virtue of any order of delivery issued in replevin, pr on any ■other mesne or final process issued against said plaintiff {here add any special statutory requirement, as in Alabama, that the cause of action accrued within two years last past), and further saith not. (Signature.) Subscribed and sworn to, etc. If the affidavit is the sole pleading filed by plaintiff, just before the jurat add "Wherefore, affiant prays judgment for 308 AFFIDAVIT, COMPLAINT, DECLAKATION, AND PETITION. "possession of said goods and chattels, or their value," for his damages as aforesaid, and costs. The writer sees no reason why the affidavit should not be made to contain all the alle- gations necessary to be made by plaintiff, and this rule is followed in some courts, thus saving much needless repeti- tion in pleading. The title of the case and court are given for convenience. If the property has been taken on execu- tion, but is exempt, in place of that negative averment, say "Said property was taken on an execution on a judgment, " (here describe the judgment) but that said goods and chat- "tels were, and are, exempt to said John Doe under the law "of this state, the said John Doe being the head of a fam- "ily and a resident of this state (or set out other grounds of "exemption, as tools of laboring man, family bible, etc)." § 585. Another form of action should not be joined with replevin, A claim for the delivery of personal prop- erty ought not to be joined with a paragraph for money paid, but a judgment cannot be reversed for such misjoinder.' The action of claim and delivery may proceed for damages alone, where there is no delivery through the fault of the defendant.^ But where part of the property cannot be found and there is personal service, the plaintiff may add a count in trover,^ but the count in trover cannot include any other goods than those described in the writ, and which the offi- cer's return shows not taken.* The plaintiff may join sev- eral counts in one declaration. Thus counts for wrongful taking may be joined with counts for detention, and counts for a limited interest may be joined with a count as absolute owner, if, under both, he alleges a right to possession.^ Of course the averments in the subsequent pleadings can not go beyond the claim in the affidavit, as that will govern ' Keller v. Boatman, 49 Ind. 104. 2 Miller V. Hahn, 84 N. C. 226; Holmes v. Godwin, 69 N. C. 467. 'Karr v. Barstow, 24 111. 580; Nashville v. Alexander, 10 Humph. (Tenn.) 883. * Dart V. Horn, 20 111. 212. "Dickinson v. Noland, 2 Eng. (Ark.) 25; Cox v. Grace, 10 Ark. 87. AFFIDAVIT TAKES PLACE OF ALL OTHEE PLEADINGS. 309 always.' Even if there is but a single count, each party may recover part of the goods if the proof shows them entitled to them."" If there are two counts — one good, the other bad — unless the record shows that plaintiff won on the good count, it will not be so presumed by the court. Parties may, by agreement, litigate the title to property not in- cluded in the writ.' § 586. The aflSdavit need not be separate from the complaint, and need not state that affiant claims judgment for damages or possession, though these statements are not improper. If defendant goes to trial, he thereby waives de- fects in the affidavit.* An affidavit stating the facts in re- plevin before a justice is sufficient, and takes the place of both complaint and affidavit.' In replevin in justice court, the plaintiff may treat and use his affidavit as a bill of par- ticulars and file but the one paper." Where the only affidavit in replevin was that in the verification to the petition which stated the proper facts, held, a sufficient compliance with the statute to sustain the action. ' § 587. Affida,vit takes the place of all other pleadings by plaintiff in justice courts, and it is the only pleading necessary to be filed. Under a law which requires a bill of particulars in all cases before a justice of the peace,' held, that this did not include replevin actions, and that the affi- davit alone would be sufficient." There seems to be no rea- son why the affidavit should not be the only pleading filed 1 Bavnes r. Tannehill, 7 Blackf. (Inrl.) 605; Cox v. Grace, 10 Ark. 87; Nichols V. Nichols, 10 Wend. 630. See Stevison r. Earnest, 8 111. 517; Stevens v. Ostnan, 1 Mich. 92. 2 Seymour v. Billings, 12 Wend. 286. » Sanger v. Kinkade, 16 111. 44. *Eddy V. Beal, 34 Ind. 159; Lewis v. Brackmridge, 1 Blackf. 112; Smith V. Emmerson, 16 Ind. 355; Davis f. Warfleld,38 Ind. 461; Duim V. Crocker, 22 Ind. 324. ^ Hanner v. Bailey, 30 Ark. 681. 8 Starr v. Hinshaw, 23 Kan. 532. ' Bingham v. Hill, 38 Ohio St. 657. 8 § 951, Code. » Hill V. Wilkinson, 25 Neb. 103 (41 N. W. 134). 310 AFFIDAVIT, COMPLAINT, DEOLAEATION, AND PETITION. by plaintiff in all courts, and where the practice has been tried it has given satisfaction. § 588. A complaint may be used as an affidavit. In an action before a justice to recover a horse a complaint sworn to was held to be sufficient, it being both a complaint and an affidavit.^ A complaint which contains all the statutory re- quirements sworn to will be sufficient, both as an affidavit and a complaint in replevin.^ § 589. Complaint — Affidavit. If the complaint contain the statutory requirements, and is verified, it may subserve the two-fold purpose of complaint and affidavit, and its suf- ficiency as a cause of action may be tested by demurrer and as an affidaAdt by motion to quash.' The objection that a complaint in replevin alleges a trespass and a conversion should be taken before trial; and if not so taken, and plain- tiff shows a right to possession, the allegations of trespass and conversion may be disregarded as surplusage.* § 590. Sufficiency of complaint. In an action to re- cover personal property claimed to have been obtained up*n credit by false representations, where the complaint shows that plaintiff sold and delivered the goods to defendant, and that, in consequence of the fraud therein duly alleged, they seek to avoid the contract of sale, the complaint sufficiently alleges a special property in the goods and a right to their possession.'* The allegation "that the defendants have be- " come possessed of and wrongfully detains from the plaintiff " the following goods and chattels of the plaintiff " is a suf- ficient allegation of ownership in the plaintiff." § 591. What constitutes a good complaint — lUustra- ' Stephens v. Scott, 13 Ind. 515 ; Menchrod v. Windoes, 29 Iiid. 288. " Cox V. Albert, 78 Ind. 241. 2 L., E. & St. Louis Railway v. Payne, 103 Ind. 183 (2 N. E. 582), * Banfield v. Hae^er, 7 Abb. New. Cas. (N. Y.) 318. 5 Morrison v. Lewis, 4 N. Y. Civ. Proc. R. 437 (Id. 49 Sup. Ct. 178) ; Banfield v. Haeger, 45 N. Y. Sup. Ct. 428. " Van Der Minden r. Elsas, 36 N. Y. Sup. Ct. 66; Levin v. Russell, 42 N. Y. 251; Schofleld v. Whitelegge, 49 N. Y. 259. WHAT CONSTITUTES A GOOD COMPLAINT. 311 tions. A complaint wliicli alleged (1) wrongful taking, (2) wrongful possession, (3) unlawful conversion, is a good com- plaint in replevin.' The complaint must show a right of property and of possession in plaintiff. An allegation of wrongful detention is not sufficient. The latter is a conclusion of law; the former, the facts upon which it is based. The facts must be pleaded, and without them the conclusion of law is an immaterial statement. And an omission to aver such facts in the complaint is not cured by an averment in the answers denying ownership in the plaintiff. ° It is not necessary for a mortgagee, in an action of replevin for the mortgaged property, to show in his complaint the source of his title. It is sufficient to allege his ownership, general or special ; and if he alleges the mortgage, he need not allege the non-payment of the debt for which it was given.'' A com- plaint which alleges that the property was given by plaintiff to defendant in exchange for other personal property upon false and fraudulent representations, but which does not al- lege the rescission of the contract of exchange, is bad on de- murrer.* A complaint in replevin which sets forth the seiz- ure and possession of the testator at his death, the appoint- ment of the plaintiffs as his executors, and their subsequent possession of the premises, the wrongful cutting down cf growing wood by certain persons not named, and the subse- quent removal of the wood by the defendants, with a de- mand and refusal, sets forth a good cause of action.^ A com- plaint in replevin that does not allege ownership of the prop- erty, but only alleges a promise of the defendant to vest the ownership in the plaintiff on certain conditions being com- 1 Enos V. Bemis, 61 Wis. 656 (21 N. W. 812); Vogel v. Babcofk, 1 Abb. Pr. 176; Dudley v. Eoss, 27 Wis. 679. ^Scofipld V. Wliitelegge, 49N. Y. 259; Tattison v. Adam.s, 7 Hill, 126. See also Bond v. Mitchell, 3 Barb. 304 ; Vandenburgh v. Van Valken- burgh, 8 Barb. 217. s Fer.son v. Wright, 35 Ark. 169. * McCoy V. Reck, 50 Ind. 283. See Reynolds v.Copeland, 71 Ind.422. ^ Halleck v. Mixer, 16 Cal. 574. 312 AFFIDAVIT, COMPLAINT, DEOLAEATION, AND PETITION. plied with, is bad. If one paragraph, of the complaint is bad, and the record does not show that the trial was had ex- clusively under a good paragraph, the judgment will be re- versed.^ § 592. By sheriff in case of attached property. In re- plevin by a sheriff for chattels attached by him and taken from his possession by defendant, the complaint must state facts showing that such chattels were liable to seizure by virtue of the attachment, or it is bad on demurrer. If the sheriff claimed to hold under the general attachment law, his complaint in replevin must show that the property was that of the attachment defendant; if under a special attach- ment law, then the facts that gave him a right to seize it in attachment under that law.'' § 593. What the declaration or complaint should con- tain. Generally, statutory provisions require that the dec- laration, petition, or complaint should show a wrongful taking or detention of the property claimed by the plaintiff, but that would be sufficiently shown by an allegation that the defend- ant forcibly took the property of the plaintiff and unjustly- detained it.' It is generally sufficient to charge that the de- fendant converted and disposed of the property to his own use, without stating the manner in which he converted it.* A right of property or a right of possession in the plaintiff must be shown. A mere averment of wrongful detention is not sufficient, as that is a conclusion of law.* If the right of the plaintiff to the property depends upon a wrongful deten- tion without a wrongful taking, an averment in the declara- tion or complaint of a demand and refusal, or of other acta ' Bailey v. Troxell, 43 Ind. 432; Wolf v. Scofield, 38 Ind. 3 75; Kees- llng V. McCall, 36 Ind. 321. See affidavit. ^ Tronson v. The Union Lumbering Company, 38 Wis. 202. " Childs V. Hart, 7 Barb. (N. Y.) 370; Simaer r. Cowan, 56 Barb. 395; Tell V. Beyer, 38 N. Y. 161; Simmons v. Lyons, 55 N. Y. 671; Levin v. Russell, 42 N. Y. 251. * Decker v. Matthews, 12 N. Y. 313 (5 Sandf. 439). ' » Scofleld V. Whitelegge, 49 N. Y. 259. MUST MAKE ISSUABLE ALLEGATIONS. 313 amounting to a conyersion, is necessary.' Thus, an allega- tion o£ the conversion of property admits of proof of con- version of checks or money. ^ § 594. Declaration. Under the practice in some states, an affidavit is filed Tvithout other pleadings, and, after the property is taken, a declaration is filed claiming the prop- erty, etc. Under such a statute it has been held that the failure to file such a declaration at the first term was not cause for dismissal, but of , continuance only.' A plaintiff cannot regularly declare until the writ be returned with the names of the sureties annexed.* The declaration should not include any property not taken under the writ,° but may arti- cles not in the summons." § 595. Declaration must follow the affidavit. If the affidavit allege a wrongful detention, the declaration should not allege a wrongful taking also, for that would affect the damages.' Where an officer, by virtue of an execution, lev- ies upon mortgaged personal property in the hands of the mortgagor before due, and replevin is brought by the mort- gagee after the mortgage money has become due, plaintiff must declare for the detention and not for the taking.' While a declaration in replevin, in the cepit, must show a wrongful taking, it is a sufficient allegation to declare that the defendant took the property and unjustly detains the same ; such an allegation presumes a wrongful taking.' § 596. Must make issuable allegations. A declaration " Slayter v. Williams, 37 How. (N. T.) 109 ; Pierce v. Van Dyke, 6 Hill, 613. 2 Knapp 7. Roche, 37 N. T. Sup. Ct. 395; Devlin v. Coleman, 50 N. T. 531; Bank v. National Bank, 60 N. T. 40. '" Amos V. Sinnott, 5 111. (4 Scan.) 440. * Wilson V. Williams, 18 Wend. (N.Y.) 581. 5 Sanderson v. Marks, 1 Har. & G. (Md.) 252. « Finehout 7. Grain, 4 Hill (N. Y.), 537. See affidavit. ' Newell V. Newell, 34 Miss. 385. 8 Randall v. Cook, 17 Wend. (N. T.) 53. » ChUds V. Hart, 7 Barb. (N. Y.) 370. 314 AFFIDAVIT, COMPLAINT, DECLARATION, AND PETITION. in replevin must allege by a direct and issuable averment, that the property claimed is the property of defendant.* § 597. Artificial words not to govern. Notwithstand- ing the artificial words of a declaration in detinue, if the action be grounded upon a tortious seizure by the defendant of the property mentioned, it will not be held, contrary to the fact, an action on contract. ° § 598. Where both affidavit and petition are used, pe- tition need not be as specific as the affidavit, and need not allege everything required by the affidavit," but cannot be aided in essential allegations by reference to affidavit.' § 599. Where both are used, the affidavit is not a part of the pleadings. In Kansas, in district court, where both a petition and affidavit in replevin are necessary, it has been held that the affidavit is no part of the pleadings, and the facts therein set' forth form no part of the issues in the case.* § 600. Petition — Illustrations. In a suit to recover a horse, a good cause of action is stated when tha petition states that the defendant purchased the horse of plaintiff's minor son, that the plaintiff never received the considera- tion paid for the horse, that the defendant knew that plain- tiff did not allow said son to trade in his property, and that the son was a minor.' A petition in replevin is sufficient if it allege that the plaintiff is the owner of the property in dispute, and entitled to its immediate possession, and that it is unlawfully detained by defendant. It need not aver that the property was not taken on execution, etc. These allega- * Vandenburgh v. Van Valkenburgh, 8 Barb. 217; Johnson r. Neale, 6 Allen (Mass.), 227; Pattison r. Adams, 7 Hill (N. Y.), 126; Bond v. Mitchell, 3 Barb. (N. Y.) 304; Vaiden v. Bell, 3 Rand. (Va.) 448. " Elgee V. Lovell, 1 Woolworth (8th circuit), 102. * Bosse V. Tlioiiias, 3 Mo. App. 472. ' Wilhite V. Williams (Kan.), 21 P. 256. * Crawford v. Furlong, 21 Kan. 698; Hoisington v. Armstrong, 22 Kan. 110. ' Ice V. Lockridge, 21 Texas, 461. SPECIAL DAMAGES MUST BE SPECIAJiLY PL;EADED. 315 iions are required only in the a^davit on whicli the action is based.' The gist of the action of replevin is the right to immediate possession by the plaintiff, and the nnlawful de- tention by the defendant, and these facts must be stated by the petition/ The petition need only state plaintifE's right to the possession of the property, its description and value, and that it was wrongfully taken or unlawfully detained from him.^ § 601. Plaintiff must stand or fall by the title alleged in his petition. But where plaintiff claims as sole owner, he must stand or fall on that claim, and cannot, if his alleged title turns out to be invalid as against the true owner, fall back upon an alleged lien. The claim of title is a waiver of any lien, and, in any event, before he can claim the chattel by virtue of the lien, the false claim of title must be aban- doned, the title of the true owner conceded, and the claim re- duced to one of lien.* In an action for the recovery of spe- cific personal property, the plaintiff must state in his petition the extent of his interest in the property, and such a,llega- tion is a material one ; and where he states that he is the ab- solute and unqualified owner, a chattel mortgage of the prop- erty to him is not evidence to sustain such allegation, and should be rejected, when offered for that purpose, and where that is the only evidence of plaintiff's ownership, the court should have directed a verdict for defendant.' § 602. Petition should be construed as a whole. All the allegations of a petition in replevin must be considered together, and if, when so considered, it appear that a good cause of action is not stated, a demurrer will lie.° § 603. Special damages must be specially pleaded. When ' Daniels v. Cole, 21 Neb. 156 (31 N. W. 491). 2 Williams v. West, 2 Ohio St. 85; Haggard v. Wallin, 6 Neb. 271. = Catterlin r. Mitchell, 27 Ind. 298 ; Estee's Pleadings, 21 51 , 41 85-4191. * Hudson r. Swan, 83 N. Y. 552; Everett v. Saltus, 15 Wend. 474; Holbrook r. Wright, 24 Wend. 169; Mexal v. Dearborn, 12 Gray, 336. 5 Kern r. Wilson, 73 Iowa, 490 (35 N. W. 594). " Houghtaling v. Hills, 59 Iowa, 287 (13 N. W. 305). 316 AFFIDAVIT, COMPLAINT, DECLAEATION, AND PETITION. consequential damages are claimed whicli do not necessarily and naturally result from the tortious act, they must be spe- cially alleged.' Where there are circumstances of willful wrong or insult that would enh'ance plaintiff's damages, he must plead them specially, stating the circumstances fully.^ In replevin for a mare, damages claimed for her losing flesh and the breeding season, should be 'specially pleaded.' Spe- cial damages to the property must be specially pleaded, but " a general claim of damages at the conclusion of the decla- " ration will be sufficient to entitle the party to all such dam- "ages as are the natural and immediate consequence of "defendant's acts, of which the declaration complains."* Without alleging special damage in the complaint, the plain- tiff may recover damage for the depreciation resulting from the lapse of time.' The general claim for damages at the conclusion of the declaration will be sufficient to entitle the plaintiff to such damages as are the natural and immediate result of the act complained of, and no more. An entire omission to claim damages has been held to be a fatal error.' ' Burrage F. Melson, 48 Miss. 237; Damson r. Roach, 4 Humph. (Tenn.) 134. 2 Newell V. Newell, 34 Miss. 385. On this sul?ject see Ch. PI. 428. Where the damages are the natural or proximate result of the wrongtml act, they need not be speoiallypleaded, but otherwise they must be. SeeV. & M. R. R. Co. V. Ragsdale, 46 Miss. 459 ; Scofield v. Ferris, 46 Pa. St. 438; De Forest v. Lute, 16 Johns. 122 ; Nunan v. City, etc., 38 Cal. 689; Burrage v. Nelson, 48 Miss. 239 ; Park v. McDaniel, 37 Vt. 595 ; Shaw v. Hoffman, 21 Mich. 155. = Stevenson v. Smith, 28 Cal. 102. * Burkholder r. Rudrow, 19 Mo. App. 60; Christol v. Craig, 80 Mo. 375. ' Toung V. Willett, 8 Bosw. (N. Y.) 486. • Faset F. Brayton, 2 H. & J. (Md.) 350. OEIGINALLY WKIT WAS NOT EETUENABLE. 317 CHAPTEE XXin. THE WRIT— ITS HISTORY AND USB. 604 605 606 607 Section. Originally the writ of replevin was not returnable The writ non omittas Alias and pluries writs . Writ Issued only at Westmin- ster Origin of present writ and pro- ceeding 608 Writ of withernam . . . 609 Conclusion . . . . . 610 Issuing of the writ merely a ministerial act Must be by authority and under a valid law . To whom directed . Where the sheriff is a party di- rected to the coroner . What the writ should contain When returnable Description .... The same — Illustrations . Sufficient if with outside help the property can be iden- tified 611 612 613 614 615 616 617 618 619 Section. The description may be amended 620 If there is a total lack of de- scription, the writ is void . Writ need not state the value of the property Where bond is filed first . Rule in regard to replevin of attached property The writ is under the control of plaintiff .... Date of the writ is not conclu- sive as to the time of com- mencing the action Writ maybeamended on trial as to value .... Misnomer, how amended Alias writ, when issued . There can be no new service under a void writ . Cannot take part of the prop- erty and arrest defendant too on same writ . 621 622 623 624 625 626 627 628 629 630 631 § 604. Originally the writ of replevin was not return- able. It was a judicial writ issued to the sheriff, and gave him power to hear and determine the matter complained of.* Its form was as follows: " The king, etc., to the'sheriff, etc.: " We command you, that justly and without delay you cause to be "replevied the cattle of B, which D took and unjustly detains, as it is 13 Blacks. 238; Crabb's Hist. Eng. Law, 116; Glanvil, Book 12, Chap. 12. 318 THE WKIT ITS HISTOEY AND USE. "said, and afterwards thereupon cause him justly to be removed, that " we ma,y hear no more clamour thereupon for want of justice, etc. "Pledges, " If the defendant claimed to own the property, the sheriff could proceed no further, as the sheriff could only try the caption and detention and not the title under the writ. But the plaintiff could sue in an appeal of felony, and if he was successful he got his goods, and the defendant was treated as a robber.^ At first the defendant could not set up a claim of ownership in the replevin suit, it being confined to the right of possession — that is, the legality of the distress. Where the defendant claimed ownership, the replevin suit was held in abeyance until the writ of de proprietate pro- banda could be sued out, and the (question of owneish p set- tled by it.' § 605. The writ non omittas. If the sheriff's return to the writ stated that the beasts had been traced to some lib- erty or place where he had not the authority to go and seize them, and that the bailiff or' keeper thereof did not answer ,his demand for them, the non omittas issued. This was an alias or pluries writ, and empowered the sheriff to enter the liberty and serve his writ by taking the property. From this old form arose the expression yet frequently found in legal writs, "and this you are not to omit, under the penalty "of the law."' § 606. Alias and pluries writs. Where the first writ was not served, the plaintiff was entitled to an alias and ' Mirror, Chap. 2, §.26; Britten, Vol. I. Chap. 28. This appeal of felony was in this form: ".John, who is here, appeals Peter, who is there, that, whereas, the "same John, on such a day, and had ahorse, which he kept in his stable. "The same Peter there came, and the same horse feloniously, as a felon, "stole from him, and took and led away, against the peace, and that "this he wickedly did, the same John offers to prove by his body, as the "court shall award that he ought to do it."— Britton, Vol. I. p. 115. 2 Britton, Vol. I. Chap. 28; Mirror, Chap. 2, § 26; ex parte Chamber- lain, 1 Scho. & Lif. 320. 3 Gilbert's Hist. & Prac. of Court of Com. Pleas, 26; Reeve's Hist., Chap. 10, p. 93. OKIGIN OF PEESENT WKIT AND PBOCEEDING. 319 then to a pluries, as a matter of right. In practice, though the writs were all usually issued at once,' and he could de- liver all three of them to the sheriff at the same time if he chose, or he could deliver the alias and pluries only.^ The writ and the alias did not differ materially, but the pluries always contained the clause vel causam nobis cerlifices, to serve it or certify the reason for not serving — and was al- ways made returnable. The reason for this seems to have been that from a legal point of view the sheriff had twice failed to do a legal duty imposed upon him by the original and alias writs respectively. Therefore, he was no longer to be trusted with judicial power. He must now answer to the court. ' If he had failed to execute the writ and do justice, he was fined for disobedience.^ If, however, the pluries was the only writ delivered to him, he could show this fact and thus excuse himself, as he was not liable to answer to the court until the pluries came to his hands regularly after the others. In other words, it was not a pluries so far as he was concerned, but an original writ. § 607. Writ issued only at Westminster. The king's- chancellor, who' held his court at Westminster, could alone issue the writ. When issued, the writ was usually sent by special messenger, but with their primitive modes of travel the delay thus occasioned was a very serious annoyance.* § 608. Origin of present writ and proceeding'. To remedy these delays the statute of Marlbridge provided' for the action by plaint (affidavit) . Under this statute the sher- iff or a deputy under the writ went to the place where the cattle were and demanded sight of them." If this were de- 1 F. N. B. 68e; Gilbert on Eeplevin, 75 ; Wells on Eeplevin, § 13. 2 Anon Dyer, 189a; Thomas of Motyshale v. The Abbot of Ciren- cester, Year Book, 30 E. 1, 18. 2 Freeman v. Bluet, lU Mod. 395. * 3 Blacks. 50 & 273; Year Book, 30, 31; B. I., p. 26; Potter r. Hall,. 3 Pick. 368. 6"Ch. 21, Stat. Marl. 52 Henry III. (a.d. 1267). « Reeve's Hist., Vol. II., p. 48 ; Ackworth r. Kempe, Douglas, 40 ; Black- well r. Hunt, Noy, 107. 320 THE WEIT ITS HISTOKY AND USE. nied, lie raised the hue and cry, and in case of actual resist- ance arrested the offender and put him in jail.' If the dis- tress had been confined in a close or other stronghold, the sheriff, after demand, was authorized to break and enter. And to further deter the lords or barons from secreting property taken for distress, the statute of "West., 1 Ch. 17, provided that the house or castle so used should be razed and de- stroyed. If no resistance was made, the sheriff took the property, delivered them to the plaintiff, and fixed the day in which the parties should appear in court and try the mat- ter." In 1285 a statute was passed to remedy certain evils in the operation of the law of replevin which provided among other things that the sheriff should not only take security for the suit, but also "for the beasts or cattle to be returned, "or the price of them, if return be awarded." This is the first appearance of the bond as used to-day in replevin.' To guard against replevins in infinitum, where a writ of retorno was awarded, it contained a clause, "And that you do not "again deliver them upon complaint of (plaintiff) " without our writ, which should expressly mention the af ore- "said judgment." (The judgment in the first replevin.) This was made necessary from the practice which had grown up for the tenant rather than to have litigation with the lord to allow judgment to go against him by default and immedi- ately replevy again, thus keeping the property in his pos- session without a trial, and putting the lord to the continual expense and trouble of being prepared for trial. § 609. Writ of withernam. If the defendant had eloigned the distress — that is, driven it out of the county or concealed it so that it could not be reached by replevin, on a return showing that fact — the plaintiff was entitled to a capias in withernam, a word of Saxon origin — weder, other, and naaum, distress. Under this writ the plaintiff was en- ' Britton, Vol. I., p. 137. 2 Eeeve'e Hist., Vol. II., p. 48. ^Stat. of West. 2, Ch. 2 of Edward I.; Year Book, 30, 31, E. I., p. 31. MUST BE BY AUTHORITY AND ^NDEE A VALID LAW. 321 titled to have other property in lieu of those wrongfully con- cealed by the defendant. Goods taken by this process were held until the original distress was forthcoming.' This writ has only been recognized in a limited manner in this coun- try, but perhaps our statute allowing a replevin suit where the property is not taken to proceed as a suit for damages may have its origin in this writ." The judgment in wither- nam was substantially the same as that given in Holy Writ: "Let the judgment be this: That he lose the like member "as he has destroyed of the plaintiff' s.'" § 610. Conclusion, Many other peculiarities might be traced in the development of the writ, but all that is neces- sary to a correct understanding of it, as used to-day, has been given (see Chapter I.), and we will now proceed to consider it in the light of our present system. § 611. Issuing of the writ merely a ministerial act. On the filing of an affidavit the writ should be issued at once by the clerk, or if it be in an inferior court, having no clerk, by the justice. The writ may be issued by the clerk without an order of the court.* § 61'2. Must be by authority and under a valid law. But the writ must be issued by one having authority. Thus, where one not a justice issued a writ of replevin, it was void; but when defendant appeared and took a change of venue to a legal justice, he waived the error. ° And there must be a valid law providing for the action. A writ of replevin issued under a repealed statute is absolutely void, and no protection to the officer, and the court has no power to quash such a 1 i\ N. B. 73 F. ; Moor v. Watts, 2 Salk. 581; Anon Dyer, 188 b. 2 Bennett r. Berry, 8 Blackf. 1 ; Waglam v. Cowperthwaite, 2 Dall. (Pa.) 68 ; Weaver v. Lawrence, 1 Dall. 167 ; Swann r. Shewell, 2 Ear. & G. (Md.) 283; McColgan v. Huston, 2 Nott. & M. (S. C.) 444; Rathbun r. Ranney, 14 Mich. 387. = Exodus, Ch. 21, ver. 24; Britton, Vol. I., p. 122. * Pennington v. Streight, 54 Ind. 376. 6 Graves v. Shoefelt, 60 111. 462. 21 322 THE WEIT— *TS HISTORY AND USE. writ and order the return of tlie property; And a general appearance does not give tte proceeding life.' § 613. To whom directed. It should be addressed the same as any other writ issued by the same authority to the proper executive officer of the court in which the affidavit is filed. This is usually the sheriff. § 614. Where the sheriff is a party, directed to the coroner. If the sheriff be a party to the suit or have an in- terest, the statutes usually provide that the writ be addressed to the coroner. In such cases the direction is the only point in which the writ differs from the ordinary form. Where a writ was addressed to the sheriff in a case where it should have been addressed to the coroner, the plaintiff was per- mitted to amend it by inserting the word coroner in the directory clause." Under a statute requiring that the writ should issue to the coroner where the sheriff was interested, the affidavit for replevin must show this interest; but if it does not, and is otherwise regular, it is an informality which may be amended. An affidavit which alleges that the de- fendant was a deputy sheriff, and in that official capacity seized the property sought to be replevied, shows that the sheriff is interested in the case.' A coroner acting in place of the sheriff by virtue of a statutory provision is protected in the service of replevin papers to the same extent and in the same manner that a sheriff would be in a similar case.* The word party, in the statute requiring that writs be served by a coroner where the sheriff is a party, means a party of record.' § 615. What the writ should contain. The writ should contain a command to the officer to seize the property de- scribed, and to summon the defendant to appear at a certain ' Castle V. Thomas, 16 Minn. 443; Hicks v. Mendenhall, 17 Minn. 453. ' Simcoke v. Frederick, 1 Ind. 54. 8 Cassidy r. Fleck, 20 Kan. 54. * Manning v. Keenan, 73 N. Y. 45. ^ Douglass V. Gardner, 63 Me. 462. "WHAT THE WEIT SHOULD CONTAIN. 823 time in tlie court issuing the writ and answer. In some states the practice is to issue two papers — one called the writ of replevin, which commands the taking of the property ; the other a summons, which summons the defendant to appear as in an ordinary action. But both should be issued at once, as it is but one act. It is a great irregularity for the clerk of the district court to issue an order of delivery in replevin several days before the issue of the summons ; but, where the mistake is purely that of the clerk, and the defendant, after the service of both writs, answers without raising any question concerning such irregularity, it is waived.' Usually both writs are now contained in one. The essential part of a writ of replevin is the command to seize the property. Jurisdiction of the person may be acquired by the writ of replevin or by service of summons. The writ of replevin need not contain a command to summon the defendant.^ But the better practice is to make it a summons also.' The writ need not show that the affidavit upon which it is founded was made,* or that the property belonged to plaintiff, or that it was distrained. ° Where it appears from an order of re- plevin that it was issued out of the district court of the county in which it was served; that it was duly addressed to the sheriff of the county; that it stated the names of the parties to the action; that it commanded the sheriff to take the property described in the writ, deliver it to the plaintiff, and make due return of the writ, and was properly signed and sealed, held, that the writ was not void, though the body of the order did not state the court in which the action was brought. It was an irregularity merely, and not fatal.' ' Kennedy r. Beck, 15 Kan, 555. 2 Western Publishing Company r. Battineau, 34 Minn. 239 (25 N. W. 405). 3 Swann r. Shewell, 2 Har. & G. (Md.) 283. * Magee r. Siggerson, 4 Blackf. 70; Snedeker v. Quick, 11 N. J. L. (6 Hals.) 179. ^ Watson V. Watson, 9 Conn. 140. « State r. Wilson, 24 Kan. 50. 324 THE WBIT — ITS HISTOEX AND USE. § 616. When returnable. Usually the statute fixes the return day ; where it does not, but is left to the officer issuing it, it should be made returnable, the same as any other writ. A writ of replevin, tested at one term and returnable at the second term thereafter, is voidable.' The law does not look with favor on any delay in replevin cases. It should not be made returnable on Sunday or a legal holiday, but such errors are waived by pleading and going to trial.^ § 617. Description. The writ should follow the descrip-' tion of the property, as given in the affidavit, exactly. The description in the affidavit is supposed to be drawn with the express object in view of enabling the officer to identify the property, and the writ should follow it closely. If there be a defect or uncertainty in the description, so that it is doubt- ful as to what property is to be taken, the sheriff may refuse to serve the writ.^ §618. The same — Illustrations. The description, "two "yearlings, red and white in color," is sufficient in a writ of replevin.* A command to take the goods and chattels, which Moses Quick took and unjustly detains, of the plaintiff, was held insufficient' The description in the writ must be cer- tain to a general intent.* Where a writ commanded the sheriff to replevy all the " goods, stock, and fixtures in store "at Johnston, at a place called Dry Brook, occupied by said "L. (the defendant), of the value of $800, and books of ac- " count and evidences of indebtedness, showing the indebt- "edness of persons to said Leach of the value of $50," it was held, on demurrer, that the property directed to be replevied was described with sufficient particularity.' 1 Cay ward v. Doolittle, 6 Cow. (N. T.) 602. 2 Pierce v. Rehfuss, 35 Mich. 53. See Bryant v. The State, 16 Neb. 651(21N. W. 406). ' Smith V. McLean, 24 Iowa, 324; Snedeker v. Quick, 6 HaJet. (N. J.) 179 ; Magee v. Siggerson, 4 Blackf. 70. * Kelso V. Saxton, 40 Mich. 666; Farwell v. Fox, 18 Mich. 166. 6 Snedeker v. Quick, 6 Halst. 179. See Pope v. Tillman, 7 Taunt. 642. « Taylor r. Wells, 2 Saund. 74. ' Waldron r. Leach, 9 R. I. 588. THE DESCEIPTION MAY BE AMENDED. 325 § 619. SuflBcient if with outside help the property can be identified. No matter how particular the description may be, the officer would be obliged to have the property- pointed out by one acquained with it in yery many cases, and the courts have held that any description which, by the aid o£ outside parties acquainted with the property, would enable the officer to take the right property, was good.' The office of a description in the writ is to bring certain property into court. If the officer brings the right property in, though the description be faulty, it has answered every purpose of a faultless description. The description commanding the offi- cer to replevy " the goods and chattels following, viz. : the "contents of a grocery store, " describing the store and stat- ing the person by whom the goods were taken and held, is not so vague and indefinite as to be bad on demurrer.^ § 620. The description may be amended to correspond with the real description,' or by adding to the description "of the value of $25. "* Where there is no uncertainty as to the property to be taken, and the right property was taken on a writ of replevin, a variance between the description in the affidavit and that in the writ may be cured by amend- ing the writ to conform to the affidavit.^ § 621. If there is a total lack of description, the writ is void. A description in an affidavit attached to the writ is not sufficient; it must fall." Where the writ omits to de- scribe the articles to be taken, it will be quashed even after appearance.' If a separate summons for the defendant be issued, it need not describe the goods ; it is only where there ' Sexton V. McDowd, 38 Mich. 148. 2 Litchman v. Potter, 116 Mass. 371. ' Gardner r. Lane, 98 Mass. 517. * Jaques r. Sanderson, 8 Cush. (Mass.) 271. '- McCourt V. Bond, 64 Wis. 596 (25 N. W. 532). Here the affidavit said one "Humpstead piano No. 17945," the writ one "Emerson piano," but the right piano was taken under the writ. « Patterson v. Parsell, 38 Mich. 607. 'Snedeker v. Quick, 6 Halst. (N. J.) 176; De Witt r. Morris, 13 Wend. 495. 326 THE WEIT — ITS HISTORY AND USE. is a command to take goods that the description is required.' The fact that the description in the writ is of such an inter- est as should not be made subject to replevin does not de- prive the court of jurisdiction to award a judgment of return where the writ is quashed. It is only where there is no de- scription at all that the. jurisdiction fails.^ § 622. Writ need not state the value of the property. While it is necessary that the complaint or petition in re- plevin state the value of the property, it is not necessary that the writ state its value.' It is not necessary in a replevin writ to allege the value of the goods to be replevied.* If alleged, it may, under some circumstances, be admissible against the plaintiff as evidence of value. ° The appraise- ment or agreement determines the value for all purposes of the case.' § 623. Where bond is filed first. In some states the bond must be given and approved before the writ issue. In that case, the approval is a ministerial act also, and it is ac- cepted and approved by the party issuing the writ. Under such a practice it has been held that the writ could be taken out at any time after giving of the bond, so that the case would stand for trial at the first term of the court thereafter.' Under such statutes the bond is jurisdictional, and the omis- sion to give bond can not be cured. Where a justice of the peace issued a writ of replevin without a bond, held, that he was liable for all damage sustained by defendant, and the fact that bond was subsequently given and money deposited would not relieve him from his liability.* The bond need not be recited at length in the writ.' 1 Fiuehout v. Grain, 4 Hill, 537. 2 Humphrey r. Boyn, 45 Mich. 565 (8 N. W. 556). 3 State v. Welch, 37 Wis. 196. * Pomeroy v. Trimper, 8 Allen, 398 ; Blake r. Darling, 116 Mass. 300. ^ Clap V. Guild, 8 Mass. 153 ; Barnes v. Bartlett, 15 Pick. 71. ' Leonard v. Hannon, 105 Mass. 113. ' Luther v. Arnold, 7 Rich. (S. C.) 697. ' Hannum v. Norris, 21 Kan. 114. ' Watson r. Watson, 9 Conn. 140. THE WEIT MAY BE AMENDED. 327 § 624. Rule in regard to replevin of attached prop- erty. Where the plaintiff desires to replevy property, the officer having it in possession is the proper party against whom the writ should run, unless there be some statutory provision directing otherwise. It should not run against the plaintiff in attachment.' § 625. The writ is under the control of plaintiff. In a replevin action the writ is under the control of the plain- tiff, and it is his duty to see that it is properly served by a seizure of the property, and where he goes to trial without calling the court's attention to defects in the service, it will be presumed to have been properly served, and property put in plaintiff's possession.^ The plaintiff in replevin has full control of the writ, and may recall it after it is in the offi- cer's hands. The suit is deemed commenced from the taking out of the writ, and a reasonable delay before delivering it to the officer does not postpone the date of commencing the suit.' § 626. Date of the writ is not conclusive as to the time of commencing the action, and the fact as to the date of commencement of the suit may be shown by competent evidence. The presumption, unless the contrary is shown, is that the suit was commenced and the writ issued after the cause of action accrued.* § 627. The writ may be amended on the trial as to the , alleged value of the property,* or by striking out superfluous words.' A motion to quash a writ in replevin for any de- fect which is amendable dispenses with the necessity to amend, and should be overruled for the reason that the writ has served its purpose in bringing the parties before ■ Maxey r. White, 53 Miss. 80.' See ante, Chap. XX. 2 Laing v. Remuson, 2 N. M. 24.5. ' McMillan v. Lamed, 41 Mich. 521. * Federhen v. Smith, 3 Allen, 119. See Swilt r. Crocker, '21 Pick. 241; Seaver r. Lincoln, 21 Pick. 267. 5 Briggs V. Wiswell, 56 N. H. 319. " Poyen r. McNeill, 10 Mete. (Mass.) 291. 328 THE WRIT — ITS HISTOEY AND USE. the court." A writ of replevin will not be quashed before service.'* § 628. Misnomer — How amended. "Where there has been a misnomer of the defendant in replevin, the court may, after the service of the writ, but before the execution of the replevin bond, permit the plaintiff to amend by filing a new affidavit, and thereupon amend the writ by inserting the true name.^ § 629. Alias writ when issued. Where defendant in an action of replevin is not served, or is improperly served, the suit must be continued and a second writ issued, the same as in any other form of action. A writ served after the re- turn day. will not give the court jurisdiction over the person of the defendant, but all defects and irregularities in the ser- vice are cured by plea.* In Arkansas, if a writ of replevin is improperly executed, the clerk can issue an alias without an order of court. ^ An alias writ of replevin may be issued for the purposes of personal service merely, where the prop- erty has been seized on the original writ and turned over to the plaintiff, but there has been a failure of personal ser- vice for any reason during the lifetime of the original writ.° This would seem to be the proper practice.' An alias writ of replevin may be issued and directed to the sheriff of a county other than that in which suit is brought.* This . should always be done where the property is in two different counties.' Although there may be no authority to issue an alias wi'it of replevin, it does not follow that the defendant will be entitled to a return of thp property seized by virtue ' Spratley v. Kitchens, 55 Miss. 578. 2 Shewell v. McKinley, 1 Miles (Pa.), 54; English v. Dalbrow, 1 Miles (Pa.), 161. ^ Parks V. Barkham, 1 Mich. 95. * O'Brien v. Haynes, 61 111. 494. * Pool V. Loomis, 5 Ark. 110. »Bell V. Judge, etc., 26 Mich. 414. ' O'Brien r. Haynes, 61 III. 495. 8 Hiles V. McE'arlane, 4 Chand. (Wis.) 89. ' Consult ex parte Johnson, 7 Cow. 424; Snow v. Boy, 22 Wend. 602. CANNOT TAKE PEOPEEIY AND AEKEST DEPENDANT. 329 of that writ.' In Florida the supreme court has power to issue a pluries writ of replevin.^ Where only part of the property named in the first writ is taken, an alias writ should issue for the rest.' In New York, if a writ of replevin is sued out, and only part of the property claimed found, the plaintiff is not bound to accept part, but may arrest the de- fendant.* § 630. There can be no new service under a void writ. Where service of a writ of replevin is set aside after the re- turn day, there can be no new service. It operates as a dis- continuance, and the defendant can proceed accordingly, and have a return awarded, or damages, as he may elect. '^ § 631. Can not take part of the property and arrest de- fendant too on same writ. In New York, where the sher- iff may arrest the defendant if he cannot get the property, it has been held that he could not arrest defendant if he took part of the property on the same writ, but he could refuse to receive a part of the property and take the body, or he could return the writ with the property found and issue an alias for the rest, and take the body on that.' 1 Maxon r. Perrott, 17 Mich. 332. •" Branch v. Branch, 6 Fla. 314. 3 Maxon v. Perrott, 17 Mich. 335. * Snow V. Eoy, 22 Wend. (N. Y.) 602. 6 Forbes ex rel. v. The Judge, etc., 23 Mich. 497. ' Lowry f. Mansfield, 3 How. Pr. 88. 330 SERVICE OF IHE WBIT. CHAPTEE XXIV. SERVICE OF THE WRIT. Section, under a . G32 Duty of the sheriff writ of replevin The ofBcer should serve the property first . . . 633 Service on the property means actual seizure . . . 634 Sheriff's right of possession limited 635 Constructive possession, when good .... 636 Failure to serve the defendant is cured by appearance . 637 The sheriff's duty to takebond — Liability for neglect . . 638 Measure of damages where oflBcer has lost the replevin bond 639 Should hold property to allow plaintiff to give bond . . 640 Sheriff does not have to pre- pare bond .... 641 Must use good judgment in serving the writ . . . 642 Must see that the writ is regu- lar on its face . . . 643 Officer protected from tres- pass suit in service of . . 644 And trover will not lie against the officer . . . .645 The writ is no protection to the plaintiff . . . .646 May break and enter to serve the writ 647 Sheriff should make his au- thority known . . . 648 Section. Officer can not take property from the person . May sever articles attached to real estate A replevin writ cannot be exe- cuted on Sunday . Sheriff may take the property named in his writ when found in a stranger's hands The contrary doctrine has been held under some stat- utes The officer in all cases should use a sound discretion Defendant does not have to assist the officer . Power of court to compel de- fendant to surrender prop- erty Secreting or driving property away is not contempt . Should make return to the court issuing the writ . The return should be made full and complete and with- out delay An officer's return is a part of the record The return is conclusive be- tween the parties . Return cannot be impeached by statements of sheriff The return may be amended . If served on defendant, but not on the property, the ac- tion proceeds asin damages 664 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 OPFICEB SHOULD SERVE THE PEOPERTY FIRST. 331 § 632. Duty of the sheriff under a writ of replevin. The sheriff is presumed to know the law, and it is his duty, on the receipt of a writ of replevin, to proceed immediately to execute it, having as his only guide the statutes of the state in which he is an officer. He must make all reasonable efforts to find the property described in his writ by search and inquiry, and must promptly avail himself of all infor- mation given him by plaintiff or others that will lead to its discovery,^ It not infrequently happens that the very pur- pose of the writ is defeated by delay. "Where this is the case, the sheriff would undoubtedly be liable in damages, unless he had some legal excuse for the delay. ^ He should make the same effort to serve the defendant personally as in case of an ordinary summons. His liability is personal, and he cannot escape from a judgment for damages by resigning or by the termination of his term of office." He is respon- sible for the acts of his deputies also, their acts being his acts in law.* Where there is a reasonable doubt, he may re- quire indemnity before he proceeds, but he should not search for doubts.'' Where the law requires a duty of an officer, the presumption always is that he has done his duty if he has acted at all.° § 638. The officer should serve the property first. As we have just shown, the essential part of a writ in replevin is the command to seize the property; so the first duty of the officer, on receiving a replevin writ, is to seize the prop- erty, and when this is done, he should serve the defendant as promptly as possible. The important thing in replevin 1 Bosley v. Farquar, 2 Blackf. 66 ; Eoughliu v. Thompson, 76 Cal. 287 2 Hinman v. Borden, 10 Wend. 367; Lindsay Exrs. v. Armfield, 3 Hawks. (N. C.) 548; Kennedy v-. Brent, 6 Cranch, 187; Whitney v. But terfield, 13 Cal. 339; Payne v. Drews, 4 East. 523 ; Van Winkle v. Udall 1 Hill, 559. ' Stillman v. Squires, 1 Denio, 328. Grant r. Booth, 21 How. Pr. (N. Y.) 354. 2 Hooker v. Strieker, 1 Dall. 225, 245. " Vanderburgh v. Bas.sett, 4 Minn. 242. * Morris v. Baker, 5 Wis. 389. 6 Shaw V. Webster, 21 Wis. 129. 8 State V. Stevens, 14 Ark. 266. ' Smith V, Whiting, 97 Mass. 317. MUST SEE THAT WEIT IS REGULAE ON ITS FACE. 337 in his writ, or in taking property on a writ issued by a court ha-ving no jurisdiction to issue it. Neither does the writ protect him in a willful trespass any more than a writ of exe- cution or attachment would.' An order of delivery directing the officer to replevy bales of cotton gives him no authority to seize seed cotton.^ The sheriff would be justified in refus- ing to obey a writ of replevin issued for a coffin and contents (a body) buried in the graveyard.' A sheriff is not pro- tected in taking property under a replevin writ when the court had no jurisdiction to issue the same.* This does not mean that he shall pass a judicial judgment on the powers of the court, but he is presumed to know the law of his state, and if the writ purports to emanate from a court not having jurisdiction to issue it, he is not bound to obey it, and would be liable for any damage resulting from his attempt to do so. The duty and liability of a sheriff with a replevin writ in his hands is the same as in case of any other writ.° § 643. Must also see that the writ is regular on its face. It is the duty of an officer when a writ of replevin is placed in his hands, before he serves it, not only to see that it issues from a court having jurisdiction, as we have just seen, but also to see that it is in due and regular form. If there is apparent on its face a defect which would render it 1 Stewart r. Wells, 6 Barb. 79; Caldwell r. Arnold, 8 Minn. 265; Bradley v. Halloway, 28 Mo. 150; Brown v. Bissett, 1 Zab. 21 (N. J. L.) 268; Phillips r. Harris, 3 J. J. Marsh (Ky.), 121; Ilsley r. Stubbs, 5 Mass. 280; Buck v.CoIbath,3Wall. (D. S.)334; Hall r. Tiittle, 2 Wend. 476; Allen r. Crary, 10 Wend. 349; Shipman r. Clark, 4 Denio, 447; Ralston v. Black, 15 Iowa, 47; Ackworth r. Kemp, Doug. (Eng.) 40; Driscoll r. Place, 44 Vt. 258; Vail y. Lewis, 4 Johns. 450. See also Wise V. Withers, 3 Cranch (U. S.), 331; Brown r. Compton, 8 Term R. 424; Dynes r. Hoover, 20 How. 65 ; Davison v. Gill, 1 East. 64. 2 Chandler r. Smith, 34 Ark. 527. ' Guthrie v. Weaver, 1 Mo. App. 136. * Driscoll V. Place, 44 Vt. 252. ^Sprague r. Birchard, 1 Wis. 457; Grace r. Mitchell, 31 Wis. 539; Brown v. Bissett, 1 Zab.21 (N. J.) 46; DeWitt f. Morris, 13 Wend. 495; Hay r. Hayes, 56 111. 34.3; Morgan r. Evans, 72 111. 586; Bacon r.Crop. sey, 3 Seld, 195; Colt r. Eves, 12 Conn, 243. 22 338 SEETIOE OF THE WRIT. void, as that it was not signed, he would be liable for all damage to the defendant if he were to attempt to execute it.' He is not justified or protected in executing process void on its face.^ § 644. OflBcer protected from trespass suit in service of. A replevin process issued by competent authority, and regular and valid upon its face, is a protection against an action of trespass for all acts legitimately doile under it. It makes no difference that the process is fraudulently or mali- ciously procured and used. The remedy in such a case is by an action of trespass on the case. No person can become a trespasser by acting under the regular process of a court, and this rule would hold even if the property was taken from some one other than the defendant named in the writ.' § 645. And trover will not lie against the ofiB,cer so long as the suit in replevin is pending and the goods are in the custody of the law.* Lord Holt once said, "The writ of "replevin is a perfect protection to the oflScer, though he take "the chattels from a stranger to the writ, who is in fact the "owner.'" And this rule is affirmed and followed in the later cases.' A constable charged with the execution of a > Dame v. Tales, 3 N. H. 70. ^Leadbetter v. Kendall, Hempst. (U. S. C. C.) 302; Dynes v. Hoover, 20 How. (D. S.) 65; Wise v. Withers, 3 Cranch (D. S.), 331; Brown v. Compton, 8 Term E. 424 and 231. In California the affidavit order en- dorsed thereon and undertaking filed therewith all go into the hands of the officer, and constitute the process. He must determine whether they are regular and sufficient at his peril. Laughlin r. Thompson, 76 Cal. 287. ^ Cannon r. Sipples, 39 Conn. .505; Watson v. Watson, 9 Conn. 140; Osgood r. Carver, 43 Conn. 24 ; Luddington v. Peck, 2 Conn. 700 ; Hay- den r. Shed, 11 Mass. 500; 1 Chit, on Plead., 136, 187; 3 Stark Ev. 1446 ; 1 Archb. Law of Nisi Prius, 405, and cases cited ; Belk v. Broad- bent, 3 T. R. 183 ; Clark v. Norton, 6 Minn. 412 ; Waddy Thompson ex parte, 15 Am. Law Eeg. 522. * Osgood r. Carver, 43 Conn. 24. ^Hallet V. Byrt, Carthew, 380; Foster r. Pettibone, 20 Barb. 350; Willard v. Kimball, 10 Allen, 211 ; Weiner v. Van Rensselaer, 43 N.J. L. 547. ' Boyden v. Frank, 20 El. App. (Bradw.) 169. MAY BEEAK AND ENTEE TO SEETE THE WEIT. 339 possessory warrant, duly issued against specific property, has no discretion but to execute it, and whilst lie holds pos- session lawfully, under such warrant, he is not liable to be sued in trover or other form of action ; his possession is that of the court.' The officer is afforded a definite protection so long as he keeps within his powers under the writ, but if he go outside of his duty, he is in no wise protected, but acts at his peril. ^ His protection does not depend in any manner upon the result of the suit.' § 646. The writ is no protection to the plaintiff. The plaintiff, who has procured the writ to issue, stands on very different grounds from the officer. The officer is a stranger to the proceedings, except as he has ofliciiil connection with it, and is only responsible for a neglect of an official duty. The plaintiff, on the other hand, must know all the facts at his peril, and is liable for any damage occasioned by the proceeding, if wrongfully commenced, and the writ is no shield to him,' while an officer with a valid replevin writ is probably protected in seizing the property described by his writ, wherever found. "Where the plaintiff actively assists in the caption he is liable, as a trespasser, to third parties who own the property so tajien, even though h^ is a servant of the officer.^ The plaintiff in a replevin suit is jointly lia- ble with the officer serving the writ, under his directions, for a trespass committed in executing the process. ° § 647. May break and enter to serve the writ. There are few decisions as to the power of an officer with a writ of replevin. It was formerly held that "where the king is a 1 Chipstead r. Porter, 63 Ga. 220; Buck f. Colbath, 3 Wall. 334. 2 Whitney r. Jenklnson, 3 Wis. 408. 'WlUard v. Kimball, 10 Allen (Mass.), 211; Weinberg r. Conover, 4 Wis. 803; Shipman v. Clark, 4 Denio, 446; Watkins v. Page, 2 Wis. 97; Poster r. 'Pettibone, 20 Barb. 350; Stirapson f. Reynolds, 14 Barb. 506, * Ex parte Waddy Thompson, 15 Am. Law Reg. 522. s Williams r. Bunker, 78 Me. 5 Atl. 882. "Dovvell F. Taylor, 2 Mo. App. 329; Perrin F.Claflin, 11 Mo. 15; Can- ifax V. Chapman, 7 Mo. 175; Murphy v. Wilson, 44 Mo. 313. 340 SEETICE OF THE WBIT. " party, tlie sherifE, if the doors be not open, may break the " party's house, either to arrest him or to do other execution " of the process, if otherwise he cannot enter. When the " door is open, the sheriff may enter the house and do exe- " cution at the suit of any subject, either of the body or of " the goods. But the sheriff cannot, on request made and "denial, at the 'suit of a common person, break the defend- " ant's house to execute any process at the suit of any sub- "ject."' As the holding and secreting of another man's goods was looked upon as little better than robbery, the English courts were loth to allow the writ to be defeated by the claim that the officer could not break and search for the goods where it was reasonably certain they were concealed, and the statute of Westminster, 1, Ch. 17, expressly author- ized the officer, with a writ of replevin, to break and enter a house or close to make replevy of goods therein, and this rule has been generally followed since. A man's house is not a castle, nor does it carry any privilege but for himself, his family, and property. It will not protect the goods of another brought there to avoid the service of a legal writ.^ "It would be strange if the defendant, by secreting the " goods, and thus adding to the wrongful taking, could have " an action against the sheriff in coming to search for what "he has good reason to suppose could be found there." It has been held that an officer had a right to enter a defend- ant's house to search for goods described in a writ of re- plevin, and that the legality of his entry did not depend upon his finding the goods therein, and that he could take with him persons to point out the goods.' But whatever may be the law as to his right to break and enter in order to exe- cute a writ of replevin, if he enter and make search by per- mission of the owner or his wife, he will not be liable in ' Seamayne's Case, 5 Coke Eep. 91. ' Harlow's Sheriffs, § 45; Murfree on Sheriffs, 9T1. = Kneas v. Fitter, 2 S. & R. (Pa.) 263. See McGee r. Given, 4 Blackf. 18, note; Haggerty r. Wilbur, 16 Johns. 287; State v. Smith, 1 N. H. 346 and note. OFFICES CAN NOT TAKE PEOPEETY FEOM PEESON. 341 damages unless lie do unnecessary injury in the search; and if he searches property of a stranger found in the house, upon invitation of the stranger and under a bona fide impression that it is the property of the defendant, the same rule of lia- bility will apply. If he injures the property without willful- ness or malice, he will be liable for actual damage only. If the plaintiff in the writ accompany and assist the officer, the same rule will apply to him.' Under a writ of replevin an officer has a right to break and enter a building in which the property described in his writ is.^ It is the duty of the officer to employ sufficient force to execute pi'operly the command of the writ held by him.' § 648. Sheriff should make his authority known. While all parties are bound to know the sheriff, and probably, too, his regular deputies, they are not bound to know by what process he demands the property. He should state by what process he claims the property. If he be a specially author- ized officer, he is also bound to exhibit the authority by which he acts if it is called in question.* Where a sheriff, as t'dfendant in replevin, seeks to justify the taking by the act of his deputy on a writ of attachment, he must aver and prove, first, his official character and authority to appoint a deputy ; second, from what court the writ issued ; third, that the wiit was regular, with the required affidavit attached. ° § 6i9. Officer can not take property from the person Df the defendant under a replevin writ, even if worn for the ' Bruce V. Ulery, 79 Mo. 322. See on the general subjeefc ol liability of officers, Burton F.Fulton, 49 Pa. St. 151; Franz y. Hilterbraod, 45 Mo. 121; Engle v. Jones, 51 Mo. 316; Seibel f. Siemon, 72 Mo. 526; Morgan F. Durfee, 69 Mo. 469. 2 Howe F. Oyer, 50 Hun. fN. T.) 559. See Keith v. Johnson, 1 Dana (Ky.), 604 (25 Am. Dec. 167). s Fulton F. Heaton, 1 Barb. (N. Y.) 552; Young v. Wise, 7 Wis. 128; McLean v. Cook, 23 Wis. 365; Ela v. Shepard, 32 N. H. 277; Earl v. Camp, 16 Wend. 563; Bogert v. Phelps, 14 Wis. 88. * Burton r. Wilkinson, 18 Vt. 186 ; Alexander f. Buruham, 18 Wis. 200; State ex rel, &c., v. Williams, 5 Wis. 308. 5 McCarty V. Gage, 3 Wis. 404. 342 SEETICE OF THE WEIT. purpose of preventing the seizure under tlie writ. A watch, ring, or clotliing, while actually worn on the person, cannot be replevied.' § 650. May sever articles attached to real estate. The sheriff is not justified in taking real property under the writ, as it is for the delivery of personal property only. It is sometimes a difficult matter in the case of property, as houses, fences, etc., which are personal or real property according to circumstances, to execute the writ without more or less injury to the realty. The sheriff would cer- tainly be liable for any wanton injury to the real estate, but it is not his duty to decide what is or is not real estate, and if his writ commands him to take a certain house or other property which rests upon or is attached to real estate, it is his duty to sever and take it. He has nothing to do with the claim of the defendant that it is real estate, and there- fore not reple viable.^ § 651. A replevin writ cannot be executed on Sunday, and where the sheriff personally served the defendant on Saturday night, but could not find the property, but did find and take it on Sunday, and ihe defendant forcibly on same day retook it from the sheriff's keeper, held, that he was not liable criminally.^ And it cannot be made return- able on Sunday ; but this defect is waived if the defendant appears and pleads to the merits and goes to trial.* § 652. Sheriff may take the property named in his writ when found in a stranger's hands. A writ of replevin differs from other writs in that it leaves no discretion in the ' Maxam v. Day, 16 Gray, 213. On general principle, see Sunbolp v. Alford, 3 Mees. & W. 249; Gorton v. Falkner, 4 D. & East. 305 & 565 ; Storey r. Eobinson,6 TermR.73 & 139; Mack y. Parks, 8 Gray (Mass.), 517. 2 Consult Eoberts v. The Dauphin Bank, 19 Pa. St. 75 ; Bowen v. Tall- man, 5 S. & R. (Pa.) 560; Hamilton v. Stewart, 59 111. 331; Ricketts v. Dorrel, 55 Ind. 470; Elliott v. Black, 45 Mo. 374. 8 Bryant v. The State, 16 Neb. 651 (21 N. W. 406). See Peirce f. HiU, 9 Porter (Ala.), 151 ; Allen v. Crary, 10 Wend. 349. * Pierce v. Eehf uss, 35 Mich. 53. SHERIFF MAY TAKE FEOPEKTY IN STEANGEES HANDS. 343 officer, but commands the officer to take certain property therein described and to summon a certain person, etc. Under such a writ he has no discretion, but must seize the property, no matter in whose possession he finds it, and his writ is a complete protection to him.' A writ of replevin differs from a writ of execution or attachment in that the officer is commanded to take specific goods, and it has been held that he was not liable if he took the goods described in his writ.^ An officer is not liable on his official bond if he seizes the property described in the writ of replevin. The writ of replevin differs from the writ of attachment in that it commands the officer to seize specific property without re- gard to its ownership.^ An officer is not liable in tort if he takes the goods of A on a writ of replevin against B, for the reason that "the command of the writ is express, and points "to specific chattels."* In Wisconsin a laborer may bring an attachment to enforce a lien for labor, and the officer un- der this special attachment proceeding is commanded to ' Hallett r. Byrt, Garth. 380; Shipman v. Clark, 4 Denio, 447; "Wat- kine v. Page, 2 Wis. 97; Spencer v. McGowan, 13 Wend. 256; Fofster v. Pettibone, 20 Barb. 350; Battis v. Hamlin, 22 Wis. 669; Shaw v. Cos- ter, 8 Paige (N. Y.), 344; Silsbury v. McCoon, 4 Denio, 332; Griffith v. Smith, 22 Wis. 647; King v. Orser, 4Duer. 436. 2 Hallett V. Byit, Carthew, 380; Foster v. Pettibone, 20 Barb. 350; Shipman v. Clark, 4 Denio, 446. See Miller v. Davis, 1 Comyn. 590; Savacool v. Bough ton, 5 Wend. 170; Sheldon v. Van Buskirk, 2 Corns. 473; Boyden v. Frank, 20 111. App. (Bradw.) 169. 8 Phillips V. Spotts, 14 Neb. 139 (15 N. W. 332). This overrules State V. Jennings, 4 Ohio St. 418; Watson v. Watson, 9 Conn. 14; Buck v. Colbath, 3 Wallace, 334. * Foster v. Pettibone, 20 Barb. 350. This doctrine was, however, questioned in Sampson v. Reynolds, 14 Barb. 506, and in Allen v. Carey, 10 Wend. 349 it was conceded that trespass would lie against an officer in such a ease. See also Skilton v. Winslow, 4 Grey, 441 ; 2 Greenl. Ev. 496-7. The conclusion arrived at in these cases depends on the statute and the wording of the writ. If it is a specific command to take certain property, the officer is protected if he take that property, but if the writ Bommand him to take the property from A, he is not protected in taking It from B, or if it command him to take certain property, the property of A, he is not protected if he take the property of B. 344 SERVICE OF THE WRIT. seize specific property as in replevin. In such a case it was held that the oflScer was protected in seizing this property, and it could not be taken from him in replevin.' § 653. The contrary doctrine has been held, but on ex- amination of the statutes it will be found, in states following the contrary rule, the writ of replevin commands the officer to take the property described "from the defendant," or take the property "alleged to be in the possession of the defend- ant." Seizure in replevin must be from the actual or con- structive possession of the defendant. A writ of replevin will not protect an officer in taking the property described fi'om some person besides the defendant, owning and hold- ing it in good faith. ^ Where tire writ of replevin commands the officer to take the property named from the defendant, it has been held that he was not protected if he took it from a stranger in whose hands he found it. This is the rule in New York, under the code. Where, however, the actual possession remains in the defendant, although there has been a transfer of title and a constructive change of possession, the process is a protection.' It is no protection when he takes them from another than the defendant he is commanded to take them from, in an action of trespass brought against him. The writ in claim and delivery only authorizes the taking from the defendant named in the writ, or his agent, and not from a stranger. The fact that the owner is a married woman, and that the defendant is her husband and agent, ' Union Lumber Company v. Transon, 36 Wis. 129; GriflBth F.Smith, 22 Wis. 647 ; Battis r. Hamlin, 22 Wis. 669. See also Watson v. Wat- son, 9 Conn. 140. 2 Sexton V. McDowd, 38 Mich. 148; Billings v. Thomas, 114 Mass. 570 ; State v. Jennings, 4 Ohio St. 418. This case was considered and overruled by the supremecouvt of Nebraska on a similar statute. Phillips V. Spotts, 14 Neb. 139 (15 N. W. 332); Stimpson v. Reynold, 14 Barb. 506; Bulls V.Montgomery, 50 N.Y. 353; Otis F.Williams, 70 N. Y. 208. These New York cases were decided upon a special statute, prior to the passage of which a different rule prevailed. See King v. Orser, 4 Duer. 436; Foster F. Pettibone, 20 Barb. 350; Shipmah f. Clark, 4 Denio, 446. »Bullis F. Montgomery, 50 N. Y. 352; Nichols f. Michael, 23 N, Y. 269; King v. Orser, 4 Duer. 431. DEFENDANT DOES NOT HATE TO ASSIST OEFIOEB. 345 does not afEect the legal status of such owner/ In the same court it has been held under a writ of return, commanding the officer to take the property from the plaintiff in the ac- tion or in whosesoever hands the same might be, etc., and deliver it to defendant, that the officer was liable for not taking it from a stranger who had it in his possession under a claim of right.^ In the absence of a special statute, the doctrine laid down in the preceding section will prevail. § 654. The officer in all cases should use a sound dis- cretion. If the property is really the defendant's, and has only recently been placed in a stranger's hands for the pur- pose of fraud or defeating the writ, he should seize it. If, on the other hand, it has been in the hands of the stranger for a long time, and he claims it as owner and in his own right, he might be justified in refusing to dispossess a party not named in his writ, or at least in requiring a bond to in- demnify him against a damage suit by this stranger, but much necessarily depends upon the decisions upon the par- ticular statute under which the case arises.' § 655. Defendant does not have to assist the officer. We know of no law making it the duty of a defendant, in an action of replevin, to assist the officer in the execution of his process. It is the officer's duty to take the property. If it is already in the custody of another officer under an execu- tion, the court has no power to make him surrender it to be taken under the writ of replevin.* But where the defendant is an officer holding under another writ, if the replevin writ is one that he would feel under obligations to serve had it 1 Otis V. Williams, 70 N. T. 208. But this is tvholly by reason of their statute, the writ commanding the ofBcer to seize property alleged to be in the possession of a person named therein. Manning r. Keenan, 73 N. y. 57. 2 Hoffman v. Conner, 76 N. Y. 121. 'Ramsdell v. Buswell, 54 Me. 546; Crosby v. Baker, 6 Allen (Mass.), 295; Jansen v. Aoker, 23 Wend. 480; Commonwealth r. Kennard, 8 Pick. 133 ; Brush v. Fowler, 36 111. 59 ; Perkins r. Thornberg, 10 Cal. 189; Willard v. Kimball, 10 Allen, 201. * Horr r. The People, 95 111. 169. 346 SERVICE OF THE WEIT. been placed in his hands, he should surrender the property to, the officer holding it and let the law take its course, al- though his refusal to do so would not make him a trespasser in the taking. It is outside of his official duty to secrete or hide the property, and he would be liable for any damages resulting from such a course.' § 656. Power of court to compel defendant to surren- der property. The court from which a writ of replevin is- sues has no power, in case the officer fails to find the prop- erty therein described, to compel the defendant to surrender the property. If the property is taken by the officer on the writ, and the dafendant afterwards interferes with its posses- sion or control, or forcibly takes the same from the officer or the plaintiff, the court may cause its return or punish for contempt. Or if a defendant in replevin should impede or obstruct in any manner the process of the court, issued to secure property, or prevent the officer from executing the same, he would probably be guilty of contempt. It is the imperative duty of the officer holding a writ of replevin to execute the same by seizing the property therein named wherever he can find the same, whether the defendant is dis- posed to give it up or not.^ § 657. Secreting or driving property away is not con- tempt. A person who, by waving of hands and noise, pre- vents an officer from seizing colts for which he has a writ of replevin, and who, after the officer leaves, secretes them so that the officer can not find them, is not guilty of resisting an officer.' A peculiar case arose in Nebraska, where a sher- iff served the defendant Saturday evening, but could not find the property called for by his writ — horses — but did find them the next day, Sunday, and took them and placed them in a livery stable, from which on the same day defendant forcibly removed them. He was arrested for resisting and impeding ' Walker v. Hampton, 8 Ala. 412; Cole v. Conoly, 16 Ala. 271. Six Carpenters' Case, 8 Co. Bep. 2 Yott V. The People, 91 111. 11. 8 State V. Welch, 37 Wis. 196. SHOULD MAKE EETUEN TO COUBT ISSUING WRIT. 347 an officer in the discharge of his duty. The court held that it was not the sheriff's duty to take goods on Sunday under a writ of replevin, and released the defendant.' But in a late case it was held that an attachment for contempt would issue where defendant had prevented the seizure of the property, and this should be the law everywhere.^ § 658. Should make return to the court issuing the writ. As we have seen, at first the sheriff did not return the writ to the court, but it is now Required that he return the writ with a. written statement of what he has done under it endorsed thereon, and of any bond taken by him. The statute usually gives him a certain time in which to make his return, and he cannot be compelled to return the writ before the expiration of that time, but it was. not intended that he take the full time unless necessary. If an officer take property under a replevin writ, and does not make a return of the writ with bond into Court, he is liable as a tres- passer, and cannot justify on the ground that one aiding him was the general owner. ^ The return is usually written on the back of the writ, and should state concisely all the officer < has done under it, and refer to and make a part of his return any bond or receipt taken for the property and show what has been done with the property. The return of the writ should be made by the officer to the court whence it issued, according to the command thereof. If he fail to so return it, he is a trespasser, and liable in trover for the conversion of the property. He cannot justify under a writ of replevin which he has not thus returned, and it is no excuse that it has been the practice of officers, sanctioned by long usage, to return writs to the attorney of the plaintiff, which usage he followed." The sheriff is required to return the bond ' Bryant r. The State, 16 Neb. 651 (21 N. W. 406). 2 In re Farr (Kan.) 21 P. 273. ' Adams v. McGlinchy, 66 Me. 474. * Wright V. Marvin, 59 Vt. 437 (9 A. 601). See on the general sub- ject of justification, Ellis v. Cleveland, 54 Vt. 437; Briggs v. Mason, 31 Vt. 433; Munroe v. Merrill, 6 (jray, 238; Williams v. Babbitt, 14 Gray, 348 SERVICE OE THE WBIT. taken by him to the court with his return of the writ, that it may be kept with the other papers in the' case, and be sub- ject to the inspection of the defendant, who has a Tital inter- est in it. On its return he may inspect it and object to its form or sufficiency or the solvency of the sureties.^ In Vir- ginia the bond in replevin for property distrained must be returned to the court to which the officer levying the distress belongs, or to the court of that county to which the land be- longs. But this is contrary, to the general rule, and is a stat- utory requirement.^ § 659. The return should be made full and complete and without delay. The officer is responsible to the court for the correct exercise of the powerfe conferred on him by the process of the court, and he should at the earliest prac- ticable moment make to the court a full, clear, and concise statement of all his doings under the writ. If only a part of the property has been taken, the return must show what part,* and should give an itemized statement of all costs in- curred from the time the writ came to his hand. They thus become part of the record in the case.* § 660. An officer's return is a part of the record, and after Judgment disposing of the property he cannot change it. A replevin writ may be served by one deputy sheriff on anothei'.* Although a sheriffs return fails to show a taking of the property after a judgment of return, it will be pre- sumed that it was taken according to the command of the 141; Euss V. Butterfleld, 6 Cush. 242; Shorlan r. Govett, 5 B. & C. 485. ' Allen v. Judson, 71 N. T. 77; Petrie v. Fisher, 43 HI. 443; Nunn r. Qoodlett, 5 Eng. (Ark.) 100. ' Ferguson v. Moor, 2 Wash. (Va.) 54. ^ Hutchinson v. McClellan, 2 Wis. 17 ; Mattingly r. Crowley, 42 LI. 300; Pool F. Loomis, 5 Ark. 110; Miller r. Moses, 56 Me. 134; Nash- rille V. Alexander, 10 Humph. (Tenn.) 378. * Young V. Atwood, 5 Hun. (N. Y.) 234. 6 Tuck V. Moses, 58 Me. 461. "Blair F.Ray, 103111. 615. THE EETURN MAY BE AMENDED. 349 § 661. The return is conclusive between the parties on all matterra required to be shown by it, and cannot be contradicted or avoided in the suit for the purpose of de- feating any rights which have been acquired on the strength of it. In other words, it is protected the same as any other official record.' As between the parties, the. officer's return that he took the goods out of the defendant's possession is conclusive.'' If the officer make his return show facts not required by law, such facts may be controverted.' The re- turn must be read and construed in connection with the writ upon which it is based.' § 662. Return cannot be impeached by statements of sheriff. It is not permissible for the plaintiff to prove the declarations made by the sheriff to contradict his return as to the time the writ of replevin was levied.^ § 663. The return may be amended if it do not cor- rectly state the facts, aiid the officer should always amend his return if it is incorrect in any particular. A sheriff's return to a writ of replevin may be amended on due notice and a proper showing, but if not amended it is conclusive as made. And where the return certifies that plaintiff had not filed a bond, it is conclusive upon all parties that no bond was given." The return should show the doings of the offi- cer under the writ — the taking of the property, the ap- praisement, the service on defendant — and where the return is defective the writ will be dismissed on motion, but the re- turn may be amended in accordance with the fact, even after a ruling on the motion to dismiss.' ' Cornell r. Cook, 7 Cow. (N. Y.) 310; Pardee v. Robertson, 6 Hill (N. Y.), 550; Messer v. Bailey, 11 Fost. (N. H.) 9; Knowles v. Lord, 4 Whart. (Pa.) 500. ' Sams V. Armstrong, 8 Mo. App. 573. 3 Brown r. Davis, 9 N. H.76; Augier r. Ash, 6 Fost. (N.H.)99; Lewis. T. Blair, 1 N. H. 69; Evans r. Parker, 20 Wend. 622; Browning v. Han- Eord, 5 Denio, 586. * Weinberg v. Conover, 4 Wis. 803. 6 Glenn r. Brush, 3 Col. 26. " Green v. Kindy, 43 Mich. 279 (5 N. ^Y. 297). ' Bent V. Bent, 43 Yt. 42. See Miller v. Cushman, 38 Vt. 593. 350 SEKTICE OF THE WEIT. § 664. If served on defendant, but not on the property, the action proceeds as in damages. The failure of a sher- iff to return the value of property replevied is no cause for quashing the writ.' Where no bond has been given, and the property not delivered to the plaintiff, it is error to quash the writ and render judgment for a return. The writ is good as a citation, and the cause should progress.^ Where defendant in replevin is personally served, but nothing is taken on the writ, the action becomes merely personal — substantially a case of trover — and by appearing and join- ing issue, and allowing the case to be adjourned from time to time, he waives the right to have the writ set aside for defects in the affidavit and bond.' Where in justice court the defendant gave the officer a redelivery bond, and kept the property, but it afterward developed that the officer had seized the wrong property entirely, held, that the action could proceed as one for damages, but the costs of the wrongful seizure and redelivery bond should be taxed to plaintiff.* 1 Fryer v. Fryer, 6 Dana (Ky.), 54; Huckell r. McCoy, 38 Kan. 53 (15 P. 870). 2 Greenwade r. Fisher, 5 B. Mon. (Ky.) 167). 5 Clark V. Dunlap, 50 Mich. 492 (15 N. W. 565). * Babeock v. Ashmead, 24 Kan. 585. THE BOND, ITS IMPOETANCE AND CONDITIONS. 351 CHAPTEE XXV. THE BOND, ITS IMPORTANCE AND CONDITIONS. Section. Importance of the bond . . 665 Replevin cannot beproseeuted forina, pauperis . . . 666 Wealth of the plaintiff does not excuse from giving bond 667 The bond is not necessary to the trial 668 Bond at common law, its con- ditions 669 Essential requisites of statu- tory bond .... 670 The several conditions are separate and independent of each other .... 671 Its conditions are fixed by statute 672 May be good though it does not conform to the statute 673 Bond in replevin under special acts 674 Statutory bond is indispensa- ble 675 The object of requiringa bond 676 Court may require a statutory bond 677 Court cannot interfere with the discretion allowed the sheriff 678 The officer is the exclusive judge of the sufficiency of the bondinthefirstinstance 679 Court may permit new bond, that surety may testify . 680 What is proper execution . 681 The same — ^Execution . . 682 Bond need not be under seal . 683 Section. Time allowed in which to exe- cute bond — How computed 684 Ordinarily bond should run to the defendant . . . 685 Liability of sheriff for not taking proper bond . . 686 Amount of bond, how fixed . 687 Sheriff responsible for under- valuation oriniproper bond 688 If bond good when taken, it is sufficient 689 Officer isnot responsible if the I)arties agree on a keeper . 690 Practice where bond is given before writ issues . . . 691 Exact form or name of bond not material .... 692 A good bond necessary to valid service .... 693 Where sufficiency of bond muBt be excepted to . . 694 Objection, how made— Must be before trial . . . 695 Bond is not void for mere technical defects . . . 696 The court should allow bond to be amended . . . 697 Replevin bond may be amended 698 When bond invalid — lUustrar tions 699 Ordinary bond does not take the place of security for costs 700 Giving re-delivery bond waives what defenses . . 701 Effect of bond on title . . 702 Does not give plaintiff a new title 708 352 THE BOND, ITS IMPOETANCE AND CONDITIONS. § 665. Importance of the bond. Next to the affidavit, the bond is the most important matter in a replevin action. It is usually provided by statute that the bond shall be in double the value of the property, as found by the sheriff's appraisal. In other states the plaintiff must give bond in double the amount alleged by him as the value of the prop- erty, and in others the statute provides that the sheriff shall take bond in a sufficient sum, leaving it discretionary as to the amount of the bond he shall take. But in all cases where the property is taken, and its possession changed pending the action, a good and sufficient bond is absolutely necessary to the maintenance of the action. The statute in regard to bond must be complied with strictly. A motion piay be made to dismiss an action of replevin because the statutory bond was not given at the proper time.' Where the bond is irregular and does not comply with the statute, the officer has no authority to serve the writ.'' The taking of a bond by the sheriff from the plaintiff in replevin is a prerequisite, to the service of the writ.' Not taking bond is ground for dismissal.* Defective bond or lack of bond may be presented on motion, and does not have to be pleaded in bar." To give the court jurisdiction over the property, the proper bond must be given.' § 666. Replevin cannot be prosecuted forma pauperis. But if bond be given for double the value of the property, and the costs accumulate to a larger amount, on a rule for ' Claflin r. Thayer, 18 Gray (Mass.), 457. ' Garlin r. Strickland, 27 Me. 443. ' Graves v. Sittig, 5 Wis. 219; Millikin v. Selye, 6 Hill, 623; Cady v. Eggleston, 11 Mass. 285; Kimball r.True, 34 Me. 84; PiraniF. Barden, 5 Ark. 81; Pool v. Loomis, 5 Ark. 110;Bal(iwinF.Whittier, 16 Me. 83; Smith r. MoFall, 18 Wend. (N. T.) 521; Stat* F.Stephens, 14 Ark. 264; ■ Luther r. Arnold, 7 Rich. (S. C.) 397; "Whitney v. Jenkinson, 3 Wis. 407; Smith r. McFall, 18 Wend. 521. * Bent V. Bent, 43 Vt. 42. ' Bennett r. Allen, 30 Vt. 684. But see DotiglaBB v. Gardner, 63 Me. 362. « Dowell r. Eichardson, 10 Ind. 573. BOND AT COMMON LAW — ITS CONDITIONS. 353 further security, the plaintiff may take the pauper's oath, the same as in other forms of action.' But if the property is not taken on the writ, bond is not indispensable, and the action may proceed for damages on the filing of proper pau- per oath.'' § 667. Wealth of the plaintiff does not excuse from giving bond. On the other hand, the fact that plaintiff is a man of large means and known responsibility furnishes no reason for not giving the bond. The law is no respecter of persons, and its requirements must be complied with by rich and poor.^ A deposit of money will not take the place of bond.* § 668. The bond is not necessary to the trial. It only has to do with the delivery of the property to the claimant. When this point in the case is passed, the bond is used no more until after judgment, when, if the result be adverse to the obligor, and he fails to perform its conditions, it is re- sorted to by the obligee or party damaged, and again be- comes the important paper of the case. Its presence at the trial is not needed; it is no part of the papers of the case so far as the trial is concerned.^ § 669. Bond at common law — Its conditions. By the common law prior to the statute of 11 George II., no bond was required, the only security being pledges to prosecute the suit or answer to the king for false clamor.^ By that statute, ch. 19, § 23, the sheriff was required to take bond with two securities in double the value of the goods about ' Horton v. Vowel, 4 Heis (Tenn.), 622 ; Klncaid r. Bradshaw, 6 Bax. (Tenii.) 102. 2 Stone V. Hopkins, 11 Heis (Tenn.), 190. ^Smitli V. Trawl, 1 Root (Conn.), 165; Harriman r. Wilkins, 20 Me. 96. * Cummings v. Gaun, 52 Pa. St. 488. 5 Tuck V. Moses, 58 Me. 463; Trippe v. Howe, 45 Vt. 524; Kesler r. Haynes, 6 Wend. (N. Y.) 547; Pirani r. Barden, 5 Ark. 81. ^3 Black, 274, 287; Evans v. Brandner, 2 H. Black, 547; Baker v. Phillips, 4 Johns. 190; Caldwell r. West, 1 Zab. (21 N. J.) 420. 23 354 THE BOND, ITS IMPOBTANCE AND CONDITIONS. to be replevied, conditioned to prosecute tlie suit with effect and without delay, and to return the goods if return should be awarded. The sheriff was a trespasser if he delivered the goods without proper bond. The code provisions in re- gard to bond have substantially followed this statute. § 670. Essential requisites of statutory bond. The bond should correctly describe the suit in which it is given and give the names of the parties, and especially the name of the party from whom the goods are to be taken. Ah omis- sion in this particular has been held to be fatal.' The name of the court and the term are not so necessary, but should be given. ^ It should state the value of the property, and describe it so that it can be identified. This can sometimes be done in a general way and by referring to the descrip- tion in the affidavit.^ It must be in a definite sum, which must be stated in money. A bond in " double the value of the "goods about to be replevied" is not sufficient.* If the amount is blank, the bond is void. It must obligate the plaintiff to prosecute his suit without delay. The law will not allow plaintiff by its process to take property claimed by another, and then not try speedily the issue thus tendered.* It must also obligate the plaintiff to prosecute with effect; that is, that if defeated in his action, he will perform the conditions of the bond.' It must bind the plaintiff' to per- form whatever judgment may be rendered against him by the court, usually to return the property in as good condi- tion as when taken, and pay any judgment rendered against him and costs. ' Arter v. The People, 54 111. 228; Matthews r. Storms, 72 111. 321. ^Arnold v. Allen, 8 Mass. 147; Graves y.Shoefelt, 60 111.404; Branch V. Branch, 6 Fla. 315; Ohadwick v. Badger, 9 N. H. 450. 3 McDermott r. Boyle, 11 Mo. 443. * Bennett v. Allen, 30 Vt. 684; Clark v. C. E. E. E., Gray,363; Case V. Pettee, 5 Gray, 27. '" Axford V. Perrett, 4 Bing. 486 ; Daniels v. Patterson, 3 Comst. (N. Y.) 51. ° Persse y. Watrous, 30 Conn. 144; Humphrey v. Taggart, 38 111. 228. THE CONDITIONS OF THE BOND. 355 § 671. The several conditions are separate and inde- pendent of each other. Each condition of the bond is an independent obligation, distinct from all the others. A fail- ure to keep any one of these obligations is ground for action on the bond for the full penalty if the damage amount to that, and the fact that the obligors have kept all the other ob- ligations is of no advantage to them.' For a full discussion of this subject, see Part III. And it appears to be well settled that one of these conditions may be so defectively stated as to avoid the bond so far as that condition is concerned, yet the bond be valid as to the others, and a suit may be main- tained for breach thereof.^ § 672. The conditions of the bond are fixed by statute. Originally they were to prosecute the suit and to satisfy the judgment, if one should be rendered against plaintiff, and such is the form to-day in replevin of a distress for rent. In the ordinary replevin suit, they are to prosecute the suit and make return if return be awarded.' These two provi- sions are the main features of the bond in replevin as now used. The bond need not recite the circumstances which give the right to replevy.* But the bond should state that the property was restored to the plaintilf.^ Where the amount is not fixed by statute, the bond should be taken in an amount sufficient to secure the return of the goods so taken." ' Clark V. Norton, 6 Minn. 417; Hall v. Smith, 10 Iowa, 47; Persse v. Watrous, 30 Conn. 146 ; Fullerton r. Miller, 22 Md. 5 ; Pettigrove v. Hoyt, 2 Fairfield (Me.), 66; Lambden r. Conoway, 5 Har. (Del.) 1; Brown v. Parker, 5 Blackf. 292; Sopris v. Lilley, 2 Col. 498. 2 Berghoff r. Heckwolf, 26 Mo. 513; Kimmel v. Kint, 2 "Watts (Pa.), 432; Gibbs v. Bartlett, 2 W. & S. (Pa.) 33; Humphrey v. Taggart, 38 111. 228; Chaffee r. Sangston, 10 Watts (Pa.), 266; United States r. Brown, Gilpin, C. C, 155; Erlinger v. The People, 36 111. 458; Pigot'e Case, 11 Co. Rep. 27; Badlam v. Tucker, 1 Pick. 286. 2 Caark V. Adair, 3 Harr. (Del.) 113. * Meaux v. Rutgers, Sneed (Ky.), 341. 5 Glassford r. Hackett, 3 Call. (Va.) 193. • Plunkett r. Moore, 4 Harr. (Del.) 379. 356 THE BOND, ITS IMPOETANCE -AND CONDITIONS. § 673. May be good, though it does not conform to the statute. Although the statute provides the form of the bond, it does not prohibit the taking of the bond in any other form, or declare the bond void, and if the bond be not strictly according to the statutory form it may be good as a common law bond.' The party damaged may treat it as a valid bond and recover upon it. The obligor is estopped from pleading its defects as a bar to a recovery.^ The bond should be drawn with reference to the facts of the case in which it is given, and should cover all the property taken. * Where, in replevin for a cow and calf, the bond is only con- ditioned for a return of the cow, the suit should be dismissed as to the calf. The plaintifE in such case cannot remedy his mistake by filing a new bond.' Where only part of the chat- tels sued for are taken, the bond should be conditioned to return those taken only.* § 674. Bond in replevin under special acts. The bond must conform strictly to the statutory requirement of the act under which the action is brought. If it does not do so, it is ground for dismissal, and on dismissal for this cause, the property should be returned to the defendant by order of the court.* A non-resident of Connecticut must give a bond to prosecute his action of replevin, or the prosecution will be abated." 'Claggett r. Richards, 45 N. H. 360; Tuck v. Moses, 54 Me. 115; Livingston v. Superior Court, 10 Wend. 547; Bell r. Thomas, 8 Ala. 527; Lambden v. Conowa, 5 Har. (Del.) 1; Florrance r. Goodin, 5 B. Mon. (Ky.) Ill; Barry v. Sinclair, Phill. (N. C.) 7; Persse v. Watrous, 30 Conn. 140; Colorado National Bank v. Lester (Tex.), 11 S. W. 626. 'Claggett V. Richards, 45 N. H. 360; Branch v. Branch, 6 Fla. 315; Stansfleld v. Hellawell, 11 E. S. & Eq. 559; Fahnestock r. Gilham, 77 111. 637; Jennison v. Haire, 29 Mich. 209; Nunn v. Goodlett, 5 Eng. (Ark.) 100; Romon v. Stratton, 2 Bibb. (Ky.) 199; Stevenson 7. Mil- ler, 2 Litt. Rep. (Ky.) 307 ; Morse v. Hodsdon, 5 Mass. 318. 8 Eastman v. Barnes, 58 Vt. 329 (1 A. 569) . * Weber V. Manne, 11 N. Y. Civ. Proc. R. 64. ^ Thurber v. Richmond, 46 Vt. 395. " Fleet r. Lockwood, 17 Conn. 233. THE OBJECT OF KEQUIEING A BOND. 357 § 675. Statutory bond is indispensable before the de- livery of the property in all cases.' Where an appraisal is provided for before the bond is given, the sheriff may seize it for the purposes of appraisal only, before the giving of the bond.^ Where the sheriff delivers property without bond, the defendant may have the writ abated and the prop- erty returned on motion, or he may bring an action against the officer for trespass.' § 676. The object of requiring a bond is that the party who is in possession of goods, and therefore prima facie en- titled to the custody of them, may have security that he will be reimbursed for their value when they are taken from his possession upon this process by another who claims to own them, but subsequently fails to prove the title in himself. If the bond be insufficient in amount, it may be cured by a new bond or by amendment.* The replevin bond is as well for the benefit of the party defendant as fot the officer.' The object of a replevin bond is not merely to indemnify the sheriff, but also to furnish an additional remedy to the defendant in case the plaintiff fails to maintain his suit.' 'Dearborn v. Kelley, Allen (Mass.), 426; Armstrong v. Burrell, 12 Wend. 303. 2 Smith F. Whitinff, 97 Mass. 316; Wolcott f. Mead, 12 Met. (Mass.) 516. 3 Parker v. Hall, 55 Me. 364; Cady v. Eggleston, 11 Mass. 285; Whitney v. Jeukinson, 3 Wis. 408; O'Grady v. Keyes, 1 Allen, (Mass.) 284. * Briggs F. Wiswell, 56 N. H. 319. The statute provides no way by which the amount of the bond shall be fixed — no appraisal of property — but that the bond shall be in double the value of the property. Where plaintiff valued the property in the writ at f 5,000 and gave bond for $8,000, held, on motion to dismiss for this defect, that he might amend his writ bychanging the amount to $4,000, or he might file an additional bond for $2,000 or a new bond tor $10,000, and that this value, while an admission against plaintiff, was not conclusive as to the value on the trial. * Langdoc v. Parkinson, 2 Bradw. (111.) 136; Pahnestock f. Gilham, 77 III. 637. ° Petrie v. Fisher, 43 111. 442; Langdoc v. Parkinson, 2 Bradw. (111.) 138; Fahnestock v. Gilham, 77 111. 637; Nunn f. 6oodlett,5Eng.(Ark.) 358 THE BOND, ITS IMPORTANCE AND CONDITIONS. "When in replevin the bond is declared Yoid for defects, the court will order a return of the property to the defendant, and vill not hear testimony tending to show that the right of property is in the plaintiff.' The object of the bond is to compel plaintiff to prosecute the suit without delay, and if defeated, return the property or indemnify the defendant for all loss occasioned by the wrongful taking.^ § 677. Court may require a statutory bond. And it is in the power of the court to require one with the statutory conditions.^ The bond must be conditioned as required by the statute; otherwise, no right is acquired under the bond.* The right to prosecute an action of replevin, and to take pos- session of goods upon a mere claim of title, and before trial, is purely a statutory right, and is only to be exercised upon a full compliance with the terms of the statute.' A replevin bond to prosecute a suit in another state is not a replevin bond within the New York statutes.^ Bond in replevin for costs does not comply with the statute requiring bond in double the amount, and on a rule for security the suit may be dismissed.' § 678. Court cannot interfere with the discretion al- lowed the sheriff. Where the statute makes the sheriff the judge of the bond, the court will not interfere with the ex- ercise of his discretion. Where ho does not take a statutory bond, he is liable on his official bond. In New York, where the penalty of the bond is in the discretion of the officer, the court will deny a motion to increase the amount of the bond.' 100; Doogan v. Tyson, 6 Gill. & J. (Md.) 453; Smith r. Whiting, 97 Maes. 316. ■ 1 Greelpy v. Cun-ier, 39 Me. 516. ^Badlam v. Tucker, 1 Pick. 287; Doogan v. Tyson, 6 GiU. & J. (Md.) 453; Belt v. Worthington, 3 Gill. & J. (Md.) 247. 3 Treman v. Morris, 9 Bradw. (111.) 237. * Barry r. Sinclair, Pliill. (N. C. L.) 7. ^ Bennett r. Allen, 30 Vt. 684. ' Livingston v. Superior Court, 10 Wend. 545. ' Creamer v. Ford, 1 Heis (Tenn.), 307. " Bulmer v. Jenkins, 3 How. Pr. 11. WHEEE OOUKT MAY PERMIT NEW BOND. 359 No other bond or undertaking can be required than that taken and approved by the sheriff.' A motion to increase the penalty of a replevin bond will not be entertained.^ § 679. The ofScer is the exclusive judge of the suffi- ciency of the bond in the first instance. He can require just such a bond as the statutes provide for and none other, but he is the sole judge of the bond, and is responsible on his oiEcial bond if he fail in his duty to either party. If he once passes upon the bond, so far as he is concerned his action is final. He is not an insurer of the continued sol- vency of the parties to the bond, but is responsible for their solvency at the time they sign the bond. He is also re- sponsible for the bond being in the statutory form, and for its- being executed in the statutory manner. He should en- dorse his approval on the bond if satisfied with it, but if he keep the bond and deliver the property it is sufficient. His approval will be presumed. The delivery of the bond to the officer who serves the writ is a sufficient delivery, even if the officer neglect to return it to the court with his writ.^ An officer having served an order in replevin and seized the property as commanded is not bound to accept as sureties on the bond residents of another county.* Where a sheriff justifies the taking of property under a writ of replevin, he must allege the giving of a proper bond for the return of the property.'^ In New York a surety company can furnish the bond in a replevin case.° § 680. Court may permit new bond, that surety on the old ma,y testify. The bond is under the control of the court, and where the statute makes a signer of the bond incompe- tent as a witness in the case, the court may permit the plain- tiff to file a new replevin bond with other sureties.' 1 DeRequine v. Lewis, 3 Eobt. (N. Y.) 708. ^Bulmer v. .Jenkins, 3 How. Pr. 11. 'Smith V. Whiting, 97 iMass. 316. * State V. Wait, 23 N. W. 166 (36 N. W. 380). 5 Morj-is V. Van Voast, 19 Wend. (N. Y.) 283. « Biek V. Ree.se, 52 Hun. 125. ' Kendall v. Pitts, 22 N. H. 1. 3G0 THE BOXD, ITS IMPOBTANCE AND CONDITIONS. § 681. What is proper execution. The form and man- ner in which bond or undertaking in replevin shall be exe- cuted is usually provided by statute. And it is the duty of the officer to see that the statute is complied with. The plaintiff in the action is bound whether he sign the bond or not, so that his name may be signed by his attorney or agent. If one surety only is required, he must be respon- sible financially, and competent to sign a bond; but where two sureties are given, the decisions have not been quite so strict as to a technical compliance with the law by both. So the bond was sufficient to protect the party from whom the property was taken by its means. The sheriff should approve the bond and return it with his writ.' One partner cannot bind his co-partner unless specially authorized to sign the bond.' § 682. The same — Executioii by surety only is suffi- cient in replevin by a church corporation, before a justice of the peace. Mere informality in bond is not fatal.' It is sufficient if the bond in replevin is signed by the surety. The plaintiff is liable without any bond.* A bond in replevin for distress is not void because it has more than one surety.' A replevin bond, executed by one of two defendants in a distress, merges the distress warrant, and no further steps can be taken while the bond is in force.° Judgment will not be arrested because there are not two sureties on the bond.' The statute of George III., requiring two sureties on 1 See Howe r. Handley, 28 Me. 241 ; Greeley v. Currier, 39 Me. 516 ; Garleu r. Strickland, 27 Me. 443; Branch F.Branch,6 Fla.315; Kinney V. Mallory, 3 Ala. 626; Claflin r. Thayer, 13 Gray (Mass.), 459; Frei v.- Vogel, 40 Mo. 149; Hartlep v. Cole (Ind.), 22 N. E. 130. 2 Butterfield v. Hensley, 12 Gray, 226. ^ Phillippi Christian Church v. Harbough, 64 Ind. 240. Citing Dear- dorf V. Ulmer, 34 Ind. 353; Curch v. Drummond, 7 Ind. 17; Abbott v. Zeigler, 9 Ind. 511. * Cooper V. Brown, 7 Dana (Ky.), 333. ^ Saeltzer v. Ginther, 2 Miles (Pa.), 87. ^ Miller v. Commonwealth, 4 B. Mon. (Ky.) 304. ' DeBow V. Applegate, 3 McCord (S. C), 44. ORDINARILY BOND SHOULD RUN TO DEFENDANT. 361 a replevin bond, is not in force in South Carolina.' But a bond signed by one of three co-partners, plaintiffs in replevin, "for and in behalf "of himself and his co-partners, and by the proper number of sureties, is good.^ Sureties on a re- plevin bond are not parties to the action in replevin, and have no control over it.' The bond may be executed by a stranger.^ A bond taken in replevin for goods distrained for rent is good if signed by the original lessee, though not the owner of the property distrained.'* § 683. Ordinarily the bond need not be under seal un- less an express statute requires it.° In Indiana, to be valid, the replevin bond must be under seal.' This was the old common law rule, but has now been generally changed by statute. § 684. Time allowed in which to execute bond — How computed. Where the statute requires the bond to be exe- cuted within twenty -four hours, and the property is taken on Saturday, Sunday is not included in the estimate of time.' And the same rule would doubtless apply as to a legal holi- day. A bond executed on Sunday has been held to be void.' § 685. Ordinarily bond should run to the defendant. Formerly it generally run to the officer serving the writ, and in case of a breach was sued in his name for the use of the party damaged, or the sheriff could assign it to the party damaged, when he sued for his interest, (which was the amount of his damage if within the penalty of the bond)) in his own name, but the rule generally followed now is to take 1 DeBow V. Applegate, 3 McCord (S. C), 44. 2 Dunbar v. Scott, 14 B. 1. 132. s Lindner v. Brock, 40 Mich. 618. * Kenney v. Mallory.S Ala. 626. '• Ferguson v. Moor, 2 Wash. (Va.) 54. » State ex rel.,etc., v. Dunn, 60 Mo. 64; Henoch r.Chaney,61Mo.l29. See Handley v. Hathaway, 4 T. B. Mon. (Ky.) 554. ' Lovejoy r. Bright, 8 Blackf. (Ind.) 206. 8 Link V. Clem mens, 7 Blackf. 480. ' Link r. Clemmens, 7 Blackf. 480. 362 THE BOND, ITS IMPOKTANOE AND CONDITIONS. the bond to the defendant direct. But this is a matter usually provided for by statute, and the statute must be complied with. It is not a good objection to a replevin bond that it is made to the plaintiff instead of to the sheriff.' A bond to replevy goods taken in attachment is properly made pay- able to the sheriff.^ A statute naming the sheriff as the party to whom a replevin bond shall be given, construed to mean the officer serving the writ, and a bond given to the coroner serving the writ, held valid.' So a bond in replevin taken to the deputy sheriff in his own name is good, and a substantial compliance with the statute.* Where the statute provides that the bond run to the defendant, and the officer served the writ on a bond running to himself, held, 'that he was a trespasser.^ § 686. Liability of sheriff for not taking proper bond. If the sheriff replevy property without taking bond in a suf- ficient penalty to protect the defendant in case a return is awarded, he will be liable to the defendant upon his official bond, to the extent of the damages sustained. He must ascertain the value of the property, independently of the affidavit of the plaintiff, and fix the amount of the bond ac- cordingly. ° A sheriff who does not take a proper bond in replevin is liable on his official bond.' In taking a bond the officer acts as the agent of the law, and not of a party to the suit; he must know the law and keep within it at his peril. ^ An officer is liable on his official bond if he take insufficient surety on a replevin bond, and the measure of damages is 1 Slack V. Heath, 4 E. D. Smith, (N. Y.) 95. ^Adkms V. Allen, 1 Stew. (Ala.) 130; Sartin f. Weir, 3 Stew. & P. (Ala.) 421 ; Whittemore v. Jones, 5 N. H. 302. ^ Spur V. Skinner, 35 111. 282. * Wheeler v. Wilkins, 19 Mich. 78. '^ Purple V. Purple, 5 Pick. 226. * The People, Use, &c., v. Core, 85 111. 248. The statute merely requires the sheriff to take a sufficient bond. ' Hughes r. Newsone, 8G N. C. 424; Gallarati v. Orser, 27 N. Y. 324; Governor 7. Munroe, 4 Dev. 412. » Cook Y. Frendenthal, 80 N. Y. 202. SHEEIPF IS EESPONSIBLE EOE UNDEEVALUATION. 363 not the value of the property replevied, but is the amount plaintifi has lost by reason of the misdoing of the defendant in accepting insufficient sureties.' Where nothing appears to the contrary, it will be presumed that the officer took a bond before executing the writ as required by statute/ Where a replevin bond was found among the papers of a de- ceased clerk, and an execution had been issued thereon, the Qpurt presumed that the bond had been taken and filed ac- cording to law.^ § 687. Amount of bond — How fixed. The bond should be in double the value of the property. The manner of de- termining this is a matter of practice and varies in different states. Where the law does not provide for an appraisement, the value placed on the property by the plaintiff in his affi- davit is usually taken as a basis.* Where no appraisal is provided for, it is the duty of the sheriff to see that the pen- alty in the bond is large enough to fully indemnify against any loss, and he is not concluded by the valuation in plaintiff's affidavit." Under such a system of practice it has been held that the parties could agree to a certain value, and the bond could be based upon the agreed value. ^ § 688. Sheriff is responsible for undervaluation or im- proper bond. Under the procedure in most states, the sheriff immediately on taking property in replevin should cause it to be appraised by disinterested persons. This is done to fix the amount of the bond, which is usually in double the amount of the appraised value, and it has been held that ' Carter v. Duggan, 144 Mass. 32 (10 N, E. 486) ; Hofheimer v. Camp- bell, 7 Lans. (N. Y.) 157; People ex Tel. Fletcher v. Lee, 65 Mich. 557 (32 N. "W. 817). ^ McGuffle V. Dervine, 1 Greene (Iowa), 251. ^Doe V. Cunningham, 6 Blackf. (Ind.) 430. *Deardor£ v. Ulmer, 34 Ind. 353. 5 People V. Core, 85 111. 248; Murdook r.Will, 1 Dall. 341; Thomas r. .Spofford, 46 Me. 408; Harriman v. Wilkins,20 Me. 93; Kimball i^. True, 34 Me. 88; Plunkett v. Moore, 4 Har. (Del.) 379; Jeffrey v. Bastard, 4 Adol. & E. 823 ; Roach v. Moulton, 1 Chand. (Wis.) 187. » Wolcott V. Mead, 12 Met. 516. 364 THE BOND, ITS IMPOBTANCE AND CONDITIONS. he was responsible as a trespasser if he failed to take a bond or allowed the property to be taken on an undervalua- tion.' As the sheriff is liable, there seems to be no reason why, if he were satisfied that the first appraisal was too low, he could not cause another to be made and insist on gauging the bond by that. § 689. If bond good when taken, it is sufficient. If, however, the sheriff make proper inquiry as to the responsi- bility of the surety, and has him qualify as to his responsi- bility, he is not liable for taking insufficient surety. The bond taken should be returned into court, that the plaintiff may move for additional surety, if he see fit. If the sheriff fail to so return a bond taken by him, he is liable on his official bond.^ Under the Tennessee law,^ the court is given the power of imprisoning a plaintiff who replevies property to which it is afterward determined he had no right, without giving a good bond. This is held not to apply to one who fails to give a new bond when the first was sufficient at the time it was given, but has since become insufficient through the misfor- tune of the parties.* § 690. Officer is not responsible if parties agree on a keeper. Where, pending a replevin suit, the parties agree that the property shall be turned over to a third party, to be held to abide the suit, and it is so done, the officer is relieved of all responsibility, and judgment can not be entered against him, except in form.'' § 691. Practice where bond is given before the writ issues, and is approved by the clerk or court issuing it. While the general practice is for the officer who has the ' Hall V. Monrop, 73 Me. 12.3 ; Taylor's Landlord and Tenant, § 740. 2 The People, Use, etc., v. Tibbetts, 89 III. 159; Eobinson v. The Peo- ple, 8 Bradw. (111.) 279; Taylor's Landlord aud Tenant, § 741. « Code, § 3.392. * Cash V. Quinnchott, 5 Heis (Tenn.), 737. In this case plaintiff took the property and sold it, and suffered judgment fora return to go against him by default, and as an excuse for not satisfyingthe judgment pleaded the insolvency of himself and sureties. ^ Tunple V. Alexander, 53 Cal. 3. A GOOD BOND NECESSAKY TO VALID SERVICE. 365 serving of the writ to take and approve the bond, in some states the bond must be first given and approved. The fol- lowing rulings are under such a practice: In Virginia the omission to give the bond and security, before the issuing of the writ of replevin, does not invalidate the writ, but only subjects the sheriff to an action by thedefendant.' "Where a justice of the peace issued a writ of replevin without the required bond, held, that he was liable to the defendant for all damage sustained by him.^ In replevin befo;re a justice of the peace, if the bond filed by the plaintiff be for a silm less than double the value of the property as stated in the verified complaint, the justice has no jurisdiction of the action, and it cannot be corrected on appeal.' Where it is the duty of the clerk to approve the bond before the taking of the property, it will be presumed that he approved the . bond if he direct the sheriff to seize the property.* The issuing of a writ of replevin by a justice of the peace, upon the filing of a bond, is a sufficient approval of the bond.^ § 692. Exact form or name of bond not material. A bond in replevin before a justice was drawn as an undertak- ing in replevin in circuit court, instead of being in double the amount of the property, as required by statute. Held, that it was sufficient to support the action, and the defect could not be reached by a motion in arrest of judgment on appeal. ° § 693. A good bond necessary to valid service. Where the statute requires the bond to be given before service of the writ of replevin, a bond signed by one as agent, without authority of his principal, is no bond, and the service is in- ■ Vaiden r. Bell, 3 Rand. (Va.) 448. ^ Hannum v. Norris, 21 Kan. 114. s Deardorf r. Ulmer, 34 Ind. 353. * Baker v. Pope, 49 Ala. 41 5. = Coverdale v. Alexander, 82 Ind. 503. "Bugle r. Meyers, 59 Ind. 73; Claggett v. Richards, 45 N. H, 360; Tuck F. Moses, 54 Me. 115 ; Persse r. Watrous, 30 Conn. 140. 366 THE BOND, ITS IMPOETANCE AND CONDITIONS. Talid and cannot be made good by subsequent ratification of the principal, without the consent of the defendant in re- plevin. Such service will be quashed on defendant's motion.' § 694. Where sufficiency of bond must be excepted to. In some places, to make the sheriff liable, the defendant must except or object to the offered signers, when it is the duty- of the sheriff to compel them to justify or get others f and under the New Tork law of 1839, if the sureties on a replevin boqd failed to justify, the defendant is entitled to a discontinuance without excepting to them.' If the defendant wishes to except to the sureties, he is not obliged to seek the officer, but may file his exceptions in the clerk's office.* A sheriff is only liable where the defendant in replevin has excepted to the sufficiency of the sureties, and they or new sureties have failed to justify.^ Where the defendant in re- plevin excepts to the security in the replevin bond returned by the sheriff, the court cannot sustain the exception and order the plaintiff to file a new bond without proof of the insufficiency of the security. ° § 695. Objection — How made — Must be before trial. Where a defendant goes into trial without objecting to the bond because it is not in double the value of the property, the defect is waived.' An objection to a defect apparent upon the face of a replevin bond may be taken either by a motion to dismiss or by an answer in abatement.* The failure to take bond or the taking of an insufficient bond must be taken advantage of at the earliest opportunity, and by neglecting 1 Smith V. Fisher, 13 R. I. 624; Whiteford r. Goodwin, 13 R. 1. 145; Garlin v. Striddand, 27 Me. 443; Purple v. Purple, 5 Pick. 226. 2 Wilson V. Williams, 18 Wend. (N. T.) 581. ^ 8 Weed V. Hinton, 7 Hill (N. Y.), 157. * Cusick V. Cohen, 3 Duer. (N. Y.) 267. 5 Westervelt v. Bell, 19 Wond. (N. Y.) 531. « Dixon V. Thatcher, 8 Ark. 134. ' Spencer v. Dickerson, 15 Ind. 368. 5 Houghton V. Ware, 113 Mass. 49; Nye y. Liscomb, 21 Pick. 263; Simonds v. Parker, 1 Met. 508; Hicks f. StuU, 11 B. Mon. 53; Doug- lass F. Gardner, 63 Me. 462. BOND NOT VOID FOB MEEE TECHNICAL DEFECTS. 367 this and pleading the opportunity is lost.' It is too late to object after verdict.^ § 696. Bond is not void for mere technical defects. The bond may be good, though in describing the action in which it is taken it does not giye the title of the case cor- rectly.^ An irregular bond is valid after judgment.'' The bond must be in double the value of the property, but if in excess of that amount,' that fact alone does not render it de- fective. ° An undertaking in replevin, otherwise conforming to the statute, and omitting only the clause, "if the property "be delivered to him," is sufficient." "Where the law re- quired the sureties to be resident householders, and only one of them was, though technically defective, if that one is gnod for the amoimt, it is sufficient.' It is not ground for dismiss- ing a replevin suit, on appeal in the circuit court, that the? bond does not correctly state the date of the writ.' Where the statute provides' that no writ of replevin shall be issued until some person known to be of sufficient responsibility has entered into a recognizance with at least one sufficient surety, held, that a joint and several bond is not insuffi- ' Tripp T. Howe. 45 Vt. 524; Houghton v. Ware, 113 Mass. 49; Tuck r. Moses, 58 Me. 473; Spencer r. Dickinson, 15 Ind. 368; Claflin v. Thayer, 13 Gray 459; Simonds y. Parker, 1 Met. 508 ; Bugle f. Myers, 59 Ind. 73. 2 Rich V. Ryder, 105 Mass. 308. 3 Chadwick r. Badger, 9 N. H. 450. *Kouns r. Bank, 2 B. Mon. (Ky.) 303; Clark v. Bell, 2 Litt. (Ky.> 164. ^ Owen r. Nail, 6 Term R. 702 and 339; Freeman v. Davis, 7 Mass. 200; Whitney r. Jenkinson, 3 Wis. 407; Smith r. McFall, 18 Wend. 521. ^ Arthur r. Wallace, 8 Kan. 267. § 178 of the Kansas code requires that the plaintiH give an undertaking "to the effect that the plaintiff "shall duly prosecute the action and pay all costs and damages which "may be awarded against him, and if the property be delivered to Mm, "that he will return the same to the defendant if a return thereof be ad- " judged." ' State ex rel v. Dunn, 60 Mo. 64; Henoch r. Chaney, 61 Mo. 129. 8 Graves v. Shufelt, 60 111. 460. » Gen. St. Conn. § 1326. 368 THE BOND, ITS IMPORTANCE AND CONDITIONS. eient because tlie plaintiff is described as surety and a third person as principal, both recognizors being in legal effect principals.' § 697. The court should always permit the bond to be amended in the interest of substantial justice, as the prop- erty has bean transferred at the time the attention of th« court is called to defects in the bond. The court should not only permit but require any defects in the bond to be amended. Where the statute required two sureties, and the bond had but one, the court permitted a new bond with proper security to.be given.'' Where the appraisement was $320.20, and the sheriff made oath that the 20 cents was a mistake, and the bond was in double $320, an amendment of the recital was allowed.^ If the parties have become insol- vent since the giving of the bond, the court should always require a new bond.* § 698. Replevin bond may be amended. The plaintiff may be allowed to file an amended bond.* A replevin bond, imperfect in itself, and executed with but one surety, may be amended, after service of the writ, on the payment of costs of motion to set aside the proceedings.* In New York the. plaintiff on payment of costs will be allowed to amend an in- sufficient bond by filing a new one.' Where the original bond is defective, a new bond may be filed nunc pro tunc.^ [t is error to refuse to permit a defective replevin bond to be amended, or a new bond to be executed in lieu thereof, pend- ing a motion to dismiss the action for want of a sufficient bond." 1 Dorus V. Somers (Conn.), 17 A. 852. 2 Smith r. McFall, 18 Wend. 523; Hawley r. Bates, 19 Wend. 6.32; Whaling v. Sholes, 20 Wend. 673; Smith v. Howard, 23 Ark. 203. * Hammond v. Eaton, 15 Gray (Mass.), 186. *Cash r. Quenichett, 5 Heisk (Tenn.), 738. 6 Whaling v. Sholes, 20 Wend. 673 ; Smith f. Howard, 23 Ark. 203. « Hawley v. Bates, 19 Wend. (N. Y.) 632. ' Whaling v. Sholes, 20 Wend. (N. Y.) 673. « Newland v. Willetts, 1 Barb. (N. Y.) 20. ' Smith V. Howard, 23 Ark. 203. GIVING REDELITEEY* BOND WAIVES WHAT DEFENSES. 369 § 699. When bond invalid — Illustrations. A replevin bond the penalty of wliioli is "double the value of the prop- "erty hereinafter named to be replevied" is invalid for want of expressing the amount of the penalty, and if the objection be taken in time, the action must be dismissed.' Where there were five sureties on a replevin bond, and only three of them justified, and the aggregate amount for which they justified was less than double the sum specified in the un- dertaking, the bond was held insufficient.^ A married woman has no power to sign a replevin bond.' When the law under which plaintiff attempts to proceed in replevin has been re- pealed, no valid bond can be given.* § 700. Ordinary bond does not take the place of se- curity for costs. A bond in replevin conditioned to prose- cute the suit to effect, and pay any judgment that the de- fendant may recover in the suit, covers costs, and no security for costs need be given other than the replevin bond;^ but where the bond in replevin does not by its terms cover judg- ment for costs in favor of defendant, security for costs must be given in addition to the bond if it would be required in another form of action under the same circumstances. ° But bond has been held liable for costs after judgment of re- turn.' § 701. Giving redelivery bond waives what defenses. Where defendant gives a bond and obtains a redelivery of the property under a statute providing for it, he thereby admits that he had possession of the property at the com- mencement of the suit. He is thereby estopped from al- leging that it was not taken from him, and was not in his ' Clark V. Connecticut, 6 Gray (Mass.), 363. 2 Graham r. Wells, 18 How. Pr. (N. Y.) 377. ' Coverdale v. Alexander, 82 Ind. 503, * Hicks r. Mendenhall, 17 Minn. 453. ^ Singer Manufacturing Company v. Rhodes, 54 Conn, 48 (5 A. 610). " Fleet V. Lockwood, 17 Conn. 233. ' Rhodes r. Burkart, (S. C.) 5 S. E. 347. 24 370 THE BOND, ITS IMPOETANCE AND CONDITIONS, possession at the commencement of the suit' Where the defendants give a forthcoming bond, they are estopped to deny that the property was found in their possession at the time of the levy of the writ.'' § 702. Effect of bond on title. It has been held in Pennsylvania and Delaware that the plaintiff in a replevin suit can give a claim-property bond and acquire thereby a title to the property in dispute, which he can pass by sale to a third party pendente lite, but I think they are the only states following such a rule.' The ordinary and better rule is that the giving of the bond does not give plaintiff any better title to the property than he had, but merely gives him the right to possess it until the further order of the court.* The giving of a "claim-property" bond by the de- fendant in replevin, for a detention of the goods by him, ex- tinguishes the plaintiff's property in the goods, and is a bar to an action of trover for the same goods. The plaintiff must look to the bond.^ While the bond takes the place of the property,' it is only as to the possession of the property. The party giving the bond acquires no new title to the prop- erty thereby. The suing out of the writ, giving bond and taking possession, do not affect the title to the property, and if the defendant was an officer holding under a writ his lien is not destroyed, but only suspended, and if judgment is in his favor he may retake the property wherever he can find it.' ' Divssy r. Morgan, 74 N. T. 11. ^Benesch v. Waggner (Col.), 21 P. 706; Hill f. Nelms (Ala.), 5 So. 796. ' Hocker r. Striker, 1 Dall. 245 ; Pierce v. Humphreys, 14 S. & E. 23 ; Balsley v. Hoffman, 13 Pa. 603 ; Weaver v. Lawrence, 1 Dall. 167. * Faruham v. Chapman, 60 Vt. 338 (14 A. 690). ' Rockey v. Burkhalter, 68 Pa. 221 ; Fisher v. WhooUery, 1 Casey, 197. 'Webster v. Price, 1 Root (Conn.), 56; Puel y, Pavenport, 1 Root (Conn.), 261. ' Kayser r. Bauer, 5 Kan. 202, DOES NOT GIVE PLAINTIFF A NEW TITLE. 371 § 703. Does not give plaintiff a new title. The bond takes the place of the property to the extent of the interest of defendant in replevin, not exceeding the interest of plain- tiff in replevin.^ But the title or possession thus acquired by plaintiEE by virtue of his bringing replevin and giving the bond does not vest in him any greater title or interest than he claimed in the action of replevin, and gives him no new right or title to the property ; and where his claim in the replevin suit was by virtue of a lien, and the defendant took the property and converted it, and the plaintiff in re- plevin then brought an action for damages, held, that he was only entitled to recover the amount of his special inter- est, if at all.^ A bond in replevin imposes upon the obligors, in case a return is awarded, the duty of taking active meas- ures to surrender the property.' ' Jennings r. Johnson, 17 Ohio, 155 ; Williams r. West, 2 Ohio St. 87; Smith v. McGregor, 10 Ohio St. 461; Crittenden f. Lengle, 14 Ohio St. 182. ' Lugenbeal v. Lemert, 42 Ohio St. 1. ' Jennlson f. Haire, 29 Mich. 207. CHAPTEE XXVI. CUSTODY OF THE PROPERTY PENDING SUIT. Section. At common law plaintiff took the property as his own . 704 Status of property taken in replevin nnder the codes . 705 Property taken in replevin is in the custody of the law . 706 Thecustody oftheproperty ia under the control of the court 707 While the replevin suit is pend- ing the property cannot be seized on execution or other process 708 Conflict of jurisdiction — Cus- tody of property cannot be taken from court issuing the writ 709 Nor can another action for its value be brought . . 710 Sheriff liable for custody of property until bond given . 711 Plaintiff has aright to posses- sion whilethesuitis pending 712 Different rule in Missouri . 713 Law allowing defendant tore- tain it must be followed strictly 714 SectlCTn, Title during suit — Redelivery bond — Second replevin . 715 Plaintiff in replevin not liable as garnishee .... 716 Proceedings in sister states — Property tortiously re- plevied — removed and sold 717 Property taken in replevin is in the custody of the law — One unlawfully disturbing that possession may be pun- ished for contempt . . 718 Money deposited in lieu of houd 18 not in custodialegis 719 A replevin merely suspends a prior levy .... 720 Effect of sale made by party in possession .... 721 The same 722 Injuries to goods in plaintiff's possession .... 723 Effect of loss or destruction of property 724 Surety on the bond cannot hold the property against the owner .... 725 § 704. At common law plaintiff took the property as his own. In the theory of the law the property was plain- tiff's, and had been taken by distraint, and the distrainor could claim no title or ownership in the property, but only a right to make his claim for rent out of it. If there was no rent due him, of course he had no claim on the property. PEOPERTY TAKEN IN EEPLEYIN UNDEB THE CODES. 373 If there was rent due him, he looked to the bond in replevin.* The same reasons do not exist in this country, and the theory of the common law has been adopted in very few decisions.^ § 705. Status of property taken in replevin under the codes. It is a difficult matter to state concisely the status of property taken in replevin and turned over to plaintiff on his bond, or of property left in the hands of defendant on his giving bond. The statutes are not uniform, and the de- cisions under similar statutes are at variance. In a general way the property is regarded as in the custody of the law. Though held by a party to the suit, who has given bond, it is not, in most states, subject to sale by him ; but he must hold it as an officer of the court, subject to the order of the court on the final determination of the suit. The supreme court of the United States has said that property in the hands of a claimant, under bonds to the sheriff for its deliv- ery, is as far from the reach of other process as it would have been in the hands of the officer. The custody of the claimant is the custody of the officer; the property is not withdrawn from the custody of the law, and this, I think, is the correct rule.^ There is an apparent exception to this. Where the defendant in an attachment suit is allowed to replevy, it is held that other creditors may attach the same property when he has recovered possession. The first at- taching creditors, if successful, must look to the bond. Thus, where plaintiff recovered of defendant, by writ of replevin, goods which he as sheriff had seized upon an at- tachment, held, that the sheriff was not thereby barred from again seizing the goods upon other attachments placed in ' 3 Black. Com. 146; Frey r. Leeper, 2 Dall. 131; Biuner v. Dyball, 42 111. 35 ; Waglam v. Cqwperthwaite, 2 Dall. (Pa.) 68 ; Speer v. Skinner, 35111. 282; Lowry v. Hall, 2 W. & S. (Pa.) 134; Acker v. White, 25 Wend. 614; Bradyall r. Ball Bros., Ch. Ca. 427. 2 Hardy v. Keeler, 56 111. 152; Stevens v. Tuite, 104 Mass. 332; Mil- ler V. White, 14 Fla. 435; Lovett r. Burkhardt, 44 Pa. St. 174. But a few of the decisions have followed the common law rule. Gary v. Hew- itt, 26 Mich. 229. 2 Hagan r. Lucas, 10 Peters (U. 8.), 400. 874 CUSTODY OF THE PBOPEETY PENDING SUIT. his hands by persons not parties to the replevin suit. Such successive attachments are not so vexatious that chancery will restrain them.' § 706. Property taken in replevin is in the custody of the law ; whether in the han ds of a party to the suit who has given bond, or held by the officer, is immaterial. On the giving of the bond the property is placed in the custody of the claimant. His custody is substituted for that of the sherifip. The property is not withdrawn from the ciistody of the law.^ In Georgia the possession of the property is not changed until after the first hearing. Then, if the plaintiff succeed, he must give a bond for its forthcoming if he be defeated on appeal or in any other action regarding the property, but if defendant recover he need not give bond.^ § 707. The custody of the property is under the con- trol of the court. If it is being wasted or destroyed by the party having it in possession under such circumstances that action on the bond would not result in adequate compensa- tion, the court will see that the rights of the parties are protected. Pending trial of an action in replevin in a United States circuit court, the question of the disposition of the thing replevied will be heard by the court on motion by either party and notice to the other.* § 708. While the replevin suit is pending, the property cannot be seized on execution or other process. Where a chattel has been replevied, it may not, while it is in the possession of the sheriff, or, it seems, while in the possession of the plaintiff awaiting the result of the action, be levied upon by virtue of an execution against the defendant in said action. The judgment creditor can only claim through the title of his debtor, and the property having been lawfully re- ' Patterson v. Seaton, 64 Iowa, 115 (19 N. W. i " Hagan v. Lucas, 10 Pet. 400. On the general proposition of seizing property already in custodia legis, see Stout v. La FoUette, 64 Ind. 365 ; Metzner r. Graham, 57 Mo. 404. 8 Bush V. Eawlins, 80 Geo. 583 (5 S. E. 761). * Denniston r. Draper, 5 Blatchf. 336. WHEN PEOPEETT CANNOT BE SEIZED ON EXECUTION. 375 moved from the possession of the latter, and being held in the custody of the law for final adjudication, he cannot disturb that custody, but is confined to such remedy as will not in- terfere with it.' Where property levied upon as the property of A has been replevied by B under claim of title, it can- not be again taken under execution against A while the ac- tion of replevin is pending and undetermined.'' Where the plaintiff has given bond and taken possession of the property, it is in the custody of the law until the determination of the replevin suit, and cannot be seizad by execution.^ Property replevied is in the custody of the law, and cannot again be levied on by the same sheriff holding a junior execution, or by any other officer holding an execution, and any such officer who makes such second levy does so in his own wrong and without authority of law.* Where personal property held under execution is seized in replevin, and delivered to the plaintiff in replevin, and is again levied on by another execu- tion, the proceedings in the second execution will be stayed until the determination of the replevin suit.° Where an exe- cution from the state court was levied by the sheriff upon property which was claimed by a stranger who, instead of replevin, brought the statutory action to try title, giving a bond for the property as provided by the statute, and the property was levied on while in this claimant's possession by an execution from a United States court, it was held by the United States supreme court that the property, while in the hands of the claimant, was in the custody of the law; that his custody, notwithstanding he had given a bond, was the ' First National Banlc v. Dunn, 97 N. Y. 149 (2 Civ. Proceed. K. 259). 2 Bates County Bank r. Owen, 79 Mo. 429; Pipher r. Fordyce, 88 Ind. 436.' 8 Pipher r. Fordyce, 88 Ind. 436; Stout v. La Fallette, 64 Ind. 365; Hagan v. Lucas, 10 Pet. 400 ; Rhines v. Phelps, 3 Gilm. 455 ; Acker v. White, 25 Wend. 614; Sellick v. Phelps, 11 Wis. 398; Hilliard's Reme- dies for Torts (2d Ed.) p. 51, § 29; Freeman on Executions, 135. *Goodheart r. Bowen, 2 Bradw. (111.) 578; Rhines v. Phelps, 3 Gil. 455 ; Hagan v. Lucas, 10 Peters, 400. 6 People r. Superior Court, 19 Wend. (N. Y.) 701. 376 CUSTODY OF THE PBOPEBTX PENDING SUIT. custody of the court where the claim was pending, and that the marshal had no more right to levy on it than if it had been in the actual custody of the sheriff of the state court,* thus giving the sanction of the highest authority for the principle already stated.^ § 709. Conflict of jurisdiction — Custody of property cannot be taken from court issuing the writ. By the ser- vice of a writ of replevin, the court from which the writ issues obtains possession and control of the property re- plevied for all purposes of jurisdiction in the replevin suit, and no other coui't of concurrent jurisdiction can subse- quently interfere with such possession. The same property cannot be subject to two jurisdictions at the same time, and the first levy, whether under state or federal authority, with- draws the property from the reach of the process of the other. It makes no difference that one of the parties may claim the property for the purposes of a public charity only.' Where property has been seized by a sheriff, by virtue of a writ of replevin, issued out of a state coiirt, and released to the defendant upon a forthcoming bond, it is still in the custody of the state court, to abide the result of the replevin suit, and while that is pending is not subject to seizure by the marshal under a writ of replevin subsequently issued out of a United States court, at the suit of the United States.* § 710. Nor can another action for its value be brought. While the suit in replevin is pending, the property is pre- sumed to be held by process of law, and another action can- not be maintained in regard thereto between the same par- ties for the value of the same property. ° § 711. Sheriff liable for custody of property until bond given. The sheriff should not deliver the property to the 1 Hagan v. Lucas, 10 Pet. (D. S.) 400. ' Goodheart v. Bowen, 2 Bradw. (111.) 578. 2 The D. & F. Missionary Society v. Hinman, 2 McCrary, 543 (13 F. 161). * United States v. Dantzler, 3 Woods, 719 (5 Cir.) ' Miller v. White, 14 Fla. 435. EtJLE EEGAKDING EIGHT TO POSSESSION IN MISSOUEI. 377 plaint £f iintil a proper bond has been given. From the time it is taken by liim until he can legally deliver it to some one else, he is liable for it on his, official bond. He is not an in- surer of the property, but is bound to take such care of it as a prudent man would of his own.' Thus it has been held that, where the sheriff left the property in the hands of the defendant, taking security for its forthcoming (when the statute did not provide for such a proceeding), he became liable if the property was destroyed by fire or otherwise, except the act of God or the public enemy. ^ He must care for it the same as in case of attached property.'* § 712. Plaintiff has a right to possession while the suit is pending. Defendant in replevin cannot contest the plain- tiff's right to the possession of the property after the plain- tiff has given bond and while the suit is pending, nor even after judgment for the defendant, so long as the case is pending on certiorari. Where the plaintiff has given bond, he has the right to the possession until the suit be finally determined.* Such delivery does not in any way affect the title to the property. It does not even tend to show title in the plaintiff. It is but a temporary right to the custody of the property, which is liable to be terminated at any time by the termination of the suit.^ If the suit is dismissed, nothing is determined in regard to the ownership, and the defendant may replevy. ° § 713. Different rule in Missouri. In Missouri re- plevin may be maintained without an affidavit, but in such case the property is held by the officer until after judgment, 'Moore v. Westeryelt, 21 N. Y. 103; Id. 1 Bos. (N. Y.) 358. See Rives V. Wilborne, 6 Ala. 45; Harlow's Shfs. § 43; Taylor's Landlord & T. § 740. • 2 Browning v. Hanford, 5 Denio, 586. 3 Hunt V. Robinson, 11 Cal. 262; Harlow's Shfs. § 41; Smith's Shfs. 286. * Ford V. Bushor, 48 Mich. 534 (12 N. W. 690). « Lovett V. Buikhardt, 44 Pa. St. 174; Speer v. Skinner, 35 111. 282; Bniner r. Dyball, 42 111. 34. 8 See Cross Replevies, Chap. XXXVIII and XXXIX. 378 CUSTODY OF THE PEOPEBTY PENDING SUIT. and if it is delivered by him to the plaintifB before judgment,, it will be ordered back into the custody of the oificer ; but the judgment will not be affected by failure to do this.' § 714. Law allowing defendant to retain it must be followed strictly. "Where the statute allows a defendant to counter-bond and retain the possession of the property pend- ing the litigation, he must file his affidavit, and give notice and comply with the statute fully, or his counter-bond will be nugatory, and the plaintiff will be entitled to possession pendente lite} § 715. Title during suit — Redelivery bond second re- plevy. Where a defendant in a replevin action executes a redelivery undertaking to the plaintiff, and receives a return of the property thereunder from the sheriff, the title to the property during the litigation remains the same as it was before, in every respect, except the defendant and those hold- ing under him obtain thereby the right of possession, and such possession cannot be rightfully disturbed by plaintiff.' § 716. Plaintiff in replevin not liable as garnishee. Property replevied is in the custody of the law, and the plain- tiff is bound to answer on his bond for the property, or a sur- plus over his claim, where that is special, and the property in his hands cannot be attached by garnishment.* § 717. Proceedings in sister states — Property tor- tiously replevied, and removed and sold. The plaintiff in an action of replevin in another state, having tortiously re- moved the property to this state and sold it, and the pur- chaser having been summoned as garnishee in attachment proceedings begun in this state by the defendant in replevin, the court, having acquired jurisdiction of the fund by the garnishment proceedings, will stay proceedings until a de- " Eads V. Stephens, 63 Mo. 90. 2 Teschner v. Deveron, 59 How. Pr. 467^, s Turner v. ]^eese, 22 Kan. 319. (See Cross Replevies, CSiap. XXXVIII and XXXIX.) * Nicholson v. Mitchell, 16 Bradw. (111.) 647. A REPLEVIN MEKELY SUSPENDS A tEIOB LEYY. 379 termination of tlie replevin suit in tlie sister state, that full justice may be done.' § 718. Property taken in replevin is in the custody of the law, and one unlawfully disturbing that possession is in contempt. Where property is replevied before' a justice of the peace, and an appeal taken to the circuit court, if the defendant in replevin and another take the same from the plaintiff and place it beyond his reach, the circuit court will have the right to punish them by fine and imprisonment.^ § 719. Money deposited in lieu of bond is not in cus- todia legis. Where, instead of giving bond under the stat- ute to hold the property, the defendant deposits with the sheriff a sum of money, the money is not in custodia legis, and may be reached by garnishment proceedings." § 720. A replevin merely suspends a prior levy. Where property has been levied on by execution and is replevied, until the determination of the replevin suit and settlement of the title to the property replevied by fair trial, neither the judgment nor the execution can be enforced either against the property of that defendant or his co-defendants. The levy was a prima facie satisfaction of the debt, and the replevin merely suspends it until final decision of the re- plevin suit.* Where property is held under a levy and is taken from the officer by replevin, and the officer afterward got possession again by levying another writ on the property, it amounts to a taking possession under the first writ, and the lien of the first writ, which had been temporarily sus- pended by the replevin action, is revived in all its original force. ^ The proceedings in replevin give a right to the tem- ' Hawkins v. Taylor, 15 Mo. App. 238. 2 Knott V. The People, 83 111. 532. See People v. Neill, 74 111. 68; lott V. The People, 91 III. 11. ' .Johnson v. Mason, 16 Mo. App. 271. * Hunn F. Hough, 5 Heis. (Tenn.) 708. " Hunt V. Kobinson, 11 Cal. 272. In this connection, see also Good- heart F. Bowen, 2 Bradw. (111.) 578; Burkle f. Luce, 1 Comst. (N. Y.) 163; Hagan v. Lucas, 10 Pet. (U. S.) 400; McRac r. McLean, 3 Porter 380 OUSTODS OF THE PBOPEETY PENDING SUIT. porary possession of tke property without any title until the right of possession is tried and determined, and does not im- pair the lien of an attachment that has been levied on the property.' The levy of an execution is regarded as a satis- faction sub modo, and the rule is not changed if the property is replevied from the officer, as the bond takes the place of the property, and no further levy can be made while the re- plevin suit is pending. But the levy is not a full satisfaction of the judgment, and if the plaintifE succeed in the replevin, another levy can be made.^ § 721. Effect of sale made by party in possession. If the party thus placed in possession sell the property, and afterward the suit is determined in his favor, no question can arise; but if the suit be determined against him, quite seri- ous questions arise. It has been held in such cases that he conveyed no title, and that his purchaser had no title against the true owner. ^ The order of delivery in replevin confers no title. It gives only a temporary right, which may ter- minate at any time upon a judgment against the plaintiff. He cannot sell the property so as to defeat the title of the real owner. He has, however, a possession which the de- fendant or the real owner has no right to disturb. The property is in the custody of the law.* Where property is taken from defendant and delivered to the plaintiff in an action of replevin, the defendant is not thereby divested of his title to the property. The burden of proof is on the plaintiff to establish on the trial his right to the possession.^ Where an innocent third party purchases from a plaintiff in possession, it has been held that he took a good title. (Ala.), 138; Eives v. Wilborne, 6 Ala. 45; Evans v. King, 7 Mo. 411; Lockwood V. Perry, 9 Met. 444. 1 Caldwell v. Gans, 1 Mont. 570. 2 Hunn V. Hough, 5 Heisk, 713. ^Lockwood V. Perry, 9 Met.' 440; Hunt r. Robinson, 11 Cal. 262; Wiiite V. Dolliver, 113 Mass. 402. * Hawkins v. Taylor, 15 Mo. App. 238; Bruner v. Dyball, 42 111. 34; Hagan v. Lucas, 10 Pet. 400; Mayberry v. Cliffe, 7 Cold. (Tenn.) 117. 5 Moore r. Herron, 17 Neb. 697 (24 N. W. 425). EFFECT OF SALE MADE BY PAEIY IN POSSESSION. 381 Where an action of replevin was dismissed by the plaintiffs before issue joined, and an order entered for a return of the property, which was not complied with by the plaintiffs, it was held that a chattel mortgage executed by them while in possession of the property, before the issuance of a writ of restitution, and taken by a mortgagee in good faith, was valid.' This case is probably no exception to the general rule just laid down, as the defendant was guilty of great laches. § 722. The same. If the plaintiff is the general owner of the property which he has taken in replevin from a wrong- doer, the fact that he had taken it in replevin would not affect his right to sell it.* If the plaintiff be both the gen- eral owner and entitled to possession, there is no question but that he may sell it and convey a good title while the suit is pending.' If the property is only valuable for use, it should be put to use by the party having it in possession. If it be property of a perishable nature, such as fruit, he should sell it, and would not thereby increase his liability.^ Where the property consists of merchandise valuable and useful only for the purposes of sale, and the value of which is continually changing, or where it is valuable for consump- tion only, the plaintiff, without doubt, would be justified in iCase V. Woleben, 52 Iowa, 389 (3 N. "W. 486). Plaintiff dismissed his case July 30th, and writ 'of restitution did not issue until December 31st, during which time he held the horses, and had mortgaged them as his own. ^Donohoe v. McAleer, 37 Mo. 312; Burkle v. Luce, 1 Comst. (N. Y.) 163. See Patterson v. Seaton, 64 Iowa, 115 (19 N. W. 869,) where it is fieWthat property retaken by replevin may be attached as the property of the debtor and plaintiff in replevin. = Gimble v. Ackley, 12 Iowa, 31; Jones v. Peasley,3 Green (Iowa), 52; Smith V. McGregor, 10 Ohio St. 467; Burkle r. Luce, 6 Hill, 558; Freyr. Leeper, 2 Ball. (Pa.) 131 ; Waglam v. Cowperthwaite, 2 Ball. (Pa.) 68; Bradyll v. Ball, 1 Bro. Ch. C. 428. ♦Gordon v. Jenny, 16 Mass. 469; Lockwood v. Perry, 9 Met. 444; Stevens v. Tuite, 104 Mass. 332. 882 CUSTODY OP THE PEOPEETY PENDING SUIT. putting it to tlie use for which it was intended, and, if de- feated, would only be liable on his bond for its value.' § 723. Injuries to goods in plaintiff's possession. The plaintiff or defendant, where he bonds and retains the goods, is responsible for the safe-keeping and care of the property in controTersy. If the property is broken, injured, or wasted, while in his possession, it is at his risk. In the case of fruit or perishable articles,' it would be his duty to take such steps as would make the loss as light as possible; but he would be responsible for their full value at the time he took them if it be finally held that his taking was wrongful.'' The party who has had possession cannot return the prop- erty in a less valuable condition than when he received it without being liable in damages.' § 724. Loss or destruction of property; effect of. If, during the pendency of the proceedings in replevin, the prop- erty shall have been lost, destroyed, or disposed of, so that no return thereof can be made, the only remedy of the de- fendant would seem to be either to sue on the bond or to sue for damages for the unauthorized and unlawful taking and conversion of the property.* § 725. Surety on the bond cannot hold the property against the true owner, even where he has taken possession of it to indemnify himself against Idss. He is not a bona ■fide purchaser, and has no better title than the plaintiff.^ 1 Wells onBeplevin, § 480; Mayberry v. Cliffe, 7 Cold. (Tenn.) 117; Gordon v. Jenney, 16 Mass. 469. 2 Gordon v. Jenney, 16 Mass. 469; Stevens r. Tuite, 104 Mass. 332; Lockwood V. Perry, 9 Met. 444 ; Mennie v. Blake, 6 E. & B. (88 E. C. L.) 843. " Allen F. Fox, 51 N. T. 562. « Barruel v. Irwin, 2 N. M. 223. * Kayser v. Bauer, 5 Kan. 203. ANSWEB. 383 OHAPTEE XXVIL ANSWER. SectloD. Appearance and pleading waives defects . . . 726 Insufficiency of description is waived by pleading . . 727 Giving a redelivery bond is a waiver of defects . . . 728 Too late to object to the suf- ficiency after verdict . . 729 Objections, how taken . . 730 Avowry 731 Cognizance .... 732 The nature of these pleas . 733 Pleas to an avowry . . 734 Avowry is the usual plea to replevin of a distress . . 735 Set-off, to be allowed, must arise out of the leasing . 736 Avowry as a distinct plea is little used .... 737 The pleas of non cepit and TXOD detinet .... 738 The plea or answer of defend- ant 739 A plea of non cepit admits the property to be in the plain- tiff 740 The plea of eepit in alio loco 741 Special matter cannot be shown under non cepit . 742 Issue raised by non detinet . 743 Non detinet can not be plead- ed for non cepit . . . 744 Plea of not guilty . . . 745 Proper pleading under the codes 746 The denials of the answer must be full and explicit . 747 Section. Plea must be certain to a common intent — Liberally construed .... 748 Evidence should not be plead- ed, but facts stated . . 749 What is a good general denial 750 Effect of and what may be proved under .... 751 Fraud maybe proved under a general denial . . . 752 f Evidence of matter in estop- pel 753 General denial does not com- pel proof of the negative averments .... 754 Under general denial may jus- tify under a writ . . . 755 May show official character as administrator . . . 756 Justification under writ — Proper averments . . 757 Justification — Burden of proof 758 Answer should allege amount, levy, and validity of writ . 759 If the officer did not take the i property from defendant, inust allege that it was his . 760 Matter of inducement in plea ' is not traversable . . . 761 By officer — What answer should be — In case of fraud 762 Defendant may plead as many separate defenses as he may i have 763 ' All defenses must refer to the time the suit commenced . 764 384 ANSWEB. Section. Where there are several de- fendants . ... 765 How far court may control defendant's pleading . . 766 Effect of plea of property in defendant .... 767 Plea of property in a third person is good . . . 768 A plea in bar is a good an- swer 769 Jurisdiction — Plea in abate- ment 770 Illustrations of sufficient an- swers 771 Replevin by a mortgagee — Defense 772 Plea of payment — No recovery for over-payment . . . 773 Section, Answers defective in substance —Examples .... 774 Special pleas — Incomplete de- fenses — Sufficient answer 775 Contradictory defenses . . 776 Defendant cannot anticipate special title not pleaded by plaintiff 777 Cannot show death of prop- erty under general denial . 778 A special property interest cannot be shown under a general denial . . . 779 Usury should be specially pleaded 780 Fraud should be specially pleaded 781 Answer need not claim a re- turn 782 § 726. Appearance and pleading waive defects in the petition and affidavit or writ.' The declaration must state a place certain within the jurisdiction of the court, but the omission may be cured by defendant pleading over.^ In Michigan the writ issues before the affidavit filed, but the affidavit must be made and attached to the writ before it is executed. Mere clerical defects in such an affidavit are waived by pleading to the merits.' It is too late after issue joined in a replevin suit to object that a petition does not set out or contain a copy of a chattel mortgage under which plaintiff claims the property.* If a defendant, by his de- ' Frink r. Flanagan, 6 111. 35; Smith r. Emmerson, 16 Ind. 355; Hyde v. Patterson, 1 Abb. Pr. (N. T.) 248; Tripp v. Howe, 45 Vt. 523; Eddy V. Beal, 34 Ind. 161; Baker v. Dubois, 32 Mich. 92. 2 Gardner v. Humphrey, 10 Johns. (N. Y.) 53. ' Baker v. Dubois, 32 Mich. 92. The defect here was that the affida- vit alleged that the property was not seized under execution in attach- ment instead of or, and against the goods aud chattels of this deponent when the affidavit was not made by the plaintiff, and in place of this de- ponent should have been words descriptive of plaintiff, but these errors were held not fatal. A similar practice prevails in California. Laughlin V. Thompson, 76 Cal. 287. « Smith V. McLean. 24 Iowa, 322. INSUFFICIENCY OF DESCEIPTION WAIVED BY PLEADING. 335 nmrrer or answer to the petition of a plaintiff, does not pre- sent to the trial court the legal incapacity of the plaintiff to sue, such defect is waived by him.' That the summons had no seal attached is waived by pleading in the action.^ By pleading to the merits in a replevin case, defendant waives ihe objection that the writ was returnable on Sunday.^ "Where a defendant in replevin appears and answers and ap- peals, he thereby waives defects in the petition and affidavit* Irregularities in the writ and bond are waived by an answer to the merits.' An answer waives defects in a summons, as that it was issued by an unsworn deputy." Formal defects in the affidavit must be taken advantage of before pleading to the merits.' The defendant, by answering without objecting to defects in the writ, or on the papers on which it issued, waives such objections and gives the justice jurisdiction to try the case.^ § 727. Insufficiency of description is waived by plead- ing. Objections to the insufficiency or uncertainty of de. scription must be made by the defendant at the first availa- ble opportunity, and if he omit to do so, plead to the merits and go to trial, he cannot ask the court to reverse the judg- ment because the description is uncertain.' A complaint in replevin describing the property as "one hundred bushels of ^ Meyer Bros. r. Lane, 40 Kan. 491 (20 P. 258). In this case it was claimed that the plaintiff was not twenty-one, and motion made to strike his affidavit. 2 Gullett r. Otey, 19 Bradw. (111.) 182. =* Pierce v. Rehfuas, 35 Mich. 53. 'Dickson v. Randal, 19 Kan. 212; Miller r. Bogart, 19 Kan". 117. = Tripp V. Howe, 45 Vt. 523. « Butts V. Screws, 95 N. 0. 215. ' Smith V. Emmerson, 16 Ind. 355; Lewis v. Brackenridge, 1 Blackf. 112: Perkins r. Smith, 4 Blackf. 299; Frink r. Flanagan, 1 Gilm. 38. 8 McKee v. Metraw, 31 Minn. 429 (18 N. W. 148). ° Crum V. Elliston, 33 Mo. App. 591. The description in this case was " nine head of hogs, mostly black," and it was held sufficient to enable the officers to identify the property. Ruch r. Morris, 28 Pa. St. 245 ; Warner v. Aughenbaugh, 15 S. & R. (Pa.) 9. 25 386 ANSWEB. "wheat of the value of $100, said wheat having grown in "and harvested on the 28th and 29th of July, 1885, having " been threshed off the following described real estate and "the wheat ground situate thereon." Describing the real estate, is sufficient after verdict.' § 728. Giving a redelivery bond is a waiver of defects. The defendant waives an objection to the sufficiency of the plaintiff's affidavit by giving an undertaking and securing a redelivery to himself.'* § 729. Too late to object to the sufficiency after ver- dict. After trial the defendant cannot object to the suffi- ciency of the affidavit.' An objection to the sufficiency of the plaint in replevin should be taken by a motion to quash. It comes too late at the triali* After trial in replevin, and verdict for defendant, the plaintiff will not be permitted to avail himself of any uncertainty in his declaration. ° The allegation that the defendant wrongfully detains property of the plaintiff, although no demand is alleged, is sufficient after verdict.* A petition in replevin which asks for a money judgment alone, and not for possession, is defective, but such defect is waived if not objected to before judgment.' § 730. Objections, how taken. Objections to the affi- davit should be taken by motion or plea in abatement, not by demurrer.' Where the objections are raised by motion, it should claim oyer of it to get it before the court and into the record. ° This decision arises under a practice which considers the affidavit as outside, and not a part of the rec- ord.'" 1 Hall V. Durham, 117 Ind. 429 (20 N. E. 282). 2 Wisconsin Ma. P. v. Hobbs, 22 How. Pr. (N. T.) 494. = Perkins v. Smith, 4 Blackf. (Ind.) 299. * Brown v. Keller, 32 111. 151. ^ Wilson F. Gray, 8 Watts (Pa.), 25. « Kurd V. Simonton, 10 Minn. 423. ' Williams v. Wilcox, 66 Iowa, 65 (23 N. W. 266). 8 Do Wolf V. Harris, 4 Mason C. C. 515. « Town V. Wilson, 3 Eng. (Ark.) 464. "> Cox V. Grace, 5 Eng. (Ark.) 86. NATUEE OF AYOWBY AND COGNIZANCE. 387 § 731. Avowry. Under the old form of repleTin, -where the defendant admitted the taking and justified it upon the ground of rent due, it was called an avowry, and the defend- ant was termed an avowant} The avowant could support his avowry by rent in arrear that the beasts were taken damage feasant, or that they were taken on a judgment of the lord's court. When these pleas were denied by plain- tiff an issue was made, and the question so presented was tried. If the plaintiff was successful, he was entitled to keep the property so replevied and to have damages for the wrongful taking and the loss it had occasioned him. If, however, he failed in the action, he was fined for his false clamor, and the avowant was entitled to a return and dam-' § 732. Cognizance. Where the defendant admitted the taking, but claimed that it was not by title or right in him- self, but in a third party for whom he acted, it was called making cognizance, and he was called the cognizor^ The distinction between avowry and cognizance was formal only, and if a mistake was made in the pleading it could always be cured by amendment.* This plea has now fallen into disuse. The usual plea to a cognizance was to deny the agency or the authority of the principal, and it was held that the first was a proper plea, as, though the principal might have a right to distrain, a stranger not duly author- ized as his agent could not.^ § 733. The nature of these pleas was to make defendant the plaintiff; that is, he admitted the taking alleged by 1 See Statute 21, Henry VIII. Ch. 19. ^Biccards v. Comforth, 5 Mod. 366; "Woodcroft v. Kynaston,9 Mod. 305; Anon, Dyer, 1413; Britten, Vol. I. p. 140; Howard r. Black, 49 Vt. 10; Lindley v. Miller, 67 111. 244; Simpson v. McFarland, 18 Tick. 430; Quincy v. Hall, 1 Pick. 361. 2 See Statute of 21, Henry VIII. Ch. 19; Steph. Plead. 332, 376; Web- ber r. Shearman, 6 Hill (N. Y.), 31. * Brown v. Bessett, 1 Zab. (21 N. J.) 46; Wheadon v. Sugg, Cro. Jac, 373. s Trevilian r. Pyne, 1 Salk. 107. 388 ANSWEE. plaintiff and attempted to justify his act, and the courts held him to as much strictness in pleading as they did the plain- tiff.' The pleading must admit the taking in express terms and state fully the authority by whieh it justified the tak- ing.^ The strictness of this rule was somewhat modified by statute.' § 734. Pleas to an avowry. The plaintiff could always plead non tenure, or nothing in arrears ; either was proper and made a triable issue. The first denied the tenancy ; the second denied there was any rent due. See Reply, ^os^ * He could plead, to the avowry, an abuse of the defendant's pro- ceedings or their irregularity.* Plaintiff could plead that the rent was not yet due, or that the goods were exempt from distress. Each avowry should be answered by at least one plea.* The plea to an avowry need not allege the place of taking, when the avowry justified the taking at the place alleged in the declaration.' An avowry justifying taking property under a fi fa, must aver that it was the property of the defendant in the execution and subject to the execution.' Where the defense is distrained for rent, the defendant must allege and prove that the rent was due and in arrears,' but iPike r. Goudell, 9 Wend. 149; Wright v. Williams, 2 Wend. 632; Yates V. Fassett, 5 Denio, 31; Crosse v. Bilson, 6 Mod. 103; Coon r. Bowles, IShow. 165. 2 Gaines v. Tebbs, 6 Dana, (Ky.) 144; Waltman v. Allison, 10 Pa. St. 465; Lavigne v. Euss, 36 Miss. 326; McPherson v. Melhiiieli, 20 Wend. 671 ; Weeks r. Peach, 1 Salk. 179 ; Id. 1 Lord Ra,ymond, 679 ; Hawkins r. Eckles, 2 Bos. & Pul. 359; Goodman v. Aylin, Yelv. 148; Helliugs v. Wright, 14 Pa. St. 375; Simcoke v. Frederick, 1 Ind. 54; Trulock v. Kigsby, Yelv. 185; Godfrey v. BuUin, Yelv. 180. 3 21 Henry VIII., Chap. 19, § 3 ; 11 George II., Chap. 19, § 22 ; Forty r. Imber, 6 East. 434; Bain v. Clark, 10 Johns. 424; Ewing v. VanArs- dale, 1 S. & R. (Pa.) 370; Caldwell r. Cleadon, 3 Har. (Del.) 420; Scott V. Fuller, 3 Pa. 55. , * Chap. XXIX. Bloomer v. Juhel, 8 Wend. 448. 6 Osgood V. Green, 10 Fost. (N. H.) 210. » Nichols v.DuBenbury,2 Comst.287; Roberts v. Tennell, 4 Litt. (Ky.) 286. ' Judd r. Fox, 9 Cow. 362. « Dillon r. Wright, 4 J. J. Marsh (Ky.), 254. « Lovigne f. Buss, 86 Miss. 326. AYOWEY IS USUAL PLEA TO EEPLETIN OE A DISTKESS. 389 it need not be payable in money.' It miglit be payable in labor,'' or anything of value/ But it must be in something which could be reduced to a certainty, so the court could find a certain amount due at a certain time.* "Where the de- fendant, in his avowry, states the precise house or place, the plaintiff may traverse the place in the avowry, though not described with certainty in the declaration, but where no issue is raised the place is not material.^ § 735. Avowry is the usual plea to replevin of a dis- tress, and where distress for rent is still allowed, the answer or plea by the landlord is still called an avowry, and it will be observed that the cases referred to under this head are English cases, or cases which arose before the adoption of the code of procedure by the several states. The avowry must allege the seizure of the property on the premises leased, or within the limits where distress is permitted, and that it was liable to distre'ss." The avowry should state the terms of the lease, the amount of rent, and the date when due and the .default.' It need not state plaintifif's title, but should state the holding from the plaintiff,* and that the avowant was the landlord.' The avowant must set forth his title and allege the precise estate of which he is seized, or 1 Myers v. Mayfield, 7 Bush (Ky.), 212. 2 Valentine v. Jackson, 9 Wend. ,302; Smith v. Colson, 10 John. 91. 'Fraser v. Davie, 5 Rich. (S. C.) 59. *Grier v. Cowan, Addis (Pa.), 347; Wells v. Hornish, 3 Pen. & W. (Pa.) 30; Phipps v. Boyd, 54 Pa. St. 342; Smith r. Fyler, 2 Hill, 648. ^ Gardner v. Humphrey, 10 Johns. (N. Y.) 53. « Williams v. Smith, 10 S. & E. (Pa.) 202; Weidel v. Eoseberry, 13 S. & E. 178; Hill v. Stocking, 6 Hill, 277; Lindley v. Miller, 67 111. 244; McPherson v. Melhinch, 20 Wend. 671; Musprot v. Gregory, 3 Meoa. & W. 677; Spencer v. McGowen, 13 Wend. 256; Blanche v. Bradford, 38 Pa. St. 344; Asbell v. Tipton, 1 B. Mon. (Ky.) 300. ' Wells V. Hornish, 3 Pen. & W. (Pa.) 30; Phipps v. Boyd, 54 Pa. St. 342; Taylor v. Moore, 3 Har. (Del.) 6; Tice v. Norton, 4 Wend. 667; Smith V. Aurand, 10 S. & R. 93; Wright v. Williams, 5 Cow. 345; Lan- der V. Ware, 1 Strobh. (S. C.) 15. * Decker v. Livingston, 15 Johns. 479; Wright v. Matthews, 2 Blackf. 187. ' Nicholas r. Dusenbury, 2 Comst. 287. 390 ANSWEB. the avowry is bad,' and a failure to do so is not cured by the plaintiff pleading over or by verdict on issue joined.' An avowry in replevin, that the taking of the goous was on premises leased, for which rent was in arrear, is good in form, although it does not allege that the distress was taken for that rent. Such avowry would be good in substance, when the plaintiff had declared in the detinuit, for the de- fendant might lawfully distrain the goods on the premises for rent, and detain them during the period allowed to re- plevy them. The landlord has neither a general nor special property in goods distrained for rent, nor right to their pos- session • after service of the replevin, but must look to the bond.^ The defendant may avow generally for rent arrear, but if he state the lease specially he must state it truly.* Where a person avows the taking and justifies it, he must set up the facts fully." § 736. Set-off, to be allowed, niust arise out of the leas- ing. The plaintiff in replevin cannot set off accounts against the distrainor unless it be such matters as grow out of the contract of leasing. * But any damage growing directly out of the contract of leasing may be offset against any claim for rent due.' But such claim for damages must be followed by aUp averment that the damage equals or is greater than the rent due, and over that no rent is due. If the damage claimed is based upon a special agreement, it must set up the agree- ment in full.* Por a fuller discussion of this matter, see "Recoupment and Set-off." 1 Hopkins v. Hopkins, 10 Johns. (N. Y.) 369. 2 Bain v. Clark, 10 Johns. (N. Y.) 424. « Baird v. Porter, 67 Pa. 105. * Taylor v. Moore, 3 Har. (Del.) 6 ; Tice r. Norton, 4 Wend. (N. Y.) 663. 5 Whittington v. Deering, 3 J. J. Marsh (Ky.), 684. ' Beyer v. Fenstermacher, 2 Whart. (Pa.) 95. ' Fairmon v. Fluck, 5 Watts (Pa.), 516; Lindley T. Miller, 67ni. 244; Sapsford v. Fletcher, 4 Term R. 512; Streeter v. Streeter, 43 111. 155; Wolgamot V. Bruner, 5 Har. & M. (Md.) 70, ' Curtis V. Jones, 3 Denio 590. THE PLEA OK ANSWER OF DEFENDANT. 391 § 737. Avowry as a distinct plea is little used in this country. The requisites and sufficiency of the plea are shown in cases depending upon particular facts or statutes.' The theory of law inyolved in decisions on avowry is seldom of sufficient general importance to entitle them to a statement in this work. A few of the more important decisions will be briefly referred to. § 738. The pleas of non cepit and non detinet admit property in the plaintiff and put in issue only the wrongful taking and detention,^ and under those pleas alone, and, the plaintiff failing to sustain his action, it is error to award a return of the property to the defendant. To justify that judgment there must not only be a plea of property in the defendant or a stranger, the effect of which is to put in issue the plaintiff's right to the property, either general or special, but the verdict must find the property not in the plaintiff.' Neither the plea of non cepit nor non de- tinet denies the property in plaintiff, and neither is suffi- cient to give defendant the return of the property. To en- title him to a return, he must ask for it, or at least contest plaintiff's right to retain it by proper pleading.* The usual form of non cepit is non cepit modo et forma, which is a di- rect denial of the taking in the manner and form alleged by plaintiff. § 739. The plea or answer of defendant. A plea of iSouthall V. Garner, 2 Leigh (Va.) 372; Bi-ackett v. Whidden, .3 N. H. 17; Osgood v. Green, 30 N. H. (10 Fost.) 210; Brown v. Bissett, 21 N. J. L. (1 Zab.)^46; Shepherd v. Boyce, 2 Johns. (N. T.) 446; Davis v. Tyler, 18 Johns. (N. T.) 490; Wright v. Williams, 2 Wend. (N. Y.) 632; People r. New York, 2 Wend. (N. Y.) 644; Evving v. Vanarsdall, Serg. & K. (Pa ) 370; Phipps v. Boyd, 54 Pa. St. 342; Barr r. Hughes, 54 Pa. St. 516; Gipson v. Bump, 30 Vt. 175; Ke;th v. Bradburry, 39 Vt. 34; Swearinger V. Magruder, 4 Har. & M. (Md.) 347; Brown v. Bissett, 21 N. J. L. (1 Zab.) 267; James v. Dunlap, 3 III. (2 Scam.) 481; Loomi3 V. Tyler, 4 Day (Conn.), 141. 8 Talcott V. Anderson, 1 Gilm. 365; Vose v. Hart, 12 111. 378; Ingalls F. Bulkley, 15 111. 224. " Mattson v. Hanisch, 5 Bradw. (III.) 102. 'Chandler r. Lincoln, 52 111. 74; Anderson v. Talcott, 1 Gilm. 345, 392 ANSWEB. non cepii or non deiinet in replevin admits of property in the plaintiff and takes issue only on the taking and detention.' Where the action is in the cepit,,ihe general issue is non cepit, which is a simple denial of the taking and an admis- sion of the plaintiff's property in the thing taken.'' The de- fendant may deny in his plea that the property claimed by the plaintiff had been or was in his possession at the time action was brought, in which case it would devolve upon the plaintiff to show the contrary.^ If the defendant take issue upon the plaintiff's right to the property, the plaintiff must' show his right to it or fail in the ajtion, and an allegation in the plea or answer of property in a third person will be re- garded as an inducement to the traverse and a denial of the plaintiff's title.* The defendant may plead that he is a ten^- ant in common with the plaintiff in the property sought to be recovered, and if this is established by evidence on the trial, it is a good defense.' So an officer may admit the tak- ing of the property, but state facts showing that he was jus- tified in taking, as that it was taken by virtue of an execution or other legal process, which process was in full force and effect at the time of the taking f such plea admits plaintiff's right to the property before levy. Where there are several defendants, they may each plead separately.' Non cepit in ' Mackinley v. McGregor, 3 Whart. (Pa.) 369 (31 Am. Dec. 522); Van Namee v. Bradley, 69 111. 299. ^ Sanford Manufacturing Company v. Wiggin, 14 N. H. 441 (40 Am. Dec. 198); Ely v. Elile, 3 N. T. 506; Vickey v. Sherburne, 20 Me. 34; Vose V. Hart, 12 111. 378; Carroll v. Harris, 19 Ark. 237; Harper v. Ba^ ker, 3 T. B. Hon. (Ky.) 421. ' Wheeler v. Allen, 51 N. Y. 37. . *Pope V. Jackson, 65 Me. 162; Landers v. George, 40 Ind. 160; At- kins V. Burnes, 71 111. 326; Peake v. Conlon, 43 Iowa, 297; Van Name* r. Bradley, 69 111. 299; Ingraham v. Hammond, 1 Hill (N. Y.), 35.T; Mcllveine v. Holland, 5 Harr. (Del.) 10; Dover v. Rawlings, 2 M. & R. (Eng.) 544. 6 Davis V. Lottich, 46 N. Y. 393; Walker v. Spring, 5 Hun. (N. Y.). 107; Hudson v. Swan, 7 Abb. (N. C.) 324. 8 Dayton v. Fry, 29 111. 525; Raiford v. Hyde, 36 Ga. 93; Grillith r^ Smith, 22 Wis. 646. ' Boyd V. Adams, 16 111. 146. WHAT A PLEA OF NON CEPIT ADMITS. 393 replevin puts in issue the question of general property only, and not o£ special property. On non cepit the issue must be for the defendant, if there was not a wrongful taking of the goods from the possession of another.' Non cepit throws the burden on plaintiff to prove property in himself.^ The plea of non cepit in an action of replevin puts in issue only the taking.' Its office is to deny the taking. Its legal effect is to admit title to the property to be in the plaintiff. It admits -every fact alleged by plaintiff except the taking.* Under this plea defendant can not ask damages or a return,, nor can he prove property in himself or a stranger.^ § 740. A plea of non cepit admits the property to be in the plaintiff, and of course, on that plea, the defendant cannot have judgment for damages." And under such a plea the plaintiff must prove an unlawful taking, and if the evi- dence shows that the property came into defendant's posses- sion by plaintiff's consent, a non-suit should be granted. '^ A plea of property in defendant raises a question of title, and a finding of wrongful detention does not meet the issue.* In a proceeding under the statute for the claim and delivery of ' Meany v. Head, 1 Mass. 319. 2 Cooper V. Bakeman, 32 Me. 192. 3 Rowland r. Mann, 6 Ired. L. (N. C.) 38; Ely r. Ehle, 3 N. T. (3 Comst.) 506; Vickery v. Sherburne, 21 Me. 34; Harper v. Baker, 3 T. B. Men. (Ky.) 421; Galusha v. Butterfield, 3 111. (2 Scam.) 227; Trot- ter V. Taylor, '5 Blackf. (Ind.) 431; Wilson v. Royston, 2 Ark. 315; Bourk V. Rigffs,-38 111. 320; Vose v. Hart, 12 111. 378; Rlngo v. Field, 6 Ark. 43; Carroll v. Harris, 19 Ark. 237. * Ely r. Ehle, 3 Comst. 510; Coit v. Waples, 1 Minn. 134; Marshal v. Davis, 1 Wend. 115; Rogers v. Arnold, 12 Wend. 34; Trotter 7. Taylor, 5 Blackf. 431 ; Ringo v. Field, I'Eng. (6 Ark.) 43 ; Douglas v. Garrett, 5 Wis. 88; Seymour v. Billings, 12 Wend. 286; Hopkins v. Burney,2 Fla. 46; Galusha v Butterfield, 2 Scam. 227; Carroll v. Harris, 19 Ark. 238 Wilson V. Royston, 2 Ark. 315; Green v. Dingley, 24 Mo. 137. = Hopkins v. Burney, 2 Fla. 45; Smith v. Snyder. 15 Wend. 327; Mil- ler V. Sleeper, 4 Cush. (Mass.) 370; Vickery v. Sherburne, 20 Me. 35- Butcher v. Porter, 1 Salk. 94; Bourk v. Riggs, 38 111. 321. « Mitchell V. Roberts, 50 N. H. 486 ; Johnson v. Wollyer,! Strange, 507. ' Carter v. Piper, 57 N. H. 217. 8 Page V. Ramsdell, 59 N. H. 575. 394 ANSWEB. personal property, the plea of non cepit admits the plaintiffs title, but it is incumbent on him to prove that the defendant had the goods, but where the issue raises the question of title, the burden is on the plaintiff to prove that at the time of the caption he had the general or special property in the goods taken and the right of immediate and exclusive pos- session.' Under a plea of non cepit and property in defend- ant, held, that defendant was entitleid to prove a lien for re- pairs to the property replevied, made by him and unpaid for.'' Pleas of non cepit and property are not inconsistent.^ A de- fendant may plead non cepit and property in himself or a stranger.* § 741. The plea of cepit in alio loco does not admit the taking as laid in the declaration, and the plaintiff is bound to show his right to recover, as if the plea had been non cepit.' But as such a plea admits the taking, but at another place than that laid by plaintiif, good pleading would require it to be followed up with an avowry or cognizance." § 742. Special matter cannot be shown under non cepit. The plea of non cejnt in replevin admits the property to be in the plaintiif, and no special matter of justification can be ' Gray v. Parker, 38 Mo. 160. ' Halstead v. Cooper, 12 R. I. 500, citing Murray v. Paisley, 1 Yeates, 197; Lowry v. Hall, 2 W. & Serg. 129; Amos v. Sinnott, 5 111. 441; Redmon v. Hendricks, 1 Sandf. 32; Britt v. Aylett, 11 Ark. 475; Har- wood V. Smethurst, 29 N. J. Laws, 195; Lester v. McDowell, 18 Pa. St. 91; Walpole v. Smith, 4 Blackf. 304; Bogard v. Jones, 9 Humph. 739; Bertliold v. Holman, 12 Minn. 335; Rockwell 7. Saunders, 19 Barb. 473; Collins V. Evans, 15 Pick. 63; 2 Greenl. Ev. § 563. ^ Cummings v. Gaun, 52 Pa. St. 484; Shut«r v. Page, 11 Johns. (N. Y.) 196; Simpson. V. MoFarland, 18 Pick. (Mass.) 427; Whitwell r. Wells, 24 Pick. (Mass.) 25; Dickson v. Mathers, Humpst. 65. ■* Edelin v. Thompson, 2Har. & G. (Md.) 31; Smith i'. Morgan, 8 Gill. (Md.) 133; Moultou i. Bird, 31 Me. 296; Martin v. Watson, 8 Wis. 315. ^ Williams v. Welch, 5 Wend. (N. Y.) 290. « Lougee v. Colton, 9 Dana (Ky.), 123; Sawyer v. Huff, 25 Me. 465; Amos V. Sinnott, 4 Scam. 445; Snow F.Como Street Railway, 507; Chit. Plea., Vol. L, p. 499. NON DETINET CAN NOT BE PLEADED FOB HON OEPIT. 395 shown under it; neither can a judgment for a return, nor for damages, be rendered on such a plea for the defendant.' § 743. Issue raised by non detinet. It is a fundamen- tal rule in pleading that a fact asserted upon one side, and not denied, on the other, is admitted. Where a wrongful taking is alleged in a declaration and the answer is non deti- net, this admits the fact of the wrongful taking.^ In replevin the plea of non detinet puts in issue the plaintiff's title and the wrongful detention by the defendant, and to entitle the plaintiff to recover he must prove both his title and the de- tention by defendant.^ In Ohio, under a plea of non detinet, all the defenses allowable under both that plea and a plea of property in the defendant are admissible.' The plea of non detinet puts in issue not only the wrongful detention, but the plaintiff's right of property.^ Where the action is in the deti- net the general issue is non detinet, and this plea raises the question of the detention." Under a plea of iimi detinet and a general deriial the general issue is raised, and all rights ■of the respective parties may be shown and determined. Such is the established rule in Nebraska.' Under the issue formed by this plea the plaintiff must prove his right to im- mediate and exclusive possession of the goods and the wrong- ful detention by the defendant.* The defendant may show that he returned the goods before suit or that he never had them." § 744. Non detinet can not be pleaded for non cepit. Although these two pleas are alike in their general principles, • Hopkins v. Burney, 2 Fla. 42 ; MoFarland r. Barker, 1 Mass. 153. 2 Simmons v. Jenkins, 76 111. 479. 'Neis V. Gillen, 27 Ark. 184. * Coverlee v. Warner, 19 Ohio, 29. ^Ingalle v. Bulkley, 15 111. 224; Patterson r. Fowler, 22 Ark. 396. ' Coverlee v. Warner, 19 Ohio, 29 ; Neis r. Gillen, 27 Ark. 184. ' Cool V. Eoche, 15 Neb. 24 (17 N. W. 119) ; Richardson v. Steele, 9 Neb. 486; Hedman r. Anderson, 8 Neb. 180; School District v. Shoe- maker, 5 Neb. 36. 8 Amos r. Sinnott, 4 Scam. 445 ; Eogers r. Arnold, 12 Wend. 30. ° Johnson r. Howe, 2 Gilm. 345. 396 ANSWEB. non detinet is not a good plea to replevin in the cepit, and such plea will be stricken out on motion.' In replesdn against two, each may plead non detinet separately, and a plea of prop'erty in one is good upon general demurrer.^ In re. plevin for the unlawful detainer of goods, 7ion cepit is not a good plea; the general issue in such cases is non detinet.^ § 745. Plea of not guilty is the proper plea to raise th& general issue in some states. In Florida the plea of not guilty, the general issue in replevin, puts in issue the taking and detention, but not the right of property and possession of the plaintiff.* In Mississippi, not guilty is the proper plea to an action of replevin, and is a full and complete an- swer, and any other plea may be stricken out or disregarded as surplusage.^ Not guilty is the general issue in replevin in Missouri.^ The general issue, not guilty, in replevin, puts in issue every fact stated in the declaration necessary to sustain plaintiff's action, and not alone the detention of the property.' Not guilty is the general issue "in replevin in Vermont, and such plea puts in issue every material fact, as- well the property as the taking and detention.^ And under such plea defendant may justify under legal process." But this does not apply in case of replevin for beasts impounded. In such cases defendant can justify only as at common law,, under an avowry setting forth the facts relied upon.'" § 746. Proper pleading under the codes. Under most of the statutes to-day the proper way to raise the issue in re- plevin is to deny each and every allegation made by plain- tiff. But as the issue is as to the possession, anything which 1 Davis V. Calvert, 17 Ark. 85. 2 Boyd V. McAdams, 16 111. 146. 3 Walpole V. Smith, 4 Blacld. (Ind.) 304. * Stewart r. Mills, 18 Fla. 57; HoUiday v. McKinnie, 22 Fla. 153. * Bennett v. Holloway, 55 Miss. 21K Gibson v. Mozier, 9 Mo. 256. ' Child V. Child, 13 Wis. 17; Loomis r. Foster, 1 Mich. 165. 8 Plainfleld v. Batchelder, 44 Vt. 9. 8 Loop V. Williams, 47 Vt. 407. " Howard v. Black, 49 Vt. 9. PLEA MUST BE CEBTAIN TO A COMMON INTENT. 397 •denies the plaintiff's right of possession at the commence- ment of the suit goes to the gist of the action and puts the plaintiff on proof of his right to possession, and is a sufficient answer. Any allegation which does this may be regarded as a proper pleading in replevin. The technical denials of the common law are very little used under the modern prac- tice, but the principle and effect are the same. A plea of some kind is necessary, and the want of it is not cured by verdict' The common law pleadings in replevin do not exist under the statute, and a denial of the allegation of the petition put- ting them in issue is sufficient, and the answer does not have the technical effect which it had at common law.'' § 747. The denials of the answer must be full and ex- plicit, and squarely traverse all the essential allegations of plaintiff's affidavit.^ In replevin, the plea should not only allege that the goods and chattels mentioned in the declara- tion were not the property of the plaintiff, but should also allege whose they were; otherwise, the plea is bad.* Thus the denial of the unlawful detention does not put in issue the allegation in the petition that notice was given defendant that plaintiff claimed the property before the replevin suit was brought.' Where the plaintiff alleges and relies on possession, the defendant need not deny this specifically, but may state any fact which will defeat the plaintiff's action." § 748 . Plea must be certain to a common intent, liber- ally construed. A clause in a plea in replevin averring that the property in dispute is in the succession of' A., without naming the persons in succession, is good.' A plea in re- plevin is not objectionable on account of obscurity or ambi- guity, if it be certain to a common intent. It need only be ' Lecky v. McDermot, 5 Serg. & E. (Pa.) 331. 2 Jansen v. Effey, 10 Iowa, 227. a Kichardson v. Smith, 29 Cal. 529. * Austice V. Holmes, 3 Den. (N. Y.) 244. " Bensley r. McMillan, 49 Iowa, 517. * Skinner v. Chicago, &c., 12 Iowa, 191. ' Anderson r. Dunn, 19 Ark; 650. 398 ANSWEB. clear enough according to reasonable intendment and con- struction. The rule is that the natural sense must prevail. The words "there" and "said" will not be referred to the last antecedent, if the sense requires that they should be re- ferred to some prior antecedent.' In an action of replevin for certain ties, timber, and bridges, defendants in their answer denied that plaintiff was entitled to the immediate possession of the same, and denied the unlawful detention, but claimed a salvor's lien on the property for rescuing it from the flood. On demurrer to the answer : Held, that it stated a good defense, notwithstanding its failure to allege a full compliance with the salvage act.^ § 749. Evidence should not be pleaded, but facts stated. Where defense is tenancy in common, the plea should aver the tenancy, and then prove the facts showing it on the trial, and not plead the evidence.' To an action for replevin of a horse, the defendant pleaded that he took him up as an estray and advertised him, and that the plaintiff brought this action before the statutory time had expired. The plea was held good.* § 750. What is a good general denial. "Where an an- swer, after sufficiently admitting or denying certain allega- tions, denies each and every allegation not thus admitted or denied, it is sufficient, and where the action is based solely upon a wrongful detention, a general denial puts in issue as well, plaintiff's property in the chattel as the wrongful de- tention, and defendant under such a plea may show title in a stranger, although he does not connect himself with it.' An answer in replevin, which avers that the defendant was ' Lammers v. Meyer, 59 111. 215. 2 B. & M. R. R. v. Young Bear, 17 Neb. 668 (24 N. W. 377). ' Alwood T. Ruckinan, 21 111. 200. * Barnes v. Tannehill, 7 BlackJ. (Ind.) 604. 6 Griffin v. L. I. R. R. 101 N. Y. 34S (9 Civ. Proc. R. 84; 4 N. E.740); Caldwell V. Bruggermann, 4 Minn. 270; Jones v. Rahilly, 16 Minn. 320; Kennedy v. Shaw, 38 Ind. 474; Sparks v. Heritage, 45 Ind. 66; Sieden- bach T. Riley, 111 N. Y. 560 (19 N. E. 275; 2 How. Pr. 143). EFFECT OF A GOOD GENEEAL DENIAL. 399 and is the owner of the property replevied, and denies plain- tiff's right to maintain the action, puts in issue the plaintiff's title to the property.' An answer which denies the unlawful detention puts in issue the right to the property and the right to the possession.^ § 751. Effect of, and what may be proved under. Both the right of property and the right of possession are put in issue by a general denial. A general denial puts in issue every material allegation of the petition, and under it the de- fendant may give evidence of any special matter which amounts to a defense to the plaintiff's cause of action, as fi'aud in plaintiff's title, or possession as an officer under a writ by defendant.' Value is put in issue by a general de- nial, and must be proved.* In replevin a general denial puts in issue the plaintiff's right to the possession of the prop- erty at the commencement of the action, and every collateral fact necessary to the establishment of the same. An answer containing a general denial will not be required to be more definite and certain.^ A general denial requires plaintiff to make out title in himself, and authorizes the defendant to introduce proof of title in himself or a third person, where- upon the plaintiff may introduce evidence to overthrow this ' Chase f. Allen, 5 Allen (Mass.), 599. 2 Moore v. Kepuer, 7 Neb. 291. ^ = Bailey v. Swain, 45 Ohio St. 657 (16 N. E. 370); Oaks v. Wyatt, 10 Ohio, .^44; Ferrell r. Humphrey, 12 Ohio, 113; School District v. Shoe- maker, 5 Neb. 36; Crelghton r. Newton, 5 Neb. 100; Richardson r. Steele, 9 Neb. 483; Sopris v. Truax, 1 Col. 89; Snook r. Davis, 6 Mich. 156; Jensen v. Effey, 10 Iowa, 227; Holmberg v. Dean, 21 Kan. 73; Branch v. Wiseman, 51 Ind. 1; Staubach v. Kexford, 2 Mont. 566; Verry v. Small, 16 Gray, 121. Pomeroy in his Remedies and Remedial Eights, § 678, et seq., lays down a contrary rule and cites Frisbee v. Langworthy, 11 Wis. 375 ; and Glazier v. Clift, 10 Cal. 303. But this ia based on the common law rule of pleading in replevin, and that rule, in the absence of express Statutory provision, has not been followed by the courts since the introduction of the code procedure. Merrill v. Wedge- wood, 25 Neb. 283 (41 N. W. 149). * Thompson v. Scheid, 39 Minn. 102 (38 N. W. 801); German Amer- ican Bank v. White, 38 Minn. 471 (38 N. W. 361). s Aultman v. Stichler, 21 Neb. 72 (31 N. W. 241). 400 ANSWER. and establisli his title.' Property in defendant or in a stranger is a good defense, but is not necessary if a general denial is put in. Where prope/ty in a stranger is relied upon, it is not necessary that he be made a party to the action.^ In Arkansas general denials are not allowed, and non detinet is held not to be a good and sufficient plea to an action of re- plevin.' In replevin a general denial is sufficient to put plain- tiff to proof of title or right of possession, without any aver- ments of title in defendant or in a stranger.* An answer in replevin denying the plaintiff's ownership of the property in controversy casts the burden of proof upon him. He must recover upon the strength of his own title, not upon the weakness of his adversary's.* In replevin in detainer the general issue raises the question of the property of plaintiff.' § 752. Fraud may be proved under a general denial. Under a general denial in replevin defendant may prove that plaintiff's title was founded in fraud or any other matter that bars plaintiff's right, and paragraphs of the answer .specially pleading these fac<:s will be stricken out on motion.' § 753. Evidence of matter in estoppel may be given and availed of as a defense under a general denial and without being pleaded specially.' 1 Kennedy v. Shaw, 38 Ind. 474; Davis v. Warfield.SS Ind.461; Far- mer V. Calvert, 44 Ind. 209; Sparks v. Heritage, 45 Ind. 66; Merrill v. Wedgewood (Neb.), 41 N. W. 149. 2 Thompson v. Sweetser, 43 Ind. 312; Siedenbach v. Eiley (N. T.), 19 N. E. 275. ' Tyner v. Hays, 37 Ark. 599. This case is not authority outside of the state. * Pulliam V. Burlingame, 81 Mo. Ill; Gray v. Parker, 38 Mo. 160. 5 Kennedy v. Clayton, 29 Ark. 270; Patterson v. Fowler, 22 Ark. 396; Dixon v. Thatcher, 14 Ark. 141; Anderson r. Dunn, 19 Ark. 650; Eobinson f. Calloway, 4 Ark. 94. « Ashby V. West, 3 Ind. 170; Dillingham v. Smith, 30 Me. 370; Huron Y. Beckwith, 1 Wis. 17; Kennett v. Fickle (Kan.), 21 P. 93. ' Lane v. Sparks, 75 Ind. 278; Wiler v. Manley, 51 Ind. 169; Davis F. Warfield, 38 Ind. 461; Landers v. George, 40 Ind. 160; Riddle f. Parke, 12 Ind. 89; Kennedy f. Shaw, 38 Ind. 474. « Towne v. Spaxks, 23 Neb. 143 (36 N. W. 375). UNDEB GENERAL DENIAE MAY JUSTIFY UNDER A WRIT. 401 § 754. General denial does not compel the proof of the negative averments. A general denial in replevin does not compel plaintiff to prove the negative averments of his affi- davit, as that the property was not taken in execution, etc.,' unless they are pleaded as facts. Neither does it deny the averments of value in the petition, but the value is a question of proof, and the jury should determine the value from the evidence, whether it be denied or not.^ § 755. Under a general denial may justify under a writ. Where a defendant files a general denial, he may justify under legal process against the rightful owner, but one claiming title in himself is held to great strictness in setting it out.* In replevin, all that is necessary, in order to enable the defendant to prove any defense which he may have, is to deny all the allegations of the plaintiff's petition. "Where the defense is that the defendant holds the property under legal process issued against the property of the plain- tiff, the defendant need not allege in detail the nature of the action in which such process was issued, nor the jurisdic- tion of the justice to issue such process.* Under a general denial he may show that he had a right to detain the prop- erty, and therefore his possession was not wrongful.^ Under a general denial defendant may prove that he is a constable and levied on the property under an execution against a third party, and that such third party and the plaintiff own the property as partners, and under such a state of facts plain- ' Westenberger v. "Wheaton, 8 Kan. 169 ; Carney r. Doyle, 14 Wis. 270; Hudler v. Golden, 36 N. T. 446; O'Reille v. Good, 42 Barb. 521. ' Chicago, &c., v. Northwestern, &c., 38 Iowa, 377. ^ Bosse V. Thomas, 3 Mo. App. 472 ; Armstrong v. McMillan, 9 Mo. 721; Smith 7. Winston, 10 Mo. 299 ; Snook f. Davis, 6 Mich. 156 ; Schu- lenburg v. Harriman, 21 Wall. 44; Jansen v. Effey, 10 Iowa, 227; Oaks V. Wyatt, 10 Ohio, 344; 2 Nash. PL & Pr. 834; Schaffer r. Foldwescli, 16 Mo. 337; Rogers v. Ledwell, 3 Mo. App. 599. * Bailey v. Boyne, 20 Kan. 657. » Holmberg r. Dean, 21 Kan. 73. 26 402 ANSWEE. tifE cannot recover.' If the defendant claims possession by virtTie of a writ, it is sufficient if his answer sets up the date and amount of the writs and the names of the parties without appending copies/ § 756. May show official character as administrator. Under a general denial the defendant may show his official character as special administrator, and that as such he was entitled to the possession of the property, and this without notice." § 757. Justification under writ — Proper averments. In replevin against a constable who held the goods in contro- versy as the property of a third person under a writ of at- tachment, the defendant justified under the writ, and after verdict it was objected that it was not alleged in the plea that a debt was due from the attachment defendant to the plaintiff. Held (1), that if such averment was necessary, an allegation in the plea that the attachment was for $250, that the writ was at the time of the levy in full force and effect, and that the amount claimed was unpaid, was suffi- cient after verdict ; (2) that the defendant having also pleaded property in the attachment defendant, he was at liberty to put in the same defense under that plea; (3) that it is not necessary that the defendant should aver in his plea of justification or prove at the trial that the writ of attach- ment was duly returned, or that there was cause for suing out the attachment.* § 758. Justification — Burden of proof. The defendant in his answer denied plaintiff's ownership, justified his taking under an attachment (followed by judgment and execution) against one F., who was the plaintiff's vendor, and alleged that E. at the time of the taking was the owner and in pos- session, and further alleged that the claim of the plaintiff ' Branch v. Wiseman, 51 Ind. 1; Levi f. Darling, 28 Ind. 498; Martin r. Watson, 8 Wis. 315. 2 Kingsbury y. Buchanan, 11 Iowa, 387. ' Singer Manufacturing Company v. Benjamin, 55 Mich. 330. « McCraw r. Welch, 2 Col. 284. SHOULD ALLEGE AMOUNT, LEYT, AND VALIDITY OF WBIT. 403 was based upon a pretended transfer from F. to him for the purpose of defrauding F.'s creditors, which purpose was known to plaintiff. Held, that this was a proper plea in justij&cation, and when shown by defendant put upon plain- tiff the burden of showing the hona fides of the transaction by which he claimed title, and that a finding by the court that the sale from F. to plaintiff was not followed by an im- mediate and continued change of possession was within the issue made by the plea of justification.' Where goods are replevied by A from a sheriff who holds them by virtue of an execution against B, an answer alleging that said goods were in fact the property of B when seized raises a material issue, and, if true, constitutes a good defense to the action. § 739. Answer should allege amount, levy, and validity of writ. A plea to an action justifying the taking because it was done by virtue of a writ must aver that' the writ was in full force, the money unpaid, and that the property was taken in pursuance of its' authority.' Where the defendant in replevin answers that he held the property under writs as a marshal or sheriff, but does not state their amount, the burden is on defendant to prove the amount before he can receive judgment for the value of the property and damages.* An answer which justifies the taking complained of by plain- tiff under legal process, and prays judgment for a restitution or its value, is good.^ The amount of the fi fa under which a constable held the property being stated in blank will not be fatal after issue and verdict." Where an officer justifies under a writ of attachment or execution, the plea need not recite the writ in full, but it should state the nature of the writ, the court from whence it issued, the commands of the wi'it, and what he has done under the writ, and that the > Stephens v. Hallstead, 58 Cal. 193. ' Hall V. Jenness, 6 Kan. 356. » Dayton v. Fry, 29 111. 525. « Booth v. Ablemau, 20 Wis. 21. ■i Stringer t. Davis, 35 Cal. 25. « Herley r. Hume, 5 T. B. Mon. (Ky.) 181. 404 ANSWER. property levied on was property lie was authorized to levy on under the command of the writ. These allegations are necessary, that the court may determine the validity of his defense.' It has been held that he must show an indebted- ness due to the plaintiff in the original process.'^ Where the defendant is an officer, and he wishes a return, he must plead a valid execution and judgment, and prove them.'' And it must allege that the writ was in full force and valid, and the property was taken according to the command thereof.* § 760. If the oflBcer did not take the property from defendant, must allege that it was his. A plea of justifi- cation to an action of replevin against an officer for seizing the property on execution, if the property was not in the possession of the defendant in execution when taken, must aver that it was the property of the execution defendant.' Where defendant justified as sheriff under an attachment against the property of B., and alleged that the goods in dispute at the time of the levy belonged to B. & P., he was entitled under this answer to attack at the trial the validity of a sale by B. & P. of the property to the plaintiff in re- plevin made before the levy.' § 761. Matter of inducement in plea is not traversable. Where a plea in an action of replevin sets up an execution ' Eichardson v. Smith, 29 Cal. 529; McCarty r. Gage, 3 Wis. 404; Parsley v. Huston, 3 Blackf. 348; Whittiugton v. Bearing, 3 J. J. Marsh (Ky.), 684; Dillon v. Wright, 4 J. J. Marsh (Ky.), 254; Wheeler v. McCorristen, 24 111. 42 ; Van Namee v. Bradley, 69 111. 301 ; Mount Car- bon Coal Company v. Andrews, 53 111. 185; Smith v. Winston, 10 Mo. 801; Gentry r. Borgis, 6 Blaokf. 262; Adams v. Hubbard, 30 Mich. 104; Buck V. Colbath, 3 Wall. 242, 334. ^ O'Conner v. Union Line, 31 Line. 230; Sanford Manufacturing Com- pany V. Wiggins, 14 N. H. 441; Goodrich v. Fritz, 4 Ark. 525; McDon- ald V. Fresco tt, 2 Nev. 109; Hazzard t^. Benton, 4 Har. (Del.)62; Shoarick F. Huber, 6 Binns (Pa.), 4; Damon v. Bryant, 2 Pick. 413. 'Glascock V. Nave, 15 Harrison (Ind.), 458; Beach v. Botsford, 1 Doug. (Mich.) 206; Sandeford r. Hess, 1 Head. (Tenn.) 679; Clay r. Coperton, 1 T. B. Mon. (Ky) 10. * Dayton v. Fry, 29 lU. 526. 6 Smith r. Winston, 10 Mo. 299. ' Blakeslee v. Bossman, 44 Wis. 553 ; Marlin v. Watson, 8 Wis. 315. DEFENDANT MAY PLEAD DIFFERENT DEFENSES. 405 against a third party, and a levy by the defendant, as an officer, of such execution upon the goods in dispute as the property of such third party, and avers that the goods in dispute were the property of such third party, and were not the property of the plaintiff, the averments as to the execu- tion and levy are mere matters of inducement, which may be treated as surplusage, and still the plea would present a good defense to the action. By a general demurrer to such a plea, the plaintiff confesses that the goods in question are not his, as claimed in his declaration, but are the goods of another, and that being so, the action cannot be maintained, and it is unimportant whether the defendant, as to the one confessed to be the owner, has a lawful right to meddle with the goods or not.* § 762. By officer, what answer should be. In case of fraud, what. Where an officer justifies under a writ, special property in himself or in the plaintiff in the execution, he ought also to traverse the right of property in the plaintiff. And when he desires to attack plaintiff's title for fraud, he should also plead the facts which put plaintiff in execution in position to take advantage of the fraud. ^ "Where a defend- ant answered that he was constable, and as such had levied executions on the property in question as the property of an execution defendant, but there was no averment that the property belonged to such execution defendant, nor that it was subject to levy on such executions, held, on demurrer, that the answer is bad.' § 763. Defendant may plead as many separate defenses as he may have, and it is not necessary that these defenses be consistent with each other. Each defense should be fully and completely stated without reference to any other defense, and should be consistent with itself. Since the statute of 4 Anne, Oh. 16 (in 1706), the approved doctrine has been that 1 Lamping v. Payne, 83 111. 463. 2 Schermerhorn v. Mitchell, 15 Bradw. (111.) 418. ' Olds V. Andrews, 66 Ind. 147. See Fordyce v. Pipher, 84 Ind. 86. 4:06 ANSWER. a state of facts admitted in one plea can not be taken as evi- dence of those facts if denied in another plea.' If tenants in coiiijiion join or are joined in a suit, they may plead jointly, bnt if each proceed for his own interest, each must avow for himself.^ If on the trial he establish any one of these seve- ral defenses, it is sufficient. He can offer proof on all or any one alone.' An answer of a defendant in replevin may deny plaintiff's title and right to possession and also claim title in defendant as an officer under a writ. Such defenses are not inconsistent, and may be pleaded together.* § 764. All defenses must be with reference to the time the suit was commenced. A plea claiming title at a time prior to the commencement of the suit is bad as raising no issue.* § 765. Where there are several defendants,, each may plead separately as many proper defenses as he may have, without regard to what his co-defendants plead." All may plead property in one alone.' If they all claim a joint right and a return to their joint possession, they must claim that possession by the same right.' § 766. How far court may control defendant's pleading. The court cannot compel defendant to strike out of his answer a claim for a return of part of the property, even though plaintiff does not claim it, when it was taken on the writ." The court may compel a more specific statement of a 1 Edmonds v. Groves, 2 Mees. &W. 642; Gaines v. Tibbs,6 Dana,147; Sinter t'. Page, 11 Johns. 196; Parsley v. Huston, 3 Blackf. 348; Whit- well V. Wells, 24 Pick. 27; Simpson v. McFarlaud, 18 Pick. 432; Har- wood V. Smethursfc, 5 Dutch. (29 N. J.) 195; Edelen r. Thompson, 2 Har. & G. (Md.) 32. 2 Talvande v. Cripps, 3 McCord (S. C), 147. ^ Mt. Carbon, &c., v. Andrews, 53 111. 184; Amos r. Sinnott, 4 Scam. 441; Rogers v. Arnold, 12 Wend. 34; Chambers v. Hunt, 18 N. J. 639. * Williams v. Eikenberry, 22 Neb. 211 (34 N. W. 373). s Patton V. Hammer, 28 Ala. 618. " Boyd r. McAdams, 16 111. 146; Martin v. Ray, 1 Blackf. 291. ' White y. Lloyd, 3 Blackf. 390. See GotlofE v. Henry, 14 111. 384. 8 Gaines r. Tibbs, 6 Dana (Ky.), 144. « Howell V. Foster, 65 Cal. 169. EFFECT OF PLEA OF PKOPEETY IN DEFENDANT. 407 defense in a replevin action.^ It is error for the court to strike out part of defendant's answer, though the defenses may seem to be inconsistent.^ More than one defense may be set up in an action in replevin, as well as in an action on a bond or debt' It is not error for the court to strike from an answer averments that could be proven under a general denial, which was one ground of defense set up in the answer.* A party is not prejudiced by striking out a portion of his answer, when the same defense is set up in another part of his answer, which is allowed to stand. ° § 767. Effect of plea of property in defendant. Where defendant pleads title and right of property in himself, it is always held a sufficient denial of plaintiff's claim. Plea of "property in defendant" is a claim of everything, and puts the plaintiff on proof of his right to it.° Property in defend- ant may be pleaded after an avowry.' In replevin a plea of property in a stranger or in defendant is good.^ Under an issue upon .a general plea of property in the defendant, in an action of replevin, the defendant may show any legal title to the property, no matter how derived.' In replevin the first plea was of property in S. P., the second that the de- fendant took the goods as constable by virtue of an execution against S. P., and that the goods belonged to S. P. Held, that the second plea might be rejected, as it was substantially the same as the first, and amounted to a plea of property in a stranger.'" An allegation in an answer in replevin that ' Cunard v. Francklyn, 111 N,*Y. 511 (19 N. E. 92). 2 McDonald v. Prescott, 2 Neb. 109. 8 Holton V. Lewis, 1 McCord (S. C), 17. * Auld V. Kimberlin, 7 Kan. 601. 6 Van Horn v. Overman, 75 Iowa, 421 (39 N. W. 679). • McIIvaine v. Holland, 5 HaiT. (Del.) 10. ' Hellings v. Wright, 14 Pa. St. 373. singraham v. Mead, 1 Hill (N. Y.), 353; Harrison v. Mcintosh, 1 Johns. (N. Y.) 380; Chambers v. Hunt, 18 N. J. Laws (3 Harr.) 339; Hall r. ninlene,'9 Ind. 256; Martin v. Ray, 1 Blackf. (Ind.) 291; Ed- wards V. McCurdy, 13 III. 496; Dermott v. Wallach, 1 Black, 96. 9 O'Conner v. Union Line, 31 111. 230. «« Mains v. Perkins, 4 Blackf. (Ind.) 271. 408 ANSWEB. the defendant " is rightfully entitled to the property and to "the possession thereof," following a denial of all the averments of the petition, is cumulative, and does not re- quire a denial.' A mere denial by a defendant of the facts stated by plaintiff in his petition is not an assertion of owner- ship in defendant.^ If a defendant in replevin plead prop- erty in himself or another, the place of taking the goods is not material.' § 768. Plea of property in a third person is good. In replevin for the wrongful taking and detention of personal property, if the defendant plead only property in third per- sons, the taking and detention of the property will be ad- mitted.* As a matter of pleading in actions of replevin, an answer of title in a third person is good without any allega- tions connecting defendant with the right of such third per- son.^ A plea of property in the defendant or in a stranger must traverse the right of the plaintiff." A defendant alleged that the property replevied belonged to his minor son, that he, as natural guardian, was bound to keep the cus- tody of it, and that his son was fraudulently inveigled by the plaintiff to part with the possession of it. Held, that the last averment was surplusage, the plea being good without it.' Title in a third person is a good defense in replevin, but de- fendant is not entitled upon such a plea, coupled with a dis- claimer of interest in the property, to a dismissal of the suit.' In replevin the pleas of non cepit and non detinet concede the right of property to be in the plaintiff, and only put in issue its caption and detention. The plea of property in a third ' Hunt-r. Bennett, 4 Greene (Iowa), 512. 2 Peters v. Parsons, 18 Neb. 191 (24 N. W. 687). 'Emmett v. Briggs, 21 N. J. L. (1 Zab.), 53. * Kern v. Potter, 71 111. 19; Krause v. Curtis, 73 III. 450. ^Ingraham v. Hammond, 1 Hill (N. Y.j,3o3; Patterson F.Adams, Hill & Denio (N. Y.), 428; Wright v. Bennett, 3 Barb. 456; McKnight r. Dunlap, 4 Barb. 41 ; Eookwell v. Saunders, 19 Barb. 481. • Rogers v. Arnold, 12 Wend. (N. Y.) 30. ' Bliss V. Badger, 36 Vt. 338. » Choen v. Porter, 66 Ind. 194, ILLUSTRATIONS OIT SUFFICIENT ANSWEB. 409 person puts in issue the plaintiff's right to the property, the allegation of property in another being merely inducement to the traverse of the plaintiff's right. Property in defend- ant or in a third person, sufficient to sustain a defense under such pleas, must be such as goes to destroy the interest of the plaintiff, which, if existing, would sustain the action, or, in other words, such as would defeat an action of trespass if brought in place of this action in case of a wrongful taking, or trover if brought for a wrongful detention.' § 769. A plea in bar is a good answer. An answer set- ting up a former judgment in replevin between same parties for same property, is a good defense.^ An answer pleading in bar another suit in replevin between the same parties con- cerning the same property must allege that the first action was decided upon its merits.' § 770. Jurisdiction — Plea in abatement. In replevin a plea in abatement raising a question of jurisdiction may be made by answer.* A plea that plaintiff was non compos mentis presents matter in abatement only.' § 771. Illustrations of sufficient answer. The answer denied "that at the time stated in the complaint or at any "other time the property described in the complaint- came "into defendant's possession, or that the same was or re- "mained in his possession at the commencement of this ac- "tion, as alleged in said complaint." Held, a sufficient an- swer." In an action of replevin an allegation by the defend- ant that he purchased the property in controversy of a third party is a sufficient denial of plaintiff's allegation of owner- ship.' Eequisites and sufficiency of the answer determined ' Van Namee v. Bradley, 69 111. 299; Johnson v. Howe, 2 Gilm. 342; Vose V. Hai-t, 12 111. 378 ; Warner v. Matthews, 18 111. 86 ; Bourk v. Riggs, 38 111. 320; Chandler v. Lincoln, 52 111. 74. ^Malony f. Griffln, 15 Ind. 213. 2 Terryll v. Bailey, 27 Minn. 304 (7 N. W. 261). * Thompson v. Bronson, 17 Mo. App. 456. = Jetton V. Smead, 29 Ark. 372. ° Roberts v. Johannas, 41 Wis. 616. ' Litchfield v. Halligan, 48 Iowa, 126. 410 ANSWER. in cases depending upon particular facts.' An answer in re- plevin containing an allegation that the property was not unlawfully detained by the defendant, nor was plaintiff en- titled to the immediate possession thereof, states a defense and is not demurrable.^ An answer in replevin for wheat which sets up that plaintiff's title was by an executory con- tract, and that there had been no delivery, alleges a good de- fense.^ A plea that the goods had been distrained for taxes is good, either in abatement or bar.* An answer in an ac- tion of claim and delivery, which denies the ownership of the plaintiff, is not obnoxious on a general demurrer.^ § 772. Replevin by a mortgagee— Defense. An answer which sets forth that the title of plaintiff is as administrator of a mortgagee, and that such mortgage was made with in- tent to defraud creditors, and setting forth facts constituting fraud, and alleging that defendant had purchased the goods at a constable's execution sale, is good.° § 773. Plea of payment — No recovery for over-pay- ment. In an action in replevin an answer was filed alleging in detail purchase by installments, and over-payments, and demanding judgment for the amount over-paid. Held, on demurrer, that the answer was good as showing title in the defendant, but that he can not recover for the over-payment.' § 774 Answers defective in substance — Examples. In Indiana an answer that the defendant is entitled to the pos- session is bad. It should set out the grounds of his right.' In replevin a plea alleging that the defendant was not in the possession of the property, nor claimed to own it at the time 1 Bartlett v. Brickett, 98 Mass. 521; Stickney v. Smith, 5 Minn. 486; Blackman v. Wheaton, 13 Minn. 326. 2 B. & M..E. R. V. Young Bear, 18 Neb. 494 (25 N. W. 729). ^ Dixon V. Duke, 85 Ind. 434; Benjamin on Sales, § 675, note. * Deshler v. Dodge, 16 How. 622. = Laug-hlin v. Thompson, 76 Cal. 287. 8 McFadden, Admr., v. Fritz, 90 Ind. 590. ' Baldwin v. Burrows, 95 Ind. 81. « MoTaggart r. Rose, 14 Ind. 230. INCOMPLETE AND OONTEADICTOEY DEFENSES. 411 it was replevied, is bad in substance.^ A took and converted tbe mule of plaintiff and sold it to B. Plaintiff brought re- plevin in the detinet against B and recovered, and then sued A for the trespass, to which A pleaded former recovery. Held, on demurrer, that the plea was not good, the original taking by A and the detention by.B being separate causes of action.'' In replevin against a sheriff for property at- tached by him, a' plea of payment to the plaintiff in the suit subsequent to the attachment, without notice to the sheriff or an averment of discontinuance, is bad.' § 775. Special pleas— Incomplete defenses— Sufficient answer. The right of the plaintiff can only be put in issue by formally traversing his allegation of title, or by specially pleading that the right of property is in some other person than the plaintiff. No issues in replevin can be raised by con- junctive and literal denials.* In replevin, where the real issue is the ownership of the property, a plea that properly tenders ihat issue is a proper and sufficient plea, and the fact that another good plea tendering the same issue was filed would not render bad the first plea. Special pleas are proper in re- plevin, and should not be stricken out.^ An answer pleaded to the whole complaint, but which does not answer all the paragraphs of the complaint, is bad.' § 776. Contradictory defenses. "Where the defendant files an answer containing a general denial and six subse- quent defenses, in which he admits the- ownership of plaintiff, and that defendant detains the same from the plaintiff, held, that the general denial can only be considered as a denial ^ Sayward v. "Warren, 27 Me. 453. 2 McGee v. Overby, 12 Ark. 164. 8 LiviDgston v. Smith, 5 Pet. 90. * Moser v. Jenkins, 5 Ore. 447. 6 Glenn v. Brush, 3 Col. 26. See HnntF. Chambers, 21 N. T. 620, An- derson V. Talcot, 1 Gil. 365; Rogers v. Arnold, 12 Wend. 30; TheMount Carbon, &c., Company r. Andrews, 53 111. 176; Dayton v. Fry, 29 III. 525; Chandler y. Lincoln, 52 111. 74. « Keller v. Boatman, 49 Ind. 104; Smith v. Little, 67 Ind. 549. 412 ANSWEB. that plaintiff is entitled to the immediate possession of the property, and that defendant wrongfully detains the same from plaintiff.' § 777. Defendant cannot anticipate special title not pleaded by plaintiff. "Where plaintiff does not disclose the source or character of the title under which he claims in hia pleadings, the defendant cannot be expected to set up matter in avoidance of a chattel mortgage under which plaintiff claims. In a case of this kind it becomes necessary in fur- therance of justice to allow defendant to prove matter in avoidance without having pleaded it.^ § 778. Under a general denial defendant cannot show that some of the property died in his hands, but without his fault, between the commencement of the action and the trial.' § 779. A special property interest cannot be shown under a general denial. Under a general denial in re- plevin a defendant may show absolute title in himself or a. third party, but not a special property as, a lien on stock for their feed. This must be pleaded if relied on.* Where a defendant sets up a special agreement as a defense, the plea must set out the terms of the agreement with certainty and precision; otherwise, the plea will be held bad.'* § 780. Usury should be specially pleaded. Where the defense is usury, it should be specially pleaded, and if not between the parties to the usurious transaction, the circum- stances which enable the pleader to take advantage of it should also be pleaded. ° 1 Yandle r. Crane, 13 Kan. 344. 2 Hewitt V. Morris, 37 N. T. Sup. Ct. 18. 8 Blaker v. Sands, 29 Kan. 551. * Guille V. Wong Fook, 13 Ore. 5T7 (11 P. 277). In tWs case, when demand was made before action brought, defendant claimed to ownthe property. See Poraeroy's Eem., § 703, and cases cited. ^ Curtis V. Jones, 3 Denio (N. Y.), 590. In this case plaintiff claimed by virtue of a mechanic's lien. Defendant claimed a special agreement by which no lien was to be had in favor of plaintiff. « Dix r. Van Wyck, 2 Hill, 522. ANSWER NEED NOT CLAIM; A EETUBN. 413 § 781. Fraud should be specially pleaded. When the officer wishes to contest the title of plaintiff as fraudulent as to creditors whose process he holds, the fraud should be specially pleaded.' § 782. Answer need not claim a return of the property in replevin,^ but if the plaintiff has obtained possession, the' answer should set up the change of possession, that there may be averments upon which a proper judgment may be based.' In an action for the recovery of personal property, where the property has been delivered to plaintiff under pro- ceedings in the action, it is not necessary, in order to entitle defendant to a return, that he should allege affirmatively that he or a third person is entitled to the possession of the prop- erty. The general denial, if the plaintiff fail to prove his averments, determines that the property should be restored to the defendant, but the court, in the exercise of its equity jurisdiction, may refuse to direct a return in the interest of justice. A defendant is not entitled to a return unless he demand it in his answer, but the answer may be amended after trial so as to ask for a return.* A cross complaint or answer specially praying a return of the property to the de- fendant is not necessary to entitle defendant to a judgment of return, the general denial being sufficient. ° It is not necessary for a defendant in replevin to claim special dam- age for the taking and detaining of. his property in order to recover them." ' Frisbee r. Langworthy, 11 Wis. S75. 2 Matlock V. Straughn, 21 Ind. 128. = Gould r. Scannell, 13 Cal. 480. *Pico V. Pico, 56 Cal. 453. = Williams r. Kessler, 82 Ind. 183. « Woodrufi F. Cook, 25 Barb. (N. T.) 506. 414 SKFENSEa, CHAPTEE XXYnX DEFENSES. Section. Defenses generally . . . 783 Plaintiff muBt show right of possession against the ■world 784 Titleinathird partyisa good defense 785 Outstanding titlein third per- son, when available . . 786 General rule as to availability of such a defense . . . 787 It is no defense that the goods are subject to a prior mort- gage 788 Where the statutes provide that claimants shall be made parties, a contrary rule has been laid down . 789 Remedy by intervention not exclusive .... 790 Recoupment and set-off not allowed in replevin . . 791 A tort cannot be justified by aset-offl 792 Rule incase of a chattel mort- gage — Usury a good defense 793 Courts should give the action such flexibility as to do jus- tice, where possible . . 794 An off-set may be pleaded against the damages . . 795 Any defense interposed must have relation to the com- mencement of the action . 796 Defense cannot be changed after suit brought . . 797 Failure of plaintiff's title after action brought is no defense 798 Section. Estoppel— Waiver . . . 799 The effect of death of one of the parties does not abate the suit 800 Where a contrary doctrine has been held, it is under a statutory enactment. . . 801 Where one of two defendants dies, does not abate . . 802 Justification under a writ is a good defense . . . 803 Justification — How pleaded and proved .... 804 An officer from whom at- tached property is replev- ied cannot urge informal defects as a defense . . 805 A valid judgment must be al- leged in case of a levy by ex- ecution 806 A jfi fe is a good defense by an officer, but not by plaintiff in execution .... 807 Trial of the right of property and judgment in favor of the officer is a good defense 808 The pendency of another ac- tion involving the same question is a good defense . 809 It must be a final judgment on the same issue . . . 810 Where defendant pleads a former adjudication, he must show all the facts . 811 A judgment on other issues is no defense .... 812 DEFENSES GENERALLY. 415 Section. What plea in abatement must containtobea valid defense 813 When plea in abatement proper— Examples . . 814 A special right of possession is a good defense . . . 815 A lien in a third person no de- fense 816 Title acquired by possession alone may be a good de- fense 817 A tax warrant is a good de- fense 818 Title acquired from plaintiff is a good defense . . . 819 A judgment in trover for the conversion .... 820 A claim of title in defendant is a good defense . . . 821 That the property is not iden- tical is a good defense . 822 Statute of frauds — Who can plead it 823 Fraud as a defense must be specially pleaded . . . 824 Section. What are proper defenses- Examples A defense based on a special law must show full compli- ance with that law Defenses proper in case of a distress Defense is t^'aived if not taken advantage of in time . Improper defense — Examples 829 Destruction by "act of God" not a good defense Death of the property may be shown in mitigation of dam- ages .... Taking by a soldier in time of war, no defense Garnishment is no defense Purchase in market Overt — Or at public sale no defense 834 Eight of homestead — No de- fense against replevin by a mortgagee .... 835 A prior foreclosure in chan- cery is a good defense . .836 825 826 82 T 828 830 831 832 833 § 783. Defenses generally. Any defense which contro- verts plaintifE's right of possession at the time the suit was commenced is allowable, and if the question raised by plain- tiff is one of title, any defense that shows title in some one else is proper. Anything going to show that the plaintiff had no right to the possession when he commenced his suit is a complete bar to the action, as that the defendant law- fully held the property as against the plaintiff by virtue of a prior writ of replevin.^ Several defenses may be pleaded by defendant at the same time.^ All the defenses set up by defendant must be passed upon.' > Belden v. Laing, 8 Mich. 500. " Martin r. Bay, 1 Blackf. (Ind.) 291. This is the better doctrine, though a contrary rule was held in Vaiden v. Bell, 3 Band. (Va.), 448. ' Sprague v. Kneeland, 12 Wend. (N. Y.) 161. 416 , DEFENSES. § 784. Plaintiff must show right of possession agstinst the world. Title in a third person is a good defense.' Plaintiff in replevin, claiming title in himself, must make title against the world, as on such an issue a general denial puts in issue the right on which plaintiff bases his writ.^ A gen- eral denial in replevin puts in issue the title and right of possession of plaintiff, and under such general denial defend- ant may prove title or right of possession either in himself or in a stranger, or may in any other manner controvert plaintiff's title or right of possession, or he may show that he himself never had the possession, actual or constructive.' A plaintiff in replevin must stand on his title, and any de- fense going to impeach his title is proper. Where plaintiff «laims to own goods levied on in execution against a third person, it may be shown that plaintiff's title is founded in fraud in fact or fraud in law, and plaintiff can not go back of the judgment on which the execution was issued and ques- tion the consideration on which it was based.* In replevin, under the plea of property, the defendant is at liberty to show ■either a general or special property in himself. The plea of property imposes upon the plaintiff the necessity of estab- lishing his title and the right of exclusive possession. ° § 785. Title in a third party is a good defense. Where the property belongs to a third party, the plaintiff cannot recover ; and if the property has been taken from the def end- dant, there must be judgment for its return.^ Anything going to show that the plaintiff in replevin had no right to the possession when he commenced his suit is a complete bar to the action.' Defendant, under a mere general denial, may show that plaintiff has not the title or right of posses- '^ Sutro V. Hoile, a Neb. 186. ^ School District r. Shoemaker, 5 Neb. 36. ■= Timp V. Dockham, 32 Wis. 147. * Hotchkiss V. Ashley, 44. Vt. 195. ' Mathias v. Sellers, 86 Pa. 486. * Collier v. Yearwood, 5 Bax. (Tenn.) 581. ' Clark r. West, 23 Mich. 242; Belden v. Laing, 8 Mich. 500. OUTSTANDING TITLE IN THIBD PEESON. 417 sion, and to that end may prove title in himself or a stran- ger. Where defendant in such a case has shown that he had rightful possession under a third person, the fact that, without authority from the owner, he has given a bill of sale of the chattels to the plaintiff, will not defeat his right of possession as against the latter ; and the purpose for which he gave such bill of sale is immaterial.' A sole defendant in replevin may set up as a defense a lien upon the property replevied in favor of the firm of which defendant is a mem- ber for work done by the firm on the property sought to be replevied.'' § 786. Outstanding title in third person, when avail- able. In an action of detinue defendant cannot set up an outstanding title in a third person without connecting him- self with it' A purchaser of a sewing machine from one in possession, but without title, cannot defeat a recovery by the owner unless he shows a bona fide purchase for valuable consideration without notice.* In replevin the plaintiff may recover against a mere trespasser by showing possession only, and the defendant cannot set up an outstanding title in a third person with which he does not connect himself. But where the plaintiff did not have possession, but bases his right of recovery on his legal title, the defendant may set up an outstanding title in a third person without con- necting himself with it. It is enough that the plaintiff has ao title.^ Property in himself or in a stranger is a good de- fense. It is not necessary that defendant should connect himself with the title of the stranger. It is sufficient for bim that the right of property is not in the plaintiff. The > Delaney v. Canmng, 52 Wis. 266 (8 N. W. 897). = Holderman v. Manier, 104 Ind. 118 (3 N. E. 811). 8 Gafford v. Stearns, 51 Ala. 434; Sims f. Boynton, 82 Ala. 353. * Sumner v. Woods, 52 Ala. 94. 6 Mcintosh r. Parker, 82 Ala. 238; Jackson v. Rutherford, 73 Ala. 156; Bussell f. Walker, 73 Ala. 315; Foster v. Chamberlain, 41 Ala. 158. 27 418 DEFENSES. plaintiff must recover on the strength of his own title." In New York a defendant in replevin may interpose a claim of property in the thing of which deliverance is sought, al- though he be not the possessor thereof.'' A defendant in replevin is not estopped from setting up title in B when the plaintiff has loaned to A the property replevied, which A has subsequently exchanged with defendant.' The defense that the property belonged to a third party, and was taken by legal process against him in replevin, is admissible under the general issue without notice.* One in the sole and peace- able possession of goods, not as an intruder, trespasser, or wrongdoer, but as the owner, either of the whole or some special property in them, has a valid title as against all mere strangers, which they cannot defeat by showing an outstanding title in some third party.^ A defendant who * has wrongfully taken possession of the property cannot set up as a defense that other persons who are not defendants have a lien on the property which entitles them to its pos- session. ° § 787. General rule as to availability of such a de- fense. While as a general rule a defendant in replevin is permitted to show title in a third party at the date of the institution of the suit,' there are some exceptions to this rule, and the title in a third party, to be available as a de- fense, must be such a title as to entitle such third party to the possession at the commencement of the suit; and where the action was based upon a forfeited chattel mortgage, exe- cuted by the defendant, he cannot set up as a defense that 1 Spores V. Boggs, 6 Ore. 122; Edwards v. Talcott, IGilman, 365. 2 Mitchell V. Hinman, 8 Wend. (N. Y.) 667. ' McFerrin r. Percy, 1 Sneed, (Tenn.), 314. * Snook V. Davis, 6 Mich. 156. 5 Van Baalen v. Dean, 27 Mich. 104. ' Laughlin v. Thompson, 76 Cal. 287. In this case defendant was an officer, and the ecu rt say either held under a writ which protected him or else he was a trespasser — somebody else's title was of no advantage to him. 'Sterm v. Mason, 16 Mo. App. 473; Young r. Glasscock, 79 Mo. 575. EFFECT OF A PEIOB MORTGAGE. 419 a third person holds a better title than that of the plaintiff by reason of a prior mortgage delivered to such third per- son by the defendant — thus implying a breach of his own warranty of the plaintiff's title — and especially when it does not appear that the condition of such prior mortgage has been broken.' § 788. It is no defense that the goods are subject to a prior mortgage if the prior mortgage provides that the mortgagor may remain in possession until breach of con- dition, and there is no evidence that the prior mortgagee has made any claim upon the mortgagor.^ It is no defense to an action of replevin by a mortgagee that a suit for the foreclosure of the mortgage betwcou tlin same parties is al- ready pending, as this does not affect the right to posses- sion.^ In an action by a mortgagee to obtain possession of the chattels, as against another mortgagee thereof, he must show default in his mortgage, or such a state of facts as, under it, will entitle him to the possession.* § 789. Where the statutes provide that claimants shall be made parties, a contrary rule has been laid down. Title in a third person, not a party to the action, cannot be shown in defense to a suit in replevin. Such third person should be made a party.^ A defendant in replevin cannot assert the right of a third person to a lien on the property as a bar to the plaintiff's right to possession.* Where defend- ant disclaimed title in himself, alleging that plaintiff's wife was the owner, and that he was her bailee, and the wife thereupon petitioned to intervene and be made a party, held, ' Gottschalk v. Klinger, 33 Mo. App. 410 ; Adams v. Wildes, 107 Mass. 123. 3 Adams v. "Wildes, 107 Mass. 123. = Lorch V. Aultman, 75 Ind. 162. * Madison National Bank v. Farmer, 5 Dak. 282 (40 N. W. 345). ^ Reed v. Eeed, 13 Iowa, 5; Corbitt v. Hiesly, 15 Iowa, 296; McChing V. Bergfleld, 4 Minn. 148. « McGill V. Howard, 61 Miss. 411. 420 DEFENSES. that she was entitled to be made a party defendant as a matter of right.' § 790. Remedy by intervention not exclusive. Where the statute allows a claimant of property attached to inter- vene in the attachment suit, this remedy is not exclusive, and does not bar him of his right of replevin.^ § 791. Recoupment and set-off not allowed in replevin. Accounts cannot be adjusted or settled in a replevin action.' The action of replevin sounds in tort, and it cannot be turned into an equitable action for the adjustment of accounts be- tween the parties, but where the claim of plaintiff is based on the fact that a certain sum is due him, it is permissible to show that nothing was due him, and consequently he had no right of possession. As in the case of replevin for wheat, defendant justified the detention on the ground that he had a lien as warehouseman for storage and care, and the plain- tiff contended that by his neglect forty bushels of the wheat had been lost, and that this wheat was equal in value to the storage claimed. Held, a proper matter for investigation in replevin, and that the damage, if sufficient in amount, would extinguish the lien.* Thus, where property is distrained for rent, the very foundation of the action is rent due. In such cases the tenant has been permitted to show any set-off or counter claim which would establish the fact that no rent was due.^ The practice of the courts has not been quite 1 Carney v. Gleissmer, 62 Wis. 493 (22 N. W, 735). 2 Wangler v. Franklin, 70 Mo. 659; Burgert v. Borchert, 59 Mo. 85. If final judgment on his inter- plea had been against him, it would proba- bly have defeated him in a replevin action. Eichardson v. Jones, 16 Mo. 177. » WhitwoTth T. Thomas, 83 Ala. 308 (3 So. 781) ; Otter v. "Williams, 21 111. 120; Stow 7. Tarwood, 14 111. 427; Keaggy v. Hite, 12 111. 101; Streeter v. Streeter, 43 111. 155; Chitty on Contracts, 1266-7; Waters on Set-off, 169. * Babb V. Talcott, 47 Mo. 343. " Lindley v. Miller, 67 111. 248; Fairman v. Fluck, 5 Watts, 516; Peck V. Brewer, 48 111. 55; Peterson v. Haight, 3 Whart. (Pa.) 150; Warner F. Caulk, 3 Whart. 193; Phillips v. Mouges, 4 Whart. 225. BULK IN CASE OF CHATTEL MORTGAGE. 421 uniform on this point. "Where, by agreement, the tenant was to make improvements, and the landlord to allow for them at the end of the term, oi^ to take them at a valuation, held, on replevin by the tenant after a distraint by the land- lord, that the tenant could not set off the value of the im- provements or damages for taking them.' § 792. A tort cannot be justified by a set-off. While the justiiication of a tort by a set-off is not admissible gen- erally, yet in the action of replevin to test the validity of a distress for rent, the issue presented as to the "unlawful taking" rests upon the fact whether the rent is or is not due, and the tenant may show any matter competent to dis- charge this liability.^ In replevin the defendant cannot set off against the plaintiff's recovery a large indebtedness due to him for the goods in dispute.^ Set-off is not generally allowed in replevin,* and generally such claims for recoup- ment must be closely confined to claims growing out of the same subject-matter.^ But a wrongful taker can never be allowed to set up an account to justify the taking. § 798. Rule in case of chattel mortgage — Usury a good defense. After default the mortgagee may bring replevin for the property as long as any part of the debt is unpaid. A partial payment pleaded as a set-off is no defense, but full payment is a good defense.' In an action of claim and de- ' Warner v. Caulk, 3 Whart. (Pa.) 193; Peterson v. Haight, 3 Whart. (Pa.) 150. ^ Bloodworth v. Stevens, 51 Miss. 475. In this case defendant seized cotton bales for rent due as per a contract. Plaintiff replevied, admit- ting the lease, and claiming that defendant (lessee) also agreed to repair a certain fence, by his failure to do which plaintiff was damaged by tres- passing stock to more than the rent. He therefore owed no rent. Held, a proper issue under the circumstances. 3 Kilgore v. Smith, 122 Pa. 48 (15 A. 698). * Waterman on Set-off, 169; Kennett v. Fickel (Kan.), 21 P. 93. " = Streeter v. Streeter, 43 111. 155; Sears v. Wingate, 3 Allen, 103. See Salters v. Everett, 20 Wend. 267; Babcock v. Trice, 18 111. 420; Turner v. Better, 58 111. 265. ^ Hudson V. Snipes, 40 Ark. 75; Marks v. McGhee,35 Ark. 218; Jones on Chattel Mortgages, § 706. 422 DEFENSES. livery by a mortgagee of chattels for possession, the mort- gagor may show usury in the contract as a defense/ In re- plevin against one representing the mortgagee, by one not claiming under the mortgagor, the question how much is due on the mortgage debt is immaterial.^ § 794. Courts should give the action such flexibility as to do justice where possiblel Set-off is not allowable in an action of replevin in the ordinary sense in which it is allowable in other forms of action, but damages growing out of the same subject matter may be considered in reducing the damages claimed or allowable in the replevin action.^ But courts are inclined to give the action such flexibility as to adjust all equities arising between the parties in such action.* There is no set-ofE in replevin, but if the goods are subject to a charge, it can be enforced by way of recoupment.^ § 795. An off-set may be pleaded against the damages. The right of defendant, in an action of claim and delivery, to damages for the taking and detention in the pending ac- tion, is not; in itself, a cause of action in the defendant. It is not something upon which he can maintain an action ; it is merely a right given him by statute, to be asserted in the action out of which it arises.'' A defendant in a replevin suit may plead a counter claim as a defense and as an off-set to the damages.' The subject matter of litigation in re- plevin is the property mentioned in the complaint, and the defendant cannot claim the release and return of other and distinct personal property, even though he present such a ' Moore v. Woodward, 83 N. 0. 531. See Tyler on Usury, 433-4. " Kloety V. Delles, 45 Wis. 484. 8 Workman v. Warder, 28 Mo. App. 1 ; Babb v. Talcott, 47 Mo. 343 ; Peterson v. Haiffht, 8 Whart. (Fa.) 150; Phillips v. Monges, 4 Whart. (Pa.) 226; Fairman v. Fluck, 5 Watts, 516; Mclntyre v. Eastman, 76 Iowa, 455 (41N. W. 161). * Hickman r. Dill, 32 Mo. App. 509; Boutelle r. Warne, 62 Mo. 350; Barney v. Brannon, 51 Conn. 175. 5 Macky v. Dillinger, 73 Pa. 85. ' Sylte V. Nelson, 26 Minn. 105. ' Morgan r. Spangler, 20 Ohio St. 38. WHAT DEFENSES MUST HAVE EELATION TO. 423 case as would have enabled him to recover in an independent action.^ § 796. Any defense interposed must have relation to the commencement of the action and the right to posses- sion at that time, or it is not germane to the issue involved, and no act of either party, after the commencement of the action, can work to the detriment of the other party. It is a good defense to an action of replevin that, at the time the writ was issued, defendant did not detain the property, though caught in temporary possession afterwards.^ It is no defense to an action by possessory warrant against a re- ceiver that, since the commencement of the action, his re- ceivership has been vacated, and he has delivered the prop- erty over to the party from whom he took it as Such receiver. If he so surrendered it, he did it at his peril. ^ Plaintiff's right to proceed to final trial and judgment in a replevin action cannot be defeated by an assignment of the property for the benefit of creditors after the commencement of the action and before the service of the order of delivery. It is the status of the property at the commencement of the action that must govern; nothing that the defendant can do after the commencement of the action can change plaintiff's rights.* Payment, pending an action, of part of the claim does not de- prive plaintiff of his right to recover the remainder ; the part paid only goes in mitigation of damages. ° In replevin by a mortgagee to recover possession of the mortgaged chattels, ' Lovensohn v. Ward, 45 Cal. 8. ^ Burt V. Burt, 41 Mich. 82. So held in a case growing out of a family fuss. = Peacock v. Pittsburg, &c., 52 Ga. 47. * Collier v. Beckley, 33 Ohio St. 523. See also Burnley v. Lambert, 1 Wash. 403; Lynch v. Thomas, 3 Leigh. (Va.) 682; Jones v. Dowle, 9 Mees. & Welsby, 18; Garth v. Howard, 5 C. & P. 346; Nichols v. Mi- chael, 23 N. Y. 264; Allen v. Crary, 10 Wend. 349. In Ramsdell v. Bus- well, 54 Me. 546, where a contrary rule was held, the property had ac- tually passed to the possession of the purchaser at the time the writ issued. ' Thomas" r. Wisemann, 44 Wis. 339. 424: DEFENSES. the defendant cannot defeat the action by showing that a portion of the indebtedness was paid after action com- menced.' § 797. Defense cannot be changed after suit brought. Where a defendant claims the property by virtue of an at- tachment, he cannot after replevin claim by virtue of a car- rier's lien which he had paid in order to get possession under his attachment.^ The defendant in replevin must de- fend upon the specific ground taken by him when demand for possession was made.' It is difficult to see how any tender after suit brought can avail the defendant; but if it can under any circumstances, it must be a tender followed up by bringing the money into court for the plaintiff's use.* g 798. Failure of plaintiff's title after action brought is no defense. The plaintiff's right of recovery is defeated by the passage of his title to another before the trial, unless the defendant is a mere trespasser, but not by its extinction on account of the destruction of the property, whether by death, emancipation, or otherwise.^ § 799. Estoppel waiver. It is a good defense to an ac- tion in replevin that the property was levied on as the prop- erty of M. after being pointed out by J., the plaintiff in re- plevin, to the officer as the property of M." But where a person claims several liens and mentions one specially, he is not estopped from setting up the others as a defense, and declarations made by a bailee to a stranger that he would not surrender the property on full payment of his lien — does > Machette v. Wacless, 1 Col. 225. 2 Keep_ V. Moore, 11 Lea. (Tenn.) 285. 'Moor^ y. Eyan, 31 Mo. App. 474; Boardman y. Sill, 1 Camp. 410. *Koberts y. White, 146 Mass. 256 (15 N. E. 568). ^ Wilkerson v. McDougal, 48 Ala. 517. This action was brought in 1852, for slaves, and lingered until 1869, when defendant pleaded the fail- ure of plaintiff's title to the slaves by reason of their emancipation. See also Cole y. Conoly, 16 Ala. 271; Dozier y. Joyce, 8 Por. 303; Eo o v. Pearson, 41 Ala. 687; McElvain y. Mudd, 44 Ala. 48; Young v. Pick- ens, 45 Miss. 553. • Hardin v. Joice, 21 Kan. 318. EFFECT OE DEATH OF ONE OF THE PAKTIES. 425 not dispense with the necessity of a tender of these charges by the owner before bringing suit.' A defendant in replevin who has prevented the delivery of the property to the plaintiff by attaching it upon a writ in his own favor cannot object to the prosecution of the replevin on the ground of such non- delivery.'' § 800. The effect of death of one of the parties to- an action of replevin depends upon the statutes in regard to the survival of actions. Replevin is governed by the same rule as other actions similarly situated, and ordinarily the death of a party does not abate the suit.^ Actions in replevin do not abate by the death of the parties, but their personal rep- resentatives may appear and carry on the actions.* There is no good reason, except the positive command of a statute, why the death of a party to a replevin suit should prevent the determination of the question involved,. and where such statutory enactments exist they should be construed strictly and their scope not enlarged. In many states which formerly followed the common law rule that death abated the action, a different rule has been adopted under the code.^ § 801. Where a contrary doctrine has been held it is nnder a statutory enactment. Where a verdict was ren- dered in New York for a defendant in an action of replevin for part of the property in question, and a new trial ordered^ and the defendant died after such order for new trial, and previous to the next term of the court, held, that the action could not be continued in the name of the executors." The death of the defendant abates the action, and it cannot be revived against the administrator.' I Brown v. Holms, 21 Kan. 687. " Pomeroy v. Trimper, 8 Allen (Mass.), 398. » Eeist V. Heilbrinner, 11 Serg. & E. (Pa.) 131 ; Jenney v. Jenney, 14 Mass. 232; Pitts v. Hale, 3 Mass. 321; Fister v. Beall, 1 Ha,r. & J. (Md.) 31. * Fister r. Beall, 1 Har. & J. (Md.) 31; Keite ¥. Boyd, 16 S. &. E. 301; Kenash r. Lane, 21 Mo. 115. 6 Eoberts v. Marsen, 23 Htin. (N. Y.) 486. « Webber r. Uuderhill, 19 Wend. (N. Y.) 447. 'Merritt r. Lumbert, 8 Me. (8 Greenl.) 128; Eeetor y. Chevalier, 1 426 DEFENSES. § 802. Where one of two defendants in replevin dies before a final result is reached, on a finding against plaintiff, a judgment of return to the survivor should be rendered.' § 803. Justification under a writ is a good defense, and no mere informality in the writ or its service will detract from its force as a defense, provided the command of the writ has been substantially obeyed and the right property taken. In replevin, where defendant justified under a writ, it is of no avail to plaintiff that the description in that writ and the pleadings was meager, as "400 sheep."^ Nor that the appraisement was of a cow when the writ called for a heifer.^ Nor ihat the writ called for a certain number of barrels of mackerel, and that half barrels enough to make up the quantity were taken instead of the whole barrels.* Where a constab|le levied an attachment on Sunday, and on Monday an attachment in another suit, and had an alias order issued in the first suit and levied again, keeping possession all the time, and the attachment defendant brought replevin, alleging that the writs of attachment were not legally levied, held, that the validity could not be questioned in the re- plevin action. ° § 804. Where the defense is justification under a writ, defendant must allege the property was the property of the defendant in the writ. A plea in abatement to an action of replevin for goods seized on process against a third person is insufficient if it merely allege that defendant seized them under a certain described execution, without also alleging that they were seized as the property of the defendant named therein, or as liable to seizure for his debt* In replevin. Mo. 345; Mellen v. Baldwin, 4 Mass. 480; Miller v. Langton, Hart. (S. ■C.) 131; Burkle v. Luce, (N. Y.) 1 Comst. 163. ' Gaines v. Tibbs, 6 Dana, 145. ' Lawrence v. Coyne, 62 Cal. 124. ' Pomeroy r. Trimper, 8 Allen (Mass.), 898. * Gardner v. Lane, 9 Allen (Mass.), 492. ^ Blair v. Shew, 24 Kan. 280. * Carew v. Matthews, 41 Mich. 576. WHERE A VALID JUDGMENT MUST BE ALLEGED. 427 wliere an oiBcei- justifies under a writ of attachment, he must prove the judgment or the debt.^ It is no defense to an action of replevin that plaintiff, as agent for another party, had attached the property now replevied, when the attach- ment was dismissed and property returned before the re- plevin suit was commenced.^ It is a good defense to an action of replevin that the property was taken by the de- fendant by virtue of a writ of attachment in his hands as sheriff against a third party, who is the real owner.' An officer may plead his writ of attachment and also property in the defendant in attachment.* An officer is allowed more latitude than the owner in pleading. He may plead the general issue and- give special matter in evidence without notice.^ In an action against an officer who has seized goods on attachment, he may question the bona fides of a prior sale by the attachment debtor to the plaintiff." § 805. An officer from whom attached property is re- plevied cannot urge informal defects as a defense. In re- plevin against an officer for property attached by him, he cannot urge as a defense that the attachment was not yet completed.' The officer from whom attached goods are re- plevied can only entitle himself to a return- by showing property either in himself or in the debtor, as whose prop- erty they were attached. He cannot object that part of the property was taken in another county,' -and, therefore, the court has no power to render judgment for the plaintiff.* § 806. A valid judgment must also be alleged in case of a levy by execution. Where a sheriff justifies under an execution, and seeks to attack the title of the plaintiff in re- 1 Newton r. Brown, 2 Utah, 126. 2 West Michigan Savings Bank r. Howard, 52 Mich. 423 (18 N. W. 199). 3 Wiler V. Manley, 51 Ind. 169. * Scott V. Hughes, 9 B. Mon. (Ky.) 104. 6 Coon r. Congden, 12 "Wend. (N. Y.) 496. « Williams v. Morgan, 50 Wis. 548 (7 N. W. 541.) ' Jackson v. Hubbard, 36 Conn. 10. " Hall V. Gilmore, 40 Me. 578. 428 DEFENSES. plevin on the ground of fraud, the plaintiff being a stranger to the judgment upon which the execution is based, the sheriff must show that his execution issued upon a yalid subsisting judgment.' An execution upon an invalid judg- ment is no defense to an action of replevin by the purchaser from the judgment debtor.^ An execution issued before judgment rendered is no protection to an officer, and on replevin for the property the fa|Ct that judgment has been rendered since the issuance of the execution is no defense.^ An officer, defendant in replevin, claiming under an execu- tion, will fail if there is no valid existing judgment upon which the execution issued.* But in the absence of a denial of the validity of the execution and judgment defendant is relieved from proving their validity.^ While an execution will protect an officer when proceeded against as a wrong- doer, it is no defense to an action of replevin unless it be founded upon a valid judgment. When the defendant in re- plevin relies upon an execution, the plaintiff may show that the judgment upon which it issued was void for want of jur- isdiction. ° While an execution, fair on its face, is sufficient to protect an officer against personal responsibility in serv- ing it, yet when he claims property under it he must show that it was warranted by judgment.' § 807. A fi fa is a good defense by an officer, but not by plaintiff in execution. He must go further, and not only show that it issued from the proper tribunal, but also a proper judgment upon which it could issue.^ ' Wyatt r. Freeman, 4 Col. 14. 2 Wilson V. Martin, 44 Mich. 509 (7 N. W. 83). ' Campbell v. Williams, 39 Iowa, 646. In this case the justice claimed to have rendered judgment mentally, but did not enter it on the docket for some time after the execution was issued. * Bolen V. Nunn, 63 Iowa, 641 (19 N. AY. 810). 5 Brock V. Barr, 70 Iowa, 400 (30 N. W. 652)., ' Adams v. Hubbard, 30 Mich. 104. See also Beach v. Botsford, 1 Doug. 199; Le Roy v. East Sag. Ry. 18 Mich. 233. ' Gedday v. Witherspoon, 35 Mich. 368. 8 Clay V. Caperton, 1 T. B. Mon. (Ky.) 10. ANOTHEE ACTION INVOLVING SAME QUESTION. 429 § 808. Trial of the right of property and judgment in favor of the oflBcer is a good defense. Many of the states have a provision whereby the title to property claimed by third parties, while in the hands of the officer, may be tried on the motion of the officer or the claimant. This proceed- ing, usually called trial of the right of property, is in the nature of a replevin suit, and is intended as a protection to the officer. If the finding on this trial of the right of prop- erty be in favor of the officer, it is a good defense to any re- plevin action against him by the claimant. Where the statute provides that if property levied on is claimed by third par- ties, and notice is given, the officer may refuse to levy until an indemnity bond is given for the benefit of the claimant. It is held that where this is done it bars the claimant of the right of replevin against the officer.' A trial of the right of property will protect the officer, but it does not conclude the party whom the officer represents.'' The verdict of a sheriff's jury, in trial of the right of property, is a bar to a subse- quent action in replevin by this claimant against the sheriff for the recovery of the possession of the property. ° In re- plevin against an officer it is a good defense that the claim- ant had instituted proceedings for trial of right of property attached, as provided by statute in such cases, and on that trial the jury found against him and judgment rendered accordingly.* In Indiana a different rule is followed by statute. ° § 809. The pendency of another action involving the same question is a good defense. So is a judgment on the ' Dodd r. Thomas, 69 Mo. 364. 2 Hexter r. Schneider, 14 Ore. 184 (12 P. 668); Eowe r. Bowen, 28 111.116; Fisher r. Gordon, 8 Mo. 386; Bagley r. Bolis, 8 Johns. 185 ; Crocker on Sheriffs, § 446. ' Capital Lumber Company v. Hall, 9 Ore. 93; Kemdell v. Swackham- mer, 8 Ore. 502; Schroeder v. Clark, 18 Mo. 184; Patty v. Mansfield, 8 Ohio, 370. See Schell v. Husenstine, 15 Neb. 9. * Bray v. Seaman, 13 Neb. 518 (14 N. W. 474). » Chinn v. Eussell, 2 Blackf. (Ind.) 172. 4:30 DEFENSES. same issue in another action. The pendency of another ac- tion in replevin for same property between same parties is a good defense.' A former adjudication is a good defense.^ The pendency of a second suit in replevin may be pleaded in bar or abatement of the first replevin.^ It is a good defense by a sheriff to an action of replevin that he had taken the property in a former action of replevin, and delivered it to the plaintifE in the first action, and he cannot be held liable for the property, damages, or costs at the suit of the defend-' ant in the first action. The remedy is against the plaintifE in that action.* § 810. It must be a final judgment on the same issue. It is no defense to an action of replevin that in another ac- tion of replevin by defendant against plaintiff to recover the same property a judgment of non-suit had been rendered against him. The only questions are whether the plaintiff is the owner and entitled to the possession of the property in question, and whether this defendant wrongfully with- holds it from him.° A discharge in insolvency is no de- fense to an action to recover the possession of personal pro- perty converted by the defendant.' A ruling upon a motion in an attachment proceeding to discharge exempt property is no defense to a replevin action for the exempt property.' § 811. Where defendant pleads a former adjudication, he must show all the facts necessary to enable the court to judge as to the identity of the two actions.' A defendant in replevin in Pennsylvania may, in defense, aVail himself of a delivery to him pursuant to a writ of replevin issued out of a court of competent jurisdiction in another state, the liti- > Turner v. Eeese, 22 Kan. 319. » Malony v. Griffin, 15 Ind. 213. 8 Fisher v. Marquett, 58 Mich. 450 (25 N. "W. 460). ' Fleming r. Wells, 65 Cal. 336 (4 P. 197). 5 Fleming v. Hawley, 65 Cal. 492 (4 P. 494). ' Wood V. McDonald, 66 Cal. 546 (6 P. 452). ' Watson V. Jackson, 24 Kan. 442. ' Armstrong r. McMellon, 9 Mo. 721. WHAT PLEA IN ABATEMENT MUST CONTAIN. 431 gants and the things deliv.ered being subject to the law of the place of delivery.' "Where in an action of replevin the defendant pleads former recovery of the same property from plaintiff, and the record he relies on does not describe the same property as the suit at bar, he may show by parol- that in fact it was the same property.^ § 812. A judgment on other issues is no defense. That defendant has been adjudged a bankrupt is no defense to an action of replevin.'' It is no defense to an action of replevin for a cow that the same party had formerly brought a replevin for the cow and mule and obtained the mule only, and then suffered that suit to go against him by default.* A judgment for a defendant in a search warrant proceeding is no bar to an action of possessory warrant against him for the same property.^ A merchant, supposing that an insol- vent customer to whom he had forwarded goods had received and appropriated them, made an affidavit as a creditor under the assignment, but the goods had not been received. Held, that the affidavit did not estop him from replevying them from the ca;'rier.° § 813. What plea in abatement must contain to be valid as a defense. In a plea of abatement to a replevin ac- tion every allegation necessary to make out the case covered by it must be distinctly and not inferential! y stated, and the plea must exclude all matters which, if alleged on the otjier side, would defeat it.' It should also contain prayer for a return, but if the defendant is an officer holding under a writ, a return will be awarde.. whether asked for or not if the plea ' Lowry v. Hall, 2 Watts & S. (Pa.) 129. 2 Gates Y. Bennett, 33 Ark. 475; Anderson v. Mills' Exrs., 28 Ark. 184. ' Miller v. Warden, 111 Pa. 300. *Poor V. Darrah, 5 Houst. (Del.) 394. ^ Claton V. Ganey, 63 Ga. 331. 8 Lentz V. Flint, &c., .53 Mich. 444 (19 N. W. 138). ' Dubois V. Hutchinson, 40 Mich. 262; Belden r. Laing, 8 Mich. 500; 1 Chitty Plead. (16 Am. Ed.) 462 and 482 et seq.; 2 Green. Ev., "Abate- ment." 4:32 DEFENSES. is sustained.' But it has been held that where a plea in abatement was sustained and the writ quashed, the defendant was not entitled to a return.^ Objections to the sufficiency of the allegations in a pi 3a of abatement should be raised by demurrer, and, if not made until after judgment, come too late to entitle them to consideration.' § 814. When plea in abatement proper — Examples. In replevin for the unlawful detention of goods, the fact that the plaintiff owns the property jointly with others is no bar to the action, and can only be objected to by plea in abate, ment or at the trial in mitigation of damages.* A plea in abatement in a replevin suit that the defendant took the goods as deputy United States marshal, on an execution is- sued out of United States circuit court, must aver that the execution issued on a valid judgment against defendant in the execution, and that the property levied on was defendant's property. A plea in abatement must always show another forum in which the property has become subject to judicial authority. It must also be certain according to the most rigid rules of precision.^ In Kentucky the want of a suffi- cient bond in replevin may be pleaded in abatement, and if the plaintiff do not give sufficient bond the property will be re- stored." The objection that the declaration is in the detinet and the writ in the cepit and detinet must be presented, if at all, by plea in abatement.' It is a good cause for abatement in replevin that, at the time of the taking by the defendant, the chattels were the joint property of the' plaintiff and an- other not a party.* Where a vendee of goods replevied same from the attaching creditors of the vendor, and afterwards ' McArthur v. Lane, 15 Me. 245. ' DickinBOU r. Noland, 7 Ark. 25; Hartgraves v. Duval, 6 Ark. 506, ' Fisher v. Busch, 64 Mich. 180 (31 N. W. 39). « Wright V. Bennett, 3 Barb. (N. T.) 451. ^ Heyman r. Covell, 36 Mich. 157. « Bloomer r. Craig, 6 Dana (Ky.), 310. ' Brown v. Peevy, 6 Ark. 37. » McArthur v. Lane, 15 Me. 245; Hart v. Fitzgerald, 2 Mass. 509. A LIEN IN A THIED PERSON. 433 made an assignment for tlie benefit of creditors, held, not to abate the replevin suit, and that the assignee would take the property replevied.' § 815. A special right of possession is a good defense, but must usually be pleaded specially, and it must be an actual subsisting right. ^ It is a good defense that defendant had a special property in the goods in dispute, and by virtue thereof the right of possession.' A lien for sawing is a good defense to replevin brought for lumber, and the lien is not lost by the removal of the lumber from the place it was sawed and its mixture with other lumber.* An order of a court, placing property in defendant's hands, must be pleaded as any other defense, and is not ground for abating the writ on motion, and the jurisdiction of the court to make the order should be alleged. ° § 816. A lien in a third person, which he has not at- tempted to enforce, is no defense to an action in replevin.' In an action of replevin, to enforce a lien, it is no defense that plaintiff has another remedy provided by the same stat- ute that created his lien. That does not take away his com- mon law right to possession until his lien be satisfied.' To entitle a defendant in replevin to recover against the general owner, he must have an interest in the property itself. An interest in a contract touching the property will not do.' 1 Bedford r. Penney, 65 Mich. 667 (32 N. "W. 888). 2 Mitchell V. Hinman, 8 Wend. (N. Y.) 667. ^ Lytle V. Crum, 50 Iowa, 37. * Chadwick v. Broadwell, 27 Mich. 6. 5 rieutge V. Priest, 57 Mo. 515; Id. 53 Mo. 540. * Burns v. Lidwell, 6 Mo. App. 192. ' Heaps V. Jones, 23 Mo. App. 617. ' Nettleton v. Jackson, 30 Mo. App. 135. In this case defendant took carpets to dust and clean, and, not prosecuting the work promptly, plain- tiff replevied the carpets. Defendantdid not claim alien, hutthat money was due him for his work. Judgment for defendant was reversed and dismissed, the carpets being in plaintiff's possession, the court citing Dilworth v. McKelvey, 30 Mo. 149; Boutelle v. Warne, 62 Mo. 353. 28 434 DEFENSES. § 817. Title acquired by possession alone may be a good defense, since it is the settled law of Tennessee that adverse possession of a chattel acquired in good faith, and without fraud, felony, or force, for a period of three years vests the absolute estate with the possession, and divests all right and title out of the original owner. In a replevin ac- tion the source of such title cannot be inquired into, and the one who acquires such a title to personal property may main- tain replevin and recover the same from the original owner, who has reacquired the possession without his consent, al- though the property was stolen from the defendant, if the plaintiff was aa innocent purchaser from the thief." Ke- plevin brought to recover a horse ten years after it was ir- regularly sold as an estray is barred by the statute of limi- tations, the cause of action having arisen at the time of the unlawful conversion of the horse.^ The statute of limita- tions commences to run with defendant's possession of the property.' § 818. A tax warrant is a good defense. Where de- fendant justifies under a tax warrant, he does not have to justify the validity of the sale and proceedings under the warrant.* § 819. Title acquired from plaintiff is a good defense. It is a good defense to an action of replevin that plaintiff had sold the property to defendant, even though the plain- tiff's title at the time of such sale was qualified and not absolute.^ § 820. A judgment in trover for the conversion is a good defense and a bar to an alction in replevin to recover the same property.' A judgment in an action of trespass for ' Garrett v. Vaughan, 1 Bax. (Tenn.) 113. ' Carr v. Barnett, 21 HI. App. 137. The statute is five years. ^ Pickins v. Sparks, 44 Ark. 29. * Enos r. Bemis, 61 Wis. 656 (21 N. "W. 812). 5 Bragdou v. Penney, 35 Minn. 204 (28 N. W. 241). « Hatch V. Coddington, 32 Minn. 92 (19 N. W. 393). FRAUD MUST BE SPECIALLY PLEADED. 435 the same goods as those replevied, and between the same parties, is a good defense and may be pleaded in bar/ § 821. A claim of title in defendant is a good defense, and places the burden on plaintiff to establish affirmativeljr his title or right to possession. An allegation that the prop- erty belongs to defendant and not to plaintiff puts in issue the title of plaintiff, and the burden is on him.'' A (J3fend- ant in replevin may under the general issue show title to the property in himself.^ Under a plea of ownership, and that he did not unlawfully detain the property in controversy, the defendant can prove any fact tending to show his possession was lawful, including the right to prove that the plaintiff based her claim to the possession upon a forged instrument.* § 822. That the property is not identical is a good defense, and such a plea places the burden upon plaintiff to show that the property taken under the writ is the same property claimed by the affidavit and to which plaintiff is entitled. Or if plaintiff's title be founded upon a written instrument and its genuineness is denied, it is a proper de- fense, and places the burden on plaintiff to establish its gen- uineness.* § 823. Statute of frauds— Who can plead it. While it is true that a plaintiff in replevin who relies upon a contract of sale must establish one sufficient to pass title, it is also true that the defense of the statute of frauds cannot be used against him except by a party to the contract. The defense of the statute is a personal one, and can only be made by parties or privies. ° § 824. Fraud as a defense— Must be specially pleaded. If fraud in plaintiff's title is relied upon as a defense, it 1 Coffin T. Knott, 2 Green (Iowa), 582. '' Pope V. Jackson, 65 Me. 162. ' Scudder v. "Worster, 11 Gush. (Mass.) 573; Miller t. Sleeper, 4 Oush. (Mass.) 369. * Gandy r. Pool, 14 Neb. 98 (15 N. "W. 223). s Webber v. Read, 65 Me. 564. « Dixon r. Duke, 85 Ind. 439 ; Brown's Statute of Frauds, § 135. 436 DEFENSES. must be specially pleaded.' If a defendant rely upon fraud by plaintiff as a defense, it must be specially pleaded in the answer.^ Where the defense in a replevin action was a con- spiracy between plaintiff and R., the former owner of the property, and one of the badges of the fraud was that plain- tiff had boarded with E. at a certain time, held, error to refuse to allow plaintiff to show how he came to go to E.'s house to board.' Where replevin against a sheriff holding under at- tachments is brought by one who claims by virtue of chattel mortgages and sales thereunder, it is a full defense to show that plaintiff acquired his rights with knowledge of the ante- cedent rights of the attaching creditors.* It is competent for a sheriff who has levied on a growing crop after the land had been conveyed by the execution debtor, and has after- ward taken possession of the harvested crop, to show, in de- fense to an action of replevin brought against him by the grantee, that the conveyance was fraudulent and void as against the creditor in his execution, and he is not bound first to have the conveyance set aside in a direct proceeding for that purpose.^ § 825. What are proper defenses — Examples. A gen- eral denial is always a proper defense in replevin, and it is seldom that more is necessary or even proper, and the bet- ter pleading is for the defendant to confine himself to that, unless he have a special claim for damage not naturally arising out of the taking, when such claim should be set up. In replevin by an officer to recover property upon which he claims to have made a levy, it is a good defense to show that in fact he made no levy. His return is only prima facie evidence of the levy.' It is a good defense to ' Gray r. Earl, 13 Iowa, 188. 2 Tucker v. Parks, 7 Col. 62 (1 P. 427) ; Gray 7. Earl, 13 Iowa, 188; Dyson v. Ream, 9 Iowa, 51; Gopuro r. Builders' Insurance Company, 39 Cal. 123 ; Lefler v. Field, 52 N. Y. 622; Bliss on Code PI., § 211, 339. ' Kay V. Noll, 20 Neb. 380 (30 N. W. 269). * Barmon v. Clippert, 58 Mich. 377 (25 N. W. 371). 6 Pierce v. Hill, 35 Mich. 194. ' Joyner r. Miller, 55 Miss. 208. WHAT AEE PROPEE DEFENSES — EXAMPLES. 437 an action of replevin that defendant had purchased of one who had purchased of plaintiff on a condition, which condi- tion had not been broken, but had been performed on ven- dor's part.' It is a good defense that the defendant pur- chased the property for value without notice that it had been obtained by fraud.^ An officer who holds the goods of an insolvent, which are claimed by persons to whom the in- solvent undertook to sell them, after a demand by those persons, may set up their title in defense to an action of re- plevin brought by another party to whom the insolvent has also assumed to sell them, and this plaintiff in replevin can- not avail himself of the fact that the goods had not been separated and divided between the first parties claimant.^ If, before suit brought, the defendant unconditionally offer to restore the property, such an offer is a good defense to the action.* Where one is entrusted with personal property, he may, in an action of replevin, contest the right of own- ership and possession without a redelivery of possession.^ The sufficiency of the defense determined in cases depend- ing upon particular facts." A general denial puts in issue every material allegation of the petition, and under it the defendant may prove any special matter which amounts to a defense to the plaintiff's cause of action.' One who is in possession of property sold under execution against a third party may contest the validity of the sale in an action by the purchaser for the possession.' 1 Lambert v. McCloud, 63 Cal. 162, " Lee V. Portwood, 41 Miss 109. 8 Ropes V. Lane, 9 Allen (Mass.), 502. * Savage v. Perkins, 11 Hpvv. Pr. (N. Y.) 17. 6 Gray r. Allen, 14 Ohio, 58. 6 Parsons v. Hedges, 15 Iowa, 119 ; Buell v. Bell, 20 Towa, 282 ; Lnti r. Yount, Phill. (N. C. L.) 367; Hodgkins r. Dennett, 55 Me. 559^ Bee- side V. Fischer, 2 Har. & G. (Md.) 320. ' Oaks V. Wyatt, 10 Ohio, 344; Terrell- r. Humphrey, 12 Ohio, 113; Hedman v. Anderson, 8 Neb. 180; Creighton r. Newton, 5 Neb. 100; Elchardson r. Steele, 9 Neb. 483 (4 N. W. 83). 8 Kennedy v. Clayton, 29 Ark. 270. . 438 DEFENSES. § 826. A defense based on a special law must show full compliance with that law. In replevin for domestic animals it is not a sufficient defense that they were taken up while trespassing, but this must be followed up by proof that the law governing such cases has been complied with since they were so taken up.' "Where defendant in replevin relies upon a waiver of exemptions by plaintiff to justify the taking, he must plead such waiver.^ § 827. Defenses proper in a case of distress. In an action of replevin for a distress for rent there can be no such thing as an avowry or recognizance while the goods are in the defendant's possession. If he claim as owner, that claim is inconsistent with the allegation that the property was seized as a pledge for rent in arrears, for this is a confes- sion that the goods are owned by a tenant. If, on the other hand, he depend upon his own right to distrain, he can have no standing unless he has surrendered the property in obedience to the command of the writ.^ The question of excessive distress is irrelevant in an action of replevin for the goods distrained.* § 828. Defense is waived if not taken advantage of in time. In an action of replevin, where the court, without ob- jection or exception on the part of defendant, instructs the jury to find for plaintiff for the value of the property, the defendant cannot afterwards be heard to claim that the ac- tion cannot be maintained because the property was not in defendant's possession when it was commenced."* If a person not a justice assume to be one and issue a writ in replevin, his action would be void ; but if defendant appear and take a change of venue to a legal justice, he waives the error, and the legal justice has jurisdiction. ° A United States marshal ' James r. Fowler, 90 Ind. 563. ^ Murphy v. Sherman, 25 Minn. 196. ' Cassidy r. Eliaa, 90 Pa. 434. * Jimison v. Reifsneider, 97 Pa. 136. ^ Porter v. Chandler, 27 Minn. 301 (7 N. W. 143). « Graves v. Shoefelt, 60 111. 462. IMPEOPEE DEFENSES EXAMPLES. 439 in possession by an order of United States court must answer and plead such possession, or it is Waived.' § 829. Improper defenses — Examples. A party defend- ant in an action of replevin showing no title cannot impeach that of his opponent for want of consideration.'' A defend- ant who by violence has regained the possession of property which he had sold and delivered cannot defend himself against an action of replevin for the property by proof that he had received nothing.^ In replevin of goods obtained by fraud and paid for by a note on time with worthless se- curities, the mere fact that he has transferred the note for value before the replevin and never reclaimed it will not de- feat the action, unless he had such knowledge as to make his act an affirmance of the sale.* It is no defense to an action of replevin that the officer who sold the property under exe- cution was not an officer. He acted as an officer — that is sufficient. The title to an office cannot be tried in an action of replevin.' It is not for a defendant in replevin to object that the plaintiff aquired title from a third person through an abuse of confidential relations, so long as the person said ■to be thus defrauded is satisfied and makes no complaint. ° A party in possession of goods cannot avoid replevin by wrong- fully transferring the possession to another.' Purchase at sheriff's sale is no defense in an action of replevin brought by the rightful owner.* In a replevin suit the defendant will not be allowed to show title in the plaintiff, who has aban- doned the suit in order to defeat the claim of an interveuor.° In an action to recover personal property alleged in the ' Baker v. Daily, 6 Nfib. 465. 2 Wyman v. Gould, 47 Me. 159. "Applewhite v. Allen, 8 Humph. (Tenn.) 697. * Manning v. Albee, 14 Allen (Mass ), 7. 6 Lufkin V. Preston, 62 Towa, 235 (-3 N. W. 58). « Town r. Tabor, 34 Mich. 268. ' Washington v. Love, 34 Ark. 93; Nichols v. Michael, 23 N. T. 266; Harkey v. Tellmon, 40 Ark. 551. 8 Coombs V. Gorden, 59 Me. 111. » Burrows v. Waddell, 52 Iowa, 195 (3 N. W. 37). 440 DEFENSES. complaint to belong to plaintiff and to be in the possession of defendant, and to be detained by him wrongfully, the answer was a general denial, and specially that the property belonged to plaintiff, but was in possession of defendant's wife as a pledge as security for a debt from plaintiff's to de- fendant's wife. Held, that the special matter was no defense, as it showed a good title and right of possession in plaintiff against everybody except the pledgee, and that the rights between them could not be tried in the present action. As against the plaintiff, defendant showed no right of possession.' § 830. Destruction by act of God not a good defense. It was formerly held that destruction of the property by act of God was a good defense,^ but the later and better doctrine is that if one without right or title seize property by replevin and it die or is destroyed on his hands, it is in his own wrong, and he is liable for its value. ^ Plaintiff wrongfully possessed of slaves is, after a judgment for a return, answera- ble for their value if they die on his hands.* A party not the owner of personal property, who takes it out of the pos- session of the real owner without his consent, holds it in his own wrong and at his own risk, and if subsequently judg- ment is rendered against him for the return or its value, he cannot be excused from satisfying the judgment under the plea that the property has been lost even by the act of God.^ § 831. The death of the property may be shown in mitigation of damages. When the property replevied dies 1 Stowell V. Otis, 71 N. T. 36; Netf r. Thompson, 8 Barb. 213; Story on Bailments, § 352; Johnson v. Carnley, 10 N. Y. 570; Rogers v. Ar- nold, 12 Wend. 30. ' Carpenter F. Stevens, 12 Wend. 589; Melvin v. Winslow, 10 Me. 397; 2 De Thomas v. Witherby, 61 Cal. 92 ; Brown v. Johnson, 45 Cal. 76 ; Suydam r. Jenkins, 3 Sandf. 614; Yates v. Fassett, 5 Denio, 21; Row- ley V. Gibbs, 14 Johns. 385; Maltoon r. Poarce, 12 JIass. 406; Carrel r. Early, 4 Bibb. (Ky.) 270; Caldwell v. Fenwick, 2 Dana, 333; Scott r. Hughes, 9 B. Mon. 104; Hinkson r. Morrison, 47 Iowa, 167; Drake on Attach. (6 Ed.) § 341; Sedgwick on Damages (Vol. 2), 500. * Gentry v. Barnett, 6 Mon. (Ky.) 113. ' Blaker r. Sands, 29 Kan. 551; De Thomas f. Witherby, 14 Cal. 262. GARNISHMENT IS NO DEFENSE. 441 or is destroyed -while in possession of the plaintiff before the trial and without his fault, if the verdict should be for the defendant, the plaintiff is not liable for the value of the prop- erty so lost or destroyed.' "Where property dies or is de- stroyed pending the suit, without fault of defendant, he should not answer in damages for the value of the property so lost.^ § 832. Taking by a soldier in time of war no defense. It is no defense to a replevin suit that the defendant took the property from a citizen within the federal lines, as a con- federate soldier acting under orders of his superior officer, while on a scout, and was allowed by said officer to keep the horse in lieu of the one he had, which was turned over to the confederate government, and such evidence should have been ruled out.' The mere act of capturing by a federal scout, and placing under military control the private prop- erty of a citizen, did not divest the owner of his title so as to prevent his resisting replevin.* § 833. Garnishment is no defense. It is no defense to an action of replevin by the true owner against an express company for a package, that the express company has been garnished in another action and no order yet made in regard to the property.^ The fact that a common carrier has been garnished by a creditor of an insolvent debtor to whom prop- erty is consigned is no defense to an action of replevin by the vendor, who has given notice to the carrier and demanded the goods. ° 1 Bobo V. Patton, 6 Heis. (Tenn.) 172; Moore r. Crockett, 10 Hun. 365; Moseley v. Baker, 2 Sneed, 367; Bryan r. Spurgin, 5 Sneed, 685; Green v. Smith, 4 Cold. 440. 2 Bethea v. McLennon, I Ired. L. (N. C.) 523; Austin's Exrs. r. Jones, Gilmer (Va.), 341. But a contrary doctrine is expressed in Carter r. Streator, 4 Jones L. (N. C.) 62. ^ Smith V. Groves, 25 Ark. 458. * Taylor r. Jenkins, 24 Ark. 337. s Morin v. Bailey, 55 Miss. 570. See Tarborough r. Hooper, 25 Miss. 112; Fora v. Dyer, 26 Miss. 243; Kellogg r. Freeman, 50 Miss. 126. 6 C, B. & Q. E. K. V. Painter, 15 Neb. 394 (19 N. W. 488). 442 DEFENSES. § 834. Purchase in market overt or at public sale no defense. Markets overt as established in England have never been recognized in this country, and purchase in mar- ket overt as a foundation of title is no defense in replevin by the rightful owner.' It is no defense to an action of re- plevin that the plaintiff sold the property at public auction, nor can it be pleaded in mitigation of damages that defendant in replevin was the purchaser at the sale, further than this may be a guide to fix the value of the property. In some cases of replevin the rule in trover and trespass which allows a return or reacquirement of the goods to be shown in miti- gation of damages might be made applicable, but ordinarily not.' § 835. Right of homestead no defense against replevin by the mortgagee. Where a lessee of land who had the privilege of removing buildings at the end of the term moi-t- gaged a building, and the mortgagee brought replevin, held, that the widow of the lessee could not defeat the mortgagee by setting up homestead or the landlord's title.' § 836. A prior foreclosure in chancery is a good de- fense. The question of the validity of the mortgage as a lien on the property intended by it in the hands of the plain- tiff in replevin, where there has been a foreclosure in chan- cery, must be determined in the foreclosure suit. In the replevin suit the plaintiff must establish that the property replevied is not that in the mortgage. As to any property embraced in the mortgage, the replevin suit must faiL* ' Coombs V. Gorden, 59 Me. 111. 2 Gary v. Hewitt, 26 Mich. 228. 8 Ballou r. Jones, 37 111. 95. * Austin v. French, 36 Mich. 200. BEPLY NECESSAEY IN CASE OF AN AYOWKT. 443 CHAPTEE XXIX. REPLY. Section. It is seldom that a reply is necessary .... 837 Eeply necessary in case of an avowry — Illustrations . 838 Where the answeris a general denial, no reply necessary 839 Property in a third person needs no reply . . . 840 Section. A contrary rule has been laid d( wn 841 Claim for damages needs no reply 842 Requisites and sufficiency of the replication , . . 843 § 837. It is seldom that a reply is necessary in an ac- tion of replevin. The issues are generally made up by an allegation of right of possession by plaintiff and a denial of that right by defendant, and in some states these are all the pleadings allowed by statute. Where the statute does not forbid, and the practice is to file other pleadings, or under the peculiar circumstances of the case it becomes necessary to file. a reply, a mere denial of the new matter alleged by defendant is all that is necessary. The cases where a reply in replevin is necessary are those in which the defendant has admitted plaintiff's cause of action, but set up matter in avoid- ance as a bar to his recovery. As no counter claim or set-off is allowed, the pleadings are limited ; otherwise, the pleadings in replevin are governed by the same rules as the pleadings in other cases. § 838. Reply necessary in case of an avowry — Illustra- tions. Where the law recognizes a technical avowry, a reply is generally necessary. In replevin for goods distrained, the plaintiff may plead, in bar of the avowry, matter which ehows the defendant a trespasser ab initio.^ A plea of tender 1 Kimball v. Adams, 3 N. H. 182. 444: EEPLY. to an avowry is good without a proffer of money in court.* Where an avowry in replevin alleges a tenancy, a plea which does not show a determination of the tenancy by the expi- ration of the lease, and how it determined, is not a good plea.' The plaintiff in replevin may plead several pleas to the cog- nizance of the defendant.' In replevin both parties are act- ors, and may set up as many claims of title or possession as they may have, and if defendant avow or justify, the plaintiff may reply or plead double.* Where defendant, in replevin, avows the taking under a vote of the town to raise a sum of money to be expended upon a highway, a replication that the highway was never legally laid out is sufficient.' If the avowry allege that a sum of money was in arrears for rent, and the plaintiff reply that he did not owe it at the time of the distress, it is a sufficient issue." A replication to an avowry in an action of replevin justifying the taking under a distress for rent in arrears, which avers various breaches of the contract of leasing, whereby the tenant sustained great damage, is fatally defective if it fail to aver that such damages are equal to- or exceed the rent due. The naming of several amounts of damages which, when added together, exceed the rent claimed, will not be sufficient, as the party is not bound to prove such claims as laid. The pleading should contain a specific averment that the damages are equal to or greater than the rent in arrear.' § 839. Where the answer is a general denial, no reply is necessary, or where it in effect amounts to that, or where the matter alleged does not constitute a defense in law.' An ' Judd V. Fox, 9 Cow. (N. T.) 259. 2 "Whitney v. Carle, 8 B. Mon. (Ky.) 171. 3 Roberts v. Tennell, 4 Lett. (Ky.) 289. * Cotter V. Doty, 5 Ohio, 393. = Stoddard r. Gilman, 22 Vt. 568. » IiiberYille v. Self, 4: Call (Va.), 580. ' Lindley v. Miller, 67 111. 244. 8 Craig V. Davis, 6 Mich. 447; Wilson v. Fuller, 9 Kan. 176; EusseB V. Smith, 14 Kan. 366. PBOPEBTY IN A THIRD PEESON NEEDS NO BEPLT. 44:5 answer which, after a general denial, alleges that property belonged to a third party, who transferred it to defendant, and that title and right of possession are in defendant, requires no reply.' If a defendant justify under a writ (as an officer), it is a matter of avoidance and not a counter claim, and no reply is necessary, and plaintiff may show in rebuttal that the property was exempt, and so not subject to seizure for debt.'' Where the plaintiff in replevin claimed the property by virtue of a chattel mortgage, and the defendant answered that the mortgage was fraudulent, a reply was not necessary to put the allegation of the answer in issue.' Where an answer in replevin purports to admit a certain fact as stated in the petition, and the petition does not state any such fact, held, that the answer will not be construed as alleging affirm- atively that such fact exists, so as to require the plaintiff to reply thereto.* Complaint alleged plaintiff's ownership and present right of possession. The answer denies these allega- tions, avers title to have been formerly in a third person, who sold the property to defendant, whose present title and right to possession is alleged. Held, that these allegations of the answer are not new matter requiring a reply, but put in issue the alleged title of plaintiff.* § 840. Property in a third person needs no reply, as it is in effect but a general denial, and raises the general issue. An answer in replevin setting forth that the property in con- troversy is the property of a third person, and that the de- fendant as sheriff has levied an attachment on it, and holds it as the property of said third person, is in effect only a general denial, and needs no reply." In replevin an answer 1 Williams r. Mathews, 30 Minn. 131 (14 N. W. 577). 2 Carlson v. Small, 32 Minn. 492 (21 N. "W. 737); Dennis v. Snell, 54 Barb. 416. 3 Williams v. Wilcox, 66 Iowa (23 N. W. 266). * Hoisington f. Armstrong, 22 Kan. 110. 6 Williams v. Mathews, 30 Minn. 131 (14 N. W. 577). See also Mc- Ardle v. McArdle, 12 Minn. 53. • Wilson r. Fuller, 9 Kan. 176. 446 REPLY. of property in a stranger or in defendant in effect denies the property or ownership of the plaintiff, and is a good plea in bar, and completes the issue without a reply. A reply to such an answer is not required, and may be stricken out on motion. Sustaining a demurrer to such a reply does not injure the plaintiff.' And this is so whether defendant has an absolute property, or a qualified property, as bailee of the thing bailed.^ § 84l. A contrary rule has been laid down. In re- plevin, where the defendant pleaded property in a third person, and justified the taking under execution against such third person, and a trial was had without reply to such pleas, held, that the defendant was entitled to a verdict of property in such third person, and to a return of the prop- erty, the truth of the pleas being admitted by failure to re- ply denying them.' Where a defendant in replevin pleads property in a third person, traversing the plaintiff's right, the plaintiff should accept the issue tendered and reaffirm his title concluding to the country.* Where a plea consti- tuting a bar to the action and requiring a replication is left unanswered, it is error to dispose of the case while that plea remains on record without replication.^ Where the defend- ant answered that he did not unlawfully detain, but that the property was in a stranger, a reply was held necessary." § 842. Claim for damages needs no reply. The claim of defendant for damages for the detention of the property during the pendency of the action is not a counter-claim, and therefore requires no reply.' But if the claim was for special, punitive, or aggravated damages, a reply would be proper. ' Landers v. George, 40 Ind. 160; Gentry v. Bargis, 6 Blacki. 261, 2 Darter r. Brown, 48 Ind. 395. 8 Simmons v. Jenkins, 76 111. 479. * Prosser v. Woodward, 21 Wend. (N. Y.) 205. ' Ferrell v. Humphrey, 12 Ohio, 112. « Biddle r. Parke, 12 Ind. 89. ' Ward y. Anderberger, 36 Minn. 300 (30 N. W. 890) ; Pom. Rem. & Rights, § 767; Sylte r. Nelson, 26 Minn. 105 (1 N. W. 811). REQUISITES AND SUFFICIENCY OP REPLICATION. 447 § 843. Requisites and sufficiency of the replication in cases depending upon particular facts.' Where the plaintiff claimed as a partnership, and the reply claimed as joint own- ers, held, a departure, and therefore bad.^ "Where a plain- tiff replies a claim of property to a plea justifying a taking of goods under a plaint in replevin, he must designate the time of the claim with precision, so that issue can be taken upon it.° On a plea in replevin of property in P. & N., a replication that P. and the plaintiff are the same is bad.* In replevin a replication to a plea of property in a stranger, that the defendant entered the house of the plaintiff in the night-time, and took the goods, is no answer to the plea.' When the defendant in an action of replevin pleads prop- erty in himself, he voids the injustice of the taking, and the plaintiff in his reply must set forth such facts as will give him dominion and control, even against him who has the legal title/ ' Powell r. Triplett, 6 B. Mon. (Ky.) 420; Boies v. Witherell, 7 Me, (7 Greenl.) 162; Hopkins v. Hopkins, 10 Johns. (N. Y.) 369; People v. Supervisors, 6 Wend. (N. T.) 505; Hurlburt v. Goodsill, 30 Vt. 146; Pattison v. Adams, Hill & D. Supp. (N. Y.) 426; Foshay v. Riche, 2 Hill (N. Y.), 247; Carty v. Hudsons, 24 Wend. (N. Y.) 291; Bloomer r. Juhel, 8 Wend. (N. Y.) 448; Nichols v. Dnsenburg, 2 N. Y. (2 Comst.) 283; Hopkins v. Hopkins, 10 Johns. (N. Y.) 369; Hunter v. Le Conte, 6 Cow. (N. Y.) 628; Bills v. Vose, 27 N. H. 212. 2 Moore v. Stevens, 42 N. H. 404; Nollkamper f. Wyatt (Neb.), 43 Mo. 357. 3 Fisher v. Peirson, 2 Wend. (N. Y.) 345. * Phillips V. Townsend, 4 Mo, 101. " Harrison v. Mcintosh, 1 Johns. (N. Y.) 380. • Dixon r. Thatcher, 14 Ark, 141. 443 SAMAOES. CHAPTEE XXX. DAMAGES. Section. A difficult snbject . . . 844 History and general princi- ples 845 May be allowed to both par- ties 846 Damages not the subject of an independent action . 847 Must be confined to matters arising out of the wrongful taking or detention . . 848 So only matters arising out of the replevin suit can be urged in mitigation of dam- ages 849 Value of property and dam- ages should be found sepa- rately 850 Defendant not entitled to damage unless he claim a return 851 Eule where property has been returned to defendant and plaintiff prevails . . . 852 General rule of dam ages— Where plaintiff prevails . 853 Measure of damages affected by the interest of plaintiff . 854 If the plaintiff prevail iu the action, butthe property has not been delivered to him . 855 General rule of damages where defendant prevails . . 856 It the defendant succeed in the action .... 857 Bule where the successful party has the right to elect 858 Section. Right of court to assess the damages .... 859 How assessed on dismissal or non-suit 860 Jury cannot give more than is claimed in the pleadings . 861 Limit of defendant's recovery 862 Plaintiff's damage where he has had possession . . 863 Measure of plaintiff's dam- ages where he is not able to give bond .... 864 Defendant's damages where plaintiff has had possession 865 That defendant reacquired the possession before the determination of the suit maybe shown in mitigation 866 Death or destructicjn of the property does not lessen the liability 867 The same 868 Death of slaves — Pending suit — No defense to judgment for value .... 869 The rule the same in case de- fendant keeps the property and gives a delivery bond . 870 Emancipation of the slaves in dispute no defense . . 871 Where property is hopelessly lost or destroyed . . . 872 That plaintiff had delivered the property to a receiver of defendant does not lessen his liability .... 873 DAMAGES. 449 Section. That a party has transferred his title may be shown in mitigation of damages . 874 Possession of the property during the pendency of tlie suit may be shown in miti- gation 875 Where successful party has become repossessed, his damages are what it cost him to get possession . . 876 Interest as a proper measure of damages .... 877 Interest not allowed where the value is fixed at a time subsequent to the taking . 878 The ordinary damage is the value at the time of taking, with interest on that value 879 Where property is not taken, the rule is ordinarily the value with interest . . 880 Therule the same as in trover 881 Interest is not in the nature of special damages . . 882 If property returned interest, no part of the damage . 883 Interest on the value has been held to be discretionary with the jury 884 Interest and profits both can not be allowed as damages 885 Interest not always a proper measure of damages . . 886 Interest not the measure of damages where property has a usable value . . 887 The same 888 Excessive damages must not be allowed tor use . . 889 The purpose for which prop- erty is used should be con- sidered in estimating the value of use .... 890 The usable value a i^roper el- ement of damages . . 891 29 Section. Damages for use need not be specially claimed . . . 892 Damages for use cannot be re- covered in a separate action 893 Plaintiff cannot have dam- ages for the use and for value too .... 894 One who has no right to use the property as a pledgee or an officer cannot recover for the use .... 885 If one without any right re- plevy the property, the rule is different .... 896 The party claiming the use must show that he was in position to use it . . . 897 Interest may be allowed on the usable value . . . 898 Measure of damages between vendor and vpndee . . 899 Measure of dii mages in suit for promissory note or other evidence of debt . . 900 In case of stocks is the value on day of trial . . . 901 Where it has been decreased in value by the acb of the defeated party, he irrespon- sible for the loss . . . 902 ■ In the case of keepsakes, sou- venirs, etc 903'. Damages to compel a return 904'. Measure of damages as be- tween joint owners . . 905. The damages for property severed from real estate . 906 . Measure where property has been severed and increased in value by defendant act- ing in good faith . . . 907" A willful trespasser not enti- tledtoanythingforhislabor 908 General rule of damages where property has been changed in form . . . 909 450 DAMAGES. Section. If the original owner recover the value of his property at the time it was taken . . 910 Pleadings may beamended to show change in value pend- ing the litigation . . . 911 Where the value of the prop- erty has been increased by a willful wrongdoer . . 912 Where the defeated party act- ed in good faith, he is enti- tled to the increase of value from his labor . . . 913 Depreciation in value is a proper element of damage . 914 Under a wrongful taking the defendant is liable for the depreciation .... 915 Where the holder neglects the property, he is responsible for the loss in value . . 916 Section. Where property was injured in the hands of a wrongful taker, the expenses of doc- toring and care are properly allowable as damages . . 917 Deterioration in value in hands of defendant — Expen- ses incurred in searching for property by plaintiff . . 918 Loss from interruption of business and machinery ly- ing idle 919 Expenses, counsel fees, etc. . 920 The same — Illustrations . 921 Money paid a security com- pany to furnish bonds can not be allowed as damages 922 Expenses of taking and re- moving property . . . 923 § 844. A difficult subject. The subject of damages is one of the most difficult in replevin, and one on which the courts are most at variance. And great difficulty is met with in attempting to harmonize the numerous decisions, for the reason that the circumstances under which the controversy arose and the law under which it was carried on differ widely. Where both parties act in good faith on an honest belief of right, the difficulty is not so great. Where malice is in no way an element in a litigation over the right to personal. prop- erty, the rule of damages is the same, whether the action is of contract or of tort. The real question is by what rule shall we with most certainty arrive at a knowledge of what the damages actually are.' But when, as is too frequently the case, one of the parties acts maliciously, much more difficulty is experienced in formulating a just rule. The only general rule in such cases is to leave much to the discretion of an intelligent jury. . In the following sections I have classified ' Talcdtt v. Crippen, 52 Mich. 633 (18 N. W. 392). HISTOEY AND GENEKAL PEINCIPLES. 451 the decisions as well as their nature would permit, and at the close of the subject have given a few postulates, which it is hoped will be of advantage in deciding questions that may arise under this branch of our subject. The majority of the best considered decisions limit the damages to compen- sation. But what is proper compensation ? Is it interest, or the profits made by the use of the property in question, or the profits which the owner would probably have made if he had had the property itself ? The profits which the owner might have made can only be guessed at, and this is a sufficient reason for rejecting these profits as a measure of compensation. On the other hand, to limit the compensa- tion to interest, at the legal rate, would frequently enable the wrongdoer to profit by his own wrong, and be an inadequate compensation to the owner. It may, therefore, be necessary to give him the profits made by the use of his property in question. To do so may moreover be justified upon the ground that the profits are accretions to the property which has yielded them, and ought to belong to the owner of such property, in accordance with the accessorium sequitur suum principale. At the same time it may not be always right to restrict the owner's compensation to the profits made by the use of his property, for it may happen that it has made no profits or less profit than legal interest. . § 845. History and general principles — Damages in re- plevin are now generally awarded to the successful party.' It has been held that they could not be recovered unless asked for in the pleadings.^ But this is not the general rule.^ If either the right of property or right of possession are found in plaintiff, he is entitled to damages.* But under the ' Kindall r. Fitts, 2 Foster (N. H.), 9; Brown r. Sinith, N. H. 38; Booth V. Ableman, 20 Wis. 24; Graves v. Sittig, 5 Wis. 219; Wright v. Williams, 2 Wend, 636. 2 Faget V. Brayton, 2 Har. & J. (Md. ) 350; Croise r. Bilson, 6 Mod. 102. ' McKean r. Cutter, 48 N. H. 372. •Williams v. West, 2 Ohio St. 86. 452 DAMAGES. ^ common law they were not allowed in favor of the defendant, for the reason that the action would only lie in case of a dis- tress, and the lord had no right to use the property (cattle) distrained, and was not damaged if defeated. But the plain- tiff having lain out of the use of his beasts, was allowed dam- age when successful.' To prevent vexatious suits or "false clamour, " the plaintiff was required to give pledges that he would prosecute the suit, and if he failed to sustain his claim he was amerced. This practice was followed by awarding costs to the successful party, and this practice grew into the allowance of damages to the successful party in cases in which costs were not sufficient.^ And as replevin was ex- tended to other causes of action than distress, the reason for refusing damages to defendant did not exist, and the prac- tice of allowing damages to the successful party followed as a natural consequence, and has long been the settled rule. § 846. May be allowed to both parties. Where the property consists of several articles, it sometimes happens that one party has the better right to part of the property, and the other party to another part, and the judgment in such cases should be that the plaintiff retain part, and the other property be returned to defendant, and the costs should be apportioned according to the relative values of the two parts of the property, and damages should be allowed in the same way.^ Costs are almost entirely within the discretion of the court in such cases, and damages are largely in the discretion of the jury. It has been held that the court had the power to offset the one against the other, and only give ■ Winnard r. Foster, Lutw. 374 ; Anon Dyer, 280 ; Briggs r. Gleason, 29 Vt. 80; Lamb v. Day, 8 Vt. 407; Hopewell r. Price, 2 Har. & G. (Md.) 275. " Savile r. Roberts, 1 Ld. Bay. 380. 2 Brown r. Smith, 1 N. H. 36; Williams v. Beede, 15 N. H. 483; Clark r. Keith, 9 Ohio, 73; Seymour y. Billings, 12 Wend. 286; Wright v. Mathews, 2 Blackf, (Ind.) 187; Powell v. Hinsdale, 5 Mass. 343. So where there are several plaintiffs, judgment may be in favor of one and against the others. Hamilton r. Browning, 94 Ind. 242, HOW DAMAGES MUST BE ASSESSED. 453 judgment for the balance.' In this, replerin differs from other actions. If the plaintiff succeed, he not only is en- titled to the property, but he is also entitled to any damages for the unlawful interference with his possession by defend- ant. If, on the other hand, the defendant recover, he is en- titled to a return of the property which was wrongfully taken from him, and damages for the unlawful interference with his possession. While the claim for damages is secondary to the claim for the property, it is just as much a part of the suit,^ and the plaintiff cannot escape a judgment for damages by dismissing his suit.' The defendant is re- garded as suing for the return of the goods and for dam- ages.* § 847. Damage's not the subject of an independent action, must be assessed in the replevin suit. Damages for the detention inust be assessed in the replevin suit, and cannot be made the basis of an independent suit.'' They are but an incident to the proceeding for the property, and such questions should be settled when the main issue is set- tled, thus saving a multiplicity of suifcs.^ This matter is regulated by statute, and in some states damages may be recovered on the bond if not fixed in the replevin suit.' The 1 McLarren v. Thompson, 40 Me. 285; Poor v. Woodburn, 25 Vt. 239; Wright f. Williams, 2 Wend. 633; Porter v. Willet, 14 Abb. Pr. 319; Butcher v. Green, Doug. (Eng.) 652; Vollum r. Simpson, 2 Bos. & Pul. 368. 2 Buckley v. Buckley, 12 Nev. 430; Messer F.Bailey, 11 Foster (N.H.), 9; Bell v. Bartlett, 7 N. H. 178; Groves r. Sittig, 5 Wis. 223; Parham F.Riley,4 Cold. (Tenn.) 10; Dorsey v. Ga8saway,2 Har.& J. (Md.) 402; Bell r. Bartlett, 7. N. H. 178. 3 Fallon F. Manning, 35 Mo. 274; Collins r. Hough, 26 Mo. 149. , * Gould V. Scannel, 13 Cal. 430; Bonner f. Coleman, 3 B. Mon. (Ky.) 464; Smith f. Snyder, 15 Wend. 324; Berghoff v. Hickwolf, 26 Mo. 51a ; Smith f. Winston, 10 Mo. 299. '- White F.VanHouten, 51 Mo. 577; Hohenthal F.Watson, 28 Mo. 360. * Hohenthal F.Watson, 28 Mo. 360; Eedmon r. Hendricks, 1 Sandf. (N. Y.) 32; Glann f. Younglove, 27 Barb. 480; Bower v. Tallman, 5 W. &S. (Pa.)556. ' Hall F. Smith, 10 Iowa, 45; Washington Ice Co. v. Webster, 62 Me- 363; Whitney r. Lehmar, 26 Ind. 506. 454 DAMAGES. better course is to have the damages assessed in the replevin suit,' as this would bind the principal in the bond, at least. In Illinois it is held not to bind the sureties.^ !By the com- mon law, upon an omission to have damages assessed in the replevin suit, the defendant was entitled to have a writ of inquiry to assess them, and this is the practice in some states now.^ § 848. Must be confined to matters arising out of the wrongful taking or detention. In an action of replevin no damages are recoverable except such as result from the dis- turbance of the possession, and the plaintiffs are not entitled to recover for breach of contract in the trade out of which the action grew.* § 849. Only matter pertaining to the replevin suit can be urged in mitigation of damages. As we have seen (§ 791) there is no set-off or counter claim in replevin; so it is not competent to urge in mitigation of the damages things properly triable in another suit. A debtor who made an assignment afterward resumed control of the goods, and the assignee brought replevin for them. Held, that losses by the assignee's negligence could not be charged on him in this or in any suit at law. An accounting in respect to a trust can only be settled in a court of equity.^ ' § 850. Value of property and damages should be found separately. In replevin there is a distinction between the value of the property to be found and the amount of the damages to be assessed, and they must be found separately. The value of the property at the time of the assessment is the value to be found by the jury, and any depreciation occasioned by the taking and detention should be considered in estimating the damages." In no case should they be ' Pettygiove v. Hoyt, 11 Me. 66; Sopris f. Lilly, 2 Col. 498. 2 Shepard v. Butterfield, 41 III. 78. ' Humfrey v. Misdale, Comb. 11 ; Herbert r. "Waters, 1 Salk. 205. * Herzberg v. Sachse, 60 Md. 426. 5 Rodman r. Nathan, 45 Mich. 607 (8 N. W. 562.) 8 Mix V. Kepner, 81 Mo. 93; 2 Sedg. on Dam. 428; 1 Sedg. on Dam. 173 to 185, top pp. WHEN DEFENDANT NOT ENTITLED TO DAMAGES. 455 amalgamated.' They may be assessed in one sum by agree- ment;'' but this practice is not to be commended, as the claims for value and for damages are given on different theories of law. Value is only allowed where the property is not restored. Damages are to compensate for the depri- vation of possession, and injury caused by the wrongful taking. § 851. Defendant not entitled to damages nnless he claim a return. The plea for a return is in the nature of a cross petition, and unless a party ask for a return, as a general rule he is not entitled to damages for the detention, even if successful,^ This rule grows out of the old rule adopted in replevin in the cepit and detinet, where the pleas of non cepU and non detinet admitted plaintiff's right to the property, but denied the wrongful taking, or detaining. Of course, on such a plea alone, the defendant, if successful, was not entitled to damages.* But in some states it has been pro- vided by statute that, under such pleas, a return could be had, and of course, if a return can be awarded, damages can be given. ° If the defendant never had possession, he cannot have return, nor is he entitled to damage for the de- tention of goods he never had.^ Where plaintiff got pos- session under the statute, and defendant does not claim a return, if successful, defendant is entitled to judgment for the value of the property or of his special interest therein.' The value of the property is only an element of damages when it is awarded to the party who does not have it in pos- " Sayers r. Holmes, 2 Coldw. (Tenn.) 259. 2 McCabe v. Morehead, 1 W. & S. (Pa.) 515. 3 Gould V. Scannell, 13 Cal. 430; Smith v. Snyder, 15 Wend. 324; Bonner r. Coleman, 3 B. Mon. (Ky.) 464. * Hopkins r. Barney, 2 Fla. 44; Bates r. Buchanan, 2 Bush. (Ky.) 117; Bemus v. Beekman, 3 Wend. 668; Whitwell r. Wells, 24 Pick. 25; Douglass V. Garrett, 5 Wis. 85. 5 Pickens r. Oliver, 29 Ala. 528. ' Richardson r. Keed, 4 Gray (Mass.), 443. ' Kloety V. Delles, 45 Wis. 484; P. L. & T. Co. r. Com. Bank, 15 Wis. 424; Timp f. Dockham, 32 Wis. 146. 456 DAMAGES. session at the time of trial. Where, under the circumstan- ces of the case, the result is a transfer of the actual posses- sion, the value should be found, and the judgment is for the value in case return is not made, as well as the damages.' § 852. Rule where property has been returned to de- fendant and plaintiff prevails. In replevin, where the property has been seized by the sheriff and then returned to the defendant under the statute, plaintiff, on proof of the un- lawful taking and detention of the property described in the complaint and of its value, may take judgment for such value with damages for the detention, without showing the identity of the property seized by the sheriff with that taken by the defendant. In such cases the action is regarded as a con- current remedy with trover, and to be governed by the same rules. ^ Where property was claimed by defendant and left in his hands on his filing statutory bond, verdict for the plaintiff should be for the value of the goods, as well as the damages caused by the taking.' In such case the jury should find the value of the property, as well as the amount of the damage for the detention, so that the plaintiff may have judgment for the value in ease the property is not returned to him, but the judgment should be in the alternative.* § 853. General rule of damages — Where plaintiff pre- vails. If the property has been delivered to him on the writ, he is entitled to a judgment affirming his right of pos- session, and, if title was involved, the right of property and nominal damages and costs, and if he has pleaded and proved it, damages for such sum as will compensate him for the injury he has sustained by reason of the wrongful taking and de- tention of the defendant, and any depreciation in value it 1 Merrill v. Butler, 18 Mich. 294; Laborde r. Eumpa, 1 McCord, 15; Bates r. Buclianan, 5 Bush. (Ky.) 117. 2 Brewster v. Carmichael, 39 Wis. 456; Bigelow v. Doolittle, 36 Wis. 115. ' Frazier r. Fredericks, 24 N. J. L. (4 Zab.) 162. *Frazier v. Fredericks, 24 N. J. L. (4 Zab.) 162; Field v. Post, 9 Vroom (N. J.), 346; Pugh v. Calloway, 10 Ohio St. 488. MEASUEE OF DAMAGES HOW AFFECTED. 457 may have sustained while so -wrongfully detained.' If the property has been delivered to the successful plaintiff, he is still entitled to damages for the detention, and the usual measure of damages in such a case would be the value of its use during the detention.^ § 854. Measure of damages affected by the interest of plaintiff. The measure of damages in this action may be affected by the interest of the plaintiff. The general theory is that a party should recover his actual damages, and if his interest is only a lien as by virtue of an attachment, execu- tion, or mortgage to secure a debt, his right to recover may properly be limited as against the owner to the amount of his claim. ^ And if he has only a limited interest of any kindi such as a right to the temporary possession, his damages should ordinarily be limited to the damages sustained by the interference with that interest.* § 855. If the plaintiff prevail in the action, but the property has not been delivered to him, it is usually pre- scribed by statutes that he have an alternative judgment, that the property be returned to him, or if a return cannot be had, that he recover its value with interest and the loss sustained by the plaintiff by its detention, which is deter- mined on the trial and fixed by the judgment.^ If the prop- iTonng V. Willett, 8 Bosw. (N. Y.) 486; Moore r. Shenk, 3 Barr. CPa.) 13; Stevens v. Tuite, 104 Mass. 333; Fisher v. Whoollery, 25 Pa. St. 198; Nicholas Ins. Co. v. Alexander, 10 Humph. (Tenn.) 383. 2 Allen V. Fox, .51 N. Y. 562; Butler v. Mehring, 15 111. 488; Clapp r. Walter, 2 Texas, 130; McGavock v. Chamberlain, 20 111. 219; McGinnis V. Hart, 6 Iowa, 204; Walls r. Johnson, 16 Ind. 374; Morgan v. Rey- nolds, 1 Mont. 163. ' Hayden v. Anderson, 17 Iowa, 158; Warner v. Matthews, 18 111. 83; Allen f. .Judson, 71 N. Y. 77; Ehodes r. Woods, 41 Barb. 471; FitzhuRh r. Wiman, 9 N. Y. 559; Seaman v. Luce, 23 Barb. (N. Y.) 240; Jennings v. Johnson, 17 Ohio, 154; Noble v. Epperly, 6 Ind. 468; Eggleston on Dam. 299. See Deal v. Osborn, (Minn.) 43 N. W. 835. * Waverly v. Darby, 42 Barb. 411; Hawley v. Warner, 12 Iowa, 42; Iron Co. V. Tilghman, 13 Md. 74; Field on Dam. 665; Sedg. on Dam. II., 430; Southerland on Dam. 572. i^ Brewster v. Silliraan, 38 N. Y. 423; Cochran v. Golwold, 41 N. Y. 458 DAMAGES. erty was not delivered to him on his writ, then its value at the time of the unlawful taking, with interest, and any spe- cial damage plekded and proved, is th'^ measure of his re- covery/ The property not being in court, no order can be made in regard to it. § 856. General rule of damages where defendant pre- vails. If the property has been taken from him under the writ, he is entitled to have it restored to him, or its value at the time it was taken from him, with interest on that value, with at least nominal damages and costs, and any special damages he may plead and prove measured by the same rule that plaintiff's damages are measured by where he prevails. If a return is adjudged, and the property has decreased in value, the depreciation should be allowed as damages. If it has increased in value, he is allowed the increase on the prin- ciple thab it was his property all the time.^ If plaintiff has added to the value of the property by his labor, a different question arises. See § 907 et seq. § 857. If the defendant succeed in the action, he is en- titled to a judgment for a return of the property, or, in de- fault thereof, he is entitled to a judgment at least for its value and damages for the taking and detention, where it has been taken on the writ and delivered to the plaintiff; and if the property wrongfully taken from the defendant by virtue of Sup. Ct. 317; Daws v. Rush, 28 Barb. 157; N. Y,, &e., Co. r. Flynn, 55 N. Y. 653; Bales v. Scott, 26 Ind. 202; Kehoo v. Sounds, 69 111. 351; Berthold v. Fox, 21 Minn. 51; Rawark v. Lee, 14 Ark. 425; .Jetton v. Smead, 29 Ark. 372; Anderson v. Tyson, 14 Miss. 244; Moore v.Shenk, 3 Pa. St. 13.'; Clark v. Ma,rtin, 120 Mass. 543 ; Booth v. Ableman, 20 Wis. 602; Eggleston on Dam., 297, 303; Field on Dam. 663; Bedg. on Dara.II.,436,440; Southerland on Dam. III., 538; Witcher v. Watkins, 11 Col. 548 (19 P. 540). ' Ewing r. Blount, 20 Ala. 694; Barkesdale v. Appleberry, 23 Mo. 389; Hohenthal F.Watson, 28 Mo. 360; Suydam r. Jenkins, 3 Sandf. 615; Russell r. Smith, 14 Kan. 374; Fisher f. WhooUery, 25 Pa. St. 197; Williams v. Archer, 5 M. G. & S. (57 E. C. L.) 324. ^Mayberry v. CliHe, 7 Cold. (Tenn.) 125; Allen v. Judson, 71 N. Y. 76; Pierce v. Van Dyke, 6 Hill (N. Y.), 613; Neis v. Gillen, 27 Ark, 187; Hooker v. Hammill, 7 Neb. 231. . WHEEE SUCCESSFUL PAETT HAS r.:GHT TO ELECT. 459 a writ of replevin is adjudged to be returned, and is returned to the defendant, he may not only recover the value of the use of such property during the detention, but also for any injury to or deterioration of the same, or any decrease of its value, whether this is owing to the fault of the plaintiff in the replevin suit or not.^ § 858. Rule where the successful party has the right to elect to take the property or a judgment for the value. In Wisconsin, after verdict, a plaintiff may elect to take a judg- ment for the value so found instead of the alternative judg- ment for the return or the value. ^ In an action of replevin where the property is delivered to the plaintiff on the writ, and defendant elects, on the trial, to take a judgment for its value under the statute, the measure of his damage is such value at the time of the unlawful taking, with interest there- on to the date of the verdict' In such case evidence of the value of the use of such property is admissible on the trial in the absence of a waiver of its return, and a failure to ob- ject to such testimony is not a waiver of the error of the court in allowing the jury to add such value to the value of the property, where its return is waived at the close of the trial.* Where plaintiff failed to prove his title to the goods, and defendant elected to take their value, instead of receiving the goods, the measure of damages was held to be the value of the goods when they were replevied, with interest, as there was no evidence of special damage, and not the value at the time of the defendant's action.'* In some states it is at the ' Gordon v. Jenny, 16 Mass. 465; Suydam f. Jenkins, 3 Sandf. (N. Y.) 614; Sedgwick on Damages, 499 ; Field on Damages, § 832 ; Eggleston on Damages, 297-303; Sedg. on Dam., II., 428, 435; Southerland on Damages, 559-561.' 2 Pratt V. Donovan, 10 Wis. 378. 3 Just r. Porter, 64 Mich. 565 (31 N. W. 444). This case refers to and overrules Cook v. Hamilton, 67 Iowa, 394 (25 N. W. 676), where it is held the proper measure of damages is the value at the time of trial. Houselman v. Kegel, 60 Mich. 541. * Just r. Porter, 64 Mich. 565 (31 N. W. 444). 6 Suydam v. Jenkins, 3 Sandf. (N. Y.) 614. 460 DAMAGES. option of defendant in replevin to return the goods, where he has kept them in his possession, or pay the value as assessed by the jury.' But the contrary is the general rule.^ The better rule is that the goods shall in all cases be returned where capable of return. § 859. Right of court to assess the damages. Eeplevin and the assessment of damages therein are peculiarly mat- ters for the jury, but a jury may be waived and the matters in controversy left to the court by consent of parties.' In an action of replevin before a justice of the peace, where a trial by jury is not demanded, the justice has power to hear and determine the action and make such findings and assessment of damages as might have been made by a jury had one been demanded. § 860. How assessed on dismissal or non-suit. The weight of the decisions is that in replevin on a default or dismissal by plaintiff, or an abandonment of the action by him in any way, the court has the right to hear evidence and assess defendant's damages without the aid of a jury, and such act is not an invasion of the constitutional right of trial by jury.* Where a defendant recovers judgment by non-suit for the value of the property taken, he may have the value assessed by the court without a jury, on giving proper notice,^ or it may be assessed by a jury without notice," or upon a writ of inquiry,' bntthe value and damages should be assessed separately. ° 1 Allen V. Fox, 51 N. Y. 569. 2 Mayberry v. Clifte, 7 Cold. (Tenn.) 121. ^ Baker v. Dailey, 6 Neb. 4G5 ; Frey r. Drahos, 7 Neb. 194; Leighton V. Stewart, 10 Neb. 224 (4 N. W. 1051). * Laney v. Eemuson, 2 N. M. 245. See Brown v. Horning, (Mich.) 43 N. W. 453. ^ Pearson v. Eaton, 18 Mich. 79. * Van Alstine v. Kittle, 18 Wend. (N. T.) 524. See Rodman v. Hen- dricks, 1 Sandf. (N. Y.) 32. ' Murphy v. Jenkins, 1 Denio (N. Y.), 669. * Nashville, etc., v. Alexander, 10 Humph. (Tenn.) 378. Compare Picket V. Bridges, 10 Humph. (Tenn.) 171; Sayers r. Holmes, 2 Coldw. (Tenn.) 259. LIMIT OF DEPEl^D ant's BECOTEKY. 461 § 861. Jury cannot give more than is claimed in the pleadings. In assessing damages or value in a replevin ac- tion the Jury cannot find more than claimed by the pleadings and included in the issues joined.' In replevin before a jus- tice it is error to assess the value of the property as against the defendant at a greater amount than that sworn to by plaintifE in his affidavit.^ But in district court it may be as- sessed at a greater amount than in the affidavit, but not greater than the amount alleged in the petition.^ If the plaintiff count in the detinuit, he can recover damages for the detention up to the taking only, though he should prove the property to be still in the defendant's possession.* A better rule was followed in Arkansas lately, where it was held that all damage sustained by the detention up to the date of ver- dict should be included therein.'^ § 862. Limit of defendant's recovery. Where the prop- erty is taken from defendant and delivered to plaintiff, and on trial is awarded to defendant, he is not entitled to dam- ages for the taking and withholding unless he claimed such damages in his answer. ° In an action for a return the sher- iff cannot take more damages than he claims in his answer.' In no event is the defendant entitled to a judgment against the plaintiff for more than the value of the property replevied, together with damages for the detention thereof.* The judg- ment for defendant on a plea of property in replevin is pro 1 Tiedinan r. O'Brien, 36 N. Y. Sup. Ct. 539. No motion appears to have been made to amend the pleadings to conform to the verdict in this case. Hoskins r. Robins, 3 Saund. 320, n. 1; Huggeford v. Ford, 11 Pick. 223; O'Neal v. Wade, 3 Ind. 410. In replevin for goods distrained for rent, a less sum may be recovered than the avowry alleges to be due. Barr v. Hughes, 44 Pa. St. 516. ^ Jaquith v. Davidson, 21 Kan. 341. 8 Crawford v. Furlong, 21 Kan. 698. * Truitt r. Revell, 4 Harr. (Del.) 71. ■^Lesser v. Norman, (Ark.) 11 S. W. 281. eWhitcomb r. Hoffman, 14 Hun. (N. Y.) 335. ' Eaton V. Caldwell, 3 Minn. 134. ' Severence v. Melick, 15 Neb. 610 (19 N. W. 596.) 462 DAMAGES. retorno habendo; but if lie cannot have a return, lie may liave judgment for damages to the Talue of the goods, etc' § 863. Plaintiff's damages, where he has had posses- sion of the property while suit was pending, are limited to the damages for the taking and detention up to the time of the replevin.^ Where the goods are delivered to the plain- tiff under the writ, he is entitled to recoyer damages for the taking merely. Where the property is retained by defend- ant pending the suit, the plaintiff, on a finding in his favor, is entitled to have the value of the property assessed also.' In replevin the plaintiff is entitled to damages for the unlaw- ful taking, as well as the unlawful detention.* Personal prop- erty was delivered to plaintiff in replevin under his bond. Subsequently he sold it. Held, that he was not thereby barred from maintaining his suit and recovering damages for the illegal detention of his property.^ Where the jury find for the plaintiff, they must assess his damages for the seizure and detention, and judgment will be rendered there- for and costs.^ Where the property has been delivered to the plaintiff, and he recovers a verdict for it, its value need not be assessed by the court or jury.' Though the sheriff delivered the property to the plaintiff on the writ, yet he may also have damages for injury by reason of the illegal deten- tion." § 864. Measure of plaintiff's damages where he is not able to give bond Is the value of the property. Where plaintiff brought suit in replevin for property and damages 1 Clark T. Adair, 3 Har. (Del.) 113; Dwight r. Enos, 9 N. T. (5 Seld.) 470. = Fisher f. WhooUery, 25 Pa. St. 197. ^Lendauer v. Teeter, 41 N. J. 255; Kendall v. Fitts, 22 N. H. (2 Fost.) 1; Messer r. Bailey, 31 N. H. (11 Fost.) 9; Warner v. Aughen- baugh, 15 Serg. & E. (Pa.) 9. * Gray r. Nations, 1 Ark. 557. '■ Donohoe v. McAleer, 37 Mo. 312. ' Parham y. Eiley, 4 Coldw. (Tenn.) 5. ' Merrill v. Butler, 18 Mich. 294. ' Tracy v. New York, 9 Bosw. 396; Hoover y. Ehoads, 6 Iowa, 505. WHEBE PLAINTIFF HAS HAD POSSESSION. 4G3 for the detention, but was unable to give tlie required bond, and the property was returned to the defendant, but on the trial plaintiff was successful, he was allowed the value as damages without amending his petition.' Where the prop- erty was not delivered to plaintiff in replevin, and, on a ver- dict in his favor, he elected to take the money judgment for the value instead of judgment for the possession, he does not thereby waive his right to damages for the wrongful 'de- tention.^ § 865. Defendant's damages where plaintiff has had possession. Where plaintiff has obtained possession of the property under the statute, if the jury find defendant entitled to the possession, he may waive a return of it, and take judg- ment for its value alone.' In New Hampshire a judgment for the defendant in replevin must be for the value of the chattels replevied in damages, and not for a return of them.* In Mississippi, where a writ of inquiry is awarded in the action, the jury must assess the value of the property re- plevied, as well as the damages sustained by the defendant' If defendant is successful,jndginentshould be for a return of the property or its value and damages.^ § 866. That defendant reacquired the possession before the determination of the suit may be shown in mitigation of his damages. A defendant in an action of replevin recovers the value of the property, after his right to the possession and ownership is established, for the reason that by the proceed- ing he is deprived of his property. The deprivation of his 1 Pugh V. Calloway, 10 Ohio St. 488. 2 Cook V. Hamilton, 67 Iowa, 394 (25 N. W. 676). Sec. 3241 of the Iowa code provides, if the party found to be entitled to the property be riot already in possession thereof, by delivery under this chapter, he may, at his option, have execution for the specific delivery of the prop- erty or judgment for the value thereof, as found by the jury. ' Farmers, etc., v. Commercial, etc., 15 Wis. 424. * Bell F. Bartlett, 7 N. H. 178. ^ Pearee v. Twichell, 41 Miss. 344. - "Kendall v.Fitts, 22 N.H. (2 Fost.)l; Messer v. Bailey, 31 N. H. (11 Fost.) 9; Warner v. Aughenbaugh, 15 Serg. & R. (Pa.) 9, 464 DAMAGES. property is the ground, upon whicli he recovers its value. If this deprivation be but temporary, and the property is re- turned to his possession before his rights thereto are deter- mined in the action, this fact may be shown to defeat his claim for its value. In such a case, while he may be entitled to recover for the detention and damages resulting there- from, he will not be allowed its value.' § 867. Death or destruction of the property does not lessen the liability, as a rule, as the action may proceed as one for damages. The law will not permit a wrongdoer to come in and set up that the property died or has been c^estroyed in his hands, and therefore he ought not to be called on to respond in damages, though of course the judgment for a return cannot be enforced. When the defendant took oi retained the property illegally, he assumed all the probable consequences of his act, and cannot now be heard to com- plain. To permit a defendant who wrongfully takes posses- sion to claim, when a loss has occurred, that he held the prop- erty at the risk of the real owner and not his own, would be very unjust. His inability to deliver in such cases is no de- fense.^ It should be borne in mind that the object of replevin is two-fold — first, to have the return of the article ; if that is impossible, then, second, to secure adequate damages for the failure to return. If the second object is to be prevented by the death or destruction of the property, the writ would be shorn of much of its power and value as a remedy. But such is not the rule of law.' There are a few apparent exceptions to this rule, but they are where the courts regarded the party as rightfully in possession, and held that he was only liable for ordinary care.* " Harrison r. Byan, 31 Iowa, 156 ; Deyitt v. Morris, 13 "Wend. 496. " Caldwell v. Fenwick, 2 Dana, 333 ; Scott r. Hughes, 9 B. Mon. 104; Austin's Exrs. v. Jones, 1 Gilmer (IVa.), 341; Gibbs v. Bartlett, 2 W. & S. (Pa.) 34; Haile v. Hill, 13 Mo. 612. 3 Carrel v. Early, 4 Bibb. (Ky.) 270; Middleton r. Bryan, 3 Maul & S. 158. See Suydam v. Jenkins, 3 Sandf. 644. 'Carpenter V.Stevens, 12 Wend. 589; Melvin f. Winslow, 1 Fair (Me.), 397. EULE IN CASE DEFENDANT KEEPS PEOPEETT. 465 § 868. The same. In a Kentucky case in reference to this question, Boyle, 0. J., said, " This proposition cannot be " maintained. "Were the recovery of the specified thing the " absolute and sole object of the action of detinue, the destruc- "tion of the thing would necessarily defeat the action; but " as the object is to recover the thing only upon condition it " can be had, and if not, then its value, it follows that the " action cannot be defeated by the destruction of the thing, "unless under circumstances which would excuse the de- " fendant from responsibility. He who wrongfully detains "the property of another does so at his peril, and will bere- " sponsible to the owner though the, property should be de- "stroyed by accident or taken from him by malice.'" § 869. Death of slaves pending suit no defense to judg- ment for value. This has been often held, and was the set- tled law when slaves were regarded as property." In such cases the value of the use was allowed to time of death.' § 870. The rule the same in case defendant keeps the property and gives a delivery bond. In replevin, where the defendant has given a delivery bond for the property and retains it, and one of the horses dies in his hands, plaintiff's measure of damages for unlawful detention is the same as if the property had been preserved to abide the re- sult. His undertaking is absolute to return the property in as good condition as when the action was commenced. His obligation is entirely different from that of a bailee right- fully in possession.* ' Carrel v. Early, 4 Bibb. (Ky.) 270. See Barksdale r. Appleberry, 23 Mo. 392; Rose F.Pearson, 41 Ala. 692; Feagin v. Pearson, 42 Ala. 385; Garrett v. Wood, 8 Kan. 231; Berthold v. Pox, 13 Minn. 501. 2 White V. Ross, 5 Stew. & Porter (Ala.), 133; Bettis v. Taylor, 8 Per. (Ala.) 564; Bell v. Pharr, 7 Ala. 807; Lay r.Lawson, 23 Ala. 377; Car- rel V. Early, 4 Bibb. 270. = Haile v. Hill, 13 Mo. 612; Rose v. Pearson, 41 Ala. 689; Bethea r. McLennon, 1 Ired. (N. C.) 523; Austin v. Jones, 1 Va. 841. * Hinkson v. Morrison, 47 Iowa, 167, 30 466 DAMAGES. § 871. Emancipation of the slaves in dispute no de- fense, as that is no reason why judgment should not be rendered for their value any more than if they had died.' § 872. Where property is hopelessly lost or destroyed, judgment for ibs value may be rendered, and that the judg- ment for a return was not rendered is a harmless error. ^ Where the defendant in an action of replevin is successful, the measure of his recovery is not affected by the fact that a portion of the property has perished in plaintiff's hands.' § 873. That plaintiff had delivered the property to a receiver of defendant does not lessen his liability. Prop- erty having been taken by the plaintiff in replevin, and the defendant having been found to be the owner, and entitled to the possession, the plaintiff was not entitled to a mitiga- tion of the recovery against him (of the value of the prop- erty) by reason of the fact that he had delivered a part of the property to a receiver of the defendant's vendor (ap- pointed under the insolvent law subsequent to the sale).* § 874. That a party has transferred his title may be shown in mitigation of damages. The utmost that a party can claim who has transferred his title would be damages analogous to those rendered where the property has been re- stored and accepted. These would be nominal damages only, unless there has been some special damage caused by the taking and detention.' Or that the plaintiff has become le- gally divested of title since the suit was brought, is a good defense except as to costs and damages up to that time.' ' Wilkerson r. McDougal, 48 Ala. 518 ; Mcllvain v. Mudd, 44 Ala. 48. ^ Brown v. Johnson, 45 Cal. 76; Wilkerson v. McDougal, 48 Ala. 518. = Lillie V. McMillan, 52 Iowa, 463 (3 N. "W. 601). In Iowa the defend- ant can elect whether he will receive the property back or take the judg- ment for the value. Code, § 3241. * 'Xallop-De Groot Company v. M. & St. L. Ey., 33 Minn. 482 (24 N.W. 185). In this casetheevidenee didnot showthat, as between the receiver and the defendant, the receiver was entitled to the property. ^ Brady V. Whitney, 24 Mich. 154; Sedgwick on Damages, Ch. 19, "Mitigation." Deal v. Osborn, (Minn.) 43 N. W. 835. « Cole V. ConoUy, 16 Ala. 271 ; Leonard v. Whitney, 109 Mass. 266. INTEBEST AS A PEOPEE MEASUEE OF DAMAGES. 467 "Wkere the action is rightly brought, a subsequent delivery in good faith does not prevent recovery by the plaintiff for the damage of the detention before such delivery.' § 875. Possession of the property during the pen- dency of the suit may be shown in mitigation, and should be considered in estimating the damages. If defendant win at first trial and property is delivered to him, and he convert it, but, on appeal by plaintiff, plaintiff is successful, such conversion by defendant may be considered in estimating the damages.^ § 876. Where successful party has become repossessed, his damages are what it cost him to get possession. Where a sheriff wrongfully levies on and sells personal prop- erty, and the owner becomes the purchaser at such sale, and thus becomes repossessed of his property, in a suit by the latter for the wrongful taking and detention, the measure of his damages may be what it so cost him to regain the prop- erty, and the sheriff cannot object that the sum so paid at the sale exceeded the actual value of the property.^ § 877. Interest as a proper measure of damages. In all cases where no special damages are shown, interest upon the value during the time the successful party was deprived of his goods is the proper measure of damages. In all cases of conversion, unless there is some particular reason to the contrary, interest is allowed as the measure of the damage.* ' Hammer v. Wilsey, 17 Wend. 92 ; Vosburgh v. Welch, 11 Johns. 175; Gibbs v. Chase, 10 Mass. 128; Otis v. Jones, 21 Wend. 394; Hans- elman v. Kegel, 60 Mich. 540 (27 N. W. 678). ^Deck T. Smith, 12 Neb. 389 (10 N. W. 705). 'Leonard v. Maginnis, 34 Minn. 506 (26 N. W. 733). « Homer v. Hathaway, 33 Cal. 119; McDonald v. North, 47 Barb. 530; Wood v. Braynard,9 Pick. 322; Twinamy.Swart, 4 Lans. (N.Y.), 263; N. T. Guarantee Co. y. Flynn, 65 Barb. 365; Stevens f. Tuite, 104 Mass. 333; Bartlett f. Brickett, 14 Allen, G4; Hnggelord f. Ford, 11 Pick. 223; Barnes v. Bartlett, 15 Pick. 78; Mattoon f. Pearce, 12 Mass. 406; Ormsby f. Vermont Copper Co. 56 N. Y. 623; Allen v. Fox, 51 N. T. 567; Suydam F.Jenkins, 3 Sandf. (N. Y.) 614; Williams v. Phelps, 16 Wis. 80; Bonesteel f. Orvis, 22 Wis. 522; Bigelow f. Doolit- tle, 36 Wis. 119; Caldwell f. West, 1 Zab. (21 N. J.) 411. 468 DAMAGES. Where the wrong consists merely in the detention of prop- erty without waste or depreciation, or in the postponement of the parties' right of dominion over it, and its value did not consist in its use, interest is allowed, and is regarded a compensation for the wrongful detention.' These cases are on the theory that the property is not returned to the suc- cessful party — ^that is, they arise where the plaintiff took the property on his writ and on trial a return was awarded to defendant, and plaintiff failed to return ; or where the de- fendant gave a bond and retained the property and on trial it was awarded to plaintiff, and defendant failed tp return. If the value of the property was assessed as of the time of the taking, interest on that value is part of the damage, and should be entered in the judgment. If the property is re- turned to the successful party, the return of course cancels the judgment for value and interest, or, as the law is in some states, that part of the judgment never becomes operative. See Chapter XXXV, § 878. Interest not allowed where the value is fixed at a time subsequent to the taking. The value is usually fixed as of the time of the taking, and in that case interest is proper; but if the value is fixed as of a subsequent time, as at the time of the trial, it is not proper to allow interest on this value from the taking, for this would be allowing double damages.^ Where the officer is authorized to seize the property and hold it for plaintiff to give bond, and, if bond be nOt given in a certain time, to return it, it is proper to allow interest upon the va>ae, with any depreciation in value, together with the cost of replacing it.^ Where the plaintiff in replevin takes possession of the property when 'Seals r. Guernsey, 8 Johns. 446; Bissell v. Hopkins, 4 Cow. 53 ; Hjde V. Stone, 7 Wend. 354; Jones v. Rahilly, 16 Minn. 322; Ripley v. Davis, 15 Mich. 75; Oviatt v. Pond, 29 Conn. 479; Derby v. Gallup, 5 Minn. 119; Scott v. Elliott, 63 N. C. 215; Eobinson v. Barrows, 48 Me. 186. 2 Atherton v. Fowler, 46 Cal. 323 ; Freeborn r. Norcross, 49 Cal. 313. ' Morris v. Baker, 5 Wis. 389. HOW OKDINAEY DAMAGE IS DETEEMINED. 469 the suit is commenced, and the jury on the trial find for the defendant, and assess the value at a time subsequent to the taking, they cannot add to this value as a part of the damage interest from the time of the taking up to the time the value was assessed.' § 879. The ordinary damage is the value at time of taking, with interest on that value. In an action for un- lawfully taking and detaining personal property, the ordi- nary measure of damages is the value of the property, with interest from the time of the taking.^ Damages allowable are legal interest on the assessed (by the jury) value of the property from the date of its seizure to the date of trial. ^ In an action to recover personal property or its value, in- terest on the value of the property is allowable, by way of damages for detention, from the date of the wrongful taking.* In the absence of fraud, malice, negligence, oppression, or in absence of proof of the value of the use of the property, or of special damages, the measure of plaintiff's damages for the detention of the property by the defendant is the in- terest on the value of the property for the time wrongfully detained. ° If a finding in such an action state the value of the property, and the date of the taking, the plaintiff is en- titled to interest on such value as damages, without a special finding to that effect, but he is not entitled to recover the money expended by him in pursuit of the property.' In an 1 Atherton v. Fowler, 46 Cal. 323. 2 Murphy v. Sherman, 25 Minn. 196. 'Borsc V. Thomas, 3 Mo. App. 472; Miller v. Whitson, 40 Mo. 97 Hutching v. Buckner, 3 Mo. App. 595. * Schmidt v. Nunan, 63 Cal. 371 ; Kelly v. McKibben, 54 Cal. 192 Freeborn v. Norcross, 49 Cal. 313; Page v. Fowler, 39 Cal. 412. 5 Palmer v. Meiners, 17 Kan. 486; Bell v. Campbell, 17 Kan. 213 Ladd V. Brewer, 17 Kan. 209; Blackie v. Cooney, 8 Nev. 41; Berthold r. Fox, 13 Minn. 501; Mayberry r. Cliffe, 7 Caldwell (Tenn.), 117; Wood V. Braynard, 9 Pick. 322; Allen r. Fox, 51 N. Y. 565. " Kelly V. McKibben, 54 Cal. 192. In this state the statute makes a distinction between an action to recover possession of personal property with damages for its detention, and one to recover damages for its 470 DAMAGES. action of replevin, where plaintiff fails to get the property, lie cannot have judgment for the value in a gross sum and also damages in the form of interest on the value of the property from the time it was taken/ The general rule is, where a party has a judgment in his favor for the caption and detention of goods replevied, that he is entitled to dam- ages for such unjust detention, and interest on their value ordinarily forms the measure of damages/ The successful party, in case a recovery of the property cannot be had, is entitled to its value at the time of the trial, and not at any intermediate time between the ta:king and the trial. If the value has been impaired during the detention, it should be included in the assessment of the damages caused by the detention. In the absence of any proof that the damages are more or less than the interest on the value, the pre- sumption is that the damages are the interest during the time that the successful party was wrongfully deprived of the use.^ § 880. Where property is not taken, the rule is ordi- narily the value with interest. Where plaintiff in replevin did not get the property on his writ, and the action proceeded as an action for damage, by statute, and the jury found the right of possession in the plaintiff at the commencement, held, that the measure of damages was the value of the property as proved, together with lawful interest thereon from the date of the unlawful taking thereof to the first day of the term of court at which the trial was had.* § 881. , The rule the same as in trover. In replevin, where plaintiff elects to take the value of the property with wrongful conversion, and the rule of damages is fixed by statute. Sec. 3336, Civil Code, and See. 667, Code of Civil Procedure. ' Freeborn v. Norcross, 49 Cal. 313. See note to last case. 2 Graves v. Sittig, 5 Wis. 219; Booth r. Ablemau, 20 Wis. 633. 3 New York G. & I. Co. v. Flynn, 55 N. T. 653 ; Twinam r. Swart, 4 Lans. (N. Y.) 263. * Hainer v. Lee, 12' Neb. 452 (11 N. W. 888). The interest on all claims is computed to the first day of the term at which rendered by statute, and judgments draw interest from that day. WHEN INTEREST NO PART OP THE DAMAGES. 471 damages for the detention, tlie rule of damages should be the same as in trover. Where the damages were assessed as of the time of the taking, the damages for detention should be interest on the value of the property so assessed from the taking to the verdict.' Where the action is for the conversion of the property and in the nature of trover, it is unquestioned that the measure of damages is, ordinarily, the value at the time of the conversion and interest.^ Where the property is awarded to defendant on trial, but can not be returned, the analogy of trover is followed, and the meas- ure of damages is the value of the property at the time of taking, with interest thereon.^ § 882. Interest is not in the nature of special damages. Interest from the time of taking may always be given as damages, without proof of special damage.' § 883. If property returned, interest no part of the damage. When the defendant gets the property back he does not get interest on the property, or if the property is returned, he is not entitled to its value too; therefore, if the property is restored to the defendant, he is entitled to the damages assessed, but not to interest upon the assessed value of the property. In other words, the judgment for value and interest is defeated and discharged by delivery of the property.' Where the jury find the right of posses- sion in the defendant, it is error to allow interest on the ac- ' Bigelow V. Doolittle, 36 Wis. 115. " McDoua,ld v. North, 47 Barb. 530 ; Forsythe v. Wells, 41 Pa. St. 291 ; Suydam v. .Jenkins, 3 Sandf. 614; Single v. Schneider, 30 Wis. 572; Sedgwick on Measure of Damages, Ch. 19, p. 474. But see McGavock v. Chamberlain, 20 111. 220; Allen v. Fox, 51 N. Y. 564. 2 Dodge r. Runnels, 20 Neb. 33 (28 N. W. 849); Berthold v. Fox, 13 Minn. 462 ; Garret v. Wood, 3 Kas. 231 ; Sedgwick on Damages (6 Ed.), 624; Hurd v. Gallaher, 14 Iowa, 394. *Blackie v. Cooney, 8 Nev. 41; Beals v. Guernsey, 8 J. E. 446; Hyde r. Stone, 7 Wend. 354; Burrill y. Hopkins, 4 Cow. 53; Devereux y.Burg- min, 11 Ired. 490; McDonnell v. North, 47 Barb. 530; Ripley v. Davis, 15 Mich. 75; Robinson f. Burrows, 48 Me. 186; Oviatt f. Pond, 29 Conn. 479; Derby v. Gallup, 5 Minn. 119. = Smith V. Eoby, 6 Heis. (Tenn.) 546. 472 DAMAGES. tual value of the property as a part of the damage.' In re- plevin, damages other than legal interest on the value of the property as found, for the detention of the property, are re- coverable only in case of a return. If the property is not returned, the measure of damages is the value of the prop- erty as proved, together with lawful interest thereon, from the date of the unlawful taking.^ In Kentucky, if the value of the property does not exceed the execution, the damages allowed the plaintiff are the value of the property, with ten per cent thereon, as a penalty, and legal interest from the levy of the writ, and costs.' § 884 Interest on the value has been held to be dis- cretionary with the jury. Where the goods were not taken under the writ, the value of them when they were taken by the defendants is the measure of the damages the plaintiff is entitled to recover in the action, and it is in the discretion of the jury to allow him interest thereon if they see proper.* In an action of claim and delivery, interest is not allowed as a matter of law, but it is discretionary with the jury to allow as damages interest on the value from the time of the taking. ° § 885. Interest and profits both cannot be allowed as damages. Interest is allowed as a legal compensation for lost use. If it is competent to show greater damage than the interest would cover, then interest is no longer an ele- ment of damage in that particular case." Where use is al- lowed, it excludes other compensations during the time for which it is allowed. Where the property is valuable for use, plaintiff may recover the value of the use during the ' McCarty v. Quimby, 12 Kan. 494. By statute the defendant may give bond and keep the property. Compiled Laws, 18&5, § 3981. 2 State V. Kinkaid, 23 Neb. 641 (37 N. W. 612) ; Romberg v. Hughes, ISNeb. 579(26N.W. 351). * Yantes v. Burditt, 2 Dana (Ky.), 254. ♦Boyce v. Cannon, 5 Houst. (Del.) 409. " Patapsoo V. Magee, 86 N. C. 350. ' MoGuire v. Galligan, 53 Mich. 453 (19 N. W. 142). WHEBE INTEREST NOT THE MEASURE OE DAMAGES. 473 time lie was deprived of it, but not also the natural depreci- ation in value during the same time. If the property is in- capable of use, the depreciation in value becomes an element in fixing the damages. Where use is allowed, it excludes in- terest and other compensations.' § 886. Interest not always a proper measure of dam- ages. Where the property is capable of physical use or en- joyment, the damages are interest upon its use to the time of the rendition of the verdict in the replevin suit, or com- pensation for their use and enjoyment when that exceeds in- terest.^ It is true that interest on the value of the property wrongfully detained is sometimes, in replevin cases, con- sidered as the proper measure of damages, but it never was considered as the only damages which might be allowed in replevin cases, and in the nature of things it should not be. In some cases, deterioration of the property from injury, neglect, etc., etc., while wrongfully detained, must be con- sidered as an element in the allowance of damages. In other cases the decrease in the market value of the property must be taken into consideration. In a few cases gross mal- ice, fraud, and oppression may be taken into consideration.' § 887. Interest not the measure of damages where property has a usable value. The question of proper dam- age for the detention of usable property was before the Ne- braska court in a case where the jury found the value of the property (horses, harness, and wagon) to be $285, and as- sessed the damages for the detention at $1 per day — in all, $584 — upon which the following judgment was rendered: lOdell F. Hole, 25 111.208: Garrett v. Wood, 3 Kan. 231; Johnson F. Weedman, 4 Scam. 496. 2 AVashington Ice Co. v. Webster, 62 Me. 341. 'Bell F. Campbell, 17 Kan. 211; Herdick r..Young, 55 Pa. St. 176; Cable F. Dakin, 20 Wend. 172; Allen v. Fox, 51 N. Y. 562; Morgan v. Reynolds. 1 Mont. 163; Butler f. Mehrleing, 15 111. 488; Robbing f. Walters, 2 Texas, 130; Dorsey v. Gassaway, 2 Har. & Johns. 402, 413; Gibbs F. Cruikshank, 8 C. P. 454; Williams v. Phelps, 16 Wis. 81; Glass- cock F. Hayes, 4 Dana (Ky.), 58; Hall v. Edrington, 8 B. Mon. (Ky.) 47; Hudson v. Young, 25 Ala. 376; Stevens v. Tuite, 104 Mass. 328. 474 DAMAGES. ' That the defendant have a return of the property taken on ' said writ of replevin, or in case a return of said property 'cannot be had, that he recover of said plaintiff the value 'thereof, assessed at $285, and his damages for withhold- 'ing the same, assessed at $584 and costs of suit, taxed at '$431.83. In reviewing this case, Mr. Justice Maxwell, speaking for the court, says: "It is only in cases where a 'return of the property is had that the party to whom the 'property is returned is entitled to damages for the deten- 'tion. The rule allowing the valae of the use is peculiar to ' replevin, and grows out of the fact that the party to whom ' the property is awarded seeks to recover the property it- 'self, and not its value. In such case, where the property ' is returned, the party to whom the return is made is en- ' titled to the damages awarded for the detention. If, how- 'ever, a verdict is rendered for the value of the property, 'the action in that regard being one for damages only, the ' measure of damages is the value of the property as proved, ' together with lawful interest thereon from the date of the 'unlawful taking. The judgment in this case is clearly er- 'roneous. For property of the value of $285, the defend- ' ant is awarded a judgment for $869, in case no return is ' had, and $584 for the detention of the property, if it is re- ' turned. Such a judgment ought not to be sustained, and 'the damages for the detention are excessive. These are ' simply for the use of the property. There is no claim that 'the property deteriorated in value during the time the ' plaintiff had possession of the same. It is not very prob- ' able that property of the value of $285 produced, during ' the time it has been in the plaintiff's hands, profits "of the ' net value of more than twice that sum. Such a verdict ' and judgment are greatly in excess of the actual damages ' sustained. The amount of recovery for the detention of ' property should ordinarily, where there is "no deterioration, 'bear a reasonable proportion to the value of the same; ' otherwise, the judgment cannot be sustained. The judg- WHERE INTEREST NOT THE MEASURE OE DAMAGES. 475 " ment of the district court is reversed, and the defendant "has leave within twenty days to remit from the amount "claimed for the detention of the property all but the sam "of ^200; and in case such remittance is entered as above " provided, judgment will be entered in this court as follows: " In favor of the defendant for a return of the property, and " |200 for the detention of the same, or, in case a return " cannot be had, that he recover of the plaintiff the sum of "$285, with interest from the taking.'" In the absence of malice the courts are not disposed to allow vindictive dam- ages, but to make the damages compensatory only. In the case of work cattle or horses, tools, or implements of trade or husbandry, taken from the owner, who is thereby deprived of their use, the reasonable value of that use will, in most cases, be the only just compensation for their detention.^ § 888. The same. Where the plaintiff is deprived of the use of specific personal property, he would naturally re- cover the value of the use, and in case of certain articles of special value in use, this must be a basis of recovery. But in case of ordinary articles of personal property having no such special value, the measure of damages for detention, where there is no depreciation, is legal interest on the value of the property from the date of the plaintiff's demand to the date of the taking under the writ. If the verdict, on the other hand, is for the defendant, the measure of damages is the value of the property at the time of the officer's taking, and legal interest on that amount to the date of trial.^ Upon defendant's recovery in an action of replevin, there is no ' Romberg r. Hughes, 18 Neb.. 579, citing Hainer r. Lee, 12 Neb. 452 ; Dicis: F.Smith,12Neb. 389. But see Minthon F.Lewis, (la.) 43 N.W. 465. 2 Allen V. Fox, 51 N. T. 562 ; Machette v. Wanless, 2 Col. 180 ; Morgan V. Eeynolds, 1 Blake CMcnt.), 164; Clements v. Glass, 23 Ga. 395; Clapp V. Walters, 2 Texas, ISO; Carroll v. Pathkiller, 3 Port. (Ala.) 281 ; Dorsey v. Gassaway, 2 Har. & J. 402 ; Hanauer v. Bartells, 2 Col. 524; Fralick r. Presley, 29 Ala. 463. " Shenuit r. Brueggestradt, 8 Mo. App. 46; Miller r. Whitson, 40 Mo. 97; Hutchins v. Buckner, 3 Mo. App. 594. 476 DAMAGES. warrant for adding interest by way of damages to the value of the property.' The ordinary measure of damages for the plaintiff in replevin, as to property which has no usable value except for consumption, in the absence of proof of special damage, is legal interest on the value of the property, in ad- dition to the property itself or its value. But as to prop- erty having a usable value by way of bailment for hire, like horses or tools, the measure is the value of the use during the detention. The loss of a job by the taking and deten- tion of one's tools is too remote as an element of damages.'' The measure of the plaintiff's damages is the interest on the value of the property while in the defendant's possession, unless the proofs show that the use of the property was of greater value than such interest, during the time the plain- tiff was deprived of the same, or that the value of the prop- erty depreciated during that time.' § 889. Excessive damages must not be allowed for use, and all the facts should be considered. If excessive damages are given for use, they will be set aside.* A verdict for dam- ages for the use of property five-fold more than its value is excessive, and will be set aside.^ Damages for the use of wagon and buggy, taking into account what part of the year the same would be used, held, erroneous." The measure of damages where property is wrongfully taken from one's pos- session by a writ of replevin is the value of the use of such property during its detention, to be estimated by the ordi- nary market price of the use of such property, and is not ' Andrews v. Costican, 30 Mo. App. 29. This does not refer to the doctrine just laid down, or the cases cited there, and from the cases cited in this opinion do not think it was intended to overrule the Shenuit case supra. 2 Kelly V. Altemus, 34 Ark. 184; Allen v. Fox, 51 N. Y. 562; Sedg. on Measure of Damages, 650 ; Minkwitz v. Steen, 36 Ark. 260. > Keep V. Kauffman, 38 N. Y. Sup. Ct. 476. * Romberg v. Hughes, 18 Neb. 579. ^ Anchor Milling Co. v. Walsh, 24 Mo. App. 97. « Bigelow V. Doolittle, 36 "Wis. 115. HOW VALUE OF USE SHOULD BE ESTIMATED. 477 wliat might have been earned by defendant in the use of the property during that time.' § 890. The purpose for which property is used should be considered in estimating the value of use. Where the property is domestic animals, valuable for service only, the value of the use of the animal is, of course, the measure of compensation. Legal interest is not compensation. Where the article is intended for consumption, interest upon the value of it would seem to be the true compensation.^ Inter- est on the value from the time of the wrongful taking is the proper measure of damages where the property is merchan- dise kept for sale, or grain and other articles useful only for sale and consumption.' But where its chief value is in its daily use, the real measure of damages is the value of the use, and interest on the value of the property is not compen- sation.* Where plaintiff replevies household goods in daily use, and fails in his action, interest on the value is no cri- terion of the damages sustained by the defendant by reason of being deprived of the use of it. It is evident that the restoration of the property, with interest on its value, would not furnish an adequate indemnity to the defendant for the wrong done in taking it out of his possession. The defend- ant is entitled to recover, as damages, such sum asvwill be a fair indemnity to him for the injury' he has sustained by reason of the unlawful taking and detention.^ The jury should consider the nature and purpose for which the prop- erty was used by defendant, in assessing his damages." In ' Stanley F. Donohoe, 16 Lea. (Tenn.) 492; Anchor Milling Co, r, Walsh, 24 Mo. App. 97. Minthon v. Lewis, (Iowa) 43 N. W. 465. 2 Machette v. "Wanless, 2 Col. 169. See Sodg. on Damages (5th Ed.), 582; Morgan v. Retinoids, 1 Mont. 163; Butler v. Mehrling, 15 111. 488; Greenl. on Evi., Vol. 2, p. 276. 'Hanauer v. Bartels, 2 Col. 515; Allen r. Pox, 51 N. T. 565; Suy- dam V. Jenkins, 3 Sand., S. C. R., 614; Brizsee f. Maybee, 21 Wend. 144. * Williams v. Phelps, 16 Wis. 83. 5 Boston Loan Co. v. Myers, 143 Mass. 446 (9 N. E. 805); Stevens V. Tuite, 104 Mass. 828. « Claris F. Martin, 120 Mass. 543, 478 DAMAGES. replevin for a boat wrongfully taken by the defendant, tte measure of damages is a fair and reasonable compensation for its use, with such special damages as are known and necessarily accompanied the detention, and any actual injury occurring to the property. Such compensation cannot be determined by the prospective profits which the owner would have derived from the use of the boat, contingent upon his chance of business.^ § 891. The usable value a proper element of damages. In the case of property having a rental value, the success- ful party has a right to the value of this use from the time he was deprived of it to the day of trial. ^ In an action of claim and delivery, the value of the use of the property dur- ing its wrongful detention may properly be shown and con- sidered in the matter of damages.' Such damages should be specially pleaded. Where the property has a usable value, the value of its use during the time of its detention is a proper item of damages.* Where the value of the prop- erty is assessed as of the time of the wrongful taking, it is not improper to allow the value of the use of the property as damages for the wrongful detention in any case in which it does not appear that the property is' of such a nature that it necessarily or in fact perishes, or wears out, or becomes 1 Aber v. Bratton, 60 Mich. 337 (27 N. W. 564) ; Allis r. McLean, 48 Mich. 428; MeKinnon v. McEwan, 48 Mich. 106; Hart r. Blake, 31. Mich. 278; Allison r. Chandler, H Mich. 554; TalcoTt v. Crippen, 52 Mich. 633; Allen r. Fox, 51 N. T. 562; Smith >. Griffith, 3 Hill, 333; Durst V. Burton, 47 N. T. 175; 2 Sutherland on Damages, 374; May- berry V. Clifte, 7 Coldw. 117; Barney r. Douglass, 22 Wis. 464; Carter V. Carter, 36 Mich. 207; Sirrine r. Briggs, 31 Mich. 443; Butler v. Col- lins, 12 Gal. 457; Brannin v. Johnson, 19 Me. 361; Houghton v. Rock, 8 Phil. 42; Butler v. Mehrling, 15 111. 490. 2 Chauvin v. Valiton, 8 Mont. 451 (20 P. 658). The property was a piano, and it was shown that its rental value was $10 per month, and this was allowed as value lor use instead of interest. ' Ferguson v. Hogan, 25 Minn. 135. •Allen V. Fox, 51 N. Y. 562; Glapp v. Walter, 2 Texas, 130; Darby v. Cassaway, 2 Harris & J. 413 ; Butler r. Mehrling, 15 111. 488;' McGavick r. Chamberlain, 20 111. 219. HOW DAMAGES FOB USE EECOVEEED. 479 impaired in value in the using.' In an action of replevin, where the property in controversy has a usable value, the value of the use of such property during the time of its wrongful detention may be recovered as proper damages.^ § 892. Damages for use need not be specially claimed. In replevin the plaintiff may, without alleging special dam- ages, recover such damages for the detention of the property as the jury, upon all the evidence, may be satisfied that the use of the property, considering its nature and character, was worth to him during the time of detention.' Where the value of the use of property is the proper basis for the assess- ment of damages for the detention, and no special use is sug- gested, and only the ordinary value of the use of such prop- erty claimed, held, that the loss of such value was the natural and necessary result of the detention, and that such value might be proved and recovered under a general allegation of damages, and without any averments of special damage.* No ground for exemplary damages being shown, it is error in the court to charge that in addition to actual damages for detention the value of the use of the property can be recov- ered. In such cases the measure of damages is ordinarily the interest upon the value of the property from the time of the taking to the time of assessment, and where loss of use is claimed, it should be allowed as part of the actual damage, and not in addition thereto. ° § 89B. Damages for use cannot be recovered in a sep- arate action. Damages for use may be recovered in the replevin suit or the suit on the bond, but the recovery of statutory damages precludes the defendant from recovering interest on the value of the property for the same period.* 1 Sherman v. Clark, 24 Minn. 37. 2 Yandle v. Kingsbury, 17 Kan. 195; Kennett v. Fickle, (Kan.), 21 P. 93. On this subject see the leading case of Allen y. Fox, 51 N. Y. 562. = Clark r. Martin, 120 Mass. 543. * Ladd V. Brewer, 17 Kan. 204; Bell v. Campbell, 17 Kan. 211. 5 Twinam v. Swart, 4 Lans. (N. Y.) 263. " Tremon r. Morris, 9 Bradw. (III.) 237. 480 DAMAGES. Damages for use must be recovered in the replevin action. A separate action cannot be maintained for sucb damages. ' § 894. Plaintiff cannot have damages for the use and for the value too. In an action of replevin where the prop- erty is not found, and the plaintiff elects to take judgment for its value, the measure of damages is such value at the date of conversion, and interest thereon to the date of the verdict. A plaintiff in replevin cannot elect to treat the title to the property in dispute as having passed to the defendant by proceeding for its value, and at the same time claim the use of it as if it were his property. In replevin the law usually, as in other actions in the absence of fraud or malice, aims at a just compensation in damages, the object being to restore tha plaintiff, as far as possible, to the condition he was in before the commission of the act complained of.^ § 895. One who has no right to use the property as a pledgee or an oflBcer cannot recover for the use, and a judg- ment allowing such a person the value of the use as part of the damages is erroneous.' A deputy sheriff who has seized goods under an attachment has no right to make use of them while holding thsm, and, therefore, when he prevails in an action of replevin, he has no right to damages for being de- prived of their use.* "When a replevin suit is dismissed, and the court proceeds to assess the defendant's damages for the detention of the property, it is competent for the plaintiff to prove that the defendant is the mere pledgee of the prop- erty to secure a debt from the plaintiff, as in such case the defendant would not be entitled to recover anything for the value of the use of the property.^ The value of the use of ' Davis r. Fenner, 12 E. I. 21. 2 Hauselman r. Kegel, 60 Mich. 540 (27 N. W. 678); Cow. Treat. (5th Ed.) Sec. 622; McGavock v. Chamberlain, 20 111. 230; Garrett v. "Wood, 3 Kan. 231; Brewster v. Silliman, 38 N. Y. 423; Brizsee r.Maybee, 21 Wend. 144. 3 McArthur r. Howett, 72 111. 359; Twinam v. Swart, 4 Lans. 263; Broad well v. Paradice, 81 111. 474. * Tundler v. Saunders, 56 Mich. 142 (22 N. W. 271). ^ McArthur v. Howett, 72 111. 358. WHAT PAKTY CLAIMING USE MUST SHOW. 481 personal property, as special damage for its detention, can only be recovered by one who has a riglit to such use. A mortgagee after default in the mortgage has a right to the possession only for the purpose of foreclosure or sale under the mortgage in order to satisfy the debt secured by it, and not for the purpose of using the property.' § 896. If one without any right replevy the property, the rule is different. "Where property levied on by an offi- ,cer under an execution is taken from him on a writ of re- plevin, at the suit of a stranger, and afterwards the replevin suit is dismissed and a return of the property awarded, the court should assess the officer's damages for the detention at whatever the use of the property was worth for the time it was detained. The officer would have a right to the en- tire value of the property as against a stranger, and would hold that and the damages subject to the order of the court issuing the execution.^ One who institutes an unfounded suit in replevin may incur damages as against the defend- ant, even though the latter does not own the property. Damages allowed the defendant may include the value of the use of the property while it is kept from him by means of the replevin proceedings.' § 897. The party claiming the use must show that he was in position to use it, and that he had a right to use it, and would have used it if not interfered with by the unlaw- ful taking. It is only for the loss of the use of property which the party is in a situation to use, and can use, that the. value of the use is allowed,* and it must also be shown that the property is valuable for use.' 1 Thompson v. Scheid, 39 Minn. 102 (38 N. W. 801). 2 Broadwell v. Paradice, 81 111. 474. See Wilbraham v. Snow, 2 Saund. 47; Eussell r. Butterfield, 21 Wend. 300; Brownell r. Manchester, 1 Pick. 232; White v. Webb, 15 Conn. 502; Fallon r. Manning, 35 Mo. 271 ; Frei v. Vogle, 40 Mo. 149. 3 Burt r. Burt, 41 Mich. 82. * Barney v. Douglass, 22 Wis. 464. ^Hanauer r. Bartels, 2 Col. 515; Machette r. Wanless, 2 Col. 170; 31 482 DAMAGES. § 898. Interest may be allowed on the usable value. In case where the use of the property is of no special value, interest upon its value should be allowed as a compensa- tion for the deprivation of the investment of the property. Where the property is of greater value at the date of the order for a return than it was at the time of the replevin, the defendant should be allowed for such increased value of the property when taken, and the interest thereon.' § 899. Measure of damages as between vendor and vendee. Where a vendor brings replevin against his vendee, who has made default in payments, the measure of damages is the value of the use of the property from the time it was ille- gally refused to be surrendered to the vendor till the rendi- tion of the verdict of the jury, excluding any compensation for the use of the property while the vendee held it legally, and abating nothing from the damages because of payments in work or otherwise made by the vendee to the vendor for the property under the contract.' § 900. Measure of damages in suit for promissory note, or other evidence of debt. The general rule in case of a note is, that the damages are the actual value of the note and not its face value, or the amount purporting to be due on it.' In the case of a city order converted by defendant, held, that plaintiff was entitled to recover its full value, but not, its face value, as it could not be collected from the corpora- tion until money was on hand to pay it.* If no question is raised on that point, the damage is prima facie the face of the note and bill, but the insolvency of the signer or a par- tial payment, or any other facts going to reduce its real value, may be shown, the intention of the law being to Allen V. Fox, 51 N. Y. 564; Goulet v. Aiiseler, 22 N. Y. 225; Clark v. Pinney, 7 Cow. 681; Shepherd v. Johnson, 2 East. 211; Bonesteel r. Orvis, 22 Wis. 522. ' Truman v. Morris, 9 Bradw. (111.) 237. 2 McGinnis r. Savage, 29 W. Va. 362 (1 S. E. 746). = Turner v. Better, 58 111. 264. « Terry v. Allis, 16 Wis. 479; Id. 20 Wis. 32. WHEEE VALUE DEOBEASED BY DEFEATED PABTY. 483 indemnify the party against his actual damages, and no more.' "Where a bankrupt gave a check to one ol his cred- itors, which was paid by the bank upon which it was drawn, the assignee brought trover and obtained a verdict for the full amount of the check on the ground that the bankrupt had nothing to draw a check against, 'his property belong- ing to his assignee. The verdict was set aside, the court saying, "the plaintiff proceeds on the ground that the check, "being drawn by a bankrupt, was worthless. If the posi- "tion taken be true, how can he recover £300 on it?" ^ The measure of damages in an action of replevin for a county warrant is legal interest thereon for the time of the unlaw- ful detention.' § 901. In case of stocks is the value on day of trial. Although the rule in trover is to allow as damages the mar- ket value of the stocks on the date of conversion, such is not the rule in replevin for the stocks, but the proper measure of damages in such a case is the value of the stocks on the day of trial, together with the dividends that have been paid upon it.* §902. Where it has been decreased in value by the act of the defeated party, he is responsible for that loss. Thus, if he has mutilated the note or altered it, the loss must be made good.' Or where the defendant has received a pay- ment on a note while he held it and endorsed it thereon, this does not decrease his liability unless he bring the money ' Potter r. Merchants' Bank, 28 N. T. 641; Am. Exp. Co. v. Parsons, 44 HI. 318; Keaggy r. Hite, 12 111. 99; Menkens v. Menkens, 23 Mo. 252; Ingalls r. Lord, 1 Cow. (N. T.) 240; Eobbins v. Packard, 31 Yt. 570. 2 Matthew r. Sherwell, 2 Taunt. 439. ^ McCoy V. Cornell, 40 Iowa, 457. Query— Wouli this be the rule it there were no funds to pay the warrant in the hands of the county treasurer? * Bercich r.Marye, 9 Nev. 312. This is on a satute which provides that full indemnity shall be made. See Corn Ex. Bank v. Blye, 7 N.T. S. 434. 5 McLeod V. McGhie, 2 M. & G. (40 E. C. L.) 326; Am. Exp. Co. v. Parsons, 44 111. 318. 484 DAMAGES. into court and offer to return it' As a rule, nothing done by the party while in possession can be to his advantage in reducing damages for which he is liable.^ § 903. In the case of keepsakes, souvenirs, etc. If the subject of the action is articles of peculiar value, pretium affectionis, and there is a failure to recover the specific arti- cle, the damages would not always be limited to its actual commercial value, but its value to the party entitled thereto, the rule in this respect being the same as in the action of trover.^ In Suydam v. Jenkins, Chief Justice Ducr says, "In most cases the market value of the article is the best "criterion of its value to the owner, but in some cases its "value to the owner may greatly exceed the sum that any "purchaser would be willing to pay. The value to the owner "may be enhanced by personal or family considerations, as "in the case of family pictures, plate, etc., and we do not "doubt that the pretium affectionis, instead of the market "price, ought then to be considered by the jury or court in "estimating the value."* In such cases it is difficult to fix the value, and no rule has been given by the courts. It is left to the discretion of the jury to do what in their judg- ment is proper under all the circumstances, as no money can compensate for the loss of family relics or keepsakes, and as their taking is nearly always with malice, the jury should be liberal in the allowance of damages, but should not be influenced by passion. Damages and proof of value of vouchers and papers and property which have no market value must largely depend upon plaintiff's evidence. The value of such property is governed largely by the purpose for which they may be used by plaintiff and his needs, and » Alsayer v. Close, 10 Mees. & "W. 576. 2 Carter r. Streator, 4 Jones (N. C. L.), 62. ' 2 Pars, on Contracts, 196; Sedg. on Damages, 474, 431; Ejrgleston on Damages, .302; Southerland on Damages, 540-1, 561. * Suydam v. Jenkins, 3 Sandf. (N. Y.) 621; Whitfield v. Whitfield, 40 Miss. 368; France v. Gaudet, 6 Q. B. L. R. (Eng.) 199. DAMAGE FOE PEOPEETY SEYEEED FEOM SEAL ESTATE. 485 much must be left to the sound discretion of the jury in such cases.' § 904. Damages to compel return. Where the prop- erty has a special or peculiar value to one party above the ordinary value, or where the evident intention of one party is to keep the property, whether awarded to him or not, it is in the province of the jury to place a value upon it that will compel a return.^ This rule, while of great advantage in some cases, is liable to abuse, and should only be applied in cases where the property can be returned, but there is a dis- position apparent not to return it at the ordinary valuation. § 905. Measure of damages as between joint owners. While one joint owner cannot maintain replevin against an- other, such cases sometimes arise and must be disposed of. As a general rule, the defendant who recovers because of the joint tenancy is entitled to be restored to the same position he was before the illegal attempt to interfere with his possession, and the court should return the property to the possession it was in. But on the question of damages, where the property cannot be returned, the defendant is not entitled to more than the value of his interest.' § 906. The damage for property severed from real estate is measured not by its value as a part of the real es- tate, but by its value after severance as personal property. If the plaintiff desire to get its value as part of the real estate, his remedy is to sue for the trespass. By bringing replevin he admits that it is personal property. In an action of replevin for the materials which, before the removal, com- 1 Drake v. Auerbach, 37 Minn. 505 (35 N. W. 367); Bradley r. Ga- melle, 7 Minn. 260; Stickney r. Allen, 10 Gray, 352. niayberry v. Cliffe, 7 Cold. (Tenn.) 120; Goodman t. Floyd, 2 Humph. (Tenn.) 60; Cochran v. Winburn, 13 Texas, 143. 3 Bartlett v. Kidder, M Gray (Mass.), 449; Sutclitfe v. Dohrm™, 18 Ohio, 185; Reynolds r. MeCormick, 62 III. 412; Witham v. AVithnm, 57 Me. 448 ; Spoor r. Holland, 8 Wend. 445 ; Jones v. Lowell, 35 Me. 5-38; Mason r. .Sumner, 22 Md. 312; Ingersoll r. Van Bokkelin, 7 Cow. 670. See Ferguson v. Rafferty, (Pa.) 18 A. 484; Titsworth v. Frauen- thal, (Ark.) 12 S. W. 498. 486 DAMAGES. posed a fence attached to and made a part of the realty, tlie plaintiff can recover only the value of the materials after their removal, and not the value of the fence as it stood be- fore the removal.^ On the other hand, where a suit was brought for rails, and before they were taken under the wi-it tliey were built into a fence attached to the land, held, that the sheriff could not take the fence, and the plaintiff should recover the value of the rails, not of the fence.^ And where A employed a builder to furnish materials and build a house on his lot, and was to pay for it by conveying another lot, and the builder sold it to a person who moved it on to his own land, and placed a foundation under it, A sued the pur- chaser and builder in replevin, held, that the house had be- come real estate, and that the plaintiff was entitled to the value.' In trover for the conversion of logs by mistake, the court held the measure of damages should be a sum sufficient to compensate the party for the injury he had sustained.* The value of property at the place where found is the proper measure of damages in trover, but in trespass de bonis aspor- tatis for cutting timber, the logs having been hauled to cer- tain landing, the court allowed only the value at the place where they were cut.' It will be seen that the damages in this class of cases varies somewhat with the form of action in which plaintiff, seeks his remedy. § 907. Measure where property has been severed and increased in value by defendant acting in good faith. Where a defendant committed a trespass in an honest mis- take of fact, in cutting timber into logs and rafting them to a distant market, where they were replevied, and he gave ' Pennybeoker r. McDougal, 48 Cal. 160. In thi& case the fence was worth $200, but the material, after severance, was only worth $75. 2 Bower v. Tallman, 5 W. & S. (Pa.) 561. 'Reese v. Jared, 15 Ind. (Harrison) 142. * Winchester v. Craif?,33 Mich. 206; NorthrupV. McGill, 27 Mich. 238. ''Gushing r. Longfellow, 26 Me. 307. On this subject see Forsyth v, "Wells, 41 Pa. St. 291 ; Wood v. Morewood (43 E. 0. L.), 3 Adolp. & E. 440; Hungerford r. Bedford, 29 Wis. 345; Young r. Lloyd, 65 Pa. St. 204. WHERE PEOPEETY HAS BEEN CHANGED IN FOEII. 487 bond and retained them and suit went against him, held, the * proper measure of damages was the value of the logs at the boom at the time of repleT}-ing, deducting all that it had cost defendant to cut, haul, and drive the logs to the boom/ In England this question arose in trespass for the taking of coal, and the value was estimated at the value when severed from the realty, and not when in the mine/ In Illinois the court followed these cases and gave the value at the mouth of the pit, less the cost of placing it there, but allowing nothing for the digging.' § 908. A willful trespasser not entitled to anything for his labor. Thus, where a trespasser cut wheat on another's land, he cannot deduct for the labor of cutting, but must give the owner the value of the wheat, as though he had harvested himself.* Because a wrong has been done to the plaintiff, it will not mend the matter to inflict another wrong on the defendant. The law rather aims to protect the plaintiff, but at the same time to inflict no unnecessary injury on the de- fendant, and where the injuries are, susceptible of a full and definite money compensation, the law will not abandon a certain rule which will do complete justice for an uncertain rule which can hardly fail to do injustice.^ Full compensa- tion should be the limit of damages in replevin. § 909. General rule of damage where property has been changed in form. It is generally and perhaps always true, so long as identification is practicable, or until the origi- nal property taken becomes of insignificant importance in comparison with the article in its improved and altered con- dition, that the owner is entitled to that of which he has been ' Herdic v. Young, 5 P. F. Smitli (Pa.), 176; Craig v. Kline, 65 Pa. 400. ■ " Martin v. Porter, 5 Mees. & W. 353 ; Morgan v. Powell, 3 Adolp. & E. (43 E. C. L.) 27S; Wild v. Holt, 9 Mees. & W. 672. => I. & St. L. R. R. & Coal Co. v. Ogle, S2 III. 627; Robertson v. Jones, 71 111. 405; McLean County Coal Co. r. Long, 81 III. 359. * Bull V. Griswold, 19 111. 631. ^ Warren v. Cole, 15 Mich. 271; Winchester v. Craig, 33 Mich. 205. 488 DAMAGES. * wrongfully deprived without making compensation to the wrongdoer for his expendibure, for the reason that as a rule the property to which he is entitled and of which he has been deprived without fault on his part, cannot be separated from that portion which is not in fact his, and in order to ob- tain the former he is compelled to take the latter. Under such circumstances the wrongdoer must lose, and the right- ful owner gain. But when compensation in money is to be given for the property taken, together with damages for the taking and withholding the same, or for the value of its use, a different rule should in reason and justice be followed. In such cases the rights of the respective parties can in most cases be fully protected without detriment or loss to either, and where possible this should be done.' The leading case in this country on this subject is Silsbury v. McCoon, 3 N. T. 379, where a trespasser took corn and converted it into whisky, and trover was brought for the whisky, and it was held by a majority of the court that the owner of the corn CO aid get the whisky. I append the decision of the court by Euggles, J., but for argument of counsel and minority opinion, which are very fine, refer the reader to the re- port. It is an elementary principle in the law of all civilized communities that no man can be deprived of his property except by his own volun- tary act, or by operation of law. The thief who steals a chattel, or the tresjiasser who takes it by force, acquires no title by such wrongful taking. The subsequent possession by the thief or the trespasser is a continuing trespass, and if, during its continuance, the wrongdoer en- hances the value of the chattel by labor and skill bestowed upon it, as by sawing logs into boards, splitting timber into rails, making leather into sho('s, or iron into bars, or into a tool, the manufactured article still belongs to the owner of the original material, and he may retake it ' Buckley v. Buckley, 12 Nev. 42,8 ; Single v. Schneider, 24 Wis. 300 ; Id. 30 Wis. 570; Hungerford v. Bedford, 29 Wis. 345; Suydam v. .Ten- kins, 3 Sandf. 614; Moody v. Whitney, 38 Me. 178; Hyde r. Cookson, 21 Barb. 103; Wetherbee r. Green, 22 Mich. 311; Herdic v. Young, 55 Pa. St. 178; Curtis v. Ward, 20 Conn. 206; Baker f. Wheeler, 8 Wend. 608, and note; Sedgwick on Measures of Damages, 501, note 3; Craig F. Klein, 65 Pa. 100. ■WHEBE PEOPERTY HAS BEEN CHANGED IN EOEM. iSQ" or recover its improved value in an action for damages. And if th» wronadoer sell the chattel to an honest purchaser, having no notice of the fraud by which it was acquired, the purchaser obtains no title from the trespasser, because the trespasser had none to give. The owner of the original material may still retake it in its improved state, or he may recover its improved value. The right to the improved value in dam- ages is a consequence of the continued ownership. It would be absurd to say that the original owner may retake the thing by an action of re- plevin in its improved state, and yet that he maynot,if putto his action of trespass or trover, recover its improved Viilue in damages. Thus far, it is conceded that the common law agrees with the civil. They agree in another respect, to wit, that if the chattel wrongfully taken afterwards come into the hands of an innocent bolder, who, believing himself to be the owner, converts the chattel into a thing of different species, so that its identity is destroyed, the original owner cannot reclaim it. Such a change is said to be wrought when wheat is made into bread, olives into oil, or grapes into wine. In a case of this kind, the change in the species of the chattel is not an intentional wrong to the original owner. It is therefore regarded as a destruction or consumption of the original ma- terials, and the true owner is not permitted to trace their identity into the manufactured article, for the purpose of appropriating to his own- use the labor and skill of the innocent occupant who wrought the change; but heis put to hi? action for damages as forathing consumed, and may recover its value as it was when the conversion or consumption took place. There is great confusion in the books upon the question. What con- stitutes change of identity ? In one case (5 lien. VII., fol. 15,) it is said that the owner may reclaim the goods so long as they may be known,, or, in other words, ascertained by inspection. But this, in many cases, is by no means the best evidence of identity, and the examples put by way of illustration serve rather to disprove than to establish the rule. The court say that if grain be made into malt, it cannot be reclaimed by the owner, because it cannot be known. But if cloth be made into a coat, a tree into squared timber, or iron into a tool, it may. Now, as to the cases of the coat and the timber, they may or may not be capable of identilication by the senses merely, and the rule is entirely uncertain in its ajjplication, and as to the iron tool, it certainly cannot be identified as made of the original material, without other evidence. This illustra- tion, therefore, contradicts the rule. In another case (Moore's Rep. 20) trees were made into timber, and it was adjudged that the owner of the trees might reclaim the timber "because the greater part of the sub- " stance remained." But if this were the true criterion, it would embrace the cases of wheat made into bread, milk into cheese, grain into malt^ and others which are put in the books as examples of a change of iden- tity. Other writers say that when the thing is so changed that it cannot be reduced from its new form to its former state, its identity is gone. But this wouid include many cases in which it has been said by thecourts, 490 DAMAGES. that the identity is not gone, as the case of leather made into a garment, logs into timber or boards, cloth into a coat, etc. There is therefore no definite, settled rule on this question, and, although the want of such a rule may create embarrassment in a case in which the owner seeks to re- claim his property from the hands of an honest possessor, it presents no difficulty where he seeks to obtain it from the wrongdoer, provided the common law agrees with the civil in the principle applicable to such a case. The acknowledged principle of the civil law is that a willful wrongdoer acquires no property in the goods of another, either bj' the wrongful taking or by any change wrought in them by his labor or skill, however great tliat change may be. The new product, in its improved state, be- longs to the owner of the original materials, provided it be proved to have been made from thera ; the trespasser loses his labor, and that change which is regarded as a destruction of the goods, or an alteration of their identity in favor of an honest possessor, is not so regarded as between the original owner and a willful violator of his right of property. These principles are to be found in tiie digest of Justinian (Lib. 10, tit. 4, leg. 12, § 3): "If any one shall make wine with my grapes, oil with "my olives, or garments with my wool, knowing they are not bis own, "he shall be compelled by action to produce the said wine, oil, or gar- "nifnls." So in Vinnius' Institutes, tit. 1, pi. 25: "He who knows the "material is another's ought to be considered in the same light as if he "had made the species in the name of the owner, to whom also he is to "be understood to have given his labor." The same principle is stated by Puffendorf in his Law of Nature and of Nations (Book 4, chap. 7. § 10), and in Wood's Instibutes of Civil Law, p. 92, which are cited at large in the opinion of Jewett, J., delivered in this case in the supreme court (4Denio, 338), and which it is unnecessary here to repeat. In Brown's Civil and Admiralty Law, p. 240, the writer states the civil law to be that the original owner of anything improved by the act of another retained his ownership in the thing so improved, unless it was changed into a different species, as, if his gra.pes were made into wine, the wine belonged to the maker, who was only obliged to pay the owner for the value of his grapes. The species, however, must be in- capable of being restored to its ancient form, and the materials must have been taken in ignorance of their being the property of another. But it was thought in the court below that this doctrine had never been adopted into the common la,w, either in England or here, and the dis- tinction between a willful and an involuntary wrongdoer hereinbefore mentioned, was rejected not only pn that ground, but also because the rule was supposed to be too harsh and rigorous against the wrongdoer. It is true that no case has been found in the English books in which that distinction has been expressly recognized, but it is equally true that in no case until the present has it been repudiated ordenied. The common law on this subject was evidently borrowed from the Roman at an early day, and at a period when the common law furnished no rule whatever in WHEEE PBOPERTI HAS BEEN CHANGED IN FOEM. 491 a case of this kind. Bracton, in his treatise comiiiled in the reign of ITeui'j. III., aJopLeu a portion of JuoLiuiun's Institutes on thi.s subject without noticing the distinction; and Blacltstone, in his commentaries, vol. 2, p. iui, iu Bbatiug what tlie Eouiau iaw wasjkfollows Brauuou,but neither of these writers intimates that on the point in question there is any difference between the civil and the common law. The authorities referred to by Blackstone in sapport of his text are three only. The first in Brooks' Abridgment, tit. Property, 23, is the case f roin the Year Book 5, H. 7, fol. 15 (translated in a note to 4 Deuio, 335), in which the owner of leather brought trespass fortaking slippers and boots, nnd the defendant pleaded that he was the owner of the leather and bailed it to J. S., who gave it to the plaintiff, who manufactured it into slippers and boots, and the defendant took them, as he lawfully might. The plea was held good, and the title of the owner of the leather unchanged. The sec- ond reference is to a case in Sir Francis Moore's Reports, p. 20, in which the action was trespass for taking timber, and the defendant justified on the ground that A entered on his land and cut down trees and made timber thereof, and carried it to the place where the trespass was alleged to have been committed, and afterwards gave it to the plaintiff, and that the defendant therefore took the timber as he lawfully might. In these cases the chattels had passed from the hands of the original trespasser into the hands of a third person. In both it was held that the title of the original owner was unchanged, and that he had a right to the prop- erty in its improved state against the third person in possession. They are in conformity with the rule of the civil law, and certainly fail to prove any difference between the civil and the common law on the point in question. The third case cited is from Popham's Reports, p. 38, and was a case of confusion of goods. The plaintiff voluntarily mixed his •own hay with the hay of the defendant, who carried the whole away, for which he was sued in trespass, and itwas adjudged that thewhole should %o to the defendant; and Blackstone refers to this case in support of his text, that "our law to guard against fraud gives the entire property, " without any account, to him whose original dominion is invaded and ""endeavored to be rendered uncertain without his own consent.'' The civil law in such a case would have required him who retained the whole of the mingled goods to account to the other for his share (Just. Inst, lib. 2, tit. 1, § 28), and the common law in this particular appears to bo more rigorous than the civil — and there is no good reason why it should be less so in a case like that nowin hand, where the necessity of guarding against fraud is even greater than in the case of a mingling of goods, be- ■cause the cases are likely to be of more frequent occuri'ence. Even this liability to account to him whose conduct is fraudulent seems by the civil law to be limited to cases in which the goods are of such a nature that they maybe divided into shares or portions, according to the origi- nal rights of the parties, for by that law, if A obtain by fraud the parchment of B, and write upon it a poem, or wrongfully take his tablet and paint thereon a picture, B is entitled to the written parchment and 492 DAMAGES. to the painted tablet, without accounting for the value of the writing or of the picture (Just. Inst. lib. 2, tit. 1, §§ 23, 24.) Neither Bracton nor Blackstone have pointed out any difference, ex- cept in the case of confusion of goods, between the common law and the Roman, from which, on this subject, our law has mainly derived Its principles. So long as property wrongfully taken retains its original form and substance, or may be reduced to its original materials, it be- longs, according to the admitted principles of the common law, to the original owner, without reference to the degree of improvement or the additional value given to it by the labor of the wrongdoer. Nay, more, this rule holds good against an innocent purchaser from the wrongdoer, although its value be increased an hundred-fold by the labor of the pur- chaser. This is a necessary consequence of the continuance of the origi- nal ownership. There is no satisfactory reason why the wrong-ful con- version of the original materials into an article of a different name or a different species should work a transfer of the title from the true owner to the trespassiT, provided the real identity of the thing can be traced by evidence. The difficulty of proving the identity is not a good reason. It relates merely to the convenience of the remedy, and not at all to the right. There is no more difficulty or uncertainty in proving that the whisky in question was made of Wood's corn than there would have been in proving that the plaintiff had made a cup of his gold, or a tool of his iron ; and yet, in those instances, according to the English cases, the proof would have been unobjectionable. In all cases where the new product cannot be identified by mere inspection, the original material must be traced by thetestimony of witnesses from hand to hand through the process of transformation. Again, the court below seems to have rejected the rule of the civil law applicable to this case, and to have adopted a principle not heietofore known to the common law, and for the reason that the rule of the civil law was too rigorous upon the wrongdoer in depriving him of the bene- fit of his labor bestowed upon th^ goods wrongfully taken. But we think the civil law in this respect is in conformity not only with plain princi- ples of morality, but supported by cogent reasons of public policy, while the rule adopted by the court below leads to the absurdity of treating the willful trespasser with greater kindness and mercy than it shows to the innocent possessor of another man's goods. A single example may suffice to prove this to be so. A trespasser takes a quantity of iron ore belonging to another and converts it into iron, thus changing the spe- . cies and identity of the article. The owner of the ore may recover its value, in trover or trespass, but not the value of the iron, because, under the rule of the court below, it would be unjust and rigorous to de- prive the trespasser of the value of his labor in the transmutation. But if the same trespasser steals the iron and sells it to an innocent pur- chaser, who works it into cutlery, the owner of the iron mny recover of the purchaser the value of the cutlery, because by this process the origi- nal material is not destroyed, but remains and may be reduced to ita WHERE PEOPERTY HAS BEEN CHANGED IN FORM. 493 former state; and, according to the rule adopted by the court below as to the change of identity, the original ownership remains. Thus the in- nocent purchaser is deprived of the value of his labor, while the guilty trespasser is not. The rule adopted by the court below seems, therefore, to be objectionable, because it operates unequally and unjustly. It not only divests the true owner of his title, without his consent, but it oblit- erates the distinction maintained by the civil law, and, as we think, by the common law, between the guilty and the innocent, and abolishes a salutary check against violence and fraud upon the rights of property. "We think, moreover, that the law on this subject has been settled by judicial decisions in this country. In Betts v. Lee (5 John. 349) it was decided that, as against a trespasser, the original owner of the property may seize it in its new shape, whatever alteration of form it may have undergone, if he can prove the identity of the original materials. That was a case in which the defendant had cut down the plaintiff's trees, and made them into shingles. The property could neither be identified by inspection nor restored to its original form, but the plaintiff recovered the value of the shingles. So in Curtis v.Groat (6 John. 169), a tres- passer cut wood on another's land, and converted it into charcoal. It was held that the charcoal still belonged to theowner of the wood. Here was a change of the wood into an article of different kind and species. No part of the substance of the wood remained in its original state. Its identity could not be ascertained by the senses, nor could it be restored to what it originally was. That case distinctly recognizes the principle that a willful trespasser cannot acquire a title to property merely by changing it from one species to another. And the late Chancellor Kent in his Commentaries (Vol. 2, p. 363), declares that the English law will not allow one man to gain a title to the property of another upon the principle of accession if he took the other's property willfully as a tres- passer, and that it was settled as early as the time of theyear books that whatever alteration of form any property had undergone, the owner might seize it in its new shape if he could prove the identity of the origi- nal materials. The same rule has been adopted in Pennsylvania (Snyder V. Vaux, 2 Rawle, 427), and in Maine and Massachusetts it has been ap- plied to a willful intermixture of goods (Ryder v. Hathaway, 21 Pick. 304-5; Wingate v. Smith, 7 Shep. 287; "Willard v. Rice, 11 Mete. 493). We are therefore of opinion that if the plaintiff below, in converting the corn into whisky, knew that it belonged to Wood, and that they were thus using it in violation of his rights, they acquired no title to tho manufactured article, which, although changed from the original ma- terial into another of different nature, yet, being the actual product of corn, still belonged to Wood. § 910. If the original owner recover the value of his property at the time it was taken, with interest, costs, and ■expenses, it will in most cases be a proper and correct meas- ure of damages. "Where a recovery of the value of property 494 DAMAGES. is sought in replevin,, the usual measure of recovery is the value before the property was improved by defendant's labor and skill, and this, even where it was taken knowingly and willfully, without color or claim of right, except where such taking was accompanied by special circumstances (as of malice or insult), which would justify exemplary dam- ages, and this is to be estimated by the best means availa- ble.' § 911. Pleadings may be amended to show change in value pending the litigation, and where the property has increased in value pending the litigation, the court will per- mit the pleadings to be amended to show this increased valu- ation, and a recovery may be had accordingly.^ § 912. Where the value of- the property has been in- creased by a willful wrongdoer. The general rule in ref- erence to property wrongfully taken, the value of which has been increased by the wrongdoer, is that he can reap no ad- vantage from it, but that the plaintiff may recover the prop- erty or its value in its improved and more valuable condi- tion.' But this is a harsh rule, and one which will not bear the test of extreme cases. For instance, if a trespasser wrong- fully and willfully take a pound of steel from plaintiff, and manufacture it into hair springs for watches, the steel, which was almost worthless, is now worth $140,000. More ^han ninety-nine per cent, of this value is labor of the trespasser. We can hardly reconcile it. with our feelings of justice that the owner of the material should have all of this increased value, or that he should have the watch springs. The court in Silshury v. McCoon, 4 Denio, 336, says in reference to just • Single V. Schneider, 30 Wis. 570. Here defendant willfully cut logs and converted them into lumber. The question was whether plaintiff should have the value as lumber or the value of the logs as shown by the stumpage. 2 Deck V. Smith, 12 Neb. 389 (10 N. W. 705). ^ Tuck V. Moses, 58 Me. 461 ; Mann r. Grove, 4= Hask. (Tenn.) 403; Holmes- v. Goodwin, 69 N. C. 467; Weymouth v. Railroad Co., 17 Wis. 550; Southerland on Damages, 553-555. "WHERE DEFEATED PAKTY ACTED IN GOOD FAITH. 495 such a case: "The trespasser should not be hanged, nor ' should he lose the whole o£ the new product. Either pun- "ishment would be too great, and it would be more than a "just measure of' redress to allow the owner of the original "material to have the whole. " On principle, it is difficult to see what right plaintiff has to any of this enhanced value, . or to any damages more than full compensation for loss of property and all damages occasioned by the wrongful taking. "When the courts attempt to go further, they are using their powers to commit grand larceny on the defendant because he attempted to commit petit larceny on the plain- tiff, which is not to be commended, to say the least. Or to illustrate further, suppose a trespasser cut trees and ship them to a foreign market, where they are very valuable ; an- other trespasser cut trees equal in size and value from the same land, and deliver them to a near market. Although the value of the standing timber was the same, the magnitude of the trespass the same, and the actual injury to the plaintiff the same in each case, on this basis of recovery the verdict would be very different in the two cases. And the one who had spent the most time and money subsequent to the tres- pass would be punished most under no pretense of compen- sating the plaintiff. § 913. Where the defeated party acted in good faith, he is entitled to the increase of value from his labor, provided, of course, that the plaintiff first be fully compensated for his property at the time it was taken and any loss consequent upon the taking. But where the party against whom the judgment is rendered acted bona fide in taking and detain- ing the property, and the labor and expense bestowed upon it was also in good faith, it has been held proper to assess damages at its value at the time it was taken, and not to include in the valuation its increased value. Thus, where the action was brought to recover lumber which was manu- factured by the defendant from logs cut on the plaintiff's land by mistake, it was held that the measure of damages 496 DAMAGES. was the value of the property as improved, less the increase of value from the defendant's labor/ and this, I think, is the ■better rule in all cases. § 914. Depreciation in value is a proper element of •damages, especially where the taker is held to be a wrong- doer ab initio, and usually the wrongful taker is liable in damages for any depreciation in his hands, and this rule ap- plies alike to both parties.^ Of course, the party cannot re- cover the depreciation and also the value of the use.^ As elements of damage, the jury may consider the decrease in the value of the property from the time of the replevin, with interest on its entire value.* Where returned, the damages are to be the compensation for the interruption of his pos- session, the loss of the use of the goods from the time of the replevin till their restoration, and their deterioration in the intervening time.' Under a general allegation of damages the plaintiff may prove any depreciation in the value of the goods while they were in the defendant's hands, from any natui-ally expected cause. ° § 915. Under a wrongful taking the defendant is lia- ble for the depreciation in value of a stock of goods by lapse of time.' In an action of replevin to recover the possession of specific personal property, or the value thereof, in case a return cannot be had, and for damages, the plaintiff may recover damages arising from the depreciation of the goods 'Single V. Schneider, 30 Wis. 570; Hungerford v. Radford, 29 Wis. 345 ; Herdic r. Young, 55 Pa. St. 176. As to mixture o! grain, see Sam- son V. Rose, 65 N. Y. 411; Field on Damages, 664; Sedg. on Damages, II. 431. 2 Rowley v. Gibbs, 14 Johns. 385; Hooker v. Hammil, 7 Neb. 231; Frey r. Drahos, 7 Neb. 194; Moore r. Kepuer, 7 Neb. ^91; Brizsee r. Maybee, 21 Wend. 146; Young v. Willett, 8 Bosw. (N. Y.) 486; Gordon T. Jenney, 16 Mass. 465; Mayberry v. Cliffe, 7 Cold. (Tenn.) 117. ' Odell V. Hole, 25 111. 204. * Hooker v. Hammil, 7 Neb. 231. ' Washington Ice Co. r. Webster, 62 Me. 341. « Young V. Willett, 8 Bosw. (N. Y.) 486. ' Young V. Willett, 8 Bosw. (N. Y.) 486. WHEEE HOLDER NEGLECTS PEOPERTY. 497 during the wrongful detention by the defendant.' Where the plaintiff owns the property in question, and judgment is rendered in his favor, it is proper to allow him as damages the decrease in the market value of the property during the time that the defendant wrongfully detained it.^ Where the sheriff held goods for two months, it is proper to show the depreciation in value on account of having .to carry the goods over to another season.' § 916. Where the holder neglects the property, he is responsible for the loss in value. But where the proof showed that the property, while held by defendant, by his use and neglect had depreciated so as to be nearly valueless, held, that it was proper to allow plaintiff as damages the dif- ference between the value of the machine as material and the cost of a new machine.* If judgment be in favor of defend- ant, he is entitled to the property, and any decrease in value between the time of its taking and the trial. If the prop- erty cannot be returned, he is entitled to the value at the time of the taking, with interest.' In detinue the jury may assess the value of the property taken at any time between the wrongful taking and the trial. The damages for the deten- tion include any deterioration in the value of the property occasioned by the fault of the wrongdoer, through neglect, abuse, or non-use, during the time of its detention.^ § 917. Where property was injured in the hands of a wrongful taker, the expenses of doctoring and care are 1 Young V. WiUett, 8 Bosw. (N. Y.) 486. 2 Kugsell V. Smith, 14 Kan. .366. See also Young v. Willett, 8 Bosw. 486; Bowley v. Gibbe, 14 Johns. 385; Allen v. Fox, 51 N. Y. 565; Bev- eridge v. Welch, 7 Wis. 465; Gordon v. Jenney, 16 Mass. 470. ** Carson r. Golden, 36 Kan. 705 (14 P. 166). * Scattergood v. Wood, 14 Hun. (N. Y.) 269. s Severance v. Melick, 15 Neb. 610 (19 N. W. 596). " Wortham r. Gurley, 75 Ala. 356 ; Johnson v. Mai;shall, 34 Ala. 522; Holly v. Flournoy, 54 Ala. 99; Freer v. Cowles, 44 Ala. 314; Allen V. Fox, 51 N. Y. 562; Zitzke v. Goldberg, 38 Wis. 216; 2 Sedgw.onDam- ages (7th Ed.), 424, note A; 3 Southerland on Damages, 541^7. 32 498 DAMAGES. properly allowable as damages. In replevin for a horse, the plaintiff may recover as damages not only the value of the use of the animal during the time it was unjustly de- tained but also, in case it was injured while so detained, by defendant's neglect, his expenses in taking care of and doc- toring it in excess of what those expenses would have been but for the injury, and for loss of service after regaining possession, and the permanent depreciation in value of the horse resulting from such injury.' § 918. Deterioration in value in hands of defendant — Expenses incurred in searching for property by plaintiff. The plaintiff is entitled to damages for the time necessarily spent, and expenses incurred in hunting for his property. He is also entitled to compensation for any deterioration in the value of his property while in the hands of the defend- ant.^ § 919. Loss from interruption of business and ma- chinery lying idle. Where a cloth-printing manufactory, with all its machinery, was seized, it was held that the defend- ants were entitled to an amount of damage sufficient to put their mill-machinery back in running order, as it was when taken ; alsoj compensation for the general inconvenience and loss resulting from the interruption of their possession, and for the expense, trouble, and delay of restoring the factory to its former condition, as well as interest on the value of the property.' § 920. Expenses, counsel fees, etc. Time spent in get- ting the writ, attending court, or in endeavoring to recover the property, is not ordinarily an element of damages.* • Coun- ' Zitske V. Goldberg, 38 Wis. 217. 2 Mitchell V. Burch, 36 Ind. 529; Bennett v. Lockwood, 20 Wend. 224 ; Gordon v. Jenney, 16 Mass. 470. s Stevens v. Tuite, 104 Mass. 328; Puller v. Shattuck, 13 Gray, 70; Homer v. Fish, 1 Pick. 439; Warner v. Comings, 6 Cush. 103; Bennett V. Hood, 1 Allen, 47. * Blackwell v. Acton, 38 Ind. 426. EXPENSES, COUNSEL FEES, ETO. 499 sel fees are not ordinarily allowable as part of the damage,' but the ordinary costs of the suit are a part of the damage. In Connecticut it has been held that, where the injury was wantonly inflicted, the damages in favor of the successful party may be enlarged beyond the ordinary rule.^ The costs of teams employed to remove the goods, but not used be- cause of the replevy, are an element of damage.' In some instances the jury has been allowed a discretion in consider- ing the expenses incurred by either party outside of the or- dinary expenses, and to apportion the expenses.* In a lead- ing case on this subject a federal judge instructed the jury that, in cases where the taking was willful, the expenses which the party had been put to, to assert his rights, might be considered in making up their estimate of damages.^ On principle, there is no good reason why, where the malice is clear, the wrongdoer should not be adjudged to fully com- pensate the other party, including pay for his time lost in procuring his rights, and necessary attorney's fees. In Ohio it has been held that in cases nominally in tort, where no real malice is complained of, counsel fees ought not to be included; but where the act complained of involves the in- gredient of malice or insult, the jury, which has the power to punish, has necessarily the right to include counsel fees in their estimate of damages, if they see proper to do so.' 1 Park r. McDaniels, 37 Vt. 594; Earl r. Tupper, 45 Vt. 287; Hood- ley V. Watson, 45 Vt. 289; Pacific Ins. Co. v. Conard, 1 Baldwin (C. C), 138; Mix v. Kepner, 81 Mo. 93. ^Linsley r. Bushnell, 15 Conn. 225; Ives v. Carter, 24 Conn. 392; Beecher r. Derby Bridge Co., 24 Conn. 491; Dibble r. Morris, 26 Conn. 416; Piatt r. Brown, 30 Conn. 336; Welch v. Durand, 36 Conn. 182. ' Washington Ice Co. r. Webster, 62 Me. 341. * Williams r. Ives, 25 Conn. 568; Parsons v. Harper, 16 Gratt. (Va.) 64; Earl r. Tupper, 45 Vt. 275; Hoodley v. Watson, 45 Vt. 289. = Pacific Ins. Co. v. Conard, 1 Baldwin, 138. » Roberts v. Mason, 10 Ohio St. 277. On this subject see Strang r. Whitehead, 12 Wend. 64; Fairbanks r. Witter, 18 Wis. 287; Blackwell V. Acton, 38 Ind. 425; Davis r. Crow, 7 Blackf. 130; Earl v. Tupper, 45 Vt. 275; Hoodley r. Watson, 45 Vt. 275; Hatch v. Hart, 2 Gibbs (Mich.), 289; Warren v. Colo, 15 Mich. 269. 500 DAMAGES. The plaintiff may also recover, as in trespass or trover, for any loss of time or expenses incurred in pursuit of the prop- erty, and to discover it where it has been stolen or concealed.' § 921. The same — Illustrations. In an action for the recovery of specific personal property, it is error to allow the plaintiff, as damages, money exp'ended by him in the pursuit of the property. This might be proper in an action for con- version.^ It is improper for the jury in an action of re- plevin to allow to the defendant an attorney's fee by way of damages, where the proof fails to show any willful wrong, malice, fraud, or oppression on the part of the plaintiff.^ In the absence of malice, etc., the extent of plaintiff's recovery is the value of the property and interest. He cannot recover for time lost by him or attorney's fees.* A party innocently in possession of property cannot be subjected to costs unless demand be made before the bringing of the suit.* If he should answer, pleading property in himself, the case would be different. An officer cannot recover for his time and ex- penses in defending a replevin suit.'' The statute giving a plaintiff, on recovery in replevin, the right to damages for the wrongful detention of the property by defendant, authorizes not only compensation for any deterioration in the value of the goods replevied while in the hands of the defendant, but also plaintiff's time lost and expenses incurred in searching for the same.' And this is the better rule on principle that the successful party shall recover, in addition to the value of 'Rice V. Nickerson, 9 Allen (Mass.), 478; Burnett v. Lockwood, 20 Wend. (N. Y.) 223; McDonald v. North, 47 Barb. 530; Forayth v. "Wells, 41 Pa. St. 291; Field on Damage.s, 663. 2 Reddington v. Nunan, 60 Cal. 632; Kelly v. McKibben, 54 Cal. 192. 5 Cowden v. Lookridge, 60 Miss. 385. * Taylor v. Morton, 61 Miss. 24. " Aultman v Steiman, 8 Neb. 109. See chapter on "Demand," ante. " Rickabaugh v. Bada, 50 Iowa, 56. ' Brennan v. Shinkle, 89 111. 604. The statute referred to isasfollows: "If judgment is given for plaintiff in replevin, he shall recover damages "for detention while the same was wrongfully detained by the defendant." Eevised Statutes 1874, Ch. 119, Sec. 23, p. 853. EXPENSES OP TAKING AND REMOVING, PBOPEETY. 501 the property, any extra expense lie is put to in searching for the property by the willful act of his adversary. Extra time or expenses incurred in attending court should be called to the attention of the court on a taxation of costs. § 922. Money paid a security company to furnish bond cannot be allowed as damage. The amount paid by plain- tiff to a surety company for furnishing the replevin bond is not a proper element of damage; neither is it proper to be taxed with the costs.' § 923. Expenses of taking and removing the property are a part of the costs, and should be made to show in the officer's return, and thus become a part of the penalty as- sessed against the defeated party in the suit.'' An offer of a certain price for the use of property is not competent evi- dence from which to determine the amount of damages aris- ing from its unlawful detention. The expenses of taking and removing the property by the sheriff are not to be in- cluded in the damages given for its detention. They consti- tute part of the costs in the action.' 1 Bick V. Eeese, 52 Hun. 125. 2 Young V. Atwood, 5 Hun. (N. Y.) 234. But see Davis v. Crow, 7 Blackf. 131. 5 Young V. Atwood, 5 Hun. (N. Y.) 234:; Masterton r. City of Brook- lyn, 7 HiU, 62. 502 DAMAasa. CHAPTEE XXXI DAMAGES CONTINUED. Section. Punitive, exemplary, or vin- dictive damages are some- times allowed . . . 924 The rule of damages the same as in trespass . . 925 The terms punitive, exem- plary, and vindictive are misleading . . . 926 Exemplary damages must be pleaded and proved, or they ■will not be upheld . . 927 Actual malice must be shown 928 No general rule can be laid down in such cases . .929 The same — Illustrations — In cases of malice . . . 930 The party claiming damage must not be guilty of con- tributory negligeruce . . 931 A wrongdoer cannot be al- lowed to make a profit out of his wrongful act . . 932 Yindictive damages against an officer seldom given . . 933 fecial damages must be spe- cially proved . . . 934 Special damages in favor of defendant .... 935 A voluntary payment of a lien cannot be recovered back 936 At what time value should be fixed 937 Value should be assessed as of time of trial . . .938 Where the value is fluctuating 939 eection. The same 940 Bule followed in differentcases where value not stable . 941 What is meant by highest market value . . . 942 Full indemnity the object of all rules of damage . . 943 The value should be fixed at the place where the proper- ty was 944 The rule in trover is frequent- ly followed .... 945 Eule where produce is shipped to a distant market . . 946 A willful wrongdoer will not be allowed what his labor has added to the property . 947 Value of gold coin, at what time fixed .... 948 Nominal damages are incident to success .... 949 To recover more than nomi- nal damage, actual dam- age must be alleged and proved 950 Nominal damages as affected by demand and interest of the party .... 951 Eule where only a part of the property is recovered . . 952 In contests between a mort- gagee and an officer . . 953 The same — Illustrations . 954 Mortgagee can only recover the amount of his claim . 955 PUNITIVE DAMAGES AEE SOMETIMES ALLOWED. 603 Section. Where the taking was with malice 956 An officer's damage is the face of his writs . . . 957 Measure of damages -wjiere defendant held by execution 958 Where an officer is wrongfully dispossessed, his damage is the value of his writs and interest 959 Where the writs are for too much, he can only recover the amount justly due . 960 Cannot recover for use or de- tention in addition to value 961 His valuation evidence against him .... 962 Where the replevin is tried be- fore the attachment suit, his lien will be protected . . 963 Rule in replevin between dif- ferent officers . . . 964 As against an intruder, the officer is entitled to the full value of the property . . 965 Section. An intruder is liable for dam- ages whether the other party owns tho property or not 966 Damages against sheriff or other officer seizing under a writ 967 As against a stranger, the spe- cial owner is entitled to the full value of the property . 968 Pledge — Bailor and Bailee — Stranger 969 In contests between the gen- eral and special owners . 970 Special ownership measure of Damages .... 971 Prospective profits are too remote, and are not an ele- ment of damage . . . 972 The same — Illustrations . 973 Loss of probable profits is sometimes allowed . . 974 Rule of damages— Summary . 975 In conclusion — Author's rule —Postulates .... 976 § 924. Punitive, exemplary, or vindictive damages are sometimes allowed where the taking or detention was accompanied by acts of malice, fraud, peculiar hardship for the purpose of oppression, or to derive some unlawful ad- vantage, the object being not only to compensate the in- jured party, but also to deter the wrongdoer from similar acts in the future by taking away any possible advantage he may have derived from his act." From this it will be seen 1 Whitfield V. Whitfield, 40 Miss. 366 ; Davenport v. Ledger, 80 111. 574 Biscoe V. McElween, 43 Miss. 556; Jamison r. Moore, 43 Miss. 598 Landers v. Ware, 1 Strob. (S. C.) 15; Cable v. Dakin, 20 Wend. 172 Brizsee v. Maybee, 21 Wend. 144; Mitchell v. Burch, 36 Ind. 535; Mc- Cabe V. Morehead, 1 W. & S. (Pa.) 516; Taylor v. Morgan, 3 Watts (Pa.), 334; Dorsey r. Manlove, 14 Cal. 553; Herdic v. Young, 55 Pa. St. 176; Carey v. Bright, 58 Pa. St. 70; McBride v. McLaughlin, 5 Watts (Pa.), 375; Dorsey v. Gassaway, 2 H. & J. (Md.) 402; Bruce r. Learned, 4 Mass. 614; Sedg. on Measure of Damages, 6th Ed., p. 544; Eggleston on Damages, 298. 504 DAMAGES. that the current of autliority justifies the assessment o£ puni- tive or exemplary damages in cases of willful wrong. But it is a rule liable to great abuse, and is only tolerated as a necessity in certain cases. The courts should exercise a most vigilant watch over all cases where such damages are claimed, and should promptly check any attempt to increase them by appeals to the passions or prejudices of the jury. No case in the law calls for the exercise of a cooler judgment or sounder discretion than cases of this character which are admittedly outside of any rule of law governing the amount to be given, and courts will not enlarge the cases in which the rule is applied. An action by the mortgagee of a colt against the purchaser from the mortgagor, to recover the colt or its value, is a simple action in detinue, and is not a case for exemplary damages, even though it is alleged that the defendant's refusal to deliver the colt, and his disposing and concealing of it, were malicious.' On the question of damages in replevin, the means by which the goods have been taken or retained will be considered. Exemplary dam- ages in replevin may be given when there has been outrage in taking or vexation or oppression in the detention. If the taking or detention be under an innocent mistake, the meas- ure of damages may be mere compensation. Prima facie the value of the property when and where it is replevied is the measure of compensation, but this may be varied by the character of the taking and removal to the place of replevin." Although the ordinary rule in replevin is to give damages for the value of the goods taken, with interest on the value, yet, under peculiar circumstances of outrage, vexation, or oppression, the jury may go beyond it by giving exemplary damages, as in trespass.^ § 925. The rule of damages the same as in trespass. If the property was taken under circumstances of outrage, 1 McDonald v. Norton, 72 Iowa, 652 (34 N. W. 458). 2 Craig V. Klein, 65 Pa. 399. ' Landers v. "Ware, 1 Stroble (S. C), 15; Schofleld v. Ferrers, 46 Pa. St. 438; McDonald v. Scaife, 11 Pa. St. 381. TEEMS PUNITIVE, ETC., AEE MISLEADING. 505 oppression, or vexation, exemplary damages may be allowed^ the rule being the same in this respect as in trespass.' While the damages are ordinarily the interest upon the value of the goods when taken, from the time of the taking to the day of assessing damages, there are exceptions to the rule, as where it appears that the goods were taken tortiously and without a color of right. Where the writ of replevin ha& obviously been perverted to the purpose of a willful injury with a full consciousness in the party that he has no claim, the jury may perhaps assess smart-money, as they would for a willful trespass.^ Where replevin is brought to establish the right of property which has been fraudulently or wrong- fully obtained, it serves also the purpose of an action of tres- pass, in which the jury may find the value of the thing, and also vindicatory damages. In an action of replevin for a chattel sold by an agent in excess of his authority, if the pur- chaser bought in good faith, believing the agent had author- ity, and the principal promptly repudiated the sale and brought replevin, the property would be unchanged, but the ' damages to be recovered would be the value of the article and interest.^ § 926. The terms punitive, exemplary, and vindictive are misleading, in that they imply that the law will correct the wrong done by one party by taking from that party and giving to the one he has wronged more than will compensate him for that wrong. Punitive means involving or award- ing punishment; exemplary, serving as a warning; vindic- tive, given to revenge. But by the use of these terms the courts do not mean that their power is to be exerted any further than to fully compensate the wronged party for all loss or damage. If this leave the wrongdoer poorer than 1 Single T. Schneider, 30 Wis. 570; McDonald y.SeaifR.ll Pa. St. 381; (51 Am Dec. 556); Schofield i'.Ferrers,46 Pa.St.438; Maybevi-y r.Cliffe, ,7 Cold. (Tenn.) 401 ; Eggleston on Damages, 298 ; Sedg. on Damages, II. 435. 2 Brizsee v. Maybee, 21 Wend. 144. 2 Eafferty r. Haldron, 81* Pa. (32 P. F. Smith) 438. 506 DAMAGES. ■when he committed the illegal act, he cannot be heard to complain, as he has only received a just punishment. If, on the other hand, he still has a profit in the transaction, the courts assume the right to take this from him, and thus to deter him from similar acts in the future. In other words, the law punishes the wrongdoer by refusing to let him keep any of his ill-gotten gains.' Although these terms have differ- ent meanings as given above, as used by the courts in re- plevin cases they have the same meaning, or at least no clear distinction can be made between them.^ There is no reason why one alone should not be used, except that their use has become so fixed in the law that each can claim its place as a legal term, and cite a court of last resort as sanctioning this claim. But their use is not so well established as to render it safe to use either one without explaining the sense in which it is used.' § 927. Exemplary damages must be pleaded and proved, or they will not be upheld. Where the damages for a detention of one day are found equal to the value of the property, and there is no proof of such damage, they are ex- cessive and the judgment will be reversed.* Exemplary dam- ages cannot be given in replevin for the detention of a mare for two hours without wantonness or injury.'^ In replevin plaintiff may recover vindictive damages, but they must be pleaded specially.* In the absence of malice, gross negli- gence, fraud, or oppression, the damages should be limited to the value of the property at the time of the taking.' In ' Head v. James, 49 Miss. 236; Wilson f. Young, 31 Wis. 576; Selden V. Cashman, 20 Cal. 57. 2 Ui-owii V. Allen, 35 Iowa, 306; Chiles v. Drake, 2 Met. (Ky.) 146. 3 Detroit Daily Post v. McArthnr, 16 Mich. 452. * Stevens v. McClure, 56 Ind. 384. ^ Cummings v. Gann, 52 Pa. St. 484. « Landers v. Ware, 1 Strob. (S. C.) 15. ' Woodburn v. Gogdal, 39 Mo. 222; Bonsted v. Orvis, 22 Wis. 522; Berthold v. Fox, 13 Minn. 501; Garrett r. Wood, 3 Kan. 231; Gillies' T. Wofford, 26 Texas, 76. NO GENEBAL EULE CAN BE LAID DOWN. 507 the absence of malice, speculatiye damages will not be al- lowed.' § 928. Actual malice must be shown in all cases before the jury are justified in allowing more than compensatory damages. The act must be shown to have been knowingly, purposely, and maliciously done.'^ And the malicious act must be done by the party to the suit ordinarily, or if by an agent, by the express direction of the principal, or be ratified by him with full knowledge, or vindictive dam- ages cannot be imposed." Where there are several defend- ants, only those are liable for vindictive damages who Ivere parties to the malicious act* One who acts in willful defi- ance of another's rights should answer for all the damage occasioned by his act.' § 929. No general rule can be laid down in such cases — much must be left to the sound judgment of the jury, guided by the court. As the amount of damages above com- pensation must depend upon the peculiar circumstances of each particular case, it has been said that where a trespass is committed under circumstances denoting malice a jury should be liberal, but not wanton. ° In such cases, where there is no fixed standard, the jury are the sole judges, and are responsi- ble only for a wise exercise of their judgment.' 1 Cummiiigs r. Gann, 52 Pa. St. 484; Butler r. Mehrling, 15 111. 488; Powers V. Florpnce, 7 La. Ann. 524. 2 Brown r. Allen, 35 Iowa, 306; Ousley v. Hardin, 23 111. 403; Hyatt V. Adams, 16 Mich. 180; Seeman r. Feeny, 19 Minn. 79; Selden r. Cashman, 20 Cal. 57. 3 Hagan v. P. & W. R. R., 3 R. I. 88; Wardrobe v. California Stage Co., 7 Cal. 118; M. R. R. r. Finney, 10 Wis. 388. * Becker r. Dupree, 75 111. 167. = Chandler r. Allison, 10 Mich. 461; Fultz y. Wycoff, 25 Ind. 321; Simmons r. Brown, 5 B. I. 299; Heard v. James, 49 Miss. 236; Dubois V. Glaub, 52 Pa. St. 238; Douty v. Bird, 60 Pa. St. 48; Hanover B. R. r. Coyle, 55 Pa. St. 396. • Detroit Daily Post r. McArthur, 16 Mich. 447. ' Pacific Ins. Co. r. Conard, 1 Baldwin (U: S. C. C), 138; Strasburger r. Barber, 38 Md. 103. 508 DAMAGES. § 930. The same— Illustrations — In cases of malice. "Where plaintiff's heifer was taken secretly by defendant, he was allowed compensation for loss of time in hunting her.' "Where defendant unlawfully took plaintiff's hogs with the BYident intention of converting them, and the plaintiff showed that he lost two weeks' time of plow, team, and hand, he was allowed pay for the time spent in hunting them, and necessary expenses in addition to compensation for the de- crease in value which his hogs had suffered while in the de- fendant's possession.^ "Where the defendant took the plain- tiff's horse and wagon, and four days' time was spent and other expenses incurred in the pursuit, a verdict for the time and expenses was held good.^ Where plaintiff fraudulently sued out a writ of replevin without color of right, and seized the defendant's goods, the jury are warranted in awarding the defendant exemplary damages, the rule being the same as- in case of a willful trespass.* Where the plaintiff entrusted fifty head of cattle to defendant to feed for the winter, that he might have them ready to work with in the spring, and the defendant shipped twenty of the best and sold them for beef, held, that the plaintiff was entitled to the value at the time of the sale.^ In one of the leading cases upon the sub- ject of damages for trespass, the court says: "Add to the " value of the property where the right of action accrued " such damages as shall cover not only every additional loss "which the plaintiff has sustained, but any increase of value " which the wrongdoer has obtained, or has it in his power "to obtain."" 1 Miller v. Gariing, 12 How. Pr. (N. T.) 203. See McDonald v. North, 47 Barb. 530. 2 Mitchell V. Burch, 36 Ind. 535. ' Bennett v. Lockwood, 20 Wend. 223. *Brizsee v. Maybee, 21 Wend. 144; McCabe r. Morehead, 1 W. & S. (Pa.) 513; Id. 15 American Law Register, 525. 5 Otter Y. Williams, 21 111. 118. ^ Suydam v. Jenkins, 3 Sandf. (N. Y.) 624. But a different conclusion was arrived at in the later case of Wilson v. Mathews, 24 Barb. 295, in which the highest price between the conversion and the trial was allowed. YINDICTIYE DAMAGES AGAINST AN OFFICEE. 509 § 931. The party claiming damages must not be guilty tf contributory negligence, but must do all in his power to avoid loss. Thus, if a trespasser willfully leave his neighbor's gate open and cattle enter and destroy his crop, the tres- passer is liable ; but if the owner knew it was open, and failed to shut it, he cannot recover the full measure of his dam- ages,' and the same rule is applicable in replevin. Where .the defendants took the plaintiff's horse, which was valuable, for use, he was allowed the cost of hiring another, less the cost of keeping his own, while it was unlawfully detained.'' Where the plaintiff failed to give proper bond, and to take possession of the property described in the writ, he could not recover damages for any deterioration, or for the detention while it wap in the hands of the officer, through his neg- lect to give the security required by law.' § 932. A wrongdoer cannot be allowed to make a profit out of his wrongful act. Where a trespasser cut wheat, he was not allowed to deduct the cost of cutting and harvesting if Where timber was wrongfully taken and cut into shin- gles, the owner was allowed to recover the value as shingles.' And where the property has been taken to a distant market, he may recover the value at that market. ° On the other hand, if there has been a' loss the wrongdoer must make it up.' § 933. Vindictive damages against an ofiicer should not be given unless it is clear. that he acted with malice or in an oppressive and arbitrary manner. The motives of the party who procured the writ are not to be imputed to the officer. He only has to answer for his own acts.' The mere fact of 1 Loker v. Damon, 17 Pick. 289. 2 Davis F.Oswell,7Car.&P.804. See Chandler v. Allison, 10 Mich. 461. = Graves v. Sittig, 5 Wis. 219; Williams v. Phelps, 16 Wis. 80. • Bull V. Griswold, 19 111. 631. 5 Baker v. Wheeler, 8 Wend. 506. «Nesbitt V. St. Paul, 21 Minn. 492. ' Homer v. Hathaway, 33 Cal. 119; Douglass v. Kraft, 9 Cal. 562. 8 Nightingale v. Scannell, 18 Cal. 315; Russell v. Smith, 14 Kan. 374; Noxon r. Hill, 2 Allen, 215. 510 DAMAGES. a wrongful seizure will not authorize exemplary damages.* Even where the warrant under which he acted is void, and is held to be no justification o£ the seizure, it may still be offered in evidence to show the good faith of the officer, and to prevent vindictive damages.^ § 934. Special damages must be specially proved, and the burden is on the one claiming the speicial damage to establish, by a preponderance of evidence, that he is enti- tled to them.' When it is sought to recover such damages as are- not the usual and natural consequences of the wrong- ful act complained of, the rule is that they must be specifi- cally set forth, that defendant may have notice, and not be taken by surprise on the trial.* § 935. Special damages in favor of defendant. In general, it may be said that the defendant who succeeds in the replevin suit may recover any special damage he may have sustained by reason of the wrongful taking of the property from him, by virtue of the' writ of replevin. Thus, where machinery in actual use was replevied, and the judg- ment was for the defendant on the merits of the case, and a judgment was entered for the return of the property, it was held that the defendant in the replevin suit was not only entitled to the property or its value, but was entitled 'Beveridge v. "Welch, 7 Wis. 465; Williams r. Ives, 25 Conn. 573; Phelps V. Owens, 11 Cal. 25; Selden v. Cashman, 20 Cal. 57; Brannin V. Johnson, 19 Me. 361. ^ Dorsey v. Manlove, 14 Cal. 555. ' Burrage v. Melson, 48 Miss. 237; Bodley v. Eeynolds, 8 Q. B. 779; Slack V. Brown, 13 Wend. 390; Strang v. Whitehead, 12 Wend. 64; Bennett v. Lockwood, 20 Wend. 223; Bogert v. Bui-khalter, 2 Barb. 525; Vanderslice v. Newton, 4 Comst. (N. Y.) 130; Smith v. Sherman, 4 Cush. (Mass.) 408; Smith v. Sherwood, 2 Texas, 460; Schoiield v. Ferris, 46 Pa. St. 438; Damron v. Boaoh, 4 Humph. (Tenn.) 134; Park /r. McDaniel, 37 Vt. 594; Stevenson f. Smith, ,28 Cal. 103; Dewint v. WJltsie, 9 Wend. 326; Fagen v. Davison; 2 Duer. 153. * Tucker v. Parks, 7 Col. 62 (1 Pac. 427); Dickinson v. Boyle, 17 Pick. 78; Stevenson v. Smith, 28 Cal. 103; Brown v. Cummings, 7 Allen, 507. TOLUNTABY PAYMENT OF A LIEN. 511 to recover interest on the value of the property, compensa- tion for the general inconvenience and loss arising fi-om the interruption of his possession, and compensation for the ex- pense, trouble, and delay in restoring the property to the original condition for practical use.' § 936. A voluntary payment of a lien cannot be re- covered back in replevin. Where a plaintiff in replevin pays, without request of defendant, a tax on the property in dispute, when there has been no seizure to enforce the col- lection of the tax, it is a voluntary payment, and he cannot claim the amount paid in reduction of his damages for the wrongful taking. Where the property is in jeopardy, the defendant should take all necessary steps to care for and protect it, notwithstanding he may believe it is to be seized in replevin, up to the seizure, and money expended in this be- half may be assessed as part of defendant's damage.^ Where the plaintiff claimed property by replevin, but it was held that on account of his laches a certain judgment lien was superior to his claim, which lien he paid, he cannot sue the officer who levied under the judgment, and who was the de- fendant in replevin, for wrongful conversion. His remedy is to sue to get the money back.' § 937. At what time value should be fixed. In some states the rule is to fix the value at the time of trial, taking into consideration, in the assessment of damage, any rise or depreciation of value since the taking. This rule is liable to lead to complications in its application, and the simpler and better rule would seem to be, where the plaintiff recovers, to find the value at the time of the wrongful taking or at the commencement of the wrongful detention, as the case may be; where the defendant recovers, to assess the dam- 1 Stevens v. Tuite, 104 Mass. 328; Stevens v. Smith, 28 Cal. 102; Mc- Donald V. North, 47 Barb. 530; Eg^leston on Damages, 303; Field on Damages, 661; Sedgwick on Damages, IT. 431, 438; Southerland on Damages, 561. ' Washington Ice Company r. Webster, 68 Me. 449. ' Fich F. Hollinger, 46 Iowa, 216. -512 ' DAMAGES. ages as of the time when the property was replevied from him. Interest on this value could be allowed as the legal compensation for the wrongful detention, or in cases call- ing for special damages they could be allowed.' It is not claimed that this method would reach a different result or do more exact justice than the other method, but that it is a simpler way of accomplishing the same end. By whatever method damages are assessed, there are cases in which jus- tice will not be done. The proper rule, I thint, is to assess the value at the date of the wrongful taking, or, if the pos- session of the defeated party was rightful in the first instance, then the value at the time his possession became wrongful, which is usually fixed by demand and refusal. Many cases may be cited as upholding this doctrine.^ In the abraence of any showing of fraud, malice, negligence, or oppression, the measure of damages for an unlawful taking in replevin is the value of the property at the time it was taken, with in- terest thereon up to the time of the trial.^ The right of a party in replevin depends upon his right to possession at the time of the commencement of the action, and damages can only be given for interference with that possession.* In ' Sherman v. Clark, 24 Miim. 37. 2 Jacoby r. Laussatt, 6 S. & R. (Pa.) 300; Otter v. Williams, 21 III. 118; Whitfield f. Whitfield, 40 Miss. 352; Keaggy f. Hite, 12 111. 99; Orrasby r. Vermont Copper Company, 56 N. Y. 623; Greer j'. Powell, 1 Bush. (Ky.) 489; Kennedy v. Whitwell, 4 Pick. 466; Greenfield Bank v. Leavitt, 17 Pick. 1; Parsons v. Martin, 11 Gray (Mass.), Ill ; Pierce v. Benjamin, 14 Pick. 356; Eobinson v. Barrows, 48 Me. 186; Cushing v. Longfellow, 26 Me. 307; Ripley v. Davis, 15 Mich. 75; Kennedy v. Strong, 14 Johns. 128; Spicer v. Waters, 65 Barb. 227; Kipp r. Wiles, 3 Sandf. 585; Hendricks v. Decker, 35 Barb. 298; Lilliard v. Whitaker, 3 Bibb. (Ky.), 92; Sproule v. Ford,3 Litt. (Ky.) 26; Davies v. Richard- son's Exrs., 1 Bay (S. C), 102 ; Shepherd v. Johnson, 2 East. 211 ; Bal- timore Insurance Company v. Dairy mple, 25 Md. 269; Berthold v. Fox, 13 Minn. 507; Garrett v. Wood, 3 Kan. 231; Gilson v. Wood, 20 III. 37. A trespass case, value at time of trespass. 8 Bonested v. Orvis, 22 Wis. 522; Garrett v. Wood, 3 Kan. 231; Gil- lies V. Wofford, 26 Texas, 76; Woodburn v. Cogdal, 39 Mo. 222; Ber- -thold V. Fox, 13 Minn. 401. * Cumberland v. Tilghman, 13 Md. 74. AT WHAT TIME VALUE SHOULD BE FIXED. 513 England, by statute,' interest is allowed on the value at the time of the seizure or conversion, thus impliedly fixing the time at which the value should be fixed.'' On this branch of our subject many different rules have been followed by the courts. See review of authorities in note.' 1 3 and 4 W. IV., C. 42, § 29. 2 Greenfield Bank v. Leavitt, 17 Pick. 3 ; Tatar v. Mullen, 24 Ind. 277 ; Wood V. liraynard, 9 Pick. 322; Barnes r. Bartlett, 15 Pick. 78. ' The general rule of damages in England and in this country for the wrongful conversion of property is the fair market value of the property at the time of conversion, with interest from that time. Suydam r. Jen- kins, 3 Sandf. 626, and authorities there cited; Keaggy v. Hite, 12 111. 99; Otter v. Williams, 21 HI. 118. An exception was made to the gen- eral rule in Shepherd v. Johnson, 2 East, 211, where the subject matter of the litigation was stocks, and it was supposed, on account of their fluctuating value, full indemnity required that their value should be as- sessed at theii; value at time of trial, so that the plaintiff could replace the stocks by the amount of the recovery. The doctrine of this case was recognized in Gunning v. Williamson, 1 C. & P. 625, which was an action of trover for cotton warrants, and in Gainsford v. Carroll, 2 B. & C. 624; Downs v., Beck, 1 Stark. 318; and in Harrison v. Harrison, 1 C. & P. 412. These cases were followed in New York in the cases of West r. Wentworth, 3 Cow. 82, where the rule was applied when the property was not stocks; and in Clark v. Pinney, 7 Cow. 681, and particularly Mark- ham V. Jandon, 41 N. Y. 235, and Eomaine v. Allen, 26 N. T. 305; and the plaintiff allowed to recover the highest market price of the stocks from the day of conversion to the time of trial. In Scott F. Rogers, 31 N. Y. 676, the court limited the rule to the highest market value between the time of conversion and a reasonable time afterwards for the commencement of the action. The same court, however, in Markham v. Jandon, supra, affirmed the former rule, but in Matthews v. Coe, 49 N. Y. 57, Church, C. J., delivering the opinion of the court, said that he was persuaded that the unqualified rule giving the plaintiff in all cases the highest value to time of trial could not be upheld upon any sound principle of reason or justice, and that the qual- ification of the rule that the action must be commenced within a reason- able time, and prosecuted with diligence, did not relieve it of its objec- tionable character; and in the case of Baker v. Drake, 53 N. Y. 211, the statement of Chief Justice Church was approved, and the rule of damages in Markham v. Jandon, repudiated. Neither of these cases, however, state what the correct rule is, but in M. & T. Bank v. F. & M. National Bank, 60 N. T. 40, all the preceding cases, as we conceive, upon this sub- ject were overruled, and the rule adopted " that in the absence of special '•circumstances, the value at the time of the conversion, with interest, 3.R 514 DAMAGES. "furnishes the rule for compensation." A earefu! exam', lation of the cases in New York will show that the difflculties attending the enforce- ment of the rule of the highest market value were so great, and the rule itself so liable to work gross injustice in many cases, that the courts felt compelled to modify in many instances, and finally overthrew it as a rule of law. So in California, in Douglas v. Kraft, 9 Cal. 562, which was an action for conversion of certain warrants, the highest price after conver- sion was declared to be the measure of damages, and in Homer v. Hath- away, 33 Cal. 117, the question arose whether the highest price between the conversion and the trial, or the price at the time of the taking, was the rule, and thecourt says it isnot an open question in that state — that the rule was settled in Douglas v. Kraft, which they approve. But in Page V. Fowler, 39 Cal. 142, the court shrank from the enforcement of the rule. The application of it to the facts of that case made the rule so repugnant to every sense of justice that the court proceeded to qualify it by limiting it to a reasonable time after the taking, substantially fol- lowing Scott V. Rogers, supra. The California court in this opinion say that the rule is not supported by a majority of the adjudicated cases, and does not appear to be very well satisfied with the definiteness of the rule announced in Page v. Fowler, but consoles itself with the reflection that it is equally so as that of the New York court. In Illinois the general rule prevails that the market value at the time of the conversion is the measure of damages in trover, and where the property converted was stocks — Sturges v. Keith, 57 111. 451 — the court refused to make any exception in the rule of the assessment of damages on account of the subject matter of the litigation. And we do not think that if our supreme court has refused to recognize the exception to the general rule, and to endorse the reasons upon which such exception is founded in a case where the property converted was stocks, the very property involved, which, on account of its fluctuating value, led the courts to depart from the general rule, it will be likely to change its hold- ing in a. case where other property is in controversy. While the courts in some few of the states still adhere to the rule of thehighest market value after conversion, we think the great weight of authority is against it, and considering that fact, in connection with Sturges r. Keith, svpra, we are agreed that the rule laid down to the jury in this case by the court below cannot be sustained in this respect. Besides, the instruc- tion is erroneous in directing the jury to allow interest from the date of replevin. If the highest market value is taken, interest should be com- puted only from the time when such value is estimated. If the rule for the admeasurement of damages is the same in a salt upon a replevin bond, where the property has not been returned, as it is in trespass or trover, for the wrongful taking or conversion of property, it could be very easily stated, under our present understanding of thr iaw, and that would be, in the absence of any circumstances justifying the allowance of punitive damages, the value of the property at the time it was taken or converted, with interest thereon from that date. We AT WHAT TIME TALUE SHOULD BE FIXED. 515 have been referred to no case in .the reports of our own state where the rule has been declared in such a way as to have the force of an adjudica- tion. There are cases where the finding has been for the value of the property, but none where the point of time at which the value should be estimated has by counsel or court been made material. In examining the decisions in otherstates where the question has been made, we find that they are not entirely harmonious. In Washington Ice Company v. Webster, 62 Me. 361, it wa.s held if the goods replevied are not forthcoming on demand, wherea return has been ordered, the defend- ant in a suit upon the bond is entitled to recover as damages the value of the goods when taken, with the interest thereon from the service of the writ to the rendition of the judgment— referring to Wood v. Brainard, 9 Pick. 322, and to Thomas v. Spofford, 40 Me. 408. But when the goods are not returned at the time of the demand upon the writ, it they shall then be of an increased market value, the defendant is equitably entitled to such increase, in which cape the value of the goods replevied, or of goods of like description at the date of Iho demand on the writ of return, with interest, with the darsages at the time of non-suit and costs and in- terest, will constitute the amount the defendant will be entitled to re- cover on his bond — referring also to Tuck r. Moses, 58 Me. 461. It was held in Swift v. Barnes, 16 Pick. 194, in a case where the meas- ure of damages was not affected by statute, that tiie true iiieasure of damages wns the vnlue at the time it should have been restored under the writ of return. The point was directly made in this case, and the rule announced was affirmed by the same court in Leighton F.Brown, 98 Mass. 515 — a case where the property, at the time when it should have been returned, was of greater value than when replevied. In Caldwell v. West, 21 N. J. Law (1 Zab.), 411, in an action on a replevin bond, the court held that the value of the goods at the time of recovery, with in- terest from that date, was the proper rule for damages for non-return of the property. The rule here announced differs from the Massachusetts rule in fixing the date at which the value is to be estimated at the time of the judgment for a return, instead of from the date of demand made for the return of the property upon the writ of return issued upon such judgment. The rule in Missouri is stated in Miller r. Wbitson, 40 Mo. 97, to be the value of the property when taken, with legal interest thereon to time of trial. This rule was announced in the replevin suit, but it seems the rule in that state is to render an alternative judgment for a return of the property or the payment of the damages, including the value of the property. The Minnesota rule seems to be to estimate thevalne of the propertyat or about thetime it was replevied. Berthold V. Fox, 13 Minn. 501. In Nebraska the jury have the right under the code to assess the damages at what they deem right and proper, and then an alternative judgment is entered. School District v. Slioeiuaker, 5 Neb. 38; Hooker v. Hammil, 7 Neb. 231. In Tennessee, by statute, it a verdict be found for the defendant in replevin, the jury are to find the value of the property, and interest and damages for the detention, and 516 DAMAGESi the judgment then is for a return of the property by pla,intiff, and, on failure so to do, the defendant recovers its value and, the damages as- sessed for its detention. Thefe appears to be in that state no judicial means provided for compelling a return, it being optional with the plain- tiff to return the property, and thereby satisfy the judgment to the ex- tent of the value so found by the jury, or repay the judgment and retain the property. The supreme court of that state, in Mayberry v. Clifte, 7 Cold. 117, in stating the rule which should govern the jury in assessing the value of the property and damages, held that the value of the prop- erty at the time of the replevin should be taken, and if the property ap- preciated and remained at a higher market price, at the time of trial, the difference should be allowed as damages for tJie detention, and if deprecia- ted invaluewhile in plaintiff's custody, not by natural wear and deterior- ation, such depreciations should be allowed as damages. It was further held that under their statute the jury wag allowed a large discretion, and if, in their opinion, justice demanded it, they might allow the defendant as damages the loss of near and probable profits arising from a tempo- rary rise in market value. The supreme court of Wisconsin — not in a Buit on a replevin bond, however, but in a case for the recovery of hay, wheat, and oats, and where the trial court had given an instruction like the one in the case at bar — after a review of authorities, held the rule of the highest market value to be erroneous, and established the rule "that in all actions, "either upon contract for the non-delivery of goods, or for the tortious "taking or conversion of the same, unless the plaintiff is deprived of " some special use of the property anticipated by the wrongdoer, and in "the absence of proof of circumstances, which would entitle the plaintiff "to recover exemplary or punitory damages, the measureof damages is: " First — The value of the chattels at the time and place when and where "thesame should ha.ve been delivered, orof the wrongful taking or con ver- "sion, with interest on that sum to the date of trial. Second — If it ap- " pears that the defendant, in case of a wrongful taking or conversion, "has sold the chattels, the plaintiff may, at his election, recover as his "damages the amount for which the same was sold, with interest from ''the time of sale to day of triqjl. Third — If it appears that the cliattels " wrongfully taken and converted are still in the possession of the de- "fendant at the time of trial, the plaintiff may, at his election, recover "the present value of the same at the place where the same were taken "or converted, in the form they were in when so taken or converted." The citation of these authorities is sufficient to show that the rule can not be considered as settled, and in the absence of any decision of our court upon the point, we feel at liberty to give our views upon the sub- ject, remembering that the great object of the law is to furnish complete indemnity to the party wronged by the act of another in seizing and re- taining his property contrary to right and the judgment of the law. In an action of replevin, where the defendant asserts title to the prop- erty as well as the plaintiff, each party becomes an actor, the plaintiff AT WHAT TIME VALUE SHOULD B3 FIXED. 517 seeking to retain the property which he has obtained upon his writ, and to recover damages for the detention, and the defendant seelcing areturn thereof to himself as owner, together with his damages. In the mean- time the property is considered as in the custody of the law, the law hav- ing for the time being entrusted its possession to the plaintiff, and ac- cepting his bond as representing the property. The law presumes that theplaintift will, in compliance with the terms of his bond, return the prop- erty to the defendant if the right to it shall be adjudged against him. II the plaintiff succeeds, the judgment of the court confirms him in his title, and awards him damages; and if the defendant recovers, the court awards to him the restoration of the property, and determines that the plaintiff had no right to it, and that he had, by the wrongiul use of the process of law, violated the property rights of the defendant, and that for such violation the defendant is entitled to indemnity in the wa;^ of damages. From the time of the institution of the suit, the defendant in contesting the plaintiff's right to the property and asserting his own, and when he finally succeeds, he establishes his right to have the iden- tical property restored to him. The valueof the property is not in issue. The contest is over the specific article itself. Therefore, under our prac- tice, the value of the property is never included in the assessment of damages, upon the termination of; the replevin suit, in favor of defend- ant. The bond stands in place of the pr-operty, and, in contemplation of law, is amply sufficient to compel its return. If not returned in obe- dience to the order of the court, its value can be recovered in a suit upon the bond. If the property is such that its use and enjoyment would be of pecuniary value to the defendant, he can have his damages assessed under statute by the jury which tried the original suit; and if not paid, or if not assessed in the replevin suit, appropriate breaches can be as- signed in the declaration upon the bond, and a recovery had. When the property is of such character that damages are recovered for the use thereof from the time it was replevied until final judgment in the replevin suit, or in a suit upon the bond, the recovery of such stat- utory damages precludes the plaintiff from the recovery of interest upon the value of the same property during the same period. But where the property is not usable in the sense that its use alone wiJ return a pecuniary profit to its owner, interest upon its value should \ e allowed as a compensation for the deprivation of the investment in tiie property. Ordinarily, the measure of damages in trespass and trover ap- plies in replevin, but there are cases where the rule will not furnish full indemnity to a defendant. In trespass or trover the plaintiff, by bringing his action to recover damages for the taking or conversion of his property, instead of seeking to recover the specific property, consents to a transfer of the title to the goods and chattels taken, to a defendant in the suit ; and when a recovery is had, the title is considered as having passed to the defendant at the time of the taking or conversion. At that date the right of action accrued which subsequently became merged in the judgment. The rule, therefore, would appear to be a just one, that 518 DAMAGES. the value of the property at the time the title is treated as having passed, with interest, is the proper measure of damages. But it seems to us that the successful defendant in replevin, consider- ing his position with reference to the object to be attained by the litiga- tion and the character of the judgment rendered in his favor, does not in all cases occupy the position of a plaintiff in trespass or trover. It is true that, by the wrongful taking of his property upon the replevin writ, he is just as effectually deprived of the possession of his property as though the taking was without the process of law, and he may be said to have sustained damages to the same extent; but by defending the replevin suit he is continually asserting his titlfe to the specific ar- ticle taken from him, and seeking its return. Where a judgment is finally entered in his favor and an order for the restoration of the prop- erty, the judgment is conclusive that the property belonged to the defend- ant at the time of the replevin, and that it was wrongfully taken from him, and the order for the return is equally conclusive that at the date of its entry he was still entitled to it. The order for the return of the property being entered, it becomes the duty of the plaintiff to immedi- ately deliver it into the possession of the defendant, or the defendant can at once demand it, and upon a refusal of the plaintiff to comply with the order of the court, the defendant can maintain his suit upon the bond. If the property be returned, the defendant has the benefit of any increase in value, and we think a wrongdoer should not derive any advantage from the disobedience of an order of court that he would not have re- tained by complying with it. "We are therefore of the opinion that when the property is of greater value at the date of the order for a return than it was at the time of re- plevin the defendant should be allowed for such increased value in addi- tion to the value of the proppl-ty when taken, and the interest thereon. We think the rule that estimates the value at the time of the demand upon the writ of return is open to the same objection as the rule of the highest market value between the time of the replevin and the date of the trial upon the bond. The latter gives the defendant the whole period covered by the statute of limitations in which to commence his action and set his price; the former, the whole time in which he can lawfully issue his.writ and make demand, thus allowing him, where the property cannot be returned, to fix its value when the market price is at its highest, which in many cases, if allowed as damages, would be oppres- sion instead of indemnity. We take the date of the recovery at the time when any appreciation in thevalueof the propertyis to be considered, as that isthe timewhen thedefendant isadjudged to beentitled to theresto- rationof the property taken with its increased value, and we thinkthat the selection of such date ia not open to the same objections or liable to work such injustice as theadoptionof a rule that allows the defendant to take advantage of a fluctuation of the market through a long period of time, or to select a price at any intermediate date. For the error VALUE SHOULD BE ASSESSED AS OP TIME OF TRIAL. 519 in giving the said instruction, the judgment must be reversed, and the cause remanded. § 938. Value should be assessed as of time of trial. The value of the property should be assessed at the time of the trial. If the price has fallen in the time it has been de- tained, the jury should include the difference in price 'in their assessment of damages for the detention.* In re- plevin, the assessment of the value must be based upon the value at the time of trial. Where there i^ no evidence of this, and no evidence showing that the property has depre- ciated since the bringing of the suit, the plaintiff cannot complain that the jury found the value to be that sworn to by him in his affidavit for replevin.^ Where the de- fendant claims the goods replevied and demands a return thereof, and the jury finds in his favor, his damages are the value of the goods at the time of such assessment, and the damages, if any, sustained by defendant in consequence of the taking and detention.' A defendant in replevin, if suc- cessful, is entitled to the value of the property replevied, at the time of the rendition of judgment for a return.* Where the defendant claims the property replevied, and demands a return thereof, and the jury finds in his favor, they should assess the value of the goods at the time of the assessment, and the damages, if any, sustained by defendant in conse- quence of the taking and detention. If they have depre- ciated iu value in plaintiff's hands, they should consider this fact in assessing the damage.* 1 Boylston v. Davis, 70 N. C. 485; Holmes v. Godwin, 69 N. C. 467; Scott V. Elliott, 63 N. C. 215; Rowley r. Gibbs, 14 John. 385. 2 Schultz F. Hickman, 27 Mo. App. 21. ^ Burkeholder r. Rudrow, 19 Mo. App. 60; Chapman r. Kerr, 80 Mo. 158; Mix v. Kepner, 81 Mo. 93; Pope v. Jenkins, 30 Mo. 528; White r. Storms, 21 Mo. App. 288; Hoester v. Teppe, 27 Mo. App. 207. ^ Tuck V. Moses, 58 Me. 361. This was a suit on the bond for failure to return wood as ordered by trial court, and it was shown that the wood had increased in value since the unlawful taking under the writ. * Chapman v. Kerr, 80 Mo. 158; Pope v. Jenkins, 30 Mo. 528. The first case overrules in express terras Woodburn v. Cogdal, 39 Mo. 228, 520 DAMAGES. § 939. Where the valtie is fluctuating. Where the value of the property is stable, the rule of taking the value at the time of conversion will come nearer doing justice than any other rule; but where the value is unstable — constantly changing — it is more difficult to formulate a rule that shall do justice in all cases, and the courts have followed different rules in endeavoring to do justice in each case. But upon a consideration of all the cases, it would seem to be the better plan to adhere to the rule heretofore given, and if the cir- cumstances are such that it does not make full compensation to the wronged party, let the jury give such additional com- pensation as in the exercise of their best judgment is proper. Such discretion properly belongs to the jury in replevin.' But none of these rules can be said to be generally recognized, and their soundness and general application have been fre- quently denied or questioned. In speaking of -the rule in Markham v. Jaudan, supra, the leading case in favor of allowing as damages the highest value between the conver- sion and trial, the court in Baker v. Drake say: " This " rule has been recognized in several cases where the value " of the property was fluctuating, but its soundness, as a "general rule, has been seriously questioned."^ "An un- " qualified rule, giving the plaintiff the highest price be- " tween the conversion and the time of trial, cannot be up- " held on any principle of reason or justice.'" Where the property is not taken, the value at the time of the trial should be found, and not the value at the time of the de- mand.* § 940. The same. The courts have attempted to qualify and Miller F.WhitBon,40 Mo. 101, both of which lay down the rule that the value of the property at the time taken is the measure of damages. Richey v. Burnes, 83 Mo. 362. 1 Jones V. Allen, 1 Head. (Tenn.) 626. 2 Baker r. Drake, 66 N. Y. 518. 'Matthews v. Coe, 49 N. Y. 57. See Morgan r. Jaudon, 40 How. Pr. 366; Stewart v. Drake, 46 N. Y. 449. ♦Button V. Cl^pin, 7 N. Y. Civ. Prac. E. 278. WHEEE THE VALUE IS FLUCTUATING. 521 this rule by saying that suit must be brought within a rea- sonable time, and its trial urged with diligence. It is a rule of doubtful justice to give the plaintiff the whole period of the statute of limitations within which to select his standard of value.' But even with this qualification, it is an unsatis- factory rule. In referring to it, the supreme court of Cali- fornia say: "If a quantity of fruit — strawberries, for in- " stance^be taken in the season of the greatest plenty, under " circumstances which entitle the owner to indemnity only, " and suit began at once to recover the value, trial, in the " ordinary course of events, could not take place for many " months. In the meantime, the season of plenty has passed, " and the price has risen enormously, and under the rule " allowing the highest prices the plaintiff could recover the " enhanced value, which he could hj no possibility have " realized himself.'" This was a case where hay was re- plevied in 1863, when it was worth about $3 per ton, and defendant claimed the value at a time in 1864, when it was worth about $40 per ton, and judgment was rendered for the highest value. The supreme court, in setting this judgment aside, lay down the rule that the correct measure of damages is the highest market value within a reasonable time after the taking. Page v. Fowler is a leading case on this sub- ject, and will well repay perusal. The rule has been further qualified, by requiring the prevailing party to show that he was the owner, and so entitled to this value, and that he could have held until that time, and would have sold then.' Where a quantity of wheat, the property of the defendant, had been seized, and on trial ordered to be redelivered to the defend- ant, and it appeared that wheat at that time was of about ^le same market value as when taken, but in the meantime h id been much higher, it was held that defendant was not ' acott r. Eogers, 31 N. Y. 678. 2 Page V. Fowler, 39 Cal. 416. 3 Bailey v. Shaw, 4 Foster (N. H.), 301 ; Baker v. Drake, 53 N. Y. 211. 522 DAMAGES. entitled to the benefit of sucli advance without showing that he would have sold at such time.' § 941. Rule followed in different cases where value not stable. It has been held that what it would take to replace the goods was the proper measure of damages" — the value at the time it should be restored,' the highest value after taking and before trial.* It has been held in trover that the value could be fixed at any time between demand and judg- ment. ° The highest market price within a reasonable time has been said to be the proper rule.^ Though these rules are not universal, they have been followed in many cases.' The fact of so many different rules being given for a guide in this class of cases shows that the courts have not been satisfied with the correctness and justice of those given, and felt it to be a duty to search for a better rule. § 942. The highest market value embraces changes due to natural and normal causes, and not those that are due to panic or corners, or other unnatural causes. Such prices are seldom of more than momentary duration, and will not be considered by the courts in fixing the market value, and unusual depression from the same causes would not be re- garded as fixing the market.' "The highest market value" ' Meshke v. Van Doren, 16 Wis. 319. 2 Starky v. Kelly, 50 N. Y. 676. 2 Swift F. Barnes, 16 Pink. 196. • Cortelyou v. Lansing, 2 Cain's Cases, 200; Burt r. Butcher, 34 N. T. 493 ; Remain v. Van Allen, 26 N. Y. .309 ; Wilson v. Mathews, 24 Barb. 295; Markham v. Jaudon, 41 N. Y. (Hand.) 239; Morgan r. Grigg, 46 Barb. 183; Barnett v. Thompson, 37 Ga. 335. 5 Johnson v. Marshall, 34 Ala. 528; Williams r. Archer, 5 M. G. & S. 318. 8 Scott V. Rogers, 31 N. Y. 678; Cannon v. Folsom, 2 Iowa, 101; Pinkerton v. R. R. Co., 42 N. H. 424; Page v. Fowler, 39 Cal. 412. . ' Hamer v. Hathaway, 33 Cal. 119; Douglass v. Kraft, 9 Cal. 563; West F. Wentworth, 3 Cow. 82; Kortwright v. Com. Bank, 20 Wend. 91; Com. Bank v. Kortwright, 22 Wend. 348; Wilson v. Matthews, 24 Barb. 295; Willard f. Bridge, 4 Barb. 361; Allen v. Dykers, 3 Hill, 593; Lobdell v. Stowell, 51 N. Y. 77; Blot v. Boiceau, 3 Comst. 85. 8 Mayberry v. Cliffe, 7 Cold. (Tenn.) 124. WHERE VALUE SHOULD BE FIXED. 523 h fixed by the general range of the markets for the period of time included, and not by a sudden inflation or depression from unnatural causes.' § 9i3. Full indemnity the object of all rules of damage. Whatever may be the form of action in which reparation is sought, the surji due for compensation must be the same in trespass, trovei. j,nd ."eplevin. There can be no variance in the amount of an indemnity, and if its criterion can be fixed, any dejjarture from the standard which it establishes must be capricious and arbitrary, and must involve more or less of injustice to one or other of the parties to the injury. The general rule both in England and this country is that ihe current or market -value of the property at the time of the conversion, with interest from that time until the trial, is the measure of damages. There are, however, several ex- ceptions to this rule, one of which is when force or fraud have been resorted to, where vindictive damages may be given. ^ § 944. The value should be fixed at the place where the property was at the time of the unlawful taking. From the time of the taking every act is an infringement of the rights of the other party, and the usual order is that it be returned to the place where taken. If it is not returned, its value at the place from which it was wrongfully removed is the only proper measure of damages. The cost of manufac- ' Smith r. Griffiths, 3 Hill, 333; Durst v. Burton, 47 N. Y. 175. 2 Suydam r. Jenkins, 3 Sand. (N. Y.) 621. This case is very long, and discusses the subject fully. Amery v. Delamere, 1 Strange, .505; Fisher V. Prince, 3 Burr, 136; Finch v. Blount, 7 Car. & P. 478; Cooke r. Hartle, 8 Car. & P. 568;' Mercer v. Jones, 3 Camp. 476; Shotwell v. Wendover, 1 J. R. 65; Wilson v. Conine, 2 J. E. 280; Kennedy v. Strong, 14 J. E. 128; Hallett v. Novion, 14 J. E. 273; Dillenbach v. Jerome, 7 Cow. 294; Baker v. Wheeler, 8 Wend. 505; Watt v. Pot- ter, 2 Mason, 76; Kennedy r. Whitmore, 4 Pick. 466; Sargent v. Franklin, 8 Pick. 90; Johnson, v. Sumner, 1 Met. 172; Barry v. Ben- nett, 7 Met. 354; W^hlte r. Webb, 15 Conn. 502; Jacobs r. Lauss'jtt, 6 S. & E. 350; Lillard v. Whitaker, 3 Bibb, 92; Sproule v. Ford, 3 Litt. 25. 524 PAMAGES. turing an article and transporting it to market may properly be inquired into, to ascertain the value of the article at the time and place of its taking.' Where the property when taken or demanded is near a market for such property, the market .value at that time and place is the proper measure of value. ^ But where it is far from market when taken, the price at the nearest market, less the cost of transporting it to that market, would probably be the proper measure of value. But this question is not solved without difficulty, es- pecially where the property has been moved by the wrong- doer to a great distance or another market. fbus, where hay was taken from Alameda County and shipped to San Francisco, where it was worth much more than where taken, with cost of transportation added, and plaintiff claimed the highest price at San Francisco, the court decided that the market value at the place where taken was the proper rule of value.' In trespass for timber cut and removed, the couri said the plaintiff might have recovered his logs by replevin had he chosen to follow them, but as he had sued in trespass, the proper measure of value was the value where the trespass was done.* And a similar rule was followed in case of coal mined in the mine of another.^ And in trover for steel in- gots for which there was no market at that time, the court admitted evidence of the value of steel made from these in- gots, and how much it would cost to convert these ingots into something for which there was a market. ° § 945. The rule in trover is frequently followed; and generally "in those states where the value in trover may be " estimated at the highest price of the property between the " conversion and the commencement of the siiit or the trial, "the highest value may also, under like circumstances, be ' Brizsee v. Maybee, 21 Wend. (N. Y.) 144. 2 Fort V. Saunders, 5 Hiesk (Tenn.), 487. ' Hamer v. Hathaway, 33 Cal. 120. * Gushing f. Longfellow, 26 Me. 306. ' Martin v. Porter, 5 M. & W. 353. ' Meeker v. Chicago Cast Steel Company, 84 111. 277. WHERE PRODUCE IS SHIPPED TO DISTANT MARltET. 525 "recovered in replevin by the plaintiff as damages, in case he "succeeds in establishing his right to the property and fails to "recover the same in specie."^ In detinue, as in trover, the jury may assess the highest value of the property at any time between the commencement of the suit and the trial, but they are not bound to do so/ § 946. Rule where produce is shipped to a distant mar- ket. Where produce was taken and shipped to a distant market and sold by defendant, and plaintiff claimed the gross product of the sale, while the defendant claimed that a de- duction should be made for the expenses of transportation to the city market, the court said: "If plaintiff complains " of the detention of the property, if it is delivered on de- "mand his claim is satisfied, except damages for detention. "If it cannot be delivered, then the value at the place where " the delivery should have been made is the proper value of "the property." Neither the price at the distant market, nor that price less the freight and commissions, is the true criterion of value at the place of the alleged detention ; but proof of value at the distant market, and the cost of trans- portation there, is admissible to assist the jury in fixing the value at the place of detention." Where cattle, in litigation, had died as alleged by the wrongful act of defendant, and at the place where they died there was no market for them, and no market within 200 miles, the court allowed evi- dence of the value at the natural market though quite dis- tant, as the price there would be some guide to the value 1 TuUy V. Harloe, 35 Cal. 302; Suydam r. Jenkins, 3 Sandt. (N. Y.) 614; Hamer r. Hathaway, 33 Cal. 117; Eomain v. Van Allen, 26 N. Y. 309; Lobdell v. Sfcowell, 51 N. Y. 70; Bank v. Reese, 26 Pa. St. 143; MusgrovBF. Beckendorff, 53 Pa. St. 143; Nieler v. KeUy,69 Pa. St. 403; Paige r. Fowler, 39 Cal. 412; Ellis r. Wire, 33 Ind. 127; Ewing r. Blount, 20 Ala. 694; Johnson v. Marshall, 34 Ala. 522; Freeman v. Harwood, 49 Me. 195; Field on Damages, §§ 246, 828. 2 Holly V. Flournoy, 54 Ala. 99. ^Hisler v. Carr, 34 Cal. 645; Gushing r. Longfellow, 26 Me. 310; Swift r. Barnes, 16 Pick. 196. 526 DAMAGES. ■where they died.' Such testimony is not admitted as fixing the value, but as the best testimony which under the circum- stances can be had, and as forming some guide to the value, much is left in such cases to the good judgment of the jury.^ § 947. A willful wrongdoer will not be allowed what his labor has added to the property. In actions of replevin damages are determined upon the same principles as in tres- pass. They may be punitive or remunerative simply, ac- cording to the presence or absence of malice or wantonness in the taking. If the act was in good faith, upon some sup- posed right or claim or error, the measure will be the value of the property at the time it was taken ; but if the taking be characterized by malice or oppression, damages may be punitive, and in an action for its recovery no allowance will be made the defendant for any increased value that may be bestowed by his skill and labor upon the property.' § 948. Value of gold coin at what time fixed. A per- son who had deposited gold coin with a bank, to be returned in like coin, brought an action to recover possession of it. Held, that a judgment for a return of the gold, or, in default thereof, for its par value with interest from the time of demand, was correct, although gold was worth a premium in legal tender notes.* Coin may sometimes be treated as merchan- dise and its value estimated in ordinary currency, and in such ' Sellar v. Clelland, 2 Col. .'->.32. ''Savercool v. Farwell, 17 Mich. 308; Gregory v. McDowell, 8 Wend. 435; Dubois v. Glaub, 52 Pa. St. 238; Durst v. Burton, 47 N. T. 175; Wemple v. Stewart, 22 Barb. 154; Smith v. Griffith, 3 Hill, 333; Doak V. The Exr. of Suapp, 1 Cold. (Tenn.) 181 ; Dana v. Fiedler, 2 Kern. 40; Berry v. Dwinel, 44 Me. 267. ' Heard v. .James, 49 Miss. 236. In this case defendant cut trees with, out license on plaintiff's land and manufactured them into staves, and plaintiff brought replevin for the staves. See also Sedg. Meas. Dam. 578; Brown v. Sax, 7 Conn. 97; Martin v. Porter, 5 Mees. & "Welb. 351. In the following cases the defendant was allowed the value o{ the labor necessary to change the form of the property. Wild v. Holt, 9 Mees. & Welb. 672 ; Smith v. Gouder, 22 Ga. 354. The last four cases are in trespass and trover. * Warner v. Sauk, &e., 20 Wis. 492. 'NOMINAL DAMAGES ABE INCIDENT TO SUCCESS. tiZl a case it has been held that its value could be fixed iit the highest value between the taking and the trial.' "Whore plaintiff alleged that the property in dispute was worth $500 in gold coin, and proved its value in legal tender c.t $1,200 (over objections), the court admitted the evidence and upheld a verdict for $950.' § 949. Nominal damages are incident to success in re- plevin, and are awarded without proof of actual injury on the principle that when one interferes with another's right of property damages maybe awarded, even though the evidence shows that there has been no substantial injury.' Nominal damages have been called " a peg to hang costs on," " a sum of money which has no quantity," etc.* On any interference with the property rights of another, the law presumes some damage.^ Damages go with the recovery, whether of the property or its alternate value." Success upon non cepit does not entitle the defendant to a return of the property or to its value as a substitute, but simply to nominal damages.' But the finding in plaintiff's favor of the right of possession shows that there has been an invasion of his rights sufficient in law to uphold the award of nominal damages, even though the jury do not expressly find that the detention was wrong- ful, and nominal damages may be awarded without an aver- ment of special damage, and without proof of acttial dam- " Taylor v. Ketchum, 35 How. Pr. (N. Y.) 289; Id. 5 Robt. (N. Y.) 507. 2 Tarpy v. Shepherd, 30 Cal. 181. 8 Cory V. Silcox, 6 Ind. 39; Smith v. Houston, 25 Ark. 184; School District r. Shoemnker, 5 Neb. 36; Creighton r: Newton, 5 Neb. 102. * Beaumont r. Greathead (2 M. G. & S.), 52 E. C. L. 498 ; Mailer r. Spateman, 1 Saund. n. 346 b; Strong v. Keene, 13 Irish L. R. 93. ^Munroe v. Stickney, 48 Me. 462; McConuell v. Kibbe, 33 111. 175; Devendort v. Wert, 42 Barb. 227; Stowell v. Lincoln, 11 Gray, 434. See Sedgwick on Meas. of Dam., 6 Ed. p. 55; Champion v. Vincent, 20 Texas, 811; Smith v. Whiting, 100 Mass. 122; Allaire r. Whitney, 1 Hill, 484; ^iiljams v. Mostyn, 4 Mees. & W. 145; Young, r. Spencer, 10 B. & C. (21 E. C. L.) 145. ' Robinson v. Richards, 45 Ala. 354, ' Douglass V. Garrett, 5 Wis. 85. 528 DAMAGES. age.' Where it is shown that the property is wrongfully taken and unlawfully detained, the plaintiff is entitled to re- cover nominal damages without proof of actual damages.^ The burden is upon the injured party to allege and prove the nature and amount of his damage. Unless he do so, his re- covery will be limited to nominal damages.' Simple proof of the taking will only support nominal damage.* Where damages are proved, but not the amount, judgment can only be given for nominal damages.^ To recover substantial damages in trespass, some circumstances of aggravation or actual injury must be shown.* The same rule is followed where defendant is found entitled to a return.' Where the jury award damages for detention without finding that there was a detention, it is not good.* Judgment cannot be ren- dered for damages where the jury omit to find and assess damages." § 950. To recover more than nominal damages, actual damages must be alleged and proved." On a finding in favor of defendant, he is entitled to a judgment for nominal damages, at least, independent of proof of any ajtual loss." Where plaintiff in replevin fails to prove any amount of damages he has sustained, he is entitled to nominal dam- ages only." Where the plaintiff fails in an action of re- plevin, in the absence of proof of actual damages the de- fendant is entitled to nominal damages only." Where the ' Hammond v. Solliday, 8 Col. 610 (9 Pac. 781). ' Robinson v.'Shatzley, 75 Ind. 461. ' Mann v. Grove, 4 Heisk. (Tenn.) 403. * Phenix v. Clark, 2 Mich. 327. ^ Brown r. Emmerson, 18 Mo. 103. » Rose V. Gallup, 33 Conn. 338. ' Seabury v. Ross, 69 111. 533. * Swain r. Roys, 4 Wis. 150. » Black V. Winterstein, 6 Neb. 225. '» Washington Ice Co. v. Webster, 62 Me. 341. " Prey v. Drahos, 7 Neb. 194. '2 Smith r. Houston, 25 Ark. 183. " Seabury v. Ross, 69 111 .533. * WHERE ONLY PART OF THE PROPERTY IS RECOVERED. 529 evidence furnishes no elements for the admeasurement of damages, it is error to tell the jury that they may give such damages to the plaintiff as they may find he has suffered.^ Where there is no evidence of the value or amount of dam- ages, a verdict in a fixed sum rests upon conjecture, and will be set aside. ^ In replevin for property distrained for rent, where an avowry is made, the amount for which it is made is the real matter in dispute, and the damages are merely nominal.' § 951. Nominal damages as affected by demand and interest of the party. If at the service of the order the defendant is not the owner, and has no special interest in tho property, only nominal damages can be recovered against him if no demand was made ; but if demand was made, and he refused to surrender the property, the rule would be otherwise.* Nominal damages only should be allowed on judgment for defendant in replevin, where he has failed to show right in himself to the property in controversy.'^ § 952. Rule where only a part of the property is re- covered. In case of a judgment for the plaintiff, and only a portion of the property is or can be returned, the damages for the unreturned property would be estimated by the rules above stated.' So a judgment may be given that a portion of the property be delivered to the plaintiff and a portion to the defendant, and it should show what belongs to each.' Where a part only of the property claimed is taken, the plaintiff should be permitted to elect to take that part and have judgment for the value of the remainder, and the jury ' Morrison v. Yancy, 23 Mo. App. 670. ^ Ascher v. Schaeper, 25 Mo. App. 1. 8 Peyton v. Robertson, 9 Wheat. 527. * Homan v. Laboo, 1 Neb. 204. ^ Treat r. Staples, 1 Holmes, 1 (1st Circuit). 8 Field's Briefs, Section 205. 'O'Keefe v. Kellogg, 15 111. 347; Williams v. Beede, 15 N. H. 483; Dowell T. Bichardson, 10 Ind. 573. See Piazzek r. White, 23 Kan. 621 (33 American Reporter, 211). 34 530 DAMAGES. should assess the parts separately at his request/ A de- fendant succeeding as to part of the chattels is entitled to costs/ § 958. In contests between a mortgagee and an ofl&cer holding on writs against the mortgagor. If the mortgagee win, he is usually entitled to recover the amount of his lien or mortgage claim, if it be less than the value of the prop- erty. If it equal that value, he is entitled to a return of the property or judgment for its full value. The result in this class of cases depends much upon the statute, as in some states the mortgagee is entitled to the possession of the property, no matter how much surplus there may be after paying his debt. Under other statutes he cannot replevin from the officer at all, but his lien is protected by the officer and paid out of the first proceeds. § 954. The same — Illustrations. Where the mortgagee brought replevin for property levied on by an officer for debts of the mortgagor and sold the property, and the find- ing was for defendant, on the ground that replevin would not lie by the mortgagee in such a case, but the evidence showed that the property was not worth more than the mortgage claim, held, that as the officer could only sell the mortgagor's equity of redemption, and that that was value- less, he should only recover nominal damages.^ When mort- gaged chattels have been lawfully seized under an attach- ment against the mortgagor, the rule of damages in replevin by the sheriff against the mortgagee, who has unlawfully taken them from his possession, is the value of the property over the mortgage debt.* In an action of replevin brought by a mortgagee of goods against a sheriff holding them under an order of attachment in a suit agatnst a mortgagor, the true measure of damages in favor of the sheriff is the ' Caldwell r. Bruggerman, 4 Minn. 270. 2 Newell Mill Company v. Muxlow, 51 Hun. (N. Y.) 453. 2 Geisendortf v. Eagles, 70 Ind. 418. ♦ Saxton V. Williams, 15 Wis. 292. MORTGAGEE CAN ONLY EECOTEE AMOUNT OP CLAIM. 531 amount called for by the writ, where the value of the goods equals or exceeds that sum.' But if the mortgage, lien ex- ceeds the value of the property, the defendant (sheriff) is only entitled to nominal damages.^ It is error to render a judgment for the value of the property in favor of a defend- ant in replevin who has only a special interest therein by virtue of its seizure on legal process.' § 955. Mortgagee can only recover the amount of his claim if that be less than the value of the property; if it be more, he is entitled to have the property returned, and if the party who took it from him acted mala fide. If it cannot be returned he is entitled to judgment for the amount of his claim. The damages are measured by the injury to the property caused by the unlawful acts. If the mortgagee gets more than is sufficient to satisfy the mortgage, he holds it for the benefit of the mortgagor.* The mortgagee from whom chattels have been wrongfully replevied is entitled to judgment for their return, with any damages suffered from the taking, or for the amount of the mortgage debt, but cannot have judgment for the full value of the property if that exceeds the mortgage debt and costs.' In an action of replevin a defendant, where lien under a chattel mortgage upon the goods replevied is sustained, cannot, in any event, recover beyond the value of the goods ; and in the absence of any proof of such value, the appraisal made under the writ will govern.' Where a chattel mortgagee brings a re- plevin to recover the possession of the mortgaged property, and the defendant by giving bond retains it, and the jury finds the value of the mortgaged property to be greater than ' Black V. "Winterstein, 6 Neb. 224; Kersenbrock r. Martin, 12 Neb. 374 (1 N. "W. 462). 2 Pugh T. Calloway, 10* Ohio St. 488. . 8 Williams v. Bresnahan, 66 Mich. 634 (33 N. W. 739). * Byron r. Chapin, 113 Maes. 308; Gooding r. Shea, 103 Mass. 360; Gordon r. Jenney, 16 Mass. 465. 5 Smith r. Phillips, 47 Wis. 202 (2 N. W. 285). « Wolrath r. Campbell, 28 Mich. 111. 532 DAMAGES. the mortgage debt and interest, the judgment should be for the recovery of the property, or the debt -and interest, and not for the recovery or the value of the property.^ Where a mortgagee brings replevin before the whole debt secured by his mortgage is due, his lien fehould be protected for the amount to become due, as well as that past due.^ § 956. Where the taking was with malice, the mort- gagee may recover injury to the property without regard to the value of his interest. In an action of replevin by a mortgagee entitled to the immediate possession of the prop- erty replevied, if the taking and detention, were both unlaw- ful, he is entitled to recover the damages to the property caused directly by the taking and detention, although the property, when replevied, is of greater value than the amount due under the mortgage.^ § 957. An oflScer's damage is the face of the writ under which he held the property if within the value of the prop- erty. Where the defendant in replevin lawfully held the property by virtue of a levy under an execution (the verdict being in his favor) the measure of his damages, within the value of the property, was the amount due upon the execu- tion with legal costs and charges.* The value of a sheriff's interest in goods is the value of his writs. If the verdict be for more, the court will compel a remittitur of the excess." A constable having levied upon personal property, the defendant in execution replevied the same. In the replevin suit the constable obtained judgment for the property, or its assessed value, at his election. He elected to take the money, which was paid him, and which exceeded the amount necessary to satisfy the execution. Held, that the constable was compel- lable by law to refund the surplus to the execution defend- ' Wolfley V. Kising, 12 Kan. 535. 2 Fowler v. Hoffman, 31 Mich. 215. 'Allen F. Butman, 138 Mass. 586. * Welton V. Beltezore, 17 Neb. 399 (28 N. W. 1). 5 State V. Kinkaid, 23 Neb. 641 (37 N. W. 612) ; Aultman v. Stickler, 21 Neb. 72 (31 N. W. 241). WHERE DEFENDANT HELD BY EXECUTION. 533 ant. Where an officer holds property under a valid writ, and it is taken from him by replevin, which on trial is not maintained, the officer should have judgment for a return of the property and costs, or for his damages, which are the amount of his writ and legal costs and charges, provided, always, that amount be within the value of the property. If his writ call for more than the value of the property as found by the jury, he would be entitled to that amount.^ If the property of a judgment debtor in his possession or under his control be seized by a sheriff in execution, and afterward replevied from him by one who on trial is found to have no interest therein, the true measure of the officer's damage is the value of the property together with interest from the time when it was taken.' § 958. Measure of damages where defendant held by execution is the value of his writs, if they do not exceed the value of the property. Where goods taken on execution are replevied, and judgment is rendered against the plaintifE in the replevin suit, the damages should be the amount of the execution with costs.* If defendant took the property as sheriff under an execution, and held it for the purpose of satisfying the execution debt, and the plaintiff in the replevin suit was the general owner of the property subject to the execution lien, the measure of his recovery would be lim- ited to the execution debt and costs, if less than the value of the property ; but if the debt and costs exceeded the value of the property, he would be entitled to recover to the same extent as any plainti^ who had obtained an order for the return of the property under a plea of ownership." Where ' Damm v. O'Connell, 1 Mo. App. 268. 2 Black V. Winterstein, 6 Neb. 224. 2 Buck V. Eemsen, 34 N. Y. 383; White v. Webb, 15 Conn. 302; Hall F. Jenness, 6 Kan. 356. *Hayden r. Anderson, 17 Iowa, 158; Dodge v. Chandler, 13 Minn. 114; La Crosse v. Eobertson, Id. 291; Booth v.'Ableman, 20 Wis. 21. ^ David r. Bradley, 79 III. 316; Booth v. Ableman, 20 Wis. 21 : Jea- nings r. Johnson, 17 Ohio, 154. 53-1: DAMAGES. in replevin against a sheriff holding the property under an attachment, and having no interest in it other than that of the attaching creditor, if the defendant recover, and the value of the property exceeds the amount claimed on the attachment, the amount of the sheriff's recovery is limited to the amount of the attachment, with interest and costs, and judgment for the entire value of the property is erroneous.' § 959. Where an oiBcer is wrongfully dispossessed, his damage is the value of his writ and interest. Where the United States marshal levied upon property to satisfy a judg- ment in the district court, and the execution defendant vrrongfuUy repossessed himself of the property under a writ of replevin from a state court, that court, in determining the amount for which the marshal was entitled to judgment (where a return could not be had), should have treated the amount of the judgment in the United States court, with interest thereon to the day when the goods were replevied, as the measure of the marshal's interest in them on that day, and should also have allowed interest on that amount from that day as damages for the unlawful detention.^ § 960. But where the writs are for too much, he can only recover the amount justly due. An officer has only such special interest in attached property in his possession as the lien of the attachment creates, and it is measured by the amount necessary to pay the debt for which the property was attached, and in an action of replevin against an officer to recover the attached property, evidence that the debt had been reduced by a sale of a portion of the property taken under the attachment is competent.' A judgment in replevin- 1 Clark Y. Lamoreux, 70 Wis. 508 (36 N. W. 393). See Jennings v. Johnson, 17 Ohio, 154; Suteliffe v. Dohi-man, 18 Ohio, 186; Coe v. Peacock, 14 Ohio St. 187; Niagara Elevator Co. r. McNamara, 2 Hun. 416; Id. 50 N.Y. Court of Appeals, 653; Battis v. Hamlin, 22 Wis. 669. " Booth V. Ableman, 20 Wis. 21. ' Kerr v. Drew, 90 Mo. 147 (2 S. W. 136) ; Boutell v. Warne, 62 Mo. 350 ; Dougherty r. Cooper, 77 Mo. 535 ; Booth v. Ableman, 20 Wis. 21 ; Seaman v. Luce, 23 Barb. 240. SHEEIFP's VALUATION EVIDENCE AGAINST HIM. 535 against several attaching creditors should only be for the amount of the debts and costs due to those creditors whose writs of attachment were served prior to the replevin/ § 961. Cannot recover for use or detention in addition to value. But in such cases he should not have damages for the detention or use of the property in addition to its value, for this would be compensating him twice for the same injury.^ Where the property levied on is in the pos- session of the plaintiff, not the judgment debtor, the debtor laying no claim to it, the officer should only recover the value of his writ.^ § 962. His valuation evidence against him. In re- plevin of goods from a sheriff who holds them under attach- ment, his appraisal in the attachment is prima facie evi- dence of value as against him, and if he claimed the goods were not worth so much, the burden was on him to show it* § 963. Where replevin against an oflacer is tried before the attachment suits, his lien vsrill be protected. In an action of claim and delivery against a sheriff who holds goods under attachments, if the action in claim and delivery be tried before the suits in attachment, the value of the sher- iff's special property cannot be certainly determined, and the proper judgment to be rendered in such a case on a finding for the sheriff, where the property cannot be returned, is the face of his writ, if within the value of the property; but if it is afterwards determined that some of the writs called for more than was owing, the measure of the sheriff's damage will be so much less, notwithstanding the judgment in his favor for the face of the writs. ^ Where, on the trial of a re- plevin suit in favor of the vendee of an attachment debtor, the officer seeks to justify under the attachment proceedings, which have not matured into a judgment, the fact of the in- ' McNorton v. Akers, 24 Iowa, 369. 2 Garrett v. Wood, 3 Kan. 231. " Frey v. Drahos, 7 Neb. 194; Barney v. Douglass, 22 Wis. 464. * Carson v. Golden, 36 Kan. 705 (14 P. 166). ^ WLeaton r. Thompson, 20 Minn. 175. 536 DAMAGES. debtedness charged in the affidavit for attachment at the time of the purchase must be established, and said affidavit is not conclusive proof of such fact.' § 964. Rule in replevin between different officers. Whore property in the hands of a United States marshal has been wrongfully seized under process from a state court, the state court may properly render judgment for a return to the marshal of such property, or payment to him of the value if return be not made, though the merits of plaintiff's claim are not adjudicated.'' The one first taking lawfurpos- session is entitled to hold the property pending the litiga- tion. Where replevin is allowed between different officers to test the priority or validity of their writs, damages be- yond the actual value of the property should not be given.^ § 965. As against an intruder, the officer is entitled to the full value of the property. The law will not favor or assist a mere interloper. As against an intruder an officer will recover the full value of the property, though he cannot hold the surplus above his writ as against the true owner or other creditors.* In an action of replevin against a sheriff who has taken property upon execution against third per- sons, and not from the possession of plaintiff, where the judgment is in favor of the sheriff it is not error to assess his damages, on a waiver of a return of the property, at the full value of the property, notwithstanding it exceeds the amount of the executions in his hands. The plaintiff had no right to the property whatever, and as between him and the sheriff the latter had the whole title, and would be bound '■ Manning r. Bresnahan, 63 Mich. 584 (30 N. W. 189) ; Cools r. Hop- per, 23 Mich. 518. 2 Cantril r. Babcock, 11 Col. 143 (18 P. 342); Parkes v. Wilcox, 6 Col. 489. ^ Goodman v. Church, 20 Vt. 187. * First National Bank v. Crowley, 24 Mich. 499; Dilworth v. McKelvy 30 Mo. 150; Farnham v. Moore, 21 Me. 508; Buck r. Eemsen, 34 N. Y. 383; Long V. Cockrell, 55 Mo. 93. DAMAGES AGAINST SHEBIPF OE OIHEE OFFIOEE. 537 to account for the surplus.' In replevin against a constable for an unlawful seizure wlifire defendant put in issue plain- tiff's title to the property, and the jury found for the plain- tiff, and assessed the value of the property at a greater sum than the amount of the execution, judgment should be for the return to the constable of the entire property, or pay- ment to him of its entire assessed value, and not merely for that of an amount equal to the execution. The presumption being that the jury found plaintiff had no title at all to the property,^ and in such a case, if the property sell for more than enough to satisfy the writs held by the officer, other creditors may get the surplus, the plaintiff in replevin has no claim upon it.' If the replevin is by a mere stranger, the amount of the debt is immaterial, as the sheriff would hold in trust any surplus for the general owner.* § 966. An' intruder is liable for damages whether the other party owns the property or not. A plaintiff in re- plevin who fails to establish his right to the property is lia- ble to the defendant in damages, although such defendant does not own the property.* § 967. Damages against sheriff or other ofBcer seizing under a writ. It is well settled that an officer who seizes property under a writ of attachment or execution is liable" if he seizes the wrong person's property. The true owner may recover his damages in trespass or trover, or he may bring replevin and recover the property or its value. If the true owner brings replevin and prevail, he is entitled to a return or the proved value of the goods. What the sheriff may have sold them for is not the measure of the damages 1 First National Bank v. Crowlov, 24 Mich. 492; Broodwell v. Para- dice, 81 111. 474; Atkins v. Moore, o2 111. 240. 2 Long V. Cockrell, 55 Mo. 93. 3 Blobaum v. Gambs, 56 Mo. 183. * Atkins r. Moore, 82 111. 240; Fallon r. Manning, 35 Mo. 271; Farn- ham V. Moore, 21 Me. 508 ; Lyle v. Barker, 5 Binn. 459. ' Burt F. Burt, 41 Mich. 82. 538 DAMAGES. in such a case.' If tlie sheriff act in good faiih, exemplary damages are never allowed against him.'' If the sheriff, un- der a writ, make an excessive levy, he is liable to the judg- ment debtor for the excess over enough to satisfy the writ, and for the detention and any injury this excess may have received.^ Or if he act with malice his writ is no protection to him.* But malice on the part of the plaintiff who had the process issued does not add to the liability of the officer if he do but his duty.° § 968. As against a stranger, the special owner is en- titled to the full value of the property, being accountable to the true owner for all over his special claim, and the law will not permit an intruder to take the property from one having a legal though not an entire right. This rule is well established, and is of ancient origin.* It will not be presumed as a matter of law, because the right of possession only is found in the defendant. The whole value of the prop- erty is not the proper measure of his damages.' The extent of a special interest or ownership must always be shown. In an action to recover property, in which the defendant claims only a special property, if the plaintiff fail to main- tain his suit judgment should be given for the defendant '■ Pozzbni r. Henderson, 2 E. D. Smith (N. T.), 146; Livor r. Orser,5 Duer, 501; King v. Orser, 4Duer (N.Y.),431; Russell y. Smith, 14 Kan. 374. ^ Beveridge v. Welch, 7 Wis. 45 ; Morris v. Baker, 5 Wis. 389 ; Meshke V. Van Doren, 16 Wis. 320; Barney y. Douglass, 22 Wis. 464; Noxou V. Hill, 2 Allen, 215. 8 Waterburry r. Westervelt, 5 Seld. (N. Y.) 598. * Nightingale v. Scannell, 18 Cal. 315; McDaniel v. Fox, 77 111. 345. 5 Nightingale v. Scannell, 18 Cal. 315. « Lyle y. Barker, 5 Binu. (Pa.) 458; Frei v. Vogel,40 Mo. 150; Fallon r. Manning, 35 Mo. 271; Frey v. Drahos, 7 Neb. 194; l>ilworth v. Mc- Kelvy, 30 Mo. 150; Booth v. Ableman, 20 Wis. 21; Leonard v. Whit- ney, 109 Mass. 266. ' Latimer v. Motter, 26 Ohio St. '480. For instance, if the defendant was an officer holding under an execution, and the amount called for by the execution was greater than the value of the property, his damage would be the full value of the property. CONTESTS BETWEEN GENEl A.L AND SPECIAL OWNERS. 539 for the entire value of the property, as he is responsible to the general owner for its value beyond his claim as special owner/ though a contrary doctrine has been held.^ On principle, the doctrine is as laid down in the first lines of this section. § 969. Pledge -bailor and bailee-3tranger. There is a distinction as to the rights of the bailee against the general owner and a stranger. In a suit against a stranger by the bailee the judgment should be for the full value of the prop- erty, because the bailee is answerable over for the excess of his debt to the general owner; but in a suit between the bailee and the general owner the judgment should be limited to the value of the specific interest of the bailee in the property.' § 970. In contests between the general and special owners the special owner can only recover to the extent of his interest in the property, if he prevail in the suit. In a replevin suit by the general owner against a party having only a special interest, the recovery by the special owner against the general owner must be limited to the amount of the special owner's particular interest. In the case of an officer -holding under an execution, his interest cannot be greater than was the interest of the execution debtor.* If ,a trustee recover in replevin the property conveyed to hi"u to secure a debt, the judgment should be for the property o its value, not to exceed what will pay the legal charge upoi . it. It would be a vain thing to award to a trustee the pos- session of a large amount of property or a large sum of ' Moras r. Stone, 5 Barb. (N. Y.) 516; Buck v. Remsen, 34 N. T. 383; Prei V. Vogel, 40 Mo. 149; Fallon v. Manning, 35 Mo. 271; Madison National Bank v. Farmer, 5 Dak. 282 (40 N. W. 345); Doleu v. Vande- mark, 35 Kan. 304 (10 P. 848). 2 Seaman r. Luce, 23 Barb. (N. Y.) 240; Khoads F.Woods, 41 Id. 471; Battis v. Hamlin, 22 Wis. 669. 5 Jones V. Hicks, 52 Miss. 682; Lyle v. Baker, 6 Binn. 457; Harkis v. Demont, 9 Gill. 14; Benjamin v. Stemple, 13 111.468; Kennedy v. White- head, 4 Pick. 466; Heyden v. Smith, 13 Coke, 69. *Dilworth v. McKelvy, 30 Mo. 149; Gillham v. Kerone, 45 Mo. 487. 540 DAMAGES. money to pay a small sum, and immediately thereafter to return the surplus to the defendant, and neither party can complain of such a judgment, for their full rights are pre- served.' Where defendant in a replevin suit has established a lien for sawing upon a quantity of lumber, of which that replevied was only a portion, a ruling which permits the assessment of their damages at such a portion of their whole lien as the lumber replevied bore to the whole amount sub- ject to their lien, is not one of which the plaintiffs can com- plain. Such apportionment is even more liberal to the plaintiff than the law requires.^ Where, in an action of re- plevin by the general owner of property against one who has a special interest therein, the property has been deliv- ered to plaintiff, the true value to be assessed and recovered by the defendant — where successful — is the value of his special or limited interest in the goods recovered.' Where the suit is brought by one holding a special property against the general owner, he recovers, if at all, not the value .of the property, but his special interest.* In an action to recover possession of personal property, by one having a special in- terest therein, against the general owner, the value of the property as found should not exceed the value of the special interest. '^ § 971. Special ownership measure of damages. In an action of replevin where the verdict is in favor of the defend- ant, whose ownership is special by reason of a chattel mort- gage or other lien, the measure of his damages in case a return cannot be had is the amount due him upon his lien ' Bates V. Snider, 59 Miss. 497. 2 Chadwick v. Broodwell, 27 Mieh. 6. ' Pico r. Martinez, 55 Cal.148; Seaman 7. Luce, 23 Barb. 240; Brood- well V. Paradice, 81 111. 474; Ingersoll r. Tan Bokkelin, 7 Cow. 681; Rhoads v. Woods, 41 Barb. 471. * Wliite V. Webb, 15 Conn. 305; Faulkner v. Brown, 13 Wend. 64; At- kins V. Moore, 82 111. 240; Benjamin v. Stremple, 13 111. 468; Battis r. Hamlin, 22 Wis. 669; Davidson v. Guneolly, 1 Mich. 383. ^ Townsend v. Bargy, 57 N. Y. 665; Fowler v. HayneS, 91 N. Y. 346; Allen V. Judson, 71 N. Y. 77. PROSPECTIVE PEOFITS AKE TOO REMOTE. 541 if within the value of the property as found by the jury But such damages should in no case exceed the value of tlib property;' but between the special owner and a stranger he would be entitled to full value, as we have just seen. Where the proofs in replevin show clearly and without con- tradiction that the defendant, if in possession, was a posses- sor without any valuable interest in the property, but yet require judgment in his favor for want of a proper demand, he can recover no damages beyond his special, interest, which would be merely nominal; and a judgment for dam- ages for the full value of the property is erroneous.^ § 972. Prospective profits are too remote, and are not an element of damage. Such damages are regarded as speculative rather than real.' While the rule of damages in replevin is to fully indemnify the prevailing party for all loss, the loss must be real and not imaginary or speculative.* The profits of an illegal business cannot be an element of dam.age in any case.^ Damages from prospective loss of ^les or customers, or profits which might have been made in the filling of existing contracts, are too remote and inde- finite to become an element of damage.' § 973. The same — Illustrations. The expected profits of a patent machine cannot be allowed.' Profits which are expected from the use of circus horses in the circus business ' Cruts r. "Wray, 19 Neb. 582 (27 N. W. 634); Jennings r. Johnson, 17 Ohio, 154; Sutcliffe v. Dohrman, 18 Ohio, 186; Coe v. Peacock, 14 Ohio St. 187; Lloyd r. Goodwin, 12 S. & M. (Miss.) 223; Booth r. Ableman, 20'Wis. 22; Warner f. Hunt, 30 Wis. 200; Childs v. Childs, 13 Wis. 19; Williams v. West, 2 Ohio St. 86; Ehoads v. Woods, 41 Barb. 471; Allen v. Judson, 71 N. T. 77; Weaver v. Darby, 42 Barb. 411; Townsend r. Bargy, 57 N. Y. 665; Dolan v. Van Deinark, 35 Kan. 304 (10 P. 848). 2 Darling v. Tegler, 30 Mich. 54. 2 Bonesteel r. Orvis, 22 Wis. 522;, Crabbs r. Kountz, 69 Md. 60 (13 A. 591). * Bajter v. Drake, 53 N. Y. 212; Loker r. Damon, 17 Pick. 284. 5 Houghton r. Peck, 8 Pa. St. 42. 8 Washington Ice Company r. Webster, 62 Me. 341. ' Houghton r. Peck, 8 Pa. St. 42. 542 DAMAGES. cannot be allowed.' The expected profits of a stock specn- latioh cannot be allowed.^ As a general rule, loss by a mer. cantile firm of the expected profits not received because of the closing up of the business are not an element of dam- age proper, to be allowed in a replevin suit, though the authorities are not uniform on this point.' Estimates of profits to accrue are so unreliable as to be worthless as a means of arriving at the actual damages.* Where there is a judgment of retorno, the value of the use of the property during detention is the true measure of damages. Specu- lative or expected profits from the use should not be given.' § 974. Loss of probable profits are sometimes allowed where it is quite certain that they would have been immedi- ately realized, if it had not been for the interference of the losing party by his unlawful seizure. Let us illustrate this by reference to the decided cases. It has been held that near and stable or probable profits could be allowed.' Where plaintiff's bridge was carried away by the wrongful act of the defendant, the loss of tolls during the time neces- sarily required to rebuild it is a proper element of damage.' Where a landlord wrongfully cut off steam power from his tenant's mill, the tenant had a right to suppose it perma- nent, and disposed of his stock, machinery, and fixtures on the best terms he could. It was held that the landlord was a wrongdoer, and was liable for any loss that was sustained at such sale,, and that he was also liable for the loss occa- sioned from the breaking up of the tenant's businass, and 1 Butler V. Mehrling, 15 111. 490. See Brannin f. Johnson, 19 Me. 361; Seldner v. Smith, 40 Md. 603. ' Baker r. Drake, 53 N. T. 211. "Selden F. Cashman, 20Cal.57; Moore r.Schultz, 31 Md. 418; Oviatt F. Pond, 29 Conn. 479; Allred v. Bray, 41 Mo. 484. *Alli8 F. McLean, 48 Mich. 428 (12 N. W. 640); McKinnon r. Mc- Ewan, 48 Mich. 106 (11 N. W. 828). ^ Butler F. Mehrling, 15 111. 488 ; Powers r. Plorance, 7 La. Ann. 524. 6 Mayberry v. Cliffe, 7 Cold. (Tenn.) 124. ' Sewell's Falls Bridge v. Fisk, 23 N. H. 171. See Palm r. The 0. & M. R. R., 18 111. 217. BULE OF DAMA'IES — SUMMARY. 543 that the. proper way to measure the damage tj this account was to ascertain the profits which the business had yielded for a reasonable period next preceding the time when the injury was inflicted, leaving the other party to show the reason, if any such exis^*d, why the expected profits would have been less, as depiossion in values, etc.^ § 975. Rule of damages — Summary. 1st. In actions for taking and detaining personal property, where no ques- tion of fraud, malice, or oppression (or willful wrong, either iv Ihe taking or detention) intervenes, the measure of dam- ages is the value of the property at the time of the taking, or conversion, or illegal detention, with interest thereon to the time of trial ; and this is a rule of law to be decided by the court. 2d. That where the trespass, detention, or conver- sion is attended by circumstances of malice, fraud, oppres- sion, or willful wrong, the law abandons the rule of compen- sation, in a legal sense, and the measure of damages becomes a matter for the consideration of the jury, guided by the evidence before them. 3d. That under the first rule stated may be embraced all cases where the defendant, neither m the taking nor in the detention or disposition of the prop- erty, has been guilty of any wrong, but acts in good faith, and with no intent to injuriously affect plaintiff's rights. That under the second rule above stated may be embraced, 1st. All cases where the original act was willful and wrong- ful. 2d. Or where the original act was bona fide, but the subsequent detention, sale, or other disposition of the prop- erty, after a knowledge of plaintiff's claim, was willful and injurious. 3d. Or where the original act, and subsequent disposition of the property for a greater price than its mar- ket value, at the time of the original taking, were all in ig- norance of the plaintiff's rights, but the defendant seeks to retain the difference, as a speculation resulting from his original unintentional wrong. 4th. Or where the property ' Chapman v. Kirby, 49 III. 219. See White v. Moseley, 8 Pick. 356: davenport r. Ledger, 80 III. 578; Dewint v. Wiltsie, 9 Wend. 326. 544 DAMAGES. in controversy has some peculiar ralue to the plaintiff, and is willfully withheld from the rightful owner, or he has been deprived thereof by the willful and wrongful act of the de- fendant. In all such cases it is the peculiar province of the jury to find such damages, according to the convictions of their own understandings, as are consistent with right — not as a matter of law, under the control and direction of the court, but as a rule of remedial justice, resting in their dis- cretion.' § 976. In conclusion— Author's rule — Postulates. On the dilficult subject of damages the author suggests the fol- lowing as postulates, merely: First I. That where plaintiff has received the property on his writ, and on trial judgment is awarded for him, his damages should be a reasonable sum for its use, if usable, while unlawfully detained from him by defendant, and full costs in any event. II. If the taking and detention by defendant was willful and without color of right, to this should be added any ex- pense or loss of time to which plaintiff is put to obtain his property, including a reasonable sum for necessary attor- ney's fees — making full and complete compensation. Second. I. If defendant recover a judgment for a return, his damages should be the costs, and if the property is usa- ble, its reasonable usable value from the taking under the writ to the day of trial. II. If the suing out of the writ was willful and malicious, without color of right, to this should be added any expense or loss of time to which defendant has been put in defending his possession, including a reasonable sum for necessary attor- ney's fees — making full and complete compensation. III. If the property has been increased in value simply by lapse of time, with no expenditure of skill or labor on the part of plaintiff beyond the ordinary care any prudent man 1 Whitfield V. Whitfield, 40 Miss. 352. AUTHOB's BULE — POSTULATES. 545 •would give his own property of like kind, then the increase or increase of value should go with the property to the de- fendant. IV. If the increase is directly attributable to the su- perior skill and busin&ss ability of plaintiff, and his suing out of the writ was malicious and without color of right, or his subsequent detention was malicious and for the sole purpose of annoying the defendant, or deriving a pecuniary advantage himself, then the increase or the increase of value should go with the property to the defendant. V. But where the plaintiff acted in good faith and upon a color of right, and the increase of value is due to his skill, then the defendant should receive full compensation for use ■and trouble, and then the plaintiff should be allowed a fair sum for his labor, skill, and outlay in producing the result, if there be so much left. If it has increased in value so that there is still a surplus, it should be divided, part to the defendant who made the forced loan of capital, and part to the plaintiff who furnished the skill and experience. Third. Where the property has decreased in value from any cause while in the hands of the plaintiff, if the property is returned this decrease in value should be given as damages. If not returned it should be valued as of the date of the taking. The plaintiff can derive no advantage from the de- crease in value. Fourih. I. In all cases where the property can be re- turned, the value should be placed so high as to compel a return, as the return, and not damages, is the object of re- plevin. II. If the plaintiff acted in good faith under a color of right, and the property cannot be returned through no will- ful act of his, the value should be fixed at the time and place of the taking, and interest allowed on that value. III. If the suing out of the writ was willful or malicious and without color of right, or if the property has been de- 35 546 DAMAGES. stroyed or conTerted by the -willful or negligent act of tlie plaintiff, the value may be fixed at any reasonable time after the taking, or at the natural market for such property, and should not be fixed at less than the plaintiff realized out of his ill-gotten property, and enough more to fully compensate defendant for all loss in money, time, and counsel fees. Fifth. Where the plaintiff does not get the property, or the defendant bonds and keeps it, the same rules apply with simple change of parties. BYICENOE. 6i7 OHAPTEE XXXn. EVIDENCE. Section. The nature and scope of the evidence .... Evidence must be confined to the issues .... Evidence must be confined to status at commencement of the action .... Matters of inducement are no part of the traverse . Facts admitted by the plead- ings need not b? proved . The formal negative aver- ments need not be proved Evidence of any matter nec- essary to understand the main issue should be ad- mitted Res gestae .... Res jg'esfae— Intention and declarations of third per- sons when admissible Declarations of plaintiff not admissible in his favor Res g-esiae— Declarations of party in possession . When and how far state- ments of a vendor admis- sible It must be shown that de- fendant had possession at the commencement of the action 989 Proof that property was in defendant's possession — , How made .... 990 Slight circumstances are suf- 977 978 979 980 981 982 983 984 985 987 988 Bectlon. flcient to show possession by defendant . . . 991 The identity of the property should be shown . . 992 Variance 993 Conversion must be shown . 994 In replevin, the question of value is not in issue . On the subject of value, the affidavit is competent but not conclusive The appraisement is not con- clusive of value . Value should be shown, though no question is raised thereon Though a contrary rule has been followed Value — How shown Evidence under a general de- nial Issue in replevin — Evidence under a general denial The same — Illustrations Evidence admissible under non detinet .... Evidence under plea of prop- erty in defendant Where the question is one of title, plaintiff must show both title and right to pos- session The writ of attachment un- der which an ofiicer justi- fies is proper evidence 995 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 548 EVIDENOK Section. An officer must prove his of- ficial character . Service on the attachment — Defendant must be shown to conclude him . What may be shown where defense is title under a writ — Illustrations . The same .... As to matters accruing after suit . . . . Eule of evidence where the foundation of title is an ex- ecution 1013 Where fraud is theissue, con- siderable latitude in the proof should be allowed . The burden is on the pleader of fraud to prove it . 1008 1009 1010 1011 1012 1014 1015 Section. Need not be definite as to place of detention Possession of personal prop- erty is prima facie proof of ownership Eight of possession proved by proof o£ ownership Illustrations of proper evi- dence in cases depending upon particular facts The same .... Illustrations of matter held too remote from the main issue Proper evidence in replevin of exempt property . How far title to real estate may be considered, and how shown .... 1016 1017 1018 1019 1020 1021 1022 1023 § 977. The nature and scope of the evidence admissible in replevin depends wholly upon the nature and source of plaintiffs title or right of possession and the nature of the defense made. The investigation is not closely confined to the naked question of title or right of possession, as these, especially the latter, are frequently but conclusions drawn from other facts and circumstances, which must be investi- gated and understood in order that a correct conclusion may be arrived at, and the evidence may be such as goes to establish or controvert these incidents or circumstances. The pleadings, evidence, and judgment in an action of re- plevin should be confined to the points and questions neces- sary to elucidate the right pf plaintiff to the immediate pos- session of the property in question at the commencement of the suit.' § 978. Evidence must be confined to the issues made by the pleadings. The issues made by the pleadings is a ques- tion of law to be decided by the court, and depends on the law and the practice in that jurisdiction. In replevin the evidence 1 Blue Valley Bank v. Bane, 20 Neb. 294 (30 N. W. 64). WHAT TIME EVIDENCE CONFINED TO. 549 must be confined to the issues made by the pleadings. The title of a third party not set up by them cannot be tried.' Where replevin is brought on the ground that defendant has possession without right and unlawfully detains, such allega- tions constitute the gravamen or the complaint against the de- fendant, and must be proved to enable the plaintiff to recover." Where there are several plaintiffs, the proof must show that they were all entitled to possession. Title shown to exist shortly before the suit raises a presiin p'ion of continued ownership.' In replevin it is competent to disprove plaintiff's title to the goods, and one way to do this is to show that some one else owns them. A plaintiff in replevin cannot be allowed to recover upon a ground which he has once repu- diated in the action.* Where the plaintiff claims the entire ownership of the property, a recovery cannot be had upon proof that he was the owner of three-fourths only of the article or thing replevied.' A plaintiff suing as the sole owner, in order to recover, must prove that he was the sole owner, and is entitled to the exclusive possession of the property. ° It is not error to exclude evidence of a, defense upon a ground not alleged when the demand was made.' § 979. Evidence confined to status at commencement of action. In replevin the question is the right to the pos- session of the property at the commencement of the action, and evidence as to conduct of plaintiff at a sale of the prop- erty some time after the taking is inadmissible.* The issue in replevin is upon the right of possession to the property at the commencement of the suit.° A plaintiff in replevin 1 Hartt V. McNeil, 47 Mo. 526. 2 Krug T. Herod, 69 Ind. 78 ; Baer v. Martin, 2 Ind. 229; Eidenour r, Beekman, 68 Ind. 236. ' Smith V Graves, 25 Ark. 458. * Nicholson v. Dyer, 45 Mich. 610 (8 N. W. 515). 5 Eakin v. Eakin, 63 111. 160; Reynolds r. McCormick, 62 EI. 412. « Underwood r. White, 45 111. 437. ' Town V. Taber, 34 Mich. 262. 8 Kay V. Noll, 20 Neb. 380 (30 N. W. 269). ° Loomis r. Youle, 1 Minn. 175. 5B0 EVIDENCE. must recover, if at all, upon the strength of his own claim, and a failure to prove his right to the immediate possession oi the property, where the illegal detention is denied, is a failure of proof upon a material point' In replevin the question submitted to the jury is, In whom is the title to the property? and the testimony should be confined strictly to this issue. ^ In actions of replevin, where the evidence of title is conflicting, the question must be submitted to the jury, although the weight of evidence is on one side.' § 980. Matter of inducement is no part of the traverse. The proof must be governed by the issues made, and not the reasons for making such issues. Where the defendant pleads property in himself or a third person, and traverses the plaintiff's right, the averment of property in defendant or a third person is only inducement to the traverse, and the plaintiff must take issue on the traverse, and not on the in- ducement. Under such a plea the burden of proof as to the title to the property is upon him. But where the plea is property in the defendant or in a third person, without a tra- verse of the plaintiff's right, it leaves the burden of proof upon the defendant to establish the proof of his plea.* § 981. Facts admitted by the pleadings need not be proved. The plaintiff need not prove facts alleged in the complaint which are admitted by the answer, and this applies to demand before suit.^ Where in replevin plaintiff claims under a chattel mortgage which he attaches to his pleadings, and defendant does not deny the execution of a mortgage, it is not necessary for plaintiff to prove said mortgage or the amount due thereon." 1 Bardwell v. Stubbert, 17 Neb. 486 (23 N. "W. 344). 2 Sellars r. Kelly, 45 Miss. 323. = Anchor Milling Co. v. Walsh, 24 Mo. App. 97. * Chandler v. Lincoln, 52 111. 74; Eeynolds v. McCormick, 62 HI. 412; Constantino r. Foster, 57 111. 36 ; Chandler v. Lincoln, 52 111. 74; An- derson r. Talcott, 1 Gilm. 371. = Jones V. Spears, 47 Cal. 20. « Mills V. Kansas Lumber Co., 26 Kan. 574. BES GEST^. 551 § 982. The formal negative averments need not be proved under a general denial, as it does not raise an issue on them. They must be specially pleaded as a defense if relied upon by defendant. In a suit before a justice of the peace to recover personal property, the plaintiff need not prove the averments in his affidavit that it "had not been taken by "virtue of any tax, etc.,' nor seized on execution," etc. If such is defendant's claim, it should be set up affirmatively as a defense. § 983. Evidence of any matter necessary to under- stand the main issue should be admitted. In an action of replevin for a horse, the plaintiff offered to prove that the de- fendant gave a general order to his servants, before the com- mencement of the suit, not to deliver the horse to the plaintiff. Held, that the evidence was admissible as tending to prove an unlawful detention.^ Where an agent deposited in a bank a box of specie for his principal, but took a certificate of deposit in his own name, held, that a jury were authorized to infer a conversion.' In replevin against a city treasurer for property levied upon to satisfy a tax assessed against plaintiff's husband it was proper for plaintiff, after proving its execution, to intro- duce the bill of sale by which her husband had transferred the property to her, and to show that she had insured the property and used it as her own.* § 984. Res gestae. Anything which properly belongs to or explains the transaction in question and which would be admissible under the rules of evidence in any form of action is admissible in replevin. If any difference, more latitude is allowed in a replevin action. Where one person takes and removes goods claimed by another, declarations made by the parties at the time of such taking are a part of the res gestos and admissible in evidence in replevin for the ' Carney v. Doyle, 14 Wis. 270. 2 Johnson v. Howe, 7 111. (2 Gilm.) 342. ' Kingo r. Field, 6 Ark. 43. <■ Hall V. Monarity, 57 Mich. 345 (24 N. W. 96). 552 EVIDENCE. goods.' Plaintiff claimed title to the property, based upon a present from a brother, a minor, who had been emancipated by his father. What was said at the time of the presenta- tion is a part of the res gestcs, and should be admitted, as also should evidence of the financial standing of the family at the time of. the alleged gift and emancipation.^ In a replevin action where the issue turned upon the bona fides of a sale to plaintiff from the debtor of defendants, testimony as to what was said and done by buyer and seller about the time of the alleged sale is proper.^ § 985. Res gestae — Intention and declarations of third persons, when admissible. In replevin, where a pai-ty claims by purchase from a third person, the declarations of that person while in possession are proper evidence against his vendee. Where the intention with which an act was done is immaterial, proof of the intention may be rejected, but declarations of a party at the time he does the act are part of the res gesfce and admissible.* In an action of claim and delivery of personal property, the books of ac- count of a third person, not a party to the suit, are res inter alios actce as to the defendant, and not admissible. To make the declarations of one from whom a party obtains title to property admissible in evidence against the latter they must have been made during the time the interest in the property was vested in the person making the declara- tions. ° The rule of law is that where it becomes important to inquire into the nature of an act, or the character of pos- session of property, proof of what the person said while » Resch V. Senn, 28 Wis. 286. 2 Wambold v. Vick, 50 Wis. 456 (7 N. W. 438). 3 Locke V. Hedrick, 24 Kan. 763. * Kuhns r. Gates, 92 Ind. 66. See White & Sons v. Woodruff, 25 Neb. 804 (41 N. W. 781-5). 6 Watrous v. Cunningham, 65 Cal. 410 (4 P, 408) ; Id. 71 Cal. 30 (11 P. 811). See Minthon r. Lewis, (Iowa) 43 N. W. 465. » Sumner r. Cook, 12 Kan. 162. DECLABATIONS OP PAETY IN POSSESSION. 553 performing the act, or while the possession continued, is admissible in evidence.' § 986. Declarations of plaintiff not admissible in his favor. Acts and declarations of plaintiff in replevin are not admissible- in his favor. ^ While as a general rule the .declarations of a party are not admissible in his behalf, yet, where they accompany some particular act which they serve to explain, they form an exception and are admissible.^ § 987. Res gestae — Declarations of party in possession explanatory of the possession, or explanatory of the title he is claiming, may be given in evidence by himself or those holding under him, where either of these matters is properly in issue. But they are proof only that such was the character of the possession or such was the title claimed. They are no evidence of the title actually held ; and where the issue is not what was the nature of the possession, nor what was the title claimed, but which party, plaintiff or de- fendant, was the actual owner, such declarations are in- ' Durham r. Shannon, 116 In d. 403 (19 N. E. 190). This case is where it was sought to show the admissions of a decedent in replevin againtst his administrator. As to the competency of a witness, the ac- cepted rule is not to regard the more letter of the statute, but to look to its spirit and purpose. SeeClift v. Shocby, 77Ind.297; Wiseman r. Wise- man, 73 Ind. 112; Ketcham v. Hill, 42 Ind. 64; Peacock v. Albin, 39 Ind. 25. As to when the testimony of the surviving party to the trans- action should be excluded on account of the death of the other party, see Taylor i'. Duesterberg, 109 Ind. 165; Low r. Freeman, 117 Ind. 341 (20 N. E. 242). As to certain computations made, see Wintrode r. Fluke (Kan.), 21 P. 249. As to conversations in absence of party, see Doyle V. Dobson (Mich.), 42 N. W. 137. 2 Roach V. Binder, 1 Col. 322. 3 Stone V. Bird, 16 Kan. 488; Oden v. Stnbblefleld, 4 Ala. 42; Thomp- son V. Merohenney, 17 Ala. 366; Upson r. Easford, 29 Ala. 188; Over- seers V. Overseers, 2 Caine, 106; Willis v. Farley, 3 Cor. & Payne, 395; Yarbrough r. Arnold, 20 Ark. 592; 1 Phillips on Ev. (C. H. & Edw. notes) 188 and note. See on this general subject, Frolick r. Pre.sby, 29 Ala. 462; Gillespie r. Burlison, 28 Ala. 563; Arthur v. Gayle, 38 Ala. 259; Gordon F. Clapp, 38 Ala. 357; Bragg v. Maesie, 38 Ala. 89; Bar- rett r. Donnelly, 38 Mo. 492. 554 EVIDENCE. admissible.' As a general rule it is only declarations against a party's interest that are admissible in replevin as in other ac- tions.^ Declarations by a party to the action in possession of personal property, as to her ownership thereof, accompanying some principal fact which they serve to explain and qualify, are sometimes said to be a part of the res gestce, but as the admissibility of such declarations is an exception to the general rule that the declarations of a party are not com- petent evidence in his own behalf, they should be allowed only with all the restrictions and limitations imposed upon them.' § 988. When and how far statement of a vendor ad- missible. In a case of replevin, where two parties claimed the horse in question, it was error- to permit them to intro- duce in evidence the declarations of their respective vendors 1 Stone r. O'Brien, 7 Col. 458 (4 P. 792). See "Warring v. Warren, 1 Jolins. 340 ; Swindell v. Warden, 7 Jones' Law, 575 ; Turner v. Belden, 9 Mo. 787; Holmes v. Sawtelle, 5.S Me. 179. 2 Morrill v. Titoomb, 8 Allen, 100; McGough i'. 'Wellington, 4 Allen, 502; Osgood r. Coatfls, 1 Allen, 77; Blake v. Everett, 1 Allen, 248; Smith V. Martin, 17 Conn. 399; Ware v. Brookhouse, 7 Gray, 454; Nor- ton V. Pettibone, 7 Conn. 310 ; Carrier y. Gale, 14 Gray, 504 ; Apple- gate y. McClurg's Heirs, 3 Marshall, 304; Whitfield v. Whitfield, 40 Miss. 553 ; Jackson v. Bard, 4 Johns. 230 ; Gibney v. Maroha.y, 34 N. y. 301 ; Jackson v. Miller, 6 Cow. 751 ; Peaceable v. Watson, 4 Taunt. 16; Griddle r. Criddle, 21 Mo. 522; Doe ex dew. Human v. Pettitt, 5 Barn. & Aid. 223 (7 E. C. L. 75) ; Doe ex dew. Stousburg r. Arkwright, 5 Carr & Payne, 575 (24 E. C. L. 462); Newell v. Horn, 47 N. H. 381; Ellis V. Howard, 17 Vt. 330; Smith v. Powers, 15 N. H. 547; Sh(>pl'i-rd V. Thompson, 4 N. H. 213; Pitts r. Wilder, 1 N. Y. 525; Austin v. Thompson, 45 N. H. 118; Wendell v. Abbott, 45 N. H. 353; Watson v. Bissell, 27 Mo. 220; Kyle's Admr. v. Kyle, 15. Ohio St. 15; Shackleford V. Smith, 5 Dana, 240; Haysett v. Ellis, 17 Mich. 371 ; Murray v. Cone, 26 Iowa, 276; McPeake v. Hutchinson, 5 S. & R. (Pa.) 205; Weidman V. Kohr, 4 S. & E. 174; Chase v. Ewing, 51 Barb. 597; Vrooman v. King, 36 N. Y. 477; Jackson v. McCall, 10 Johns. 377; Jackson f. Vredenburgh, 1 John. 159; Abeel v. Van Gelder, 36 N. Y. 513; White- ford V. Burckmeyer, 1 Gill. 127; Devries r. Phillips, 63 N. G. 207; Hed- rick V. Gobble, 63 N. C. 48 ; Brubaker v. Poage, 1 Monroe, 125 ; Regina r. Birmingham, 101 E. C. L. 767-9; Berkeley Peerage Case, 4 Camp. 415 ; Baker v. Kelly, 41 Miss. 696. » Reiley v. Haynes, 38 Kan. 259 (16 P. 440). PEOOF OF POSSESSION BY DEFENDANT, HOW MADE. 555 made to third persons, and in the absence of the other, but the declarations of the respective vendors made before either had parted with his alleged title, and when both were pres- ent, would be competent to be shown by either party.' The statements of a vendor after sale cannot be heard to impeach the title of his vendee. A narration of past events forming no part of the transaction under inquiry is not a part of the res gestce, and not admissible on the question of title. ^ § 989. It must be shown that defendant had possession at the commencement of the action. The return of the officer showing that he took the property from defendant is sufficient proof of this, and should be offered in evidence if no other proof of that fact is introduced. In replevin the plaintiff is not entitled to recover against the defendant unless it is shown or admitted that defendant had possession at the commencement of the suit.' In order to maintain re- plevin in the detinet the plaintiff must be prepared to show that the defendant had the possession, either actual or con- structive, at the time of the institution of the suit.* No evidence will be admitted to contradict the sheriff's return of elongatur after judgment de retorno habendo in replevin.^ § 990. Proof that property was in defendant's posses- sion, how made. If plaintiff in replevin desire to prove that the property was in defendant's possession, he should intro- duce the writ and return. ° It is proper to admit in evidence the pleadings, writ, and return to show what has become of the property.' A redelivery bond executed by defendant does not prove that the property is in his possession, but the writ and return of the officer is proof that the property was taken from defendant's possession.' Where a defendant ' GuUett r. Otey, 19 Bradw. (111.) 182. 2 Eagle V. Rohrheimer, 21 E. D. Smith (111.), 518. 5 Street v. McClerkin, 77 Ala. 580. * Beebe v. De Baum, 8 Ark. 510. 6 Phillips V. Hide, 1 Ball. 439. « Jetton V. Smead, 29 Ark. 372. ' Bennett v. Schuster, 24 Minn. 383. « Jetton V. Smead, 29 Ark. 372. 556 ETIDENOE. denies that he detained the property, an undertaking given by him to the sheriff for a return of the property is admissi- ble as evidence to go before the jury in disproof of his de- nial.^ Where the defendant in his answer denies the claim made by plaintiff and prays a delivery of the property ta himself, it is not necessary for the plaintiff to prove that de- fendant had possession of the property at the commence- ment of th.e suit.^ § 991. Slight circumstances are sufl5cient to show pos- session by defendant in the absence of a direct issue on this point. Thus, that defendant took the goods as marshal is sufficient proof of the caption under the issue of no7i cepiV Proof of detention of property under that issue may be made by any circumstances which go to satisfy a jury that a de- mand would be unavailing.* Evidence that the defendant obtained possession of the goods from any person not au- thorized to sell is sufficient evidence of the unlawful taking.^ § 992. The identity of the property should be shown BO that there can be no question on this point. It is more- necessary to do this if it be property difficult to describe. It should be identified with the property of the plaintiff if it be of such a character that a more particular description cannot be given. ° In replevin for a yoke of oxen, the iden- tity of the oxen is peculiarly for the jury to determine.' The identity of the property is usually proved by the plain- tiff swearing that the property taken is the property claimed,^ and in the absence of a contest on this point this is suffi- cient. § 993. Variance. A declaration in replevin alleging an unlawful caption of a chattel is not supported by proof o£ J Black F. Foster, 7 Abb. Pr. (N. Y.) 406. 2 Flynn v. Jordan, 17 Neb. 518 (23 N. W. 519). ^ DeWolf V. Harris, 4 Mass. 515. *Cranz v. Kroger, 22 111. 74. ^ Gray v. Nations, 1 Ark. 557. " Stanohfleld v. Palmer, 4 Green (Iowa), 23. ' Vennura v. Thompson, 38 111. 143. CONTEESION MUST BE SHOWN. 557 an unlawful detention.' Where the plaintiff in repleTin de- scribes the property in suit as two bay horses, and the proof shows that one of them was a sorrel, the variance is fatal.' "Where property replevied is described differently from that identified by the proof, the jury may properly considier whether or not the description is a mistake, and the prop- erty, as a matter of fact, is that of the plaintiff.* A judg- ment in replevin for a quantity of stacked wheat, upon which plaintiff had a lien under a chattel mortgage, was reversed because the description of the land on which it grew, as given in the writ of replevin, differed from the de- scription in the chattel mortgage as given in the record, which contained nothing showing that it was incorrect* § 994. Conversion must be shown, or something equiva- lent to it, as refusal to deliver after a proper demand. In replevin, either in cepit or detinet, the issue is the wrongful detention. If there is no proof of this, or something equiva- lent to it, as demand and refusal, plaintiff's case fails. And where a fact alleged by one party is denied by the other, there is no admission in the pleadings of this fact that can be looked to to help out the proof. ^ • To sustain the'action of replevin for wrongfully taking and detaining a personal chattel, it is necessary to show that the defendant wrong- fully took it from the actual or constructive possession of the plaintiff. This is elementary law.* Plaintiff in replevin cannot recover unless he shows conversion or a refusal to deliver. Proof of ownership alone is not sufficient.' To ' Lothrop F. Locke, 59 N. H. 532. 2 Taylor v. Riddle, 35 111. 567. ' Stevens v. Williains, 46 Iowa, 540. In this case, the piano was de- scribed by plaintiff as No. 4718. The proof was that the piano was No. 4918, but there was no doubt but the piano replevied was the one which defendant had detained, NoUkamper v. Wyatt, (Neb.) 43 N. W. 357; King V. Conneoy, (Ark.) 12 S. W. 203. * Conian v. Thompson, 43 Mieh. 389 (5 N. "W. 452). « Paul V. Luttrell, 1 Col. 317. « Simmons r. Jenkins, 76 111. 482; Louthain v. Fitzer, 79 Ind. 449; Krug V. Herod, 69 Ind. 78; Latimer v. Wheeler, 3 Abb. Pr. 35. 'Sager r. Blain, 44 N. Y. 445; Packard v. Getman, 4 Wend. 613; 558 EVIDENCE. sustain the action of replevin for wrongfully taking and de- taining a personal chattel, it is necessary to show that the defendant wrongfully took it from the actual or constructive possession of the plaintiff. This is elementary law.' It is necessary for the plaintiff to prove either an imlawful taking or an unlawful detainer.^ § 995. In replevin, the question of value is not in issue only as it comes in incidentally to the main issues, which are the title and right of possession.^ And the rulings as to the admissibility of evidence of value is governed by the particular facts of each case, and the trial judge should ex- ercise care. § 996. On the subject of value the affidavit in replevin is competent but not conclusive evidence against the plain- tiff.* Where the property will diminish in value by lapse of time, the plaintiff ought to be willing to be bound by the value stated by him at the time he took it.° In some states the plaintiff is concluded from showing a different value than that fixed by him in his affidavit, but of course such valua- tion does not affect the defendant's rights in any way.° The appraisement made at the time of levying a distress is prima facie evidence of the value of the goods distrained.' § 997. The appraisement is not conclusive of value. It was made for a specific purpose — as a guide to gauge the amount of the bond — and having served that purpose, like the affidavit, is of no further use in the case, and the value thus fixed is not binding on either party, but a different ' Simmons v. Jenkins, 76 111. 479. 2 Baer r. Martin, 2 Ind. 229; Cummings v. McGill, 2 Tayl. (N.C.) 98. » Thomas v. Spofford, 46 Me. 408. * Lamy v. Remuson, 2 N. M. 245. 5 Howe, V. Handley, 28 Me. 251 ; Swift f. Barnes, 16 Pick. 194; Parker F. Simonds, 8 Met. 205. ^ Gray v. Jones, 1 Head. 544; Tuck r. Moses, 58 Me. 477; Swift r. Barnes, 16 Pick. 196;' Huggeford v. Ford, 11 Pick. 225; Middleton v. Bryan, 3 Maul. & S. 155 ; Parker v. Simonds, 8 Met. 205 ; Clap v. Guild, 8 Mass. 153; Washington Ice Co. v. Webster, 62 Me. 341. 'Semmes v. Spregg, 4 Cranch (C. Ct.), 292. VALUE — HOW SHOWN. 559 value may be shown by either. ' The appraisal in a re- plevin suit is prima facie evidence of the value of the prop- erty, but to have that effect it must be offered in evidence.' § 998. Value may be shown, though no question is raised thereon. The plaintiff in replevin may show the value of the property, though no issue is raised on that point by the pleadings.' Failure of the answer to deny the value alleged in the petition- is not an admission of that value, but leaves it an open question, to be determined from the evidence,* and the plaintiff should always give some evi- dence of the value on the trial. § 999. Though a contrary rule has been followed, evi- dence should not be admitted in replevin as to the value o£ the property if the answer does not deny the allegation of the complaint thereon.' The affidavit for sequestration stated the value of the property, as also did the defendant's bond for replevying it, but it was held, in the absence of an al- legation of the value in the plaintiff's petition for the re- covery of the property, it was error to admit evidence of value against objection of defendant." The better and safer rule is to prove the value on the trial, whether denied or not. § 1000. Value — How shown. In an action to recover canal boats, evidence of their value a year previous to con- version is admissible when supplemented by evidence that they were in the same condition when converted.' What a person paid for horses fifteen months before the trial is no evidence of their value on day of trial.' Evidence showing the value of a cow one year before an action is brought is ' Kofer V. Harlow, 5 Allen, 348; Leighton v. Brown, 98 Mass. 515; Wright r. Quirk, 105 Mass. 48. 2 Williams v. Bresnahan, 66 Mich. 684 (33 N. W. 739). 2 Jenkins v. Stanka, 19 Wis. 126. * Chicago, &c., v. Northwestern, &c., 38 Iowa, 377. 6 Tully V. Harloe, 35 Gal. 302. 8 Gillies r. Wofford, 26 Texas, 76. ' Brewster v. Silliman, 38 N. Y. 423. ' Ascher r. Schaeper, 25 Mo. App. 1. . See Minthon v. Lewis, (la.) 43 N.W. 465. 560 ETIDENdE. admissible, and evidence tending to show tlie interest and credibility of a party to the suit is admissible.' In order to recover a judgment for the value of the propeity detained, the plaintiff need not show the value of each article, but it is enough to show the total value." In replevin against a constable for goods, the defendant may show their market value by testimony that he had sold them publicly after full notice to those who would be likely to become bidders, and that they brought only certain sums.' Where the affidavit, writ, and declaration in replevin before a justice of the peace set forth the value of the property at less than $100, and the proof shows it to be more, this does not oust the justice of jurisdiction.* § 1001. Evidence under a general denial. A general denial in replevin throws upon plaintiff the burden of prov- ing his title and right of possession and detention by defend- ant. ° A general denial by defendant, even if followed by a claim of title in defendant, will not relieve plaintiff from showing that he was entitled to possession of the property, and that defendant had the possession, in fact, at the com- mencement of the suit." In an action for the recovery of spe- cific personal property, it is necessary for the plaintiff to show that he is entitled to the immediate possession.' In an action of replevin, any fact which tends directly to disprove right ■of possession in the plaintiff may be shown' under a general denial. Fraud in the acquisition of plaintiff's title may be proved by the defendant under a general denial.' In an ac- tion of replevin, the burden of proof is upon the plaintiff to ' Denton v. Smith, 61 Mich. 431 (28 N. W. 160) ; Minthon v. Lewis, (la.) 43 N. W. 465. 2 Goldsmith v. Wilson, 67 Iowa, 662 (25 N. W. 870). ' Jennings v. Prentice, 39 Mich. 421. * Henderson v. Desborough, 28 Mich. 170. ' Wilson V. Fuller, 9 Kan. 176. 6 Wheeler & W. Mfg. Co. v. Teetzlaff, 53 Wis. 211 (10 N. W. 155). ' Hilger v. Edwards, 5 Nev. 85. ' Stern, A. & C. Co. r. Mason, 16 Mo. App. 473 ; Young r. Glasscock, 70 Mo. 575 ; Shulenburg v. Harriman, 2 Wall. 58 ; Caldwell v. Bruggeman, 4 Wis. 276. EVIDENCE UNDER GENERAL DENIAL. 561 sliow title in himself. He cannot recover because of any weakness or defect in the title of defendant.^ On the trial of the issue of property or not in the plaintiff, it is not necessary for him to prove that the defendant took the property out of his possession.^ In Michigan a declaration is supported as well by proof of an unlawful taking as an unlawful detention.^ Where replevin is in the cepit, it is proper to prove damages from the taking.* Where there is an avowry for rent, the time at which the rent was pay- able a}id the amount must be proved as laid.' § 1002. Issue in replevin evidence under general de- nial. In an action of replevin, the defendant, under a "gen- eral denial," will be entitled to prove that he does not wrong- fully detain the property by proving that his detention was rightful. ° In replevin, under a general denial, the plaintiff is bound to prove his title and right of possession to the property.' Where the plaintiff claimed possession and own- ership, and defendant denied generally, defendant was al- lowed to show right of possession by virtue of a lien with- out specially pleading the same.^ The question in replevin is whether the property in controversy belongs to the plain- tiffs, and hence, in an action of replevin for grain in ware- houses, levied^ upon as the property of defendants, there is no objection to the defendants being permitted to prove that there was grain in both warehouses belonging to other parties." In Indiana the defendant may prove property in ' Hamilton v. The Iowa Bank, 40 Iowa, 307; Sensenbrenner v. Mat- thews, 48 Wis. 250 (3 N. W. 599). 2 Kerley v. Hume, 3 T. B. Mon. (Ky.) 181. ^ Tnido V. Anderson, 10 Mich. 357. *Town V. Wilson, 8 Ark. 404. 5 Waltman v. Alison, 10 Pa. St. 464. » Yandle v. Crane, 13 Kan. 344. See on this subject also Town of I.eroy v. McConnell, 8 Kan. 273; Wilson v. Fuller, 9 Kan. 177-190. ' Eavanagh v. Phelps, 36 Conn. 111. 8 Lindsey v. Wy att, 1 Idaho, 738. « Nelson r. Mclntyre; 1 Bradw. (111.) 603. 36 562 EVIDENCE. himself or a stranger without pleading it.' Under the ,gen- eral issue the defendant may prove that the plaintiff is not entitled to the property, or that the title under which plain- tiff claims is void.^ In replevin for carrying away grajn, defendant may show that the title is in himself.' The plain- tiff in replevin cannot recover unless he shows title in him ■ self, and the defendant may defeat the action by showing title in a third person without connecting himself with that person.* On the issue of "no rent in arrears," the title of the plaintiff does not come in question. ° § 1003. The same — Illustrations. Under a general al- legation in the complaint, in an action of replevin, of own- ership in the plaintiff, and a denial thereof in the answer, accompanied with an allegation of ownership in a third party, and a seizure of the property by the defendant (an officer), on execution against such third party, the defend- ant may introduce testimony to show that a voluntary trans- fer by the execution debtor to the plaintiff was fraudulent and void as to creditors, and the plaintiff may show in re- buttal that the property was exempt from execution at the time of such transfer. ° Where replevin is brought for an egg wagon, plaintiff claims that he ordered it made, and that defendant sued him in another action and recovered judgment for its price, which has been paid, and the de- fense is that it was tendered and refused as not properly made, and general denial. It is proper to admit all the facts in evidence which throw light upon the transaction ol: ■ Lewis V. Masters, 6 Blackf. (Ind.) 243. See Kennett v. Fickel (Kan.), 21 P. 93. ' Gibson v. Mozier, 9 Mo. 256. s Elliott r. Powell, 30 Watts (Pa.), 453. * Brown v. Chicopee, &c., 16 Conn. 87; Lester v. McDowell, 18 Pa. St. 91; Eedman v. Hendrickson, 1 Sandf. (N. T.) 32; Howland v. Fuller, S Minn. 50; Simcobo v. Frederick, 1 Inl. 54; Tomlinson r. Collins, 2i* Conn. 364; Eobinson r, Calloway, 4 Ark. 94. ^ Williams v, Sinith, 10 Serg. & R. (Pa.) 203. » Furman v. Tenny, 2ft Minn. 77 (9 N. W. 172). UNDER PLEA OF PEOPEBTY IN DEPENDANT. 563 the order, tender, and first suit.' A defendant filing a cog- nizance and justifying the taking charged is bound to prove the matter of justification as alleged.^ The statutes and rules of courts differ some as to what issues are raised by a general denial, and of course they would differ as to what proof was admissible ander the general denial ; but the gen- eral rule is that by a general denial the burden is thrown upon plaintiff, and he must prove all the averments of his affidavit which are necessary to show that he had a better right to possession than some one else, but not the aver- ments necessary to show that the property was repleviable, as that it was not taken for a tax, fine, etc. No issue is made on these points by a general denial. § 1004. Evidence admissible under non-detinet. In replevin, under the plea of non-detinet, the defendant may show that he held the goods by virtue of certain executions, without special plea.' In replevin in the detinet, the proof of refusal need not be as strong as in trover,* but about the same proof is required on other points as in trover.^ § 1005. Evidence under plea of property in defend- ant. In replevin, where the defendant pleads property in himself, the burden of proof is upon the plaintiff to show title to the property or his right to possession, and defend- ant has a right, under such plea, to show by what means he came into possession of the property, and his title thereto.' Under a claim of title in defendant, the onus is on plaintiff to establish his title and right to possession of the property.' A plea of property in defendant or in a stranger casts the burden upon the plaintiff of proving, by a preponderance of ' Lyman v. Becannon, 29 Mich. 466. 2 Hobbs Y. Meyers, 1 B. Mon. (Ky.) 241. » Oaks V. Wyatt, 10 Ohio, 344. * Holbrook v. Wight, 24 Wend. (N. T.) 169. 5 Ingalls T. Bulkley, 13 I1I..315. See Pringle v. Phillips, 5 Sandf. (N. Y.) 157. 8 McFarlan v. McCIellan, 3 Bradw. (111.) 295. ' Morgner v, Beggs, 46 Mo. 65. 564 EVIDENCE. evidence, property in himself.' Evidence of a foj< jible taking may be given, though the issue be on a plea of property.'' Upon a plea of property in the defendant, the burden of proof is thrown upon the plaintiff.' If defendant in replevin plead property in himself, the burden of proof is upon plain- tiff to show a right of action in himself.* Where the de- fendant pleads non-cepit, the plaintiff is bound to prove the wrongful taking.^ Where non-cepit is pleaded, with a brief statement alleging the property in the articles replevied to be in the defendant, the plaintiff, after proving the taking, is not bound to prove property in himself, but it is incum- bent on the defendant to show that he is the owner thereof." § 1006. Where the question is one of title, plaintiff must show both title and right to possession. In order to maintain his action, the plaintiff in replevin, where the issue raises the question of title, must show both property in the goods taken and the right of immediate and exclusive possession. If he fail to establish the right of possession, he fails to establish his title as against the defendant as much as if he failed to prove his general or special owner- ship, and, from the nature of the case, the verdict in his favor must leave the ownership unsettled. A return of the property as a general rule follows of course. If the de- fendant be not the true owner, he may still be accountable over for it to such owner. And the burden is on the plain- tiff to show sufficient reason for refusing the order for a re- turn. This he may do by showing that the title of the de- fendant or his right of possession has terminated since the J Martin v. Wirts, 11 Bradw. (111.) 567. 2 Moore v. Shenk, 3 Pa. St. IH. " Harwood v. Smpthurst, 29 N. J. L. (5 Dutch.) 195; Hunt r. Cham- bers, 21 N. J. L. (1 Zab.) 620; Turner v. Cool, 23 Ind. 56; Anderson r. Taleott, 6 111. (1 Gilm.) ;i05; Pennington v. Chandler, 5 Harr. (Del.) 3!H; Williamson v. Kinggold, 4 Craneh, C.Ct. 39. * Hill V. Fellows, 25 Ark. 11. ^ Town V. Evans, 6 Ark. 260. " Green v. Dingley, 24 Me. 131 ; Sawyer v. Huff, 25 Me. 464. WHERE THE QUESTION IS ONE OE TITLE. 565 commencement of the suit, or that the property has in fact gone to the possession of the true owner.' On a plea which puts plaintiff to proof of property in himself, any evidence which tends to show the plaintiff is not the owner is legiti- mate, and it is error to reject it upon the trial of the issue so made. Where plaintiff's claim of ownership is traversed, he must make title against the world.^ In the action of re- plevin, where tl e plaintiff's pleading is a general averment of ownership, any proof on the part of the defendant which goes to show that the plaintiff, at the time of the institution of the suit, was not the actual owner, and was not entitled to the possession thereof, is admissible under the general issue, even though it extend to proof of fraud in the ac- quisition of plaintiff's title, or that the ownership and right of -possession were in a third person.' Where, in an action of replevin, the complaint alleges property and right of pos- session in the plaintiffs, and the answer traverses directly these allegations, und,er the issue thus formed any evidence is admissible on the part of the defendant which goes to .show that the plaintiffs have neither property nor rijht of possession. Evidence of title in a stranger is admissible.* Where the issues raise the question of title, it devolves upon plaintiff to prove property in the goods at the time of their caption, and the right to immediate and exclusive possession. If this is not done, and the evidence shows that they have been taken from defendant by plaintiff, there ' Barry F. O'Brien, 103 Mass. 520; Dawson r. "Wetherbee, 2 Allen, 461; Johnson r. Xeale, 6 Allen, 227; Collins f. Evans, 15 Pick. 63; Simpson v. McFarland, 18 Pick. 427. 2 Prosser F. Woodward, 21 Wend. 205; Johnson f. Neale, 6 Allen, 229; Seibert v. McHenry, 6 Watt. 303; Cullom f. Beavin, 6 Harr. & J. 469 ; Constantine v. Poster, 57 111. 36; Anderson v. Talcott, 1 Gilm. 371; Gotloff F. Henry, 14 111. 384; Hunt v. Chambers, 1 Zub. 627; Bogers v. Arnold, 12 Wend. 30; Noble v. Epperly, 6 Ind. 414. ^ Young F. Glasscock, 79 Mo. 574; Schulenberg v. Hari-iinan,21 Wall. 45; Mather v. Hutchinson, 25 Wis. 27-36; Caldwell v. Bruggerman, 4 Minn. 270; Wheeler v. Billings, 38 N. Y. 264; Bosse v. Thomas, 3 Mo. App. 472; Pomtiroy's Rem. & Rem. Rights, § 671. * Schulenberg v. Harriman, 21 Wallace (U. S. S. C), 44. 566 EVIDENCE. ahould be a judgment for their return, though the pleading may not set up title in defendant or claim a return.' § 1007. The writ of aLtachmeut under which an offi cer justifies is proper evidence for him to show his au- thority, and makes a prima facie case in his favor. Thf* defense of justification must always be established by thf pleader affirmatively,^ unless it is alleged merely as an in- - ducement to the denial of plaintiff's claim. Where a de- fendant in replevin justifies as an officer under a writ of attachment, if the writ is fair on its face and issued in an action where it is allowed by law, the wi'it should be ad- mitted in evidence as a prima facie justification.^ Where the sheriff, defendant in replevin, justifies under a writ of , attachment against the plaintiff in replevin, the proceedings in the attachment proceedings are competent evidence for the sheriff.* Where an officer defends under a writ, it is incumbent upon him to introduce oi^ prove the writ, to show his right to possession and the value thereof.^ Parol evi- dence of an attachment without the writ or record is in- sufficient to establish that the property was in the custody of the law and not subject to replevin." In replevin against a sheriff who justifies under a writ of attachment, he should be allowed to introduce his writ of attachment and the affi- davit in the attachment proceeding irrespective of any ques- tion as to the validity of the sale upon which title is based, and such showing makes a primu facie case of justification, even though the affidavit was originally insufficient, and was amended after the seizure.' ' Bosse V. Thomas, 3 Mo. App. 472; Gray r. Parker, 38 Mo. 160; Connor v. Corostock, 17 Ind. 90. 2 Hobbs V. Meyers, 1 B. M. 242. ' Brichraan v. Eoss, 67 Cal. 601 (8 P. 316). See Willis r. Beinhardt, (Ark.) 12S. W. 241. * McBrayerF.Dillard,49Ala.l74. SeeSmith y. Jensen, (Col.) 22 P. 434. > Williams v. Eikenberry, 22 Neb. 211 (34 N. W.. 373). « Van Baalen v. Dean, 27 Mich. 104. ' Babe v. Coyne, 53 Cal. 261. WHEBE DEFENSE IS TITLE UNDER A WEIT. 567 § 1008. An ofiBcer must prove his official character. Where an officer justifies the taking of property by virtue of an execution, he must prove himself an officer do jure} To sustain a judgment in replevin in favor of an officer who claims the right of possession by virtue of a seizure in an attachment action, the proof should show his official charac- ter and the proceedings and process under which he acted and claims possession.^ This he can do by swearing that he was an officer at the time he acted as such, which is suf- ficient in the absence of proof to the contrary. § 1009. Service on the attachment defendant must be shown to conclude him or those holding under him. Where M. replevies property of E., who justifies his possession by pleading that he holds, it as sheriff, under an attachment and judgment, the record of such judgment should be re- jected as evidence for the defendant below, it failing to show that the defendant in attachment was properly served with process.' In replevin against an officer who has at- tached the property on a writ against a stranger, proof that plaintiff was in possession, claiming the property as his own, at the time of the seizure, is sufficient to maintain the action in the absence of any evidence that the stranger (at- tachment defendant) had any interest in the property.* But where an officer attaches property in the hands of a stranger to his writ who claims title, in replevin by the stranger the officer must go further and prove not only his writ, but the indebtedness and the regularity of all the proceedings.'^ § 1010. What may be shown where defense is title 'Gilligan v. Stevens, 4 Bradw. (111.) 401; Outhouse v. Allen, 72 III. 529; Schlencker v. Risley, 3 Scam. 484. That he was an acting consta- ble is insufficient. Vaughen v. Owens, 21 111. App. 249. 2 Graham v. Shaw, 38 Kan. 734 (17 P. 332) ; Am v. Parker, 39 Kan. 338 (18 P. 201). ^ Repine v. MoPherson, 2 Kan. 340. ^ Wambold v. Vick, 50 Wis. 456 (7 N. W. 438). 5 Williams r. Eikenberry, 25 Neb. 721 (41 N. W. 770) ; Oberfelder v. Kavanaugh, 21 Neb. 483; Thornburg v. Hand, 7 Cal. 554. 568 EVIDENCE. under a writ — Illustrations. "Where a defendant justifies under a writ of attachment against the mortgagor's prop- erty, he must not merely prove his writ, but show that the attachment plaintiff was in fact a creditor of the mortgagor. The question whether the mortgage is fraudulent and void as to creditors is immaterial until defendant has shown that he represents creditors.' Where a purchaser at a constable's sale has to bring replevin to get possession of his purchase, he must show the judgment and execution on which they were sold, and that he bought them, but he need not show the regularity of the levy of the execution, as that cannot be inquired into collaterally.^ In replevin by a mortgagee against an attachment creditor, in the absence of fraud or collusion the issues naturally raised in the attachment suit cannot be retried in the replevin suit, and the return of the officer to the attachment writ is conclusive as to what he did under it.^ An attachment was levied upon chattels sold by an insolvent debtor, and the purchaser brought replevin therefore against the sheriff. Held, that the judgment in the attachment suit was admissible in the suit in replevin to show the extent of defendant's lien in order that his special interest might be assessed if he recovered judg- ment.* An assignee of goods, bringing replevin against a constable who had levied on them under an execution jagainst the assignor, may be cross-examined as to whether or not he was wholly irresponsible, the purpose being to show that the assignment was a fraud upon creditors. But the question as to whether or not the constable who levied the attach- ment was indemnified or not is irrelevant.* § 1011. The same. In an action of replevin against a 'Jamps F. Van Duyn, 45 Wis. 512; Bogart v. Phelps, 14 Id. 88; Remington r. Bailey, 13 Id. 332. 2 Boyoe r. Cannon, 5 Houst. (Del.) 409. s Wallen v. Rossman, 45 Mich. 333 (7 N. W. 901). *T!ei-ger v. Clippert, 53 Mich. 468 (19 N. W. 149). 'Jennings v. Prentice, 39 Mich. 421; Angell v. Rosenbury, 12 Mich. 241; Smith v. Mitchell, Id. 180. AS TO MATTEES OCCUREING AFTEK SUIT. 56& sheriff to recover possession of certain lumber held by bim by virtue of an attachment against a third person, where the plaintiff claims title by purchase from the attachment debtor, and it appears that the purchase was by written contract, and the question in dispate is whether the sale had been completed before the levy of the attachment, the provisions of this contract become important, and evidence of the con- tract should be admitted/ Where an attachment debtor had, to get an attached tug released, turned out other prop- erty which was finally sold, and the debtor brought replevin against the purchasers of this property, held, proper to show all the facts in regard to the change of property levied on upon a plea by defendants that plaintiff was estopped to claim the property in replevin.^ To question the validity of an assignment under which plaintiff was in possession defendant must show that he represented a creditor of plain- tiff and acted by virtue of legal process; otherwise, he is a mere trespasser.' In contest between one claiming as owner, and an officer holding on execution against a third person, the validity of a chattel mortgage on the property is not in issue, and evidence in regard to it is inadmissible.* § 1012. As to matters occurring after suit. In replevin against a constable who holds the goods in controversy, as the property of a third person under a writ of attachment, evidence is not admissible on behalf of the plaintiff to show that the attachment was dissolved after the replevin was brought.^ If a change of ownership, or a change in the legal right of possession, took place after suit brought, and before trial, such fact may materially affect the verdict and judg- ment. But it should be properly presented at the trial, and where there is neither averment in the pleadings nor evidence tending to show any such change, the ^presumption 1 Hatch V. Fowler, 28 Mich. 205. 2 Payment v. Church, 38 Mich. 776. ^McCout V. Bond, 64 Wis. 596 (25 N. W. 532). * Smith V. Mohler, 24 III. App. 407. 5 McCraw v. Welch. 2 Col. 284. 570 EVIDENCE. is that the title or right to possession has undergone no alter- ation since the suit was commenced.' The question being Av-hether the plaintiff's title was real or only colorable, evi- dence is admissible that the plaintiff paid for the goods, although the payment was after action brought. Or the plaintiff may show that he assumed liabilities of such a char- acter as might be naturally expected of a bona fide holder.^ § 1013. Rule of evidence where the foundation of title is an execution. To protect a constable holding under exe- cution, he must show a valid judgment. The rule that an officer is protected by his process, if it is fair on its face, merely protects him when proceeded against as a wrong- doer, but confers upon him no right of property.' In re- plevin against a constable claiming under a levy of execu- tion, the defendant can recover the amount of his lien only on proof of a valid judgment and execution. Proof of an execution alone, even though valid on its face, is not enough.* A plaintiff in replevin who claims by reason of a purchase at an execution sale must prove the execution and judgment leading up to that sale.^ Where goods taken upon execu- tion are replevied by a person claiming to be the owner thereof, the plaintiff in the replevin suit has a right to go to the jury upon the question as to the actual possession of the goods at the time of the levy.' The former owner of the goods replevied cannot prove that he had sold them to the plaintiff, and that they had subsequently been sold under execution upon judgment of a third person, and purchased by defendant.' A party in replevin justifying under execu- 1 Hammond v. Solliday, 8 Col. 610 (9 P. 781); Leonard v. Whitney, TOO Mass. 265 ; Cole, Admr. v.Conoly, 16 Ala.271, andcaeescited. See Ator V. Rix, 21 111. App. 309. 2 Hoamer v. Moseley, 11 Cush. (Mass.) 211. 2 Beach v. Botsford, 1 Dougl. (Miph.) 199. * Andrews v. Smith, 41 Mich. 68.3. 5 Sandford v. Hess, 2 Head. (Tenn.) 680. « Merritt v. Lyon, 3 Barb. (-N. Y.) 110. ' Green v. Thomas, 7 Harr. & J. (Md.) 458. WHEEE FEAUD IS THE ISSUE. 571 tion process must show tlie judgment, execution, and levy.' A sheriff who claims a return o£ the goods and defends under a ciyil process must show a good title in omnihus, and must show a foundation for the writ.^ The plaintiff, in proving property, may use an execution in which he is defendant, and under which the property was delivered to him on a forthcoming bond, without producing thp judg- ment.' "Where the sheriff had levied upon certain pergonal property as the property of the one in whose possession it was found, and the plaintiff in replevin sought to recover on the strength of a purchase before' the levy, the burden is on him to prove such purchase and notice of his claim to the sheriff or judgment creditor.' "Where the plaintiff in replevin claims under a purchase made prior to the levy of execution by an officer, the officer may show that such purchase was fraudulent. '' The rule is that where a seizure or sale under an execution is relied upon as a source of title, the party basing his title thereon must show a valid judg- ment and I'egular proceedings, as well as an execution. § 1014. Where fraud is the issue, considerable lati- tude in the proof should be allowed, and any matter which will throw light upon the bona fides of the transaction upon which either party bases his title should be examined into, that the court and jury may act under standingly.^ The ques- tion of fraudulent transfer of personal property is one of fact for the jury. A witness in replevin may properly testify that a pgxticular person was "in possession" of the property at a certain time, and it is for the adverse party by cross-exam- ination to find out what facts he based his testimony on.' 1 Truitt V. Bevitt, 4 Harr. (Del.) 71. 2 Brown r. Bissett, 21 N. J. L. (1 Zab.) 46. 3 Lynch v. Welsh, .3 Pa. St. 294. * West V. St. John, 63 Iowa, 287 (19 N. W. 238). 5 Stephens r. Frazier, 2 B. Men. (Ky.) 250. ' Blake v. Groves, 18 Iowa, 314; Cannon r. White, 16 La. Ann. 88; McNorton v. Akers, 24 Iowa, 369. ' Trowbridge r. Sickler, 54 Wis. 306 (11 N. "W. 581>- 572 EVIDENCE. Evidence tending to show the performance in good faith o' the contract of the conveyance under which plaintiff in re- plevin claims, by the grantee, is admissible to show the bona fide character of the conveyance when called in ques- tion by the defendant.' In replevin of gopds on the ground that they were obtained by the defendant from the plaintifc by fraud, evidence of other similar frauds practised by thfo defendant upon third persons, about the same time, is com- petent evidence.^ In an action to recover personal property, where the defense was that plaintiff's title was fraudulent, before the burden of proof was cast upon defendant it ig necessary for plaintiff to show title in himself.^ In an ac- tion of replevin against the assignee of an insolvent debtor, to recover property claimed to have been obtained by the debtor through a fraudulent purchase procured by false representations as to his financial condition, evidence is ad- missible of other similar purchases made about the same^ time.* Where the defendant in replevin, an officer, answers property in D., the execution defendant, levy, etc., evidence to prove a sham sale from D. to plaintiff in replevin, held, admissible. Defendants are not bound to disclose by special plea the ground of their attack.' Where a plaintiff, in a re- plevin suit for goods attached on a debt of her vendor, as- signed as error the exclusion of testimony offered to show loss of profits by reason of such attachment, but the jury found the sale under which she claimed fraudulent: Held, that the proposed testimony only affected the extent of her recovery, and the jury having found that she had no cause ' Wilson V. Hillhouse, 14 Iowa, 199. 2 Wiggm V. Day, 9 Gray (Mass.), 97. 2 Hardy v. Moore, 62 Iowa, 65 (17 N. W. 200). " Bradley v. Fuller, 58 Vt. 315 (2 A. 162). See Best Ev. 487, note 1; 1 (ireenl. Ev., § 53; Pierce v. Hoffman, 24 Vt. 525; Eastman v. Premo, 49 Vt. 355. s Seeman v. AUard, 15 Bradw. (111.) 568; Sti-obm v. Hayes, 70 HI. 41. NEED NOT BE DEFINITE AS TO PLACE OF DETENTION. 573 of action, its exclusion even if erroneous was error without prejudice.' § 1015. The burden is on the pleader of fraud to prove it. The law will not presume fraud where plaintiff traded propez'ty for a mortgage and some money, and tenders back the money and mortgage, and brings replevin for his prop- erty; the burden is (m him to prove the fraud upon which he relies to avoid the sale.^ § 1016. Need not be definite as to place of detention. It is not necessary that the place where the property is de- tained be proved by direct evidence, but it may be inferred from circumstances.' The declaration in replevin stated "the taking to be in Gay Street, from the dwelling of plaintiff. Held, t'hat evidence of a taking in Gay Street was sufficient without proving that he took it from the dwelling house.* Where the plaintiff in replevin charged detention in one <3ounty, and defendants justified, plaintiff was allowed to prove the taking in another county, under an attachment' An action to recover specific personal property, brought in the county where the defendant resides, will not be defeated simply because the plaintiff failed to prove that the property is detained in the county. ° But as a guide to the sheriff in finding and identifying the property, it should be stated clearly where possible. § 1017. Possession of personal property is prima facie proof of ownership, and is presumptive evidence that the prssession is rightful. Possession indeed may be considered the primitive proof of title and the natural foundation of right. In the action of replevin, therefore, it devolves upon ■fche plaintiff to prove that at the time of the caption he had the general or special property in the goods taken, and the 1 Manning v. Bresnahan, 63 Mich. 584 (30 N. W. 189). 2 Bristol V. Braidwood, 28 Mich. 191. 'Louthain v. May, 77 Ind. 109. *Faget V. Brayton, 2 Harr. & J. (Md.) 350. 5 Craig V. Grant, 6 Mich. 447. • ■« Goldsmith v. Wilson, 67 Iowa, 662 (25 N. W. 870). 574 EVIDENCE. right of immediate and exclusive possession. The gist of the actions is the wrongful detention, and not the original taking.' In replevin for the unlawful taking of a horse the plaintiff showed that he bought and took possession of him in August, and that in September the defendant removed him to the stable of a third person to be kept ; Held, that this was prima facie a tortious taking.^ Possession of personal prop- erty is not title, but is prima facie evidence of title. In an action of replevin by the conditional vendor against a bona fide purchaser from his vendee in possession, the burden is on the plaintiff to show the condition of the sale, and that it has not been complied with, so that his right to possession has accrued.' • Where the question turns largely upon posses- sion at a certain time, a witness who testifies that on a cer- tain day he was in possession as agent of one of ihe parties, it is proper to cross-examine him as to whose employ he was in at and prior to that time, and other facts connected there- with.* § 1018. Right of possession proved by proof of owner- ship. An allegation of right of possession is proved by evi- dence of ownership of the property where no special right of possession is shown by the opposite party. ° In action of replevin for a horse, which the defendant claimed to have become possessed of by barter with the plaintiff, the burden of proof was held to be upon the latter to establish his owner- ship, and not upon the former to first prove the contract of sale or barter.* ' Phillips V. Scholl, 21 Mo. App. 38; 1 Green. Ev., § 34; 2 Id., § 561; Magee v. Scott, 9 Cush. 150; Milling v. Butts, 35 Me. 139; Linscott v. Trask, 35 Me. 151 ; Milton r. McDaniel, 2 Mo. 45 ; Pilkington v. Trigg, 28 Mo. 95; Morguer v. Biggs, 46 Mo. 66; Gray r. Parker, 38 Mo. 165. " Morris v. Danielson, 3 Hill (N. Y.), 168. ^ Ketchum v. Brennan, 53 Miss. 596. ' Blake v. Powell, 26 Kan. 320 ; Thornburg v. Hand, 7 Cal. 554. See also Coates r. Hopkins, 34 Mo. 135; D. & M. R. Co. v. Von Steinburg, 17 Mich. 109; Haynes v. Ledyard, 33 Mich. 319; Ferguson r. Euther- ford, 7 Ney. 385; Laiiiphrey v. Munch, 21 Minn. 379. ^ Cassell V. Western, 12 Iowa, 47. ' Peake v. Conlan, 43 Iowa, 297. ILLUSTEATIONS OF PBOPER EYIDENCE. 575 § 1019. Illustrations of proper evidence in cases de- pending upon particular facts. For lumber drifted upon tlie land of another, to maintain replevin it .is not necessary for plaintiff to prove that defendant did not suffer damage. It is sufficient for him to show that the lumber is his, that it is in the possession of defendant, and that the latter has re- fused to deliver it on demand.' In an action of replevin for property held under a chattel mortgage by the agent of the assignee of the mortgage, the writing witnessing the con- tract of assignment is competent evidence.^ Where plaintiff in replevin claimed defendant had taken his horse without leave, and defendant claimed a trade, it is proper to ask plaintiff what he did with the horse after he replevied it, and also to ask defendant what he did with the horse before he was replevied, whether or not he had secreted him.' Where, in an action for the possession of personal prop- erty, the plaintiff makes proof of a chattel mortgage to him, valid on its face, the possession of the property by the mort- gagor, the record of the mortgage, and the maturity of the debt the mortgage was given to secure, he makes out a prima facie case, and it is error for the court to direct a verdict for the defendant.* Where the only evidence is that of defendant, that he turned over all of the property claimed that he had after the suit was brought, the plaintiff is en- titled to judgment for possession and for nominal damages." Where the defendant in replevin had purchased the prop- erty in good faith and improved it, he may show the amount of his expenditure for the purpose of proving his damages." In replevin for a horse, the defendant pleaded in bar that the horse was the property of one T., and not of the plain- tiff, and issue was joined on the plaintiff's property, held, 1 Flanders v. Locke, 53 Cal. 21. =1 Olson V. Martin, 38 Iowa, 346. 2 English r. Caldwell, 30 Mich. 362. * Turner v. Langdon, 85 Mo. 438. ° Cordwill r. Giljnore, 86 Ind. 428; Chessom r. Lamcool, 9 Ind. 530-. " Veazie v. Somerby, 5 Allen (Mass.), 280. 576 EVIDENCE. that evidence offered by the defendant, upon the issue joined, that the horse was the property of the son of the plaintiff, was admissible because it tended to disprove the plaintiff's iitle, though plaintiff made no claim under the son.^ § 1020. The same. In Iowa, though nonsuited, the plain- tiff in replevin may still offer testimony to prove ownership of the property in himself, upon the inquiry into the right of defendant's possession, in order to show that defendant could have sustained no substantial damage, as he was not the owner of the property.^ An offer by the plaintiff to prove that the defendant has taken the benefit of the insolvent laws of the state will be rejected as irrelevant.^ Evidence show- ing the intention of the defendant in taking and appropriat- ing property is immaterial ; his liability does not depend on his intention.* The question of possession is the only one to be inquired into; the court cannot consider an unexecuted agreement for a change of possession.^ Where, in an action of replevin, the plaintiff alleged that the defendant claimed the property under a pretended contract of exchange, which did not in fact exist, it was held that under such allega- tion evidence was admissible to show that the contract was void for fraud.* In an action of replevin brought for a piano by one claiming under the vendee against the vendor's agent who had taken possession, held, that a contract of sale which provided that the title should remain in the vendor until full paymerft, and that in case of default he might declare the contract void and take possession, does not give the Vendor right to possession until he has declared the contract of sale terminated.' Rulings in regard to sufficiency and nature of proof in cases depending upon particular facts. ^ ' Brown v. Webster, 4 W. H. 500. ' Harmon v. Goodrich, 1 Greene (Iowa), 13. ' Bosford F. Mills, 6 Md. 385. *Ecker v. Moore, 2 Chand. (Wis.) 85. ^ Wilson V. Reese, 37 Ga. 578. "Nolon V. Jones, 53 Iowa, 387 (5 N. W. 572). 'Giddey v. Altman, 27 Mich. 206. 'Drake v. Wakefield, 11 How. Pr. (N. Y.) 106; Adams v. Adams, 13 EVIDENCE IN EEPLEYIN OF EXEMPT PBOPEETY. 577 § 1021. Illustrations of matters held too remote from the main issue. In replevin by the owner of a mare to re- cover her from a person who had taken her from a thief and detained her until a reward, which had been offered for her recovery should be paid, a telegram from a third party, an officer, to the owner that he had the mare, was held inad- missible.' Evidence of good character and reputation for honesty and fair dealing is not admissible upon the part of a plaintiff, claiming possession as a, mortgagee of personal property under a chattel mortgage, in an action of replevin brought by him against an officer to recover the possession of the property levied upon in an attachment against the mortgagor, when the mortgage is assailed as fraudulent as against the creditors of the mortgagor.^ Upon the issue of no rent in arrear, the plaintiff in replevin will not be per- mitted to show that the de"fendant had nothing in the tene- ments.' § 1022. Proper evidence in replevin of exempt prop- erty. In replevin for exempt property, it is proper to ad- mit in evidence the schedule and affidavit of property made by the wife of the absent debtor presented to the sheriff with a demand for the property as exempt.* In replevin by the Pick. (Mass.) 384; "Wolgomot r. Bruner, 4 Har.& M. (Md.) 89; Susque- hanna V. Pinny, 58 Pa. St. 200; Kerrigon v. Ray, 10 How. Pr. (N. Y.) 213; Hopewell v. Price, 2 Har. & G. (Md.) 275; Page r. Fowler, 28 Cal. 605 ; Marchman v. Todd, 15 Ga. 25 ; Frederich r. Gaston, 1 Greene (Iowa), 401; Waterman r. Robinson, 5 Mass. 303; Orner f. Hollman, 4 Whart. (Pa.) 45; Robins v. Kitchen, 8 Watts (Pa.), 390; Nicholson r. Han- cock, 4 Hen. & M. (Va.) 491; Turberville v. Self, 2 Wash. (Va.) 71; Maxwell v. Light, 1 Call. (Va.) 117; Edmunds v. Leavitt, 27 N. H. (7 Fost.) 198; Goodrich v. Hanson, 33 111. 498; Brooke v. Berry, 1 Gill. (Md.) 153; Graner v. Mullen, 15 Pa. St. 300; Winslow v. Leonard, 24 Pa. St. 14; Dimond v. Downing, 2 Wis. 498; Lills, &c., v. Russell, 22 Wis. 178; Gardner F. Lane, 98 Mass. 517; Lewis r.Burnham(Kan.), 21 P. 572., 1 Cummings v. Gand, 52 Pa. St. 484. 2 Simpson v. Westeuberger, 28 Kan, 756. 3 White V. Cross, 2 Cranch (C. Ct.), 17. *A8tley r. Capron, 89 Ind. 167. 37 578 EVIDENCE. wife for her property it is not proper to admit in evidence an assessment roll to show that the husband had had the property assessed as his own.' A wife replevied as her own property that had been seized on execution against her hus- band, and on the trial called her husband to show that it be- longed to her. Held, proper to cross-examine him as to his own use of the property and of its proceeds, and also as to his business, what he did with his earnings. Evidence that the husband had given a chattel mortgage on his wife's property does not tend to show that he owned it if there is no evidence of his wife's consent or knowledge of it.^ In replevin by one claiming property as exempt, the burden is on him to bring himself under the statutory provision that entitles him to recover.' Plaintiff replevied a horse seized by defendant on execution, claiming him as exempt, and on the trial the defendant swore that the horse was replevied before he had time to make the statutory inventory and of- fered to show that plaintiff had other horses liable to execu- tion, but was not permitted to do so. Held, that the pro- posed evidence wag material, and its rejection error.* If the property is exempt the value fixed by the appraisal made by the officer for the purpose of the selection referred to above is conclusive in replevin, and other value cannot be shown." § 1023. How far title to real estate may be considered and how shown. Though as a general rule title to real estate cannot be directly tried in an action of replevin, yet if incidentally brought in question evidence is admissible in regard to it." In replevin for boards made from trees cut ' Stanfleld v. Stiltz, 93 Ind. 249. ' Gavigan v. Scott, 51 Mich. 37.3 (16 N. W. 769). ^ Thoibpsou V. Ross, 87 Ind. 156. * Gass V. Van Wagner, 63 Mich. 610 (30 N. W. 198). The Michigan statute provides that when a levy is made upon any class or species of property which is exempt, the officer shall make an inventory of the whole of the same kind, so that a selection may be made of enough to flU the exemption. How. Stat., § 7687. ' Wood F. Bresnahan, 63 Mich. 614 (30 N. W. 206). 8 Clements r. Wright, 40 Pa. St. 250. HOW FAE TITLE TO BEAL ESTATE MAY BE CONSIDEBED. 579 from plaintifE's land, the production of a deed to plaintifE and receipts for taxes paid by him, held, sufficient eyidence of title. ^ There is no doubt that dieeds may be introduced in evidence in the action of replevin, not to show title, but to show the extent of the possession,'' or title may be shown to show possession.' In an action of replevin for rails made from timber cut on wild land it is relevant to p!rove the title to the land for the purpose of showing who has the right to the possession of the rails, and the title papers are the best evidence of the title to the land attainable, and should be admitted. Though title to land cannot be tried in replevin, it may be brought in issue indirectly.* ' Davis F. Easley, 13 111. 192. ''Caldwell v. Castard, 7 Kan. 303; Davis v. Easley, 13 111. 192; Parker v. Storts, 15 Ohio St. 351. = Ogden V. Stock, 34 111. 522. *Hart r Yiaeant, 6 Heis. (Tenn.) 616; Clement 7. Wright, 40 Pa. 250. 080 INSTEUCTIONS. CHAPTEE INSTRUCTIONS. Section. Theory of instructions . . 1024 Instrtictions should be con- ' fined to the issues involved 1025 When no conflict court may direct verditt When jury may be in- structed that detention is not disputed When the action lies Right to possession of prop- erty sufficient As to what right of posses- sion will support the action 1030 Taking possession when not practicable by an officer . 1031 Where title passes between vendor and vendee . Where both parties claim the property . 1026 1027 1028 . 1029 1032 1033 1034 Sectl Phillips V. Melville, 10 Hun. (N. Y.) 211. ' Blackie v. Cooney, 8 Nev. 41. ' Mills r. Mills, 39 Kan. 455 (18 P. 521). * Pakas F. Racey, 13 Daly, 227. s Pakas r. Racey, 2 How. Pr. (U. S.) 277. « Stewart r. Taylor, 68 Cal. 5 (8 P. 605). See Garlick r. Bower, 62 Cal. 65 ; Vanderford r. Foster, 62 Cal. 179 ; Dougherty v. Haggin, 56 Cal. 522; Kelley r. McKlbben, 54 Cal. 192. 606 TEKDIOT AND FINDING. items of property replevied separately, as the whole may be returned, or a part only, in satisfaction of the judgment pro tanto.^ A Terdict for plaintiff must ascertain to what spe- cific property the plaintiff is entitled, and its value/ In an action of replevin for several distinct articles, if the jury assess their value in solido, they should be sent back to affix a separate Value to each article. The defendant who re- tained the property has a right to return any one of the articles or its value, ^ and where it is a stock of merchandise, it is not error for the court, on sending them back, to permit them to take an invoice proved to have been correct.* In an action of claim and delivery of a stated number of hogs, of which the aggregate value only is alleged, a finding that each hog was of the value of four dollars is proper when the only evidence is that they were worth four or five dollars per head.° A verdict in detinue for several articles should specify the value of each article." In replevin for several cattle, where the verdict fails to find the separate value of each, the judgment will be reversed and case sent back for the sole purpose of finding the separate value of each, but will not be disturbed in other respects.' This is a matter of statute in many states, and is the better practice always where it is possible to do it. It is intended for the benefit of the party who is adjudged to return the goods, that if he ' Cook V. McElvey, 65 Texas, 1. See Hoeser r. Kraeka, 29 Texas, 450; Blakely 7. Duncan, 4 Texas, 185; Benuet v. Butterworth, 8 How. (U. S.) 128; Drane v. Hilzheim, 21 Miss. (13 S. & M.) 336. ' Gulath V. Waldstein, 7 Mo. App. 66; Mahoney r. Smith, 7 Mo. App. 578. ' Houf V. Ford, 37 Ark. 544; Noland v. Leech, Exrs., 10 Ark. 504. * Hickman v. Ford, 43 Ark. 207. 5 Black V. Black, 74 Cal. 520 (16 P. 311). » Jones T'. Anderson, 76 Ala. 427; Id., 82 Ala. 302; Haynes v. Crutch- fleld, 7 Ala. 189; Miller v. Jones, 29 Ala. 174; Eambo r.Wyatt, 32 Ala. 363; Rose v. Pearson, 41 Ala. 687; Johnson v. McLeod, 80 Ala. 433; Jones V. PuUen, 66 Ala. 306; Townsend r. Brooks, 76 Ala. 308; Savage V. Eussell, 84 Ala. 103; Southern Warehouse v. Johnson, 85 Ala. 178 (4 So. 643); Ketchum r. Brennan, 53 Miss. 596. ' Sprotley v. Kitchens, 55 Miss. 578. WHERE VALUE NOT IMPOETANI. 007 return but a part of the property, proper credit may be given him. It would seem, however, if he waives the sep- arate assessment of value, a value in gross is sufficient.' § 1064. Where impossible to find the separate value, it may be found in gross. Where the action was for ninety articles of household property worth about $300, a finding in gross of the value in the absence of objection at the bringing in of the verdict, is sufficient, and on appeal it will be presumed that the evidence was as to the value in grossj in order to uphold the verdict.^ Where the jury find that it is impracticable to assess the value of each article, and assess the value in gross at $2,000, held, good.' In replevin, where defendant retained the property but plaintiff was successful, a finding of the value of each article is not necessary, and in order to recover a judgment for the value of the property, plaintiff need not show the value of each article.* Where replevin is for a stock of goods, and the jury, finding for the defendant, return the value of the stock in bulk, and not of each separate article, held, no error, when no demand is made at the time for the valuation of each or any particular article separately.^ § 1065. Where the finding is in favor of the party in possession, value is not so important. Failure to find value where plaintiff is in possession is not such an error that defendant can take advantage of it if the result is adverse to him.° And where the defendant is in possession at the time of trial and the result is in his favor, the plaintiff cannot com- 1 Whitfield V. Whitfield, 40 Miss. 369; Pickett v. Bridges, 10 Humph. (Tenn.) 175; Caldwell v. Bruggerman, 4 Minn. 270; Drane v. Hilzheim, l.S S. & M. (21 Mies.) 337; Eslava y. Dillihunt, 46 Ala. 698; HoeBer r. Kraeka, 29 Texas, 451. 2 Eslava v. Dillihunt, 46 Ala. 698. ' Wilson V. Barnes, 49 Ala. 184. * Goldsmith v. Wilson, 67 Iowa, 662 (25 N, W. 870). This was a stock of goods. 5 Blake v. Powell, 26 Kan. 320. « Jones F. PuUen, 66 Ala. 306. G08 VEEDICT AND FINDING. plain that the jury did not assess the value of the property.' But where the verdict awards the possession of a chattel to the person to whom it has been delivered, it is not neces- sary that it fix the value." In an action of replevin, where the pleadings admitted that the property was worth $5,153.96, and the plaintiff recovered, but the jury found that the property was worth only $4,268.51, and judgment was ren- dered accordingly, Held, not error as against the defend- ant.' Where, in an action of replevin, the property has been already delivered to the prevailing party, a general verdict in his favor is sufficient without a finding upon the question of value.* § 1066. The verdict must describe the property with certainty. Thus, where four hogs were in issue, and the jury found for the plaintiff for two without stating which two, the verdict was too uncertain to support a judgment.' But a verdict may describe the property by a reference to the peti- tion.° If there is no dispute as to the identity of the property, this would probably be a sufficient description in all cases where all of the property is awarded to one party. § 1067. Indefinite description fatal. Where action was brought for sixty-eight head of hogs, a verdict that " the "plaintiff is entitled to that portion of the property described "in the complaint, to wit forty-nine hogs," and assessing the value at $12 per head, is too indefinite to support a judgment.' A judgment in replevin, awarding a writ of re- torno habendo, will not be regarded as too general in the ' Luoaa r. Daniels, 34 Ala. 188. = Claflin V. Davidson, 8 N. T. Civ. Proc. R. 46; Williams r. Wilcox, 66 Iowa, 65 (23 N. W. 266). 8 Miller v. Krueger, 36 Kan. 344 (13 P. 641). * Prescott r. Heilner, 13 Or. 200 (9 P. 403). '^Matchette v. Wanless.l Col. 225; Dowell r.Richardaon, lOInd.573; Campbell v. Jones, 38 Cal. 507. « Anderson v. Lane, 32 Ind. 102. ' Guille V. Wong Fook, 13 Or. 577 (11 P. 277). See Foredice v. Rine- hart, 11 Or. 208, and cases cited; Low v. Martin, 18 111. 286; Dilling- ham V. Smith, 30 Me. 370; Dowell v. Richardson, 10 Ind. 573. ILLUSTRATIONS OF VERDICTS UPHELD. 609 description of the property, if it follow tlie declaration in that regard.' In replevin for two mares the verdict was "we "find for plaintiff as to one of the mares, as to the other we "find for defendant," and assessing damages for both, etc., held, that both the verdict and judgment rendered thereon were void for uncertainty of description.^ § 1068. Illustrations of verdicts which have been up- held. Where the answer denied plaintiff's title and right of possession and pleaded title in defendant, a verdict, "We, the "jury in the above cause, find for the defendant, " held, suffi- cient, and that judgment for a return and for costs should be entered thereon.' A verdict, " We, the jury, find the issues "for the defendant, " is informal but sufficient if judgment be entered upon same ; neither verdict nor judgment can be attacked, in a collateral proceeding, for insufficiency.* In an action of claim and delivery before a justice, where the complaint states the value of the property, a verdict, "We, the "jury, find for plaintiff, less damages claimed," without find- ing value, though erroneous, is not void, and judgment there- on for a return of the property will be upheld, and manda- mus will lie to compel issue of execution thereon. ° In re- plevin the jury found that plaintiff was the owner of the prop- erty and entitled to its possession at the commencement of the action, its value, and nominal damages for its detention, without finding expressly an unlawful detention, and without any general verdict in his favor ; but the answer admitted the taking, and the undisputed evidence shows a due demand and refusal. Held, that the defect in the verdict is no ground ' Lammers v. Meyer, 59 111. 215. 2 Harris v. Austell, 2 Bax. (Tenn.) 148. 2 Anderson v. O'Laughlin, 1 Mont. 81. See also Lavelle v. Lowry, 5 Mont. 498 (6 P. 337); King i^. Riamsey, 13 111.623; Underwood v. White, 45 111. 437; Lewis v. Buck, 7 Minn. 105 (4 S. 235). < Robbins v. Foster, 20 Mo. App. 519 ; Sweeney f. Lomme, 22 Wall. 208; State ex rel. Johnson v. Dunn, 60 Mo. 64. « Hogue V. Fanning, 73 Cal. 54 (14 P. 560). 39 610 TEBDICT AND FINDING. of reversal.' Where, A mider a claim of ownership, replevies goods held by a sheriff on execution against B, and the an- swer avers that they were the property of B, a verdict that "the sheriff at the commencement of the action had the right "of possession," is responsive to the issue and is a finding in substance that the property was that of the execution debtor.^ Unless the facts in a replevin suit before a justice require a special finding, a verdict that "this jury finds for "the plaintiff," is sufficient, and judgment must be entered upon it.^ The same strictness is not required in justice court.* In an action before a J. P., where the goods had been delivered to plaintiff, the following finding held good and sufficient: "I do find for the plaintiff and against the deiend- " ants for the goods and for all the costs of this action by "her expended."^ A verdict "the jury find for the plaintiff "and against the defendant," held, sufficient in substance." Where the defendant pleaded property in himself and others, representatives of A, property in B, and also property in himself alone, issues joined on this, the jury found for the defendant on the first plea alone, disregarding the other is- sues, held, that this finding was sufficient.' Where the pe- tition alleges a value of property, and the jury find both right of property and possession in defendant, and assess the dam- ages at a small advance on the alleged value, the verdict is sufficient without a finding as to the value of the property." In a suit to recover a horse alleged to have been wrongfully taken and detained by the defendant, he answered, 1st, prop- erty in himself; 2d, in a third person; Bd, denial. Held, that a verdict, " We the jury find for the plaintiff, find the 1 "Williams v. Porter, 41 "Wis. 423. 2 Hall V. Jenness, 6 Kan. 356. 2 Smith r. Dodge, 37 Mich. 354; Lamberton r. Foote, 1 Doug. (Mich). 102. * Jarrard v. Harper, 42 111. 457. 5 Degering v. Fliclc, 14 Neb. 448 (16 N. W. 824). ^ Coit V. Waples, 1 Minn. 134. ' Kamsey r. Waters, 1 Mo. 406. * Western, &c., v. Walker, 2 Iowa, 504. ILLUSTRATIONS OF TEEDIGTS HELD BAD. 611 "property in the horse to be in him, and that he. is entitled " to possession and the value of the horse, $125, " sufficiently covered all the issues in the case.' A verdict that the plain- tiff recover the property, and one cent damages for detention thereof, is good.^ A general finding for the plaintiff em- braces an allegation of ownership in the complaint.' § 1069. Illustrations of verdicts held bad. But a find- ing in these words, "We, the jury, find that the plaintiff had "a right to replevy the mill," amounts to no more than a conclusion of law, which the jury could not decide, and will not authorize a judgment for the possession of the property.* Finding the " " issues " for the defendant is not finding whether he had the right of property or the right of posses- sion. Nor is it finding the value of the property or the value of possession, as required by the statute, and such finding is insufficient to support a judgment in a direct pro- ceeding challenging the same. ^ "We find the plaintiff had "a right to replevy the mill," held, to amount only to a con- clusion of law, which the jury had no authority to make, and that it would not support a judgment.' Replevin against two ; denial by both; answer by A that the property was in M; by B that it was in himself; verdict "for the defendants;" Held, that the verdict being general and embracing all the issues, was inconsistent and bad, unless the defendants saw fit to treat it as on the denial alone, which they had a right to do.' Where the verdict was "for the defendant, |50," held, that judgment should be rendered on the verdict, and not for a return of the property.' In replevin, the pleas ■ Clark V. Heck, 17 Ind. 281. 2 Stephens r Scott, 13 Ind. 515. ' Rowan r. Teague, 24 Ind. 304. * Keller v. Boatman, 49 Ind. 104. 5 Fulkerson r. Dinkins, 28 Mo. App. 160. •Keller v. Boatman, 49 Ind. 108. ' Tardy r. Howard, 12 Ind. 404. * Hunt r. Bennett, 4 Greene (Iowa) 512. But see Heddy v. Fuller, 1 Blackf. (Ind.) 51. 612 TEEDICT AND FINDING. were: 1st, That the defendant had not taken or detained; 2d, Property in a stranger; 3d, Property in defendant. Plaintiff joined issue on the first plea and replied to the sec- ond and third, property in himself. Verdict, "We find the "property to be in the plaintiff;" Held, that this verdict did not authorize a judgment for plaintiff, as it was not a finding that the horse had been taken or detained by defendant.^ In Indiana a verdict which finds for plaintiff, but fails to find that defendant wrongfully detained the property, is fatally defective." § 1070. A conditional verdict is always bad, as where the jury found' that plaintiff was entitled to tlie property unless a certain chattel mortgage was paid in ten days.' Where the jury found for the plaintiffs $5,619.37, and in the verdict stated that this amount, less the advances and commissions, was due the plaintiff, without finding what those advances and commissions were, the verdict was uncer- tain, and not sufficient to sustain a judgment.* § 1071. Verdicts held bad under pleas of non cepit. In replevin in the cepit, a verdict of unjust detention does not dispose of the material issue raised by the allegation of taking, and is therefore bad.' A verdict in replevin in favor of a defendant, on a plea of non cepit and an avowry of rent, is erroneous. ° Where defendant pleads non cepit and prop- erty in himself, and the jury find a general verdict for him, a new trial will be granted, where from the evidence it is manifest that the property was in the plaintiff, although there may be doubt whether, upon the plea of non cepit, the defendant ought not to recover.' ' Huff V. Gilbert, 4 Blackf. (Iiid.) 19. 2Ridenour v. Beekman, 68 Ind. 236; Swain v. Roys, 4 Wis. 150. ' Rose V. Tolly, 15 Wis. 443. , * Wood V. Orser, 11 Smith (25 N. Y.) 348. See Donaldson r. John- son, 2 Chand. (Wis.) 160. ' Ronge V. Dawson, 9 Wis. 246. • Hill V. Stocking, 6 Hill (N. T.), 277-314. ' Green r. Burke, 23 Wend. (N. Y.) 490. SUCCESSFUL party's INTEREST MUST BE FIXED. 613 § 1072. Where the successful party claims less than a full interest, the value of his interest must be fixed. Where the -verriict is for defendant, and he claims only a liem upon or special interest in the property, the general title being in the plaintiff, it is essential that the verdict should specify the amount of defendant's interest.' Where a chattel mortgage or other special ownership is in issue, the plaintiff has a legal right to insist that the verdict and judgment shall determine the amount of this special interest in or lien upon the property.^ Where the complaint in replevin alleged that the plaintiff was the owner and lawfully entitled to the possession, the answer, after a general denial, averred that the defendant was poundmaster, and had a lien for impound- ing the cow, a verdict that plaintiff was not lawfully entitled to the possession and that defendant did not unlawfully de- tain, but was entitled to the possession, and finding the value of the property, held, fatally defective in not finding who was the general owner, and the value of defendant's special property.^ Where it appears that the party recovering has only a limited or special interest in the goods, the court or jury should assess only the value of such special interest.* When a return of the property may be awarded as an alter- native, with judgment for its value, then and then only the interest of the successful party should be ascertained, by fixing the value of his special property, which is to be the limit of such judgment. In replevin where plaintiff, claim- ing as mortgagee, has acquired and retains possession by giving the statutory bond, a verdict in his favor finding him ' Farmers, &c., v. St. Clair, 34 Mich. 518. 2 Burlie V. Birchard, 47 Wis. 35 (1 N. W. 351); Booth r. Ableman, 20 Wis. 21. 3 Warner v. Hunt, 30 Wis. 200; Child r. Child, 13 Wis. 19; Appleton r. Barrett, 22 Wis. 568. * Gaynor v. Blewitt, 69 Wis. 582 (34 N. W. 725); Booth v. Ableman, 20 Wis. 21; Battis v. Hamlin, 22 Wis. 669; Warner v. Hunt, 30 Wis. 200; Burke r. Birchard, 47 Wis. 35 (1 N. W.351); Smith v. PhillipK, 47 W'is. 203 (2 N. W. 285); Woodruff r. King, 47 Wis. 262 (2 N. W. 452), Single V. Barnard, 29 Wis. 463. 6l4 VERDICT AND FINDING. entitled to the possession, need not determine tlie value of Lis special interest.' Where the defendant only claims a special property in the goods, and the value of said special property is within the value of the goods, as proved at the trial, it is not necessary that the court should find the gen- eral value of the goods. ^ § 1073. The same — Illustrations. A finding in replevin that defendant did not unlawfully detain the property, that he had a lien on or special property in the same, to the amount specified, and that the plaintiff was the general owner, subject to defendant's lien, is sufficient in the absence of objection.' A finding that plaintiff was the general owner and that defendant had a lien to the amount of his levy, is insufficient where the interests of the parties are conflicting. The verdict must always be full enough to enable the court to enter a proper judgment.* Where the answer was a gen- eral denial, and that defendant, a sheriff, held by virtue of an execution, on verdict for defendant to the amount of his execution, held, that it was unnecessary to find the gen- eral ownership or value of the property.* A finding that a plaintiff in replevin, at the time the defendants took away the property in question, held valid chattel mortgages upon it on which payments were in default, would entitle him to prevail, in the absence of any finding that the defendants stood in any relations to the^ parties to the mortgages such as qualified them to assail these securities." In replevin by a pledgee against an officer who had seized and held the property on an execution against the pledgor, the jury found that the plaintiff was entitled to the property, its value, the value of plaintiff's interest and nominal damages for its de- tention. Held, that the verdict disposes of all the material ' Woodruff V. Kins, 47 Wis. 261 (2 N. W. 452). ^Earle v. Burch, 21 Neb. 702 (33 N. W. 254). ' Moore v. Vrooman, 32 Mich. 526. * Alderman v. Manchester, 49 Mich. 48 (12 N. W. 905). * SiniAlo V. Barnard, 29 Wis. 463. ' Hendrickson v. Waker, 32 Mich. 68. VEEDICT FOR DAMAGES NOT ESSENTIAL. 615 issues and is sufficient.' A verdict which finds the right o£ possession in defendant and the value of the property, but does not find the value of defendant's right of possession, is fatally defective, and no judgment can be entered thereon as if defendant was not the owner but only had a right of pos- session ; the value of the property is immaterial, the value of his right of possession is the material thing. ^ Where the' plaintiff has possession of the property, verdict that "We, "the jury, find for the plaintiff," is sufficient.' A verdict which finds for the defendant, the value of defendant's in- terest and his damages for the wrongful detention, is suffic- ient and will support a judgment.* Where the petition al- leged the value of the property and that the plaintiff was the absolute owner, a verdict, "We, the jury, find for the plain- "tiff," held sufficient where followed by judgment.^ § 1074. Verdict for damages not essential. While damage is not the prime object of replevin, it is still a very important part,* and under the rule that all the issues must be passed upon, it would seem that a verdict which failed to pass upon so important an issue could hardly stand.' But in a well considered case, the supreme court of New Hamp- shire overrule or limit the "case last cited, and hold that a verdict for plaintiff upon a question of title will not be set aside because the jury did not find damages.* Where the damages are only nominal, in many states they are, as a ■ Hass V. Prescott, 38 "Wis. 146. 2 Wei ton V. Beltezore, 17 Neb. 399 (23 N. W. 1). 3 Garth v. Caldwell, 72 Mo. 622. * Connely v. Edgerton, 22 Neb. 83 (34 N. W. 76). ^ Newlein v. Reed, 30 Iowa, 496. This ruling under the following statute: "the judgment shall determine which party is entitled to the "possession of the property, and shall designate his right therein, and if "such party have not the possession thei-eof, shall also determine the "value of the right of such party." Rev. § 3562. « Buckley v. Buckley, 12 Nev. 423 ; Faget r. Brayton, 2 H. & J. (Md.) 350. 'Kendall v. Fitts, 2 Foster, (N. H.) 9. » McKean v. Cutler, 48 N. H. 372. 616 VEBDICT AND FINDING. matter of law, given to the successful party, and under such practice the assessment of them is not so material unless more than nominal damages are claimed. § 1075. Court may compel a finding of nominal dama- ges, but nothing more can be given except upon proof. The verdict will be set aside where the damages are excessive under the proof. Damages other than nominal must al- ways be assessed by a jury unless waived of record.^ Al- though in replevin a finding of any damages, actual or nom- inal, is not necessary to sustain a verdict and judgment in plaintiff's favor, yet where the jury has refused to find any damages, it was nob error for the court to peremptorily di- rect them to find a nominal sum of six cents. After ver- dict recorded it is too late to ask that the jury be polled." In replevin a verdict will be set aside if damages for deten- tion are assessed in favor of the defendant, without proof of damages other than the value of the property, and the fact and time of the replevin.' Where the verdict is in defend- ant's favor he may waive a finding for damages and have judgment entered, and the plaintiff cannot complain.* § 1076. A verdict may be sufiBcient to support a judg- ment of return, but not for value. A verdict that plaintiff owned the property, and that defendants wrongfully detained it, is sufficient for a judgment for a return, but not for value or damages, and if a return is not obtained the judgment is unavailing.^ And where plaintiff sought to recover posses- sion of the property, claiming to be the exclusive owner thereof, and the defendant pleaded property in himself, the proof showing that he owned the property jointly with the plaintiff, held, that a verdict for defendant on such issue did not determine judicially that the property was that of de- fendant, exclusively, and that such finding did not affect ' Pearsons v. Eaton, 18 Mich. 80. 2 Eight V. Johnson, 28 Wis. 72. 8 Mann v. Grove, 4 Heis. (Tenn.) 403. *Ritnhie v. Schenck, 7 Kan. 170. ' Hammond v. Morgan, 101 N. T. 179 (4 N. E. 328). GENEEAL POEM OF TEEDICT. 617 plaintiff's right to recoTer the undivided half, btit that it was no error for the court to award a return of the property to the defendant. If the property was in fact partnership property the possession of either was lawful.' In replevin of a distress the verdict should, if for the defendant, find the value of the goods and the rent in arrear, but if it fail to do this and merely find for the defendant, it will support a judgment for a return.^ § 1077. Form of, where defense is fraud in vendee's title. Where plaintiff in replevin against an officer hold- ing under execution claimed title by purchase from his father, the execution defendant, and the officer answered fraud in transfer from father to son, if the jury found this transfer fraudulent their verdict should have been "We, the jury, find the issues for the defendant, and that the prop- erty was the property of the defendant in execution.'" The form of verdict will depend much upon the statutes of each state. § 1078. General forms of verdict. We, the jury, find for the plaintiff, that he was and is the owner and entitled to the possession of the property described in the affidavit, which was wrongfully detained by defendant, that said prop- erty is of the value of $ , and we assess plaintiff's damages at $ . We, the jury, find that, at the commencement of this action, the plaintiff had a special right of possession in the following property in controversy [describe], that it was wrongfully detained by defendant, that it is of the value of I , that the value of plaintiff's possession ;s | , and we assess plaintiff's damages at | . We also find that the defendant was and is entitled to the possession of the following property in controversy [describe], that it is ' Eeynolds v. McCormick, 62 111. 412. 2 Gather v. Bray, 86 Pa. 52. ^Gilligan r. Stevens, 4 Bradw. (111.) 401; Hanford r. Obrecht, 49 111. 146. 618 TEBDICT AND FINDING. of the value of $ , or simply say, for the remainder of the property we find for the defendant,' § 1079. A verdict may be returned on Sunday. "Where a replevin trial is completed by the introduction of testimony, the arguments of counsel, and the charge of the court, and the case has passed to the jury for consideration before mid- night of Saturday, the fact that they do not finally arrive at and return their verdict until sometime in the early hours of Sunday morning does not vitiate the entire proceedings and compel a retrial.' § 1080. Or on a legal holiday. On a return of the ver- dict in replevin, if the justice do not at once enter up judg- ment, he loses jurisdiction, and the fact that the jury did not return the verdict until the morning of a legal holiday did not relieve the justice from this duty.' § 1081. Separate defendants are entitled to separate verdicts. Where there are several defendants all may not be guilty of the unlawful detention, and the verdict should specify which ones are guilty and which not.* Or one may be guilty of taking a part of the property, and another an- other part, and the jury should be specific on these points in their verdict,^ where several unite as plaintiffs verdict ' Thornton on Juries, 304. ^ Stone V. Bird, 16 Kan. 488. In the following cases, verdicts returned on Sunday were held good: Heller v. English, 4 Strobhart, S. C. 486; Huide, Koper v. Cotton, 3 Watts, 56; Commonwealth r. Marrow, 3 Brewster, 402; Cory v. Silcox, 5 Ind. 370; Houghtailing v. Osborne, 15 Johns. 119 ; Baiter v. The People, 3 Gilman, 385 ; Webber v. Merrill, 34 N. H. 202; Truev. Plumley, 36 Me. 466. Heldnot goodin Bass v.Irvin, 49 Ga. 436, and Davis v. Fish, 1 G. Green. (Iowa) 410. 3 Smith V. Bahr, 62 Wis. 244 (22 N. W. 438). The statute of Wiscon- sin provides that the justice, on the receipt of the verdict, shall immedi- ately enter an order in his docket disposing of the property according to the verdict, and judgment for damages and costs, §§ 3662, 3742. *Carothers v. Van Hagan, 2 G. Green. (Iowa) 481; Hotchkiss F.Ash- ley, 44 Vt. 199; Wilderman v. Sandusky, 15 111. 60; Dart f. Horn, 20 111. 213. ^Sitnpson f. Perry, 9 Ga. 508; Walker v. Hunter, 5 Cranch. C. C. 462. EACH PARTY MAY SUBMIT SPECIAL ISSUES. 619 and judgment may be in favor of one plaintiff and against th.6 others.' § 1082. Finding partly for defendant and partly for plaintiff, proper when. In an action of replevin it is proper for the jury to find for the plaintiff for some of the goods, and as to the rest for the defendant, and judgment may be entered upon such a verdict.^ In an action of replevin each party may be an actor. If the goods have been replevied and the plaintiff prevails he is entitled to nominal damages and also his costs; but if the defendant prevails he is en- titled to a return of the goods or to damages, to the value of them and also his costs. If a verdict be found that a part of the goods replevied were the property of the plain- tiff and a part were not, each party must be considered as prevailing to that extent respectively, and the verdict must so be in favor of each of them respectively ; and as each party , has judgment upon it for his damages, either nominal or sub- stantial, he is so far a prevailing party and must also have his costs.' "Where defendant pleaded (1) property in himself and not in plaintiff, (2) property in a stranger which he had levied on, and held as an officer under a writ against the stranger, it was held that the jury might find that a part of the prop- erty belonged to the plaintiff, and assess damages for its de- tention, and that part of the property did not belong to plain- tiff and assess damages to the defendant.* § 1083. Each party may submit special issues to the jury with the consent of the court, but they should be con- fined to issues belonging to the replevin action. And it is ' Hainilton r. Browning, 94 Ind. 242. 2 Wright r. Funck. 94 Pa. 26; Pratt, r. Tucker," 67 111. 346; Hotch- kiss V. Ashley, 44 Vt. 195; Edelen v. Thompson, 2 Har. & G. (Md.) 32; Williams v. Beede, 15 N. H. 483 ; Brown v. Smith, 1 N. H. 36 ; Powell v. Hinsdale, 5 JJass. 343. Poor v. Woodburn, 25 Vt. 235; Wright v. Mathews, 2 Blaokf. (Ind.) 187; Dowell v. Eichardson, 10 Ind. 573; O'Keef V. Kellogg, 15 111. 347. " Knowles v. Pierce, 5 Houst. 178. * Williams v. Beede, 15 N. H. 483. 620 TEBDICT AND FINDING, in the power of the court to compel the jury to find upon the issues so submitted, and if they fail or neglect to so find the general -verdict may be set aside. It is discretionary with the court whether or not a jury be required to make special findings outside of the usual fijidings in a repleTia suit.' § 1084. Separate issues must not be united by the ver- dict. The issue in replevin is to be determined by the jury upon the facts as they were at the beginning of the suit f and the jury should not unite in one sum damages for the taking and the value of the property, but each should be found separately." It is impossible to enter a proper judg- ment upon such a verdict,* but the presumption is in favor of the verdict; and where there were two causes of action, one proper and the other not, and the jury found damages without saying upon which cause of action, it was construed as being awarded on the proper cause of action.^ § 1085. A verdict which is inconsistent with itself can not stand. Where the jury found that the son held under an unexpired lease, and found generally for the father as lessor, who was plaintiff in replevin, held, that it negatived plaintiff's right of possession, and judgment for him re- versed. ° A finding in replevin that plaintiff has the general property, but that defendant did not unlawfully detain them, is contradictory, and cannot sustain a judgment in a case where it is impossible that a special property should co-exist with the general ownership.' If there be a material repug- nancy in the verdict, it is not competent for the court to de- cide which is intended to stand by the jury. This would be ' Singer Mfg. Co, v. Sammons, 49 Wis. 316 (5 N. W. 788). 2 Cass V Gunnison. 58 Mich. 108 (25 N. W. 52). ^Nashville Ins. Co. v. Alexander, 10 Hump. 383; Sayers r. Holmes, 2 Cold. (Tenn.) 259. * Carson v. Applegarth, 6 Nev. 188. 5 Ellis V. Culver, 1 Har. (Del.) 76. • Nottingham v. Vincent, 50 Mich. 461 (15 N. W. 551). ' Rodman v. Nathan, 45 Mich. 607 (8 N. W. 562). INCONSISTENT VEEDICT CANNOT STAND. 621 a substitution of the court's judgment for that of the jury.' "Where the jury assessed the value of the goods, and stated that this was to be reduced by a factor's advances and charges, which they did not assess, held, this was not a ver- dict on which judgment could be rendered.^ A general ver- dict for defendant, upon different and inconsistent pleas, is bad.' •Hewson r. Saffln, 7 Ham. (Ohio pt. II.) 232; Barrett v. Hall, 1 Mass. 447 ; Tardy r. Howard, 12 Ind. 404. ' Wood I'. Orser, 25 N. Y. 348. 3 HewRon v. Saffln, 7 Ham. (Ohio Part 11.) 232; Donaldson v. John- eon, 2 Chand. (Wis.) 160. 622 JUDGMENT. OHAPTEE XXXV. JUDGMENT. Section. The judgment must follow the verdict .... 1086 The same — Damagesmustbe proved 1087 The court may modify the judgment as to damages . 1088 Judgment may be made to conform to verdict by mo- tipn 1089 TIow corrected nunc pro tune 1090 May be amended saving the rights of third parties — No- tice . . . . . 1091 Error in entering judgment, how corrected . . . 1092 The proper entry of judgment may be compelled by man- damus 1093 Power of court over judg- ment—Fraud . . . 1094 Jurisdiction of inferior courts 1095 Judgment must be confined to matter properly arising in the replevin suit . . 1096 It is error to ren der judgment for more than is claimed . 1097 The judgment must be cer- tain and definite . . 1098 Must describe the property with certainty . . . 1099 A judgment which can be made certain by reference to the pleadings is good . 1100 The judgment must speSik upon all the issues involved 1101 The judgment mustspeakas to all the parties . . 1102 Section. One good count will support a judgment .... 1103 When alternative judgment necessary .... 1104 A judgment in replevin should be in the alterna- tive . . . . . 1105 When alternative judgment not necessary . . . 1106 Where bond not given alter- native judgment not nec- essary 1107 Successful party may waive right to an alternative judgment How this election made Where property in hands of the court, judgmentfor de- livery alone is sufficient Judgment for a return is nec- essary where the successful party is not in possession 1111 Judgment for a return is a matter of right . Insolvency of successful party does not change his right to a return Beturn can only he awarded against one in possession 1114 The same 1115 1108 1109 1110 1112 1113 Exception in case of fraud . Where plaintiff fails in his action for any reason res- titution should be awarded Judgment of return should follow dismissal . The same — A contrary rule . An action of replevin cannot 1116 1117 1118 1119 JUDGMENT. 623 Section. be dismissed until the property is disposed ot . 1120 Judgment may be rendered for a return ot part of the property and damages for the part not taken . . 1121 Judgment of return should fix a reasonable time in which the return is to be made 1122 Where the successful party already has possession judgment for a return is not necessary . . . 1123 Nor if he has acquired pos- session during the litiga- tion 1124 Nor where the suit proceeds as one for damages only . 1125 Eight of property must be shown to entitle a party to a return .... 1126 One who disclaims all inter- est in the property cannot have a return . . . 1127 One who pleads property in a stranger .... 1128 Where it is impossible that the property should be returned .... 1129 It is error to order the re- turn of property not in existence .... 1130 Effect of death or destruc- tion of property . . . 1131 The young of animals born while in litigation . . 1132 Effect of failure to adjudge a return . . . . . 1133 Judgment for value is only proper where a return is awarded . . . .1134 Where the property can be returned, the party in pos- session cannot complain of error in fixing the value . 1135 Section. Where defendant has but a limited interest . . . 1136 An officer is entitled to judg- ment of return where suc- cessful 1137 Officer only entitled to return where he can sell . . 1138 The same— Exception . . 1139 An officer may have judg- ment for a sum larger than the value of the goods . 1140 Where the amount of the spe- cial interest is not found a return should be awarjled 1141 A joint judgment can only be rendered . . . . 1142 Joint judgment for defend- ants who make separate defenses .... 1143 Judgment against a person not a party void . . 1144 Proper judgment in certain cases — Practice . . 1145 Judgment on plea of non cepit and non detinet . 1146 An absolute money judgment is erroneous .... 1147 Equities should be adjusted — Damages .... 1148 Proper judgment for dam- . ages 1149 A stipulation as to the amount of the damages will be enforced by the court 1150 Liability and obligations of an administrator . . 1151 Substitution of defendants . 1152 Substitution of an inter- venor 1153 Surety on bond may be al- lowed to prosecute the suit when abandoned by his principal .... 1154 Judgment against the sure- ties 1155 Costs 1156 624 JUDGMENT. § 1086. The judgment must follow the verdict and conform to it. It cannot be broader than the verdict. If it •do not coTsr as much ground as the verdict, it can be cor- rected by the court on motion. The judgment is the super- structure, the verdict the foundation, and they must agree in general form.' A judgment in detintie should follow the verdict, and should be for the property sued for or its alter- nate value, with damages for its detention to the time of the trial.^ The judgment in replevin must conform to the ver- dict. If it is more comprehensive or identifies the property more, it is bad.' It cannot be broader than the finding.* It is the final judgment that determines the rights of the par- ties and the status of the pi-operty, and not the delivery under the writ.^ And both judgment and finding must agree with the pleadings." § 1087. The same — Damages must be proved. The judgment cannot be for damages when the verdict is silent as to the damages.' If the evidence do not show that the plaintiff sustained damage by reason of the detention of the property, a judgment in his favor should be for possession alone, and not for possession and damages.' It is irregular in replevin to award judgment for six cents damages for the wrongful taking and detention in the absence of any finding as to such damages, but it is not reversible error.* "Where the action was replevin in the detinet, and the court found the value of the property as $600, that the plaintiff was its owner and entitled to its possession, and that defendant de- 1 Poor V. Woodburn, 25 Vt. 234; Com Exch. Bank r. Blye, 7 N. T. S. 434. = Greene r. Lewis, 85 Ala. 221 (4 So. 740). « HoHiday v. McKinne, 22 Fla. 153. * Leighton v. Stuart, 10 Neb. 224 (4 N. W. 1051). s Moore v. Herron, 17 Neb. 697 (24 N. W. 425). 'Wolfe F. Blue, 5 Blackf. (Ind.) 153. ' BIa«k V. Winterstein, 6 Neb. 224; Corn Exch. Bank r. Blye, 7 N. T. S. 434. « Wangler r. Franklin, 70 Mo. 659. » Kies V. Delleg, 45 Wis. 663. MAY BE AMENDED. 625 tamed it from him, and then gave judgment in favor of the plaintiff for the property, or for the sum of |176.20, at the option of the defendant. Held to be error'; first, because it gave the defendant the option to retain the property by pay- ing a named sum ; and second, because the sum to be paid was less than the value as found.' § 1088. The court may modify the judgment as to damages. A judgment in replevin may, in the sound dis- cretion of the court, be modified as to the damages when the evidence is not clear and complete as to certain articles.^ § 1089. Judgment may be niade to conform to verdict by motion. A judgment for the plaintiff in an action of re- plevin should be in the alternative — that the plaintiff recover the possession of the property or the value thereof, in case a delivery cannot be had, and for damages for the detention ; but where the finding contains all the requisites for the ren- dering of a proper judgment for the plaintiff, and the judg- ment is not in the form so prescribed, being simply for the value of the property and damages, it should be corrected by motion to conform it to the finding.^ § 1090. How corrected nunc pro tunc. The fact that a . judgment is not such a one as the statute authorizes will not warrant the entering of a proper one nunc pro tunc at a sub- sequent term, without proof that the judgment entered by the clerk is not the one rendered by the court.* This is on the theory that the act of the court at the same term could preju- dice no one, as all parties are supposed to be in court the trial term. § 1091. May be amended — Saving the rights of third parties — Notice. In an action of replevin, where the de- fendant has a verdict in the alternative for a return of the ' Cummlngs v. Stewart, 42 Cal. 230. 2Ladd V. Newell, 34 Minn. 107 (24 N. W. 366). 8 Thompson v. Eagleton, 33 Ind. 300; Hebel v. Scott, 36 Ind. 226; Com Exch. Bank v. Blye, 7 N. Y. S. 434. *Woo)ridge v. Quinn, 70 Mo. 370. See Freeman on Judgts., Ch. IV. 40 626 JUDGMENT. replevied property or for its value as assessed by the jury, in case a return cannot be had, but the clerk erroneously enters an absolute money judgment for the defendant, the district court may, in its discretion, amend the judgment so that it shall conform to the verdict. Such an amendment is inoperative to affect the rights of third persons not parties to the suit, but a clause saving such rights should be inserted in the order allowing it. The application for such amend- ment being made more than two years after the entry of judgment, notice should be served upon the plaintiff; service on his attorney in the suit is not sufficient. One who, on behalf of the plaintiff, executes the undertaking required in an action of replevin, and after judgment for defendant in that action successfully defends, in another state, a suit upon the undertaking, on the ground that the erroneous entry of judgment in the replevin suit enlarged his liability, and discharged him from liability on his undertaking, cannot afterwards contest a motion by defendant for the amendment of the judgment in the replevin suit.' § 1092. Error in entering judgment, how corrected. The proper way to correct an error in entering a judgment in replevin is by motion in the cor^rt in which rendered, and not by appeal.'' On verdict for defendant, when property has been delivered to plaintiff, a judgment for a return should be entered, and if the clerk enter up judgment for costs only, the court will on motion correct it." § 1093. Proper entry of judgment may be compelled by mandamus. "Where a judgment has been erroneously entered in replevin, mandamus will lie to compel the entry of a proper judgment, unless such change will prejudice the rights of strangers.* 1 Berthold v. Fox, 21 Minn. 51. 2 Young V. Atwood, 5 Hnn. 234; Corn Exch. Bank r. Blye, 7 N. Y. S. 434. ^ Sumner r. Cook, 12 Kan. 162. * Frederick r. Mecosta Circuit Judge, 52 Mich. 529 (18 N. W. 343). JURISDICTION OP INFEBIOR COURTS. 627 § 1094. Power of court over judgment — ^Fraud. The jurisdiction of a court to render judgment in a cause is co- extensive witli its authority to inquire into the facts.' And so its control over its own judgments, within the time limited by statute, is absolute, and where it is made to appear that a judgment was obtained by a corrupt agreement it will be set aside. ^ § 1095. Jurisdiction of inferior courts. In Michigan, where the rig it to bring replevin in justice court is limited to property below $100 in value as shown by the affidavit, still if defendant recover, damages may be assessed in his favor up to $500, the general jurisdiction of the justice.^ Where the value of the property or the damages claimed are beyond the jurisdiction of the justice, and plaintiff dis- misses his action, the justice cannot order a return, but ren- der judgment for costs only, leaving the defendant to seek his remedy elsewhere.* Or where the property is not taken, and the judgment for value is beyond the jurisdiction of the justice, the excess may be remitted, the justice may enter and sustain the remittitur, and enter up judgment for the rest, not exceeding his jurisdiction, and it will be upheld. ° The value as fixed in the affidavit is usually conclusive on the subject of jurisdiction.* Jurisdiction of a replevin action may be acquired by consent of parties.' Where an action of ' Fensier v. Lammon, 6 Nev. 209. ^ Fries V. Porch, 49 Iowa, 351. In this case a city marshal, who had seized certain liquors for violation of law and from whom they had been replevied consented, for a money consideration, to judgment against him in the replevin suit. This judgment was set aside as a fraud on the rights of the state, therealpartyin interest. See Freeman on judgments. ' Chilson F. Jennison, 60 Mich. 235 (26 N. W. 859). * Jacobs r. Parker, 7 Bax. 434. See Hood v. Spaeth (N. J.), 16 A. 163. 5 Hill V. Wilkinson, 25 Neb. 103 (41 N. W. 134). Thevaluewas found to be $260, f60 above the appraisement and |60 above the jurisdiction of the court, f 60 was remitted and judgment for balauce upheld. 8 Gottschalk v. Klinger, 33 Mo. App. 410. ' Guy on r. Kooney, 6 N. Y. S. 99. G28 JUDGMENT. replevin is commenced before a justice of the peace by a resi- dent of the county, against a non-resident, and the defend- ant is properly served with summons in the county where the action is commenced, but the property is not taken, and the property has never been wrongfully detained in the county where the action is commenced, but has been and is wrongfully detained by the defendant in the county where the defendant resides, the court has Jurisdiction to hear and determine the case as one for damages only.' § 1096. Judgment must be confined to matters properly arising in the replevin suit. Ixi replevin by a mortgagee, if the finding be in his favor, the court should not order him to sell the property, but simply turn the property over to him on his mortgage, and not as a commissioner of the court.^ § 1097. It is error to render judgment for more than is claimed in the complaint or affidavit, and this error is not cured by an offer to remit, as the pleadings are always amend- able ; if the plaintiff want more than at first claimed, he should amend.' § 1098. The judgment must be certain and definite. It is error to render a judgment in replevin subject to an equitable condition, as to provide that it shall be a judgment unless a certain mortgage is paid within a certain time,* or to attach any other condition not provided for by the statute. The essential part of a judgment is wanting if it be not defi- nite and certain. § 1099. Must describe the property with certainty. A judgment describing the property to be restored as " buck- " wheat, valued at $365.75," is too indefinite to be good, es- pecially where there is nothing in the pleadings to make ^Jie description more definite.* So a judgment and record 1 Huckell V. McCoy, 38 Kan. 53 (15 P. 870). 2 Marks v. MoGehn, 35 Ark. 217. ' Tyner v. Hays, 37 Ark. 599. *Eo8e V. Tolly, 15 Wis. 443. "Welch F. Smith, 45 Cal. 230. WHEN JUDGMENT GOOD. 629 as follows: "A trial was had and a judgment rendered "against the defendant for one cow," it was held not suf- ficient; it did not find the value or damages, or that plain- tiff was entitled to possession, or that defendant wrongfully detained; it would not bar another action for the same cow.' The judgment was for the recovery of five horses out of six, and one wagon out of two ; the horse and wagon not recovered were not sufiiciently identified to enable the sheriff to separate them from the rest. Held, a sufficient ground for the reversal of the judgment.^ A judgment decreeing a re- turn of the property, or in default thereof the recovery of the assessed value thereof, is in due form.' A judgment in replevin which does not allow of a return of the property is defective.* Verdict, "We, the jury, find the defendant "guilty," it was held equivalent to a finding of property in the plaintiff. ° § 1100. A judgment which can be made certain by reference to the pleadings is good, but such practice is not to be commended. In a judgment in replevin, a reference in the judgment to the findings, and in the findings to the complaint for a description of the property, is inexcusably circuitous, but the description is not uncertain. Certum est quod certum reddi potest. Such reference is to the amended complaint if there is one." Thus, in replevin for cattle, a judgment for a sum of money equal to the number of cattle multiplied by their value per head, as found by the evi- dence, and providing for their return to plaintiff, to be cred- ited on the judgment at the same value per head, is in effect a judgment for a return or the value.' A judgment which " Beemis v. Wylie, 19 Wis. 319. 2 Carrier v. Carrier, 71 Wis. Ill (36 N. W. 626). "Heffner v. Reed, 3 Grant Cas. (Pa.) 245; Huron v. Beckwith, 1 Wis. 17. « Fugate V. Stapleton, 6 Bax. (Tenn.) 321. ^ ^ Jarrard v. Harper, 42 111. 457. » Kellj F. McKibben, 54 Cal. 192. See White & Sons v. WoodruH, 25 Neb. 806 (41 N. W. 781-5). ' Lang V. Daugherty (Texas), 12 S. W. 29. G30 JUDGMENT. adjudges that the plaintiff do recover the possession " of the "property in the complaint herein described and filed," where the complaint sufficiently described the property sought to be recovered, is not void for want of certainty.' A plaintiff cannot complain of a judgment in the following form: "Judgment in favor of defendant against the plain- "tiff for possession of the personal property mentioned in "plaintiff's affidavit, to- wit : one buggy, wagon, with costs." ^ A judgment in replevin will not be reversed because it does not specifically describe all the property in controversy where the record, taken as a whole, sufficiently points it out.' § 1101. The judgment must speak upon all the issues involved. Where one issue predominates and all others are subordinate, a judgment upon the main issue carries with it all the others. That is, it is presumed that the court decided them in accordance with the general judgment ; but the better pralctice is to make the judgment full and explicit, leaving nothing to be inferred or guessed at. This is the imperative duty of the court. § 1102. The judgment must speak as to all the parties. A final judgment against part of the defendants will^ not dispose of the case as to the others, and is not sufficient. ■* The claim of plaintiff maybe true as to some of the defendants and false as to some; the judgment should settle this fully." One may be guilty of the wrongful taking, the others not; the judgment should be against those guilty and discharge those not guilty f or if defendants prevail a return may be 1 Hogue V. Panning, 73 Cal. 54 (14 P. 560). See Hunter r. Hoole, 17 Cal. 420. ' Haight V. Haight, 7 Hun. (N. Y.) 87. 3 Coleman v. Heel, 75 Iowa, 304 (39 N. W. 510). * Barbour v. White, 37 111. 164. See Dow v. Rattle, 12 El. 373; Rose V. Tolly, 15 Wis. 444; Perry v. Lewis, 49 Miss. 443. ' Mercer v. James, 6 Neb. 406. ' Carothers v. Van Hagan,2 G. Green. (Iowa) 481; Church v. De Wolf, 2 Root (Conn.), 282; Ouly t'. Dickinson, 5 Cold. (Tenn.) 486; Wakeman r. Lindsay, 19 L. J. Q. B. 166; Addison r. Overend, 6 Term R. 357 and 767. JUDGMENT SHOULD BE IN THE ALTERNATIVE. 631 awarded to one of the defendants and not to the others ;' but judgment for damages is usually against all the defendants.^ § 1103. One good count will support a judgment. Where a defendant in replevin succeeds on one avowry he is entitled to judgment though he plead others which are bad.' After a verdict in replevin it is too late to object that some of the issues were immaterial if there is any one good.* § 1104. When alternative judgment necessary. An alternative judgment should be entered in all cases where the general property is in one party and the special prop- erty in another. Thus, where the plaintiff gives bond and obtains possession of the property, and fails to prosecute his action with effect, and the defendant, as against the plaintiff, has only a special interest in the property, by way of lien, the judgment in favor of the defendant should be only for the value of his interest, or for a return of the property until such value should be paid, at the defendant's election.* And when the general property is in the plaintiff, and the defend- ant shows a special property, consisting of a right to hold the property as against the plaintiff only for a certain sum of money, as where the defendant showed special property by a levy oifi.fa against the plaintiff, or where defendant holds the property of the plaintiff but by virtue of some lien as carrier, warehouseman, or otherwise,* an alternative judgment should always be given. § 1105. A judgment in replevin should be in the al- ternative where it is against the party having the possession. Where the party who recovers in an action of replevin is not the party in possession under the replevin proceedings, ■ Woodburn r. Chamberlain, 17 Barb. 452. ^ Clark V. Bales, 15 Ark. 452; Laymon v. Hendrix, 1 Ala. 212; Simp- son V. Perry, 9 Ga. 508; Fuller v. Chamberlain, 11 Met. 503. 3 Nichols V. Dusenbury, 2 N. T. (2 Comst.) 283. * Gaines v. Tibbs, 6 Dana (Ky.), 143. 5 Dilworth v. McKelvy, 30 Mo. 149. * Lamping v. Payne, 83 111. 463. 632 JUDGMENT. the judgment should be in the alternative.' Judgment in replevin, when against the party in possession, should be in the alternative, and it is error not to enter the judgment in that form; but where such judgment is for a return only, it can be enforced by execution, and the defect will be disre- garded unless it affect substantial rights or operate prejudi- cially to the interests of a party. ^ In an action of replevin the proper judgment, when the result of the trial is in favor of the party dispossessed of the property, is one allowing to the successful party an execution for the return of the spe- cific property, or in case that cannot be found, for its value.' In an action of replevin the judgment must be for the return of the property, and an alternative judgment for its value if not returned. An absolute judgment for its value, not allow- ing defendattt to satisfy the judgment by return of the prop- erty with costs and damages, is erroneous.* § 1106. When alternative judgment not necessary. Where plaintiff was put in possession under the writ, and be- fore trial sold the property, and on a verdict for defendant he elected to take a judgment for value, an alternative judgment ' Sherman r. Clark, 24 Minn. 38; Council v. Averett, 90 N. C. 168; Bobbins v. Killibrew, 95 N. C. 19; Jetton i'. Smead,29Arli.372; Haufi^. Ford, 57 Ark. 544; Rowark v. Lee, 14 Ark. 425; Ward v.Masterson, 10 Kan. 77; Sumner v. Cook, 12 Kan. 162; Hall v. Jenness, 6 Kan. 356; Copeland v. Majors, 9 Kan. 104; Phillips v. Harras, 3 J.J. Narsh. (Ky.) 121; Smith v. Coolbaugh, 19 Wis. 106; Lee v. Hustings, 13 Neb. 508 (14N. W. 476); Hooker v. Hammill, 7 Neb. 231; Marix v. Franke, 9 Kan. 132; Clary v. Roland, 24 Cal. 149; Mason v. Richards, 12 Iowa, 73; Eslava v. Dillihunt, 46 Ala. 702; Jansen v. Effey, 10 Iowa, 227 Bales r. Scott, 26 Ind. 202; Dwight v. Enos, 9 N.- Y. (5 Seld.) 470 Easton v. Worthington, 5 S. & R. 133; Pratt F.Donovan, 10 Wis. 379 Dows V. Rush, 28 Barb. (N. Y.) 157; Fitzhugh v. Wiman, 9 N. Y. (5 Seld.) 559; Anderson v. Tyson, 14 Miss. (6 S. & M.) 244; Lambert v. McFarland, 2 Nev. 58; Rowark r. Lee, 14 Ark. 425. 2 Marix v. Franke, 9 Kan. 132. 5 Clark V. Warner, 32 Iowa, 219. ' Lambert r. McFarland, 2 Neb. 58; Fitzhugh v. Wiman, 5 Shelden (9 N. Y.) 559; Wallace v. Hilliard, 7 Wis. 628; Carson r. Applegarth, 6 Nev. 187. WHEN ALTEENATIVE JUDGMENT NOT NEOESSAilT. 633 is not necessary.' Where, after the commencenierit of the suit in replevin, defendant as sheriff sold the property and plaintifiE bought it and was in possession of it at the trial, on a finding in his favor, an alternative judgment is not neces- sary, but he should have judgment for the possession and for what it cost him at the sale as his damages.^ A judg- ment in replevin may be good though not expressed in the alternative/ Where plaintiff brought replevin but did not give the bond, but suit proceeded and judgment as follows was rendered on a finding for plaintiff, "It is therefore con- " sidered and adjudged by me that the plaintiff have the im- " mediate possession of said property, and in'defaultof the re- " CO very of such possession he recover frofli defendant the sum of, etc., " held, to be an election by plaintiff to take the prop- erty, and where after tender of return it was destroyed it was plaintiff's loss, and collection of the money judgment should be enjoined.* Where a replevin case was decided against a plaintiff on demurrer, on the ground of no jurisdiction, held, that defendant did not have his election to take the property or judgment for its value, but must take the property.' § 1107. Where bond not given — Alternative judgment not necessary. If in an action of replevin the plaintiff does not give bond and does not procure a delivery of the property to him, and on the trial elects to proceed for the value and not for a return, without objection by the defendant, he is entitled, if successful, to an absolute judgment for the value. ° And where no bond was given and no return made, held, that the court had no jurisdiction and could make no order, 1 White V. Graves, 68 Mo. 218; Wooldridge v. Quinn, 70 Mo. 370. 2 Leonard v. Maginnis, 34 Minn. 506 (26 N. W. 733). SBoly r. Griswold, 20 Wallace (U.S. C. Ct.), 486; Sweeney F.Lomme, 22 Wallace, 208. * Oskaloosa v. Nelson, 54 Iowa, 519 (6 N. W. 718). 5 Williams v. Chapman, 60 Iowa, 57 (14 N. W. 8&). This holds that § 3241 ot the Iowa code, which provides that the person found to be en- titled to the property may, at his option, have the specific delivery or judgment for the value, applies only to cases tried on the merits. « Tuckwood V. Hanthorn, 67 Wis. 326 (30 N. W. 705). 634 JUDGMENT. and that the plaintiff in the pretended action of replevin and the officer holding the illegal writ were liable as trespassers and not in the replevin (?) action.' § 1108. Successful party may waive right to an alter- native judgment and the other party cannot complain. The plaintiff may waive his right to have included in the judgment for the recovery of the property the usual alterna- tive provision for the recovery of its value, on a finding in his favor.^ If the defendant waive the taking of a personal judgment, the plaintiff cannot object.' The statutory provi- sion, that a judgment in favor of a defendant shall be in the alternative for a return of the property or for its value, is for the benefit of the defendant, who alone can take advan- tage of its omission. Anyhow, before the plaintiff could complain of its omission he must show that the property is capable of being returned,' and this election may be first made when judgment is taken. ^ § 1109. How this election made. The better rule is that this waiver of right to a judgment of return is presumed where the party entitled thereto knowingly stands by and does not insist upon judgment for return, but the courts have not been uniform in their holdings on this point. "Where plaintiff' has taken the property and the finding is against him, defendant is entitled to a judgment for a return of the property, or he may waive this and take a judgment for its value, and this election need not be of record but may be oral or inferred from his actions." Where the statute gives de- fendant a right to elect whether he will have judgment for a return or the value, the record must affirmatively and dis- ' Adams v. McGlinchy, 62 Me. 533—66 Me. 474. 2 Stevens V. McMillin, 37 Minn. 509 (35 N. W. 372); Thompson v. Scheid, 39 Minn. 102 (38 N. W. 801); Morrison v. Austin, 14 Wis. 601. 3 Morrison v. Austin, 14 Wis. 601; Smith v. Coolbaugh, 19 Wis. 107; People V. Tripp, 15 Mich. 518; Williams r. Vail, 9 Mich. 162. * Goodman v. Kennedy, 10 Neb. 270 (4 N. W. 987). ^ High V. Johnson, 28 Wis. 72. « Hill V. Fellows, 25 Ark. ] 1. WHEN JUDGMENT EOE A EETUEN NE0ES3ABY. 633 tinctly show his election to take judgment for the value and not a return, if he so elect, otherwise the judgment should be for a return.' § 1110. Where the property is in the hands of the court, a judgment for delivery alone is sufficient. Where the property sued for in replevin (an insurance policy) is de- livered into the control of the court, there is no necessity that a verdict for the plaintiff should assess its value, so that the court can render ah alternative judgment for the prop- erty or its value. The judgment should be only for de- livery.^ § 1111. Judgment for a return is necessary where the successful party is not in possession. In replevin for fixtures, which the officer separated from the realty but did not remove, judgment for a return is proper.^ If defend- ant traverse plaintiff's title, he will be, if he prevail, en- titled to a judgment of return.* His right, upon such an issue, to a return, is as clearly established as his right to a judgment for costs. ^ A justice of peace may render judg- ment for a return of property and for damages up to the limit of his jurisdiction.* It is error to adjudge a return to plaintiff of articles omitted from the verdict.' Where the plaintiff has the property, it is error to render judg- ment against him for the value or for a return, without a trial.* A judgment in replevin must be in the alternative and in the form required by the statute.' A defendant who re- covers a judgment in an action of replevin, where the prop- 1 Adams v. Champion, 31 Mich. 233; Wheeler v. Wilkins, 19 Mich. 78. ^ Harris v. Harris, 43 Ark. 535. 3 Josslyn V. McCabe, 46 Wis. 591. * Timp V. Dockham, 32 Wis. 146. ^Kaeffner v. Stratton, 57 Me. 360; Withara v. Witham, 57 Me. 447. « Zitske V. Goldberg, 38 Wis. 216. ' Young V. Lego, 38 Wis. 206. 8 Planer v. Smith, 40 Wis. 31. * Berson v. Nunan, 63 Cal. 550; Campbell r. Jones, 38 Cal. 507; Mc- Cue V. Tunstead, 66 Cal. 486 (C P. 316); Bricliman v. Ross, 67 Cal. 601 (8 P. 316); Stewart v. Taylor, 68 Cal. 5 (8 P. 605). 636 JUDGMENT. erty has been delivered to the plaintiff, is entitled to a judg- ment for a return of all the property, and if it cannot be re- turned, then to a judgment for the value of the whole, and it is not necessary to the validity of the judgment that the separate value of each article sued for be found by the court.' Where the pleas were non cepit and non detinet, property in a third person and property in defendant, ver- dict, "We, the jury, find the issues for the defendant," held, that the property should be returned to the defendant.^ Under a verdict which fails to find the value of the property to be returned, it is error to render a judgment for a return, but it is voidable and not void error.' § 1112. Judgment for a return is a matter of right. The defendant has the right to show that he is entitled to the goods, and to have judgment for a return.* In replevin the general issue, with notice of other defenses, is equivalent to an avowry, with suggestion of a return, at common law, and a return should be awarded if defendant prevail.'' Where, in an action for the recovery of personal property, the property is delivered to the plaintiff, and he fails in the action, the defendant cannot have judgment for a return or for the value, at his election; but he must take a judgment in the alternative for the return of the property, or, if a re- turn cannot be had, for the value as assessed.^ When a de- fendant in a replevin suit has a verdict in his favor, he can not forego his right to a return of the goods and recover their value in an action of assumpsit.' In detinue there is no option of delivering up the property or paying the value ; on the contrary, the judgment and execution are absolute for the return of the property if it can be found.' ' Whetmore v. Eupe, 65 Cal. 237. 2 Underwood v. White, 45 111. 437. 3 State ex rel. v. Dunn, 60 Mo. 64. * McKesill r. Chaney, 6 Ind . 52 ; Everit v. "Walworth, &e., 13 Wis. 419. ^ Hoffman v. Noble, 6 Mete. (Mass.) 68. « Seamon v. Luce, 23 Barb. (N. Y.) 240. ' MeKnight r. Dunlop, 4 Barb. (N. T.) 36. ^ Robinson r. Richards, 45 Ala. 354. EETURN ONLY AWARDED AGAINST ONE IN POSSESSION. 637 § 1113. That the successful party is insolvent does not change his right to a return. A defendant in replevin is entitled to a judgment for a return, if su6,cessful in the action, although he has gone into insolvency while it is pending, where the assignee in insolvency has not appeared to defend or asked to be made a party.' If a debtor, whose goods have been attached and who has replevied, take ad- vantage of the insolvency law, and the defendant in replevin obtain a verdict, he will be entitled, notwithstanding the insolvency, to judgment for a return. § 1114 Return can only be awarded against one in possession. On judgment in defendant's favor, he is ordi- narily entitled to an order for the return of the property, but upon the issue of non detinet, where plaintiff's action is de- feated because he brought it against one' not in possession, a return should not be awarded.^ In an action for the re- covery of specific personal property, judgment for possession may be given the plaintiff, though the property has not been taken and no bond given by defendant; and if the property cannot then be obtained, the plaintiff may recover the value, with damages, though the judgment should be in the alter- native. In any case, the defendant must have had the prop- erty in his possession when the action was brought!' But the general rule is that a return cannot be awarded unless plaintiff had delivery upon the writ.* § 1115. The same. Where non cepit and property in a stranger was pleaded by the agent of the oWners of property on which salvage was due, and the court found both issues 1 Hallett F.Fowler.lO Alien (Mass), 36. See Befordy. Penney, 65 Mich. 667 (32 N. W. 888). 2 Brown v. Stanford, 22 Arls;. 76; Neis r. Gillen, 27 Arlr. 184. ' Guiotli V. Waldstein, 7 Mo. App. 66; Hamilton F.CIarlt, 25 Mo. App. 428. In Missouri, if no affidavit is filed and no bond given, the statute provides that the suit may proceed just the same, only the property is not delivered. * Scofleld V. Ferrers, 46 Pa. St. 439; Brown v. Stanford, 22 Ark. 78; Connor r. Comstock, 17 Ind. 90; McKeal v. Freeman, 25 Ind. 151; Mc- Ginnis r. Hart, 6 Clark (Iowa), 210; Nickerson r. Chatterton, 7 Cal.570. 638 JUDGMENT. for the defendant, it refused to order a return, the prop- erty having been sold for the salvage under legal process.' Judgment for the plaintiff in replevin is erroneous upon a special finding of facts which does not show that the defend- ant was in possession of the property sought to be recovered when the writ of replevin was issued, or any time there- after.^ Where the answer puts in issue the title of the plaintiff, as well as the taking and detention of the property by the defendant, and the record does not show that any bond has been given which could authorize the delivery of the property to the plaintiff, a general finding for the de- fendant will not support a judgment for the return of the property.' Where the plaintiff is nonsuited on the ground that the property replevied had never been in the possession of the defendant, the latter is not entitled to a judgment for a return of the property or its value.* A finding that the plaintiff had possession of the property at the commence- ment of the action will not sustain a judgment of replevin against a defendant wrongfully detaining it. If this finding is correct, the defendant could not be wrongfully detaining the property when the action was brought.^ § 1116. Exception in case of fraud. Where it is shown that defendant is a party to a corrupt agreement to keep the property out of the reach of plaintiff, it is not error to enter judgment against defendant for a return, or the value, though at the time the property is not in his possession, if the de- fendant could cause a delivery of it if he chose to do so.° § 1117. Where plaintiff fails in his action for any rea- son restitution should be awarded. Where a plaintiff in replevin fails to prosecute his suit with effect, the law pre- sumes title to the property in the defendant, and he has only 1 Whitwell r. Wella, 24 Pick. (Mass.) 25. " McCorraick v. McCormick, 40 Miss. 760. ^McKeal v. Freeman, 25 Ind. 151. * Gallagher v. Bishop, 15 Wis. 276; Tirap r. Dockham, 32 Wis. 153. ' Degering r. Flick, 14 Neb. 450 (16 N. W. 825). "Meixell v. Kirkpatrick, 33 Kan. 283 (6 P. 241). BETUEN SHOULD FOLLOW DISMISSAL OE NONSUIT. G39 to prove the amount of his damages in order to recover res- titution.' When the plaintiff fails in his suit the presump- tion is that the property belongs to the defendant, and a re- turn will be awarded unless some reason be shown why it should not be.^ Whenever defendant justifies and shows right to possession, and plaintiff fails to show an exclusive right to the property, judgment of restitution should be awarded.' The court having the property properly before it should dispose of it, as the facts developed on the trial show to be just. Where defendant pleads property in himself, if he prevail, an order for the return of the property follows of course.* § 1118. Judgment of return should follow dismissal or nonsuit. Where a plaintiff in replevin discontinues his suit, the necessary result must be a liability for the property taken, and damages for the detention ; and the defendant, in that case, may elect to have a return and his damages. ° When plaintiff in replevin is nonsuited, defendant can have judgment for the thing replevied and costs, but not for dam- ages." Where the action is dismissed for want of a sufficient bond, a return should be ordered.' Where the action is dis- 'Rickuer v. Dixon, 2 Green. (Iowa) 591; Thurber r. Richmond, 46 Vt. 398; McArthur v. Sane, 15 Me. 245; Wolbridge v. Shaw, 7 Cush. 561; Whitwell v. Wells, 24 Pick. 33. 2 Barry v. O'Brien, 103 Mass. 521; Clark v.Adair,3 Harr.(Del.) 116; Simpson v. McFarland, 18 Pick. 431; Mason r. Richards, 12 Iowa, 73; Jansen v. Effey, 10 Iowa, 227; Fleet v. Lockwood, 17 Conn. 233. For- merly return was never awarded in Ohio; the bond was supposed to give the plaintiff title. Smith v. McGregor, 10 Ohio St. 470; Williams r. West, 2 Ohio St. 87. But the statute has changed this. ^ Whitesides v. Collier, 7 Dana, 285; Cooper v. Brown, 7 Dana, 335. * Story's Pleadings, 2 Ed. 456-445, and note; Morris on Replevin, 87, 88; Wilkinson on Replevin, 91; W^ells on Replevin; Same title. ^Saunderson r. Lace, 1 Chand. (Wis.) 231. "Parnell v. Hampton, 10 Ired. (N. C. L.) 463; Kerley v. Hume, 3 T. B. Mon. (Ky.) 181; Chad wick v. Miller, 6 Iowa., 34; Smith v. Winston, 10 Mo. 299; Hacker v. Johnson, 66 Me. 21. 'Lowe V. Brigham,3 Allen (Mass.), 429; Fleet v. Lockwood, 17 Conn. 233; Greeley v. Currier, 39 Me. 516; Collamer v. Page, 35 Vt. 387. GiO JUDGMENT. missed on motion of defendant, lie is not left to an action on the bond, but is entitled to a return.' § 1119. The same — A contrary rule. Some courts hold that on a dismissal judgment for costs only can be giren, and not for a return,'leaving the party damaged to his rem- edy on the' bond.^ If the writ abate for the mistake of the clerk, the property will not be retm-ned.' So, where the de- fendant pleaded in abatement for a variance between the writ and the declaration, and did not claim a return, it was not awarded.* But if the defendant is entitled to a return and claim it, it will be awarded. ° It may be st^-ted as an almost general rule that a return will be awarded where plaintiff fails for any reason whatever, ^nd this is the better practice. § 1120. An action of replevin cannot be dismissed un- til the property is disposed of. The judgment for a return is the fin^l judgment in replevin, and is conclusive upon the parties as to the matters embraced within it. An action of replevin is not disposed of until the question of the return of the property is acted upon, notwithstanding the writ may have been abated on some technical ground. Until the prop- erty is disposed of by the court, both parties are in court with a legal right to be heard." See ch. XXXVIII. § 1121. Judgment may be rendered for a return of part of the property and damages for the part not taken or returned. The plaintiff may recover a part only of the chattels sued for; he is not bound to recover all or none.' In replevin a recovery may be had to the extent of the title ' Funke v. Israel, 5 Iowa, 438. ^Mcllvaia v. Holland, 5 Harr. (Del.) 226. » Gould V. Barnard, 3 Mass-. 199. * Hartgraves v. Duval, 1 Eng. (Ark.) 508; Dickinson v. Noland, 2 Eng. (Ark.) 26; Hill v. Bloomer, 1 Pinney (Wis.), 463; SinipsonV. Mc- Farland, 18 Pick. 430; Gould v. Barnard, 3 Mass. 199. ^ People, ex rel, v. N. Y. Com. Pleas., 2 Wend. 644 ; Hoeff ner v. Strat- ton, 57 Me. 360. « Moore r. Herron, 17 Neb. 697 (24 N. W. 425); Tuck v. Moses, 58 Me. 461. ' Glass V. Pinckard, 56 Ala. 592. . SHOULD FIX REASONABLE TIME FOE A RETURN. 641 proved by plaintiff.' If an action of replevin be brought for taking several articles, and on an issue as to tlie plaintiff's property in them, he prove himself entitled to a part, the de- fendant has a right to a return of the others, and to dam- ages for the taking of them^ In an action for the recovery of personal property, if the plaintiff establishes title to only a portion of the property, he is entitled to his costs. In re- spect to the portion to which he does not establish his right of possession, judgment of return should be rendered, or for the value if a return cannot be made.^ Where property lev- ied on by execution is replevied by a third party and the officer pleads non detinet and property in a third party, on a verdict in favor of plaintiff, except as to a certain mare, judg. ment should be rendered for a return to defendant, as to the 3na;re, and refusal to do so is error.* § 1122. Judgment of return should fix a reasonable time in which the return is to be made, and if not complied •with, the money judgment to become operative then. Where the time is not fixed, a reasonable time under all the circum- stances should be allowed. Thus where a judgment for the return of a mare and colt was awarded, and in lieu of the re- turn judgment for $160, and when the plaintiff tendered the property, it was refused, it was held that an offer to return within thirty days was sufficient and within a reasonable time.^ (See ch. XXXYII.) The order for delivery is a part of the judgment, and it must be made at the time the judg- ment is entered, and cannot be made at a subseq^uent term.' ' Walker v. Hunter, 5 Cranch. (C. Cfc.) 462. 2 Wright V. Matthews, 2 Blackf. (Ind.) 187. » Horton v. Home, 99 N. C. 219 (5 S. B. 927). * Pi-att V. Tucker, 67 111. 346. See Mattingly v. Crowley, 42 HI. 300. 5 McClellen v. Marshal, 19 Iowa, 562. « Weizen v. MoKinney, 2 Wis. 288 ; Wilkins r. Treynor, 14 Iowa, 393 ; ■Clark r. Warner, 32 Iowa, 219; Funk r. Israel, 5 Iowa, 454; Kates v. Thomas, 14 Minn. 461; Fitzhugh v. Wiman, 9 N. Y. 559; Dwight v. Enos, 5 Seld. (N. Y.) 470; Lill v. Stocky, 72 111.495; Nickerson r. Chat- terfcon, 7 Cal. 572. 41 642 JUDGMENT. § 1128. Where the successful party already has pos- session judgment for a return is not necessary. Where there is judgment for defendant in a replevin suit, he is not entitled to judgment for the property or its value where it appears that it was never delivered to plaintiff.' Beturn need not be awarded in replevin where the property has been de- livered under the writ to the plaintiff on a finding for him. ^ Where plaintiff obtains possession of the property and re- tains the same on a finding in his favor, judgment for a re- turn of the property alone, and not in the alternative for a return or the value, is good, and defendant can take no ad- vantage of it.' Where the verdict is in favor of plaintiff for some of the articles claimed, and in favor of the defendant for some, and it does not appear that defendant's possession of any has been disturbed, the defendant is entitled to no -judgment, and is not prejudiced by failure to assess the value of the articles found to be his, or damages for taking and withholding them. Judgment must not be for a greater amount than that claimed in petition.* A plaintiff in replevin having failed in his suit for the reason that the property was shown by the evidence to have been in his own possession when he sued out his writ, a judgment for a return of the property to the defendant is erroneous.' In replevin where a nonsuit is suffered by plaintiff and it appears that the property never has been moved, that the plaintiff could not take full possession without a custom-house delivery- order, which had remained in defendant's possession all the time, held, that an order of return was not necessary, and that de- fendant was not entitled to damages." But that there may be no question about the status of the property, the judg- = Clapp r. Trowbridge, 74 Iowa, 550 (38 N. W. 411). 2 Smith r. Dodge, 37 Mich. 354. ^ Mills V. Kansas Lumber Co., 26 Kan. 574. * Ward V. Masterson, 10 Kan. 77. ' Gidday f. "Witherspoon, 35 Mich. 368. • Ware River R. R. Co. v. Vibbard, 114 Mass. 458. WHEN JUDGMENT FOE A EETUEN NOT NEOESSAET. 643 ment should decree tlie right to possession in the successful party in distinct terms. § 1124. Nor if he has acquired possessior during liti- gation. In replevin, where it appears by the officer's re- turn that he has restored the property replevied, it is error to render a judgment retorno habendo, nor will a remittitur of the damages cure the error.' Although the question in replevin is the status of the property at the commencement of the action, still the court should inquire into the title and possession of the property down to the day of trial, that complete justice may be done.'*- If it appear that a change in possession or ownership has taken place during the pend- ency of the suit, as by the expiration of a lease, or the termi- nation of a limited interest, or for any reason, the court will consider this, and not award a return when it would be in- equitable to do so.^ But judgment for costs and damages should be given, based on the right of possession at the com- mencement of the suit.* § 1125. Nor where the suit proceeds as one for dam- ages only, and a general verdict and money judgment in such cases has been held sufficient.' Where the writ was not executed and the property not delivered to plaintiff, on his defeat in the suit, no return should be awarded, as there is nothing to return. ° In action of replevin, a recovery may be had as in an action of conversion of personal property if 1 Harrod v. Hill, 1 Dana (Ky.), 165. ^Johnson v. Neale, 6 Allen (Mas8.), 229. ^Ingraham v. Martin, 15 Me. 373; Whitwell v. Wells, 24 Pick. 33; Walpole r. Smith, 4 Blackf. 306; Davis r. Harding, 3 Allen, 303; Daw- son r. Wetherbee, 2 Allen, 461 ; Simpson r. McFarland, 18 Pick. 430 ; Collins V. Evans, 15 Pick. 65; Allen r. Darby, 1 Show. 99; O'Conner r. Blake, 29 Cal. 313; Wheeler r. Train, 4 Pick. 168; McNeal r. Leonard, 3 Allen (Mass.), 268. * Ator T. Eix, 21 111. App. 309. ' Meredith v. Kennard, 1 Neb. 315. "Prentiss f. Moore, 3 Bradw. (111.) 539; Hill r. Wilkinson, 25 Neb, 103 (41 N. W. 134). 644 JUDGMENT. the facts stated are sufficient, notwithstanding the prayer is for a return or the value.' § 1126. Right of property must be shown to entitle a party to a return. To authorize a judgment of return in favor of defendant in an action of replevin, he must become actor, and assert a right of property in himself.^ In replevin where non-detinet was pleaded by the defendant, and he showed no title or right of possession, held, that on a verdict for the defendant, he was not entitled to a return.' If a verdict of non-cepit is rendered on a plea of non-cepit, with a claim of property, the defendant is entitled to judgment for a return.* But on non-cepit alone or with claim of prop- erty in a third party, defendant is not entitled to a return.^ Where a plea of property is interposed as well as a plea of non-cepit, a verdict for the plaintifP, upon the latter plea, de- termines nothing between the parties except the taking ; and the plaintiff is not entitled to recover unless property be found in him also.* Where the defendent did not obtain the possession of the property with proper authority' or right from the plaintiff in replevin, the court will not, pend- ing the action, award a return of the property.' If an action of replevin is defeated solely by reason of its being prema- turely commenced, judgment for a return of the goods re- plevied will not be ordered.' § 1127. One who disclaims all interest in the property cannot have a return, Where a defendant in replevin sets up no right or claim to the property, but denies having been in possession when the writ was issued and. served, and this 1 Howard v. Barton, 28 Minn. 116 (9 N. W. 584) ; Morish v. Moun- tain, 22 Minn. 564;' Washburn v. Mendenhall, 21 Minn. 332. 2 Bonner v. Coleman; 3 B. Mon. (Ky.) 464. 'Johnson v. Howe, 7 111. (2 Gilm.) 342. *Moultou V. Bird, 31 Me. 296. 5 Whitwell Y. Wells, 24 Pick. (Mass.) 25; Simpson v. McFarlaad, 18 Pick. (Mass.) 427; People v. Niagara, 4 Wend. (N. Y.) 217. 8 Bemus v. Beekman, 3 Wend. (N. Y.) 667; 7 Cow. 30. ' Montgomery v. Black, 4 Har. & M. (Md.) 391. ' Martin i'. Bagley, 1 Allen (Mass.), 381. WHERE RETURN IMPOSSIBLE. 645 is found in his favor, lie has no claim to a judgment for the return or its value, but only to a judgment for his costs.' A judgment for the return of certain personal property, and damages for its detention, cannot be sustained against one "who is shown by the testimony neither to have possession nor to claim any right to the possession.^ But because a defendant disclaims all interest is no ground of dismissing the suit; he might be guilty of a wrongful taking or deten- tion ; the court should examine into the matter and see. If his plea be true he can be taxed with no costs from the time of filing it.' § 1128. One who pleads property in a stranger will not be awarded a return unless he show srme reason to en- title him to the possession, as that he is the agent or re- sponsible to the stranger.* Where the defendant pleads property in a stranger, which plea is upheld, but does not connect himself with the title of the stranger; he is not en- titled to a return except, where the plaintiff was a trespasser, or a wrongdoer without color of right, when a return will sometimes be awarded on the theory that he who had peace- able possession had a better right than a wrongdoer.^ § 1129. Where it is impossible that the property should be returned, judgment for value alone is not error ; the law does not require impossible things." If, on the trial of an 1 Hinchmah v. Doak, 48 Mich. 168 (12 N. W. 39). ' Ladd V. Brewer, 17 Kas. 204. ' Smith r. Emmerson, 16 Ind. 355. *Dozier v. Joyce, 8 Port. (Ala.) 303; Brown v. Webster, 4 N. H. 500; Rogers v. Arnold, 12 Wend. 30; Duncan v. Spear, 11 Wend. 54; Wil- kerson v. McDougal, 48 Ala. 518. See Van Namee v. Bradley, 69 111. 300; Mitchell v. Alestree, Vent. 249, ^5 Landers r. George, 40 Ind. 160; Walpole r. Smith, 4 Blackf. 305; King V. Ramsay,13 111. 619; Underwood r. White, 45 111. 438; Constan- tine V. Foster, 57 111. 38; Prosser F.Woodward, 21 Wend. 209; Morse v. Stone, 5 Barb. 516; Quincy r. Hall, 1 Pick. 357; Waldman v. Broder, 10 Col. 379; Easton v. Worthington, 5 S. S. & B. (Pa.) 132; Ingraham V. Hammond, 1 Hill (N. Y.), 353, and cases cited; Butcher v. Porter, 1 Salk. 94; Allen r. Darby, 1 Show. 97; Salkold r. Skelton Civ. Jac. 519. » Boley V. Griswold, 20 Wall. 486. 646 JUDGMENT. action in replevin, it appear that the property has been hope- lessly lost or has been destroyed, so that a judgment for its delivery -srould be unavailing, judgment for damages alone, without judgment for its possession, is at most but a tech- nical error for which the judgment will not be reversed.' Where a portion of the articles claimed have been disposed of by the defendant so that he cannot return them, it is not necessary that the court should find the character or value of the articles which can be returned, or that the judgment should be in the alternative; in such a case a judgment for the value of the entire property is proper.^ § 1130. It is error to order th6 return of property not in existence. In replevin for four cattle one, died before trial, and judgment was entered for return of the four; re- versed on that ground as it should have been for the return of the three.' Where it appears that the property is hope- lessly lost or destroyed, it is not necessary to render judg- ment for a return ;* the law does not countenance the entry of vain orders. § 1131. Effect of death or destruction of property. As we have just seen, where the property is not in existence at the time of the trial, a return will not be ordered. But a judgment for value is quite another thing; the correct rule is that the death or destruction of the property in the hands of a wrongdoer, is no bar to a judgment against him for the value.* See this title § 867-9. The common law purpose of replevin differed from the present use of it so much as to furnish us no guide on this point. Property taken for a distress was at the risk of the owner; if it died it had no effect on the landlord's right to rent.' ' Brown f. Johnson, 45 Cal. 76. 2 Burke v. Koch, 75 Cal. 356 (17 P. 228). In this case there was actual fraud participated in by Koch. * Mattingly v. Crowley, 42 111. 300. * Brown v. Johnson, 45 Cal. 77; Boley r. Griswold, 20 "Wall. 486. ' Carpenter v. Stevens, 12 Wend. 58i). " 3 Bla. Com. 145. See Parsons on Contracts, III., 217. WHEN JUDGMENT FOB VALUE PKOPEE. 647 § 1132. The young of animals born while in litigation may be ordered returned, as they stand in the same position as the dams in relation to the suit, unless a contrary agreement is shown,' and the same rule was followed in case of the children of a slave mother.^ Wool shorn from sheep and milk of cows while in litigation should not be ordered re- turned, but considered in assessing the damages.' § 1133. Effect of failure to adjudge a return. Where the property has been delivered under the writ to the plain- tiff, and on the trial no return is awarded, the title at once vests absolutely in the plaintiff.* The gist of the action is the possession of the property, and if the court fail to make an order in regard to it, the presumption is that it was sat- isfied, that it should remain where it was. But the judg- ment should always speak upon this point and leave nothing to inference. § 1134. Judgment for value is only proper where a re- turn is awarded. Where there is no judgment for the re- turn of the property replevied, there can be no judgment for its value." A judgment for th& plaintiff in replevin, when the property is in his possession, may award him the damages assessed for the wrongful detention, but will be erroneous if it award to him, as an alternative of possession, the assessed value of the property. '^ Where the property has been delivered to the plaintiff under the writ, it is error to render judgment for the value of the property on finding in his favor.' Where the defendant, does not claim a judg- ment for return, he is still entitled to judgment for costs on ' Buckley v. Buckley, 12 Nev. 423; Jordan F.Thomas, 31 Miss. 558. 2Seay v. Bacon, 4 Sneed. (Tenn.) 103. 3 Buckley v. Buckley, 12 Nev. 423. * Kayser v. Bauer, 5 Kas. 202. 5 Foster v. Bringham, 99 Iiid. 505; Gould v. Scannell, 13 Cal. 430; Bourk V. Riggs, 38 111. 320; Vose v. Hart, 12 111. 378. ' Baird v. Taylor, 30 Mo. App. 580. ' Blackwell v. Acton, 38 Ind. 425. See Beinus r. Beekman, 3 Wend. 667; Mills v. Gleason, 21 Cal. 280; Johnson v. Howe, 2 Gilm. 342. 648 JUDGMENT. finding in his favor.' In replevin judgment for the value of the property can only be rendered against defendant where it shall appear by the officer's return to the writ that he did not obtain the property under the writ. The plaintiff's affidavit of that fact is not sufficient; if the writ is lost it should be restored by copy.^ Judgment may be given for a return of the property, instead of for its value, if, when the verdict is rendered, no one is present for the party entitled to it and no evidence of value has been produced.^ The value of property is not in issue in replevin, except for the purpose of an assessment of value in defendant's favor; or, in other words, the value is only material where a return is awarded. It is not so much the value of the property as the amount of the damages involved which should determine the jurisdic- tion of the court.* § 1135. Where the property can be returned, the party in possession cannot complain of error in fixing the value. Where, in an action of replevin, the property is turned over to the plaintiff, and at the trial judgment is rendered for the defendant, and the value found to be greatly less than the amount stated by the plaintiff in the affidavit of replevin, held, that such finding of value cannot be complained of by the plaintiff where he fails to return the property as directed by the judgment.'' § 1136. Where defendant has but a limited interest, which is less than the value of the property, judgment in his favor should not be for the full amount unless he is liable to the general owner, but should be only for the amount of his special interest." Plaintiff having obtained possession at the commencement of the action, the judgment upon a proper ' Cowling V. Greenleaf, 32 Kan. 392 (4 P. 855). 2 Kehoe v. Rounds, 69 111. 351. ' Kelso r. Saxton, 40 Mich. 666. * Eldred v. Woolaver, 46 Mich. 241 (9 N. "W. 266). 5 Weil V. Ryns, 39 Kan. 564 (18 P. 524). ' Fowler r. Hoffman, 31 Mich. 221; Russell v. Butterfleld, 21 Wend. 300. WHEN OFFICEE ENTITLED TO A EETrEN. 649 verdict, in case a return could not be had, should be that the defendant recover, not the full value of the chattel, but merely the value of his special property therein.' In re- plevin against an officer holding under orders of attachment, the value of his interest is the value of the attachments lev- ied by him prior to being dispossessed by replevin/ § 1137. An officer is entitled to judgment of return when successful. Where mortgaged chattels were levied upon under execution against the mortgagor, and the mort- gagee replevied them, but the judgment was for the defend- ant — ^the officer who made the levy — ^the judgment should have been for the return of the property, or in default thereof, for the amount due on the execution, and not for the entire value of the property, where that was more than the amount due on the execution. But, although the alter- native judgment was for a greater amount, plaintiffs cannot complain so long as they may discharge the same by the return of the property.' To authorize a judgment de retorno habendo in favor of the sheriff, it is sufficient that he allege the taking by writ of fi. fa. against the plaintiff, and that the property belonged to the defendant, subject to the writ, and that the jury so found.* Under a plea of property in a stranger, the defendant, who held as deputy sheriff by virtue of the writ against the stranger, is entitled to a return. ° § 1138. Officer only entitled to a return where he can sell. His right under the law to reduce the property to money is the basis of his right to the property.'* § 1139. The same — Exception. Where the plaintiff shows no right to the property, the law will not leave it in his hands, even though the officer has shown no right but peaceable possession. After a verdict for the defendant in 1 Warner v. Hunt, 30 Wis. 200. 2 Merrill v. Wedgwood, 25 Neb. 283 (41 N. W. 149). 3 Ormsby r. Nolan, 69 Iowa, 131 (28 N. W. 569). *«tephen8 v. Frazier, 2 B. Mon. (Ky.) 250. ^ Quiney r. Hall, 1 Piclt. (Mass.) 357. ' Softel V. Wash, 4 B. Mon. (Ky.) 92. 650 JUDGMENT. an action of replevin against an attaching officer, in which the question of property in the plaintiff was tried, and a ver- dict found against him, judgment for a return of the goods replevied will be ordered, although, since the rendition of the verdict the attachment has been dissolved.' § 1140. An oflBcer may have judgment for a sum larger than the value of the goods. In an action for the recovery of goods seized by a sheriff, where the damages alleged are larger than the judgment, it is not error that the judgment is for a larger sum than that at which the goods are valued, as the plaintiff is not estopped, by this valuation, from re- covering any sum within the ad damnum.'' § 1141. Where the amount of the special interest is not found, a return should be awarded. Where goods held by a sheriff under an attachment are taken from him by writ of replevin, a judgment in his favor, before the attachment suit is decided, must be for the return of the property, and not for the special value of his lien.^ Where a jury finds that defendant has a special lien, but does not find what the property is worth, there is nothing on which to base a per- sonal judgment against the plaintiff for the amount of the lien.* But where the value of his special interest can be determined, he is entitled to the possession of the property on a finding in his favor, or in lieu thereof the value of his special interest, and not the value of the goods in contro- versy;' in other words, when the amount of his special in- terest, which is in the nature of a lien, is tendered him, his right of possession is thereby terminated, and the right of possession is transferred to the owner. ' Dawson v. Wetherbee, 2 Allen (Mass.), 461. See Kimball f. Thomp- son, 4 Cush. 441; .Tohnson v. Neale, 6 Allen, 228. ^Coghill V. Boring, 15 Cal. 215. 3 Frederick v. Mecosta, Circuit Judge, 52 Mich. 529 (18 N. W. 343). This seems to ignore the amount called for by the attachment writs as the basis of the sheriff's special property. * Alderman v. Manchester, 49 Mich. 48 (12 N. W. 905). 6 Shahan v. Smith, 38 Kan. 474 (16 P. 749). DF?"KNT)ANTS WHO MAKE SEPARATE DEFENSES. 651 § 1142. A joint judgment can only be rendered for or against parties sliown to have a coE>munity of interest in the property in question, or to bave both been concerned in the taking or detention.' There cannot be two separate findings and judgments upon one affidavit against two defendants not jointly, but severally, in possession of part of the property claimed. The finding and judgment must follow the plead- ings, and such an error is not cured, after verdict, by the statute of jeofails.^ A judgment in replevin cannot be en- tered for value in favor of several defendants jointly, where some of them are not found to have been interested.' Where there are several defendants, and no community of interest or ownership in the property is shown by them, a joint judg- ment in their favor is erroneous.* § 1143. Joint judgment for defendants who make separate defenses. One defendant claimed title to a one- half interest in the property; the other defendant claimed a lien on the other half interest for a loan. Held, that as they were sued jointly there was no error in rendering a joint judgment in their favor for a retui'n of the horse or its value.' A joint judgment in replevin is proper where the posses- sion of the defendants was joint, and they were connected in all the transactions upon which it was based.' In a joint suit in replevin there may be a verdict and judgment for one plaintiff and against the others.' Where husband and wife join in bringing an action of replevin, and are beaten, judg- ment should be against both of them for a return and for costs, and execution should run against both of them.' ^ Sweetzer v. Mead, 5 Mich. 107; Palmor v. Meiners, 17 Kan. 478. 2 Williams v. Devine, 52 Miss. 139. 5 Steele v. Matteson, 50 Mich. 313 (15 N. W. 468). * Page V. Fowler, 39 Cal. 412. « Myers f. Moulton, 71 Cal. 498 (12 P. 505). ' West Michigan Savings Bank r. Howard, 52 Mich. 423 (18 N. W. 199). ' Hamilton v. Browning, 94 Ind. 242. The Indiana statute provides for such a judgment, however, § 568 II. S. 1881. « Waterman r. Fairbrother, 12 R. I, 195; Hall. v. White, 27 Conn. 488; Freeman on Executions, §§ 22, 128, 459. G52 JUDGMENT. Where there are several defendants the court may adjudge a return to one of them, and refuse it to others, or it may be in favor of all, or part to one and part to another, or part to the defendant and part to the plaintiff as the facts warrant.* § 1144. Judgment against a person not a party void. Where the plaintiffs in the attachment proceedings are not made parties defendant, a judgment rendered jointly against the dLeriff and the attaching creditor is erroneous as to the persons not parties to the suit' Where there are two joint defendants, and the writ is served on one only, and only that one is in court, judgment against both is wholly void.' § 1145. Proper judgment in certain cases — Practice. A judgment for a return not technically conformed to the statute but substantially correct will be upheld.* If the case made by the evidence authorizes a return, it may be awarded by the court after verdict, though not claimed in the pleadings.' If the right of property. is put to issue by a defendant, and the finding is in his favor, a return is a mat- ter of course, whether prayed for or not.? Upon a general verdict for the defendants in replevin, an order of the court for the restoration to them of the property replevied is cor- rect, although the plaintiff may have produced evidence that it was owned by a third person not a party to the suit jointly with himself.' Where a verdict is for defendant, the judg- ment should be for a return of the property, or the value thereof in case a return cannot be had, or the value of the possession of the same, and for damages for withholding the property, and for costs of suit.* Where judgment is rendered ' Woodburn r. Chamberlain, 17 Barb. 446; Wells r. Johnson, 16 Barb. 375. ^ Palmer v. Meiners, 17 Kan. 478. ^ Only V. Dickinson, 5 Cold. (Tenn.) 486. * McArthur v. Hogan, Hempst. 286; Gotloff v. Henry, 14 111. 384. 'Mattock V. Straughn, 21 Ind. 128; Conner v. Comstoek, 17 Ind. 90. " Tuley r. Manzey, 4 B. Mon. (Ky.) 5; King v. Eamsay, 13 111. 619; Bates V. Buchanan, 2 Bush. (Ky.) 117; Chandler v. Lincoln, 52 111. 76j Underwood v. White, 45 111. 438. ' Waldman v. Broder, 10 Cal. 378. • Hooker v. Hammill, 7 Neb. 231. , ABSOLUTE MONEY JUDGMENT IS EKKONEODS. 653 in favor of the defendant, he is entitled to damages for the decrease of property in value and interest, and if it cannot be returned, for its value at the time it was taken, with in- terest.' Where the defense was that defendant had levied a^ic held the property on execution, and the justice rendered judg- ment "against plain tifE, and in favor of defendant for costs, "and that defendant is entitled to the possession of the prop- "erty," held, that the judgment, though defective, was not Toid.^ The nature and sufficiency of the judgment determined in casos depending upon particular facts.' § 1146. Judgment on plea of non cepit and non detinet, though not ordinarily settling the right of possession, in many states by statute, they are equivalent to the general issue. In such a case, where the plea is sustained a return Bhould be awarded.* Under the common law, and where these pleas' still have their common law force and effect, the defendant on such plea alone is not entitled to a return.^ § 1147. An absolute money -judgment is erroneous. The action of replevin has for its primary object the recov- ery of specific personal property, and an ordinary judgment for a sum of money is not responsive to the issues raised, and will be vacated and set aside on motion." The judgment ehould be in the alternative for a return or for the value,eve'n if it appear that the property has been sold; an absolute ^ Moore v. Kepner, 7 Neb. 291. 'Puncheon v. Hill, 38 Wis. 156. = Dickinson v. Lovell, 35 N. H. 9; Hunt v. Moultrie, 1 Bosw. (N. Y.) 6S1; Mairs v. Taylor, 40 Pa. St. 446; OoUamer v. Page, 35 Vt. 387; Ev^wer r. Tallman, 5 Watts & S. (Pa.) 556; Wheeler v. Train, 4 Pick. (M^aa.) 167; Hurd v. Gallaher, 14 Iowa, 394; Gaines v. Tibbs, 6 Dana e parties, not only as to that case but also as to the second case.^ One action of re- plevin is not a bar to another, unless the first was decided upon the merits.* A judgment in replevin, like other judg- ments, is only conclusive between the same parties and for the same property.^ § 1166. How far binding in other forms of action. We have seen that a judgment in replevin is binding in all simi- 1 Savage v. French, 13 Bradw. (111.) 17; Karrv. Barstow, 24111.580; Bennett v. Hood, 1 Allen, 47 ; King v. Hoare, 13 M. & W. 494; Kendall V. Stokes, 3 How. (D. S.) 100 ; Freeman on Judgments, § 241 ; 1 Suth. on Damages, 183 and note 2. 2 Eoberts v. Norris, 67 Ind. 386. ^ Hoisington v. Brakey, 31 Kan. 560. See also Beloit v. Morgan, 7 Wall. 621; Perkins v. Walker, 19 Vt. 145; Bouchand v. Diaz. 3 Den. 243; Gardner r. Bugby, 3 Cow. 120; Bent v. Steiuburg, 4 Cow. 559; Doughty V. Brown, 4 Comst. 75; French v. Howard, 14 Ind. 455; Car- roU V. Woodlock, 13 Mo. App. 574. * Terryll v. Bailey, 27 Minn. 304 (7 N. W. 261) ; Vaughan v. O'Brien, 57 Barb. 491. The issue tried in replevin cannot be again litigated. Herman on Estop. 293-4. 5 Pffenig V. Griffith, 29 Wis. 618. 664 EFFECT OF THE JUDGMENT. lar actions ; it now remains to be seen how far it binds in other forms of action. The general rule is that, so far as the same issue is involved in other forms of action, the judgment in replevin is binding. Thus a judgment in replevin is a bar to an action of trover for the same property. It would be vain to allow a party defeated in replevin to bring trover and succeed, thus undoing what had just been done.' The effect of a judgment in replevin must depend largely upon the issues made by the pleadings as well as the statute. Where it only, under the issue made, decided the right to possession it has been held that it was no bar to trover for the value. ^ A recovery in replevin is no bar to a subsequent action of trover by the defendant in replevin.^ A constable seized a horse under a chattel mortgage, but the mortgagor recovered it in replevin and then sold it. The mortgagee then brought trover against the purchaser. Held, that he was not concluded by the judgment against the constable, even though the latter was his agent and he had acted as at- torney for him in the replevin suit* B. brought replevin against H., who pleaded non cepit, whereupon B. submitted to judgment. H. then brought trover against B. for the same property. B. pleaded the judgment in replevin in bar, and H. demurred. Held, that the plea was bad. To make the admission of title implied in the plea of non cepit an estop- pel against H., judgment in the replevin action should have been rendered against him and not in his favor.* Judgment 1 Bower v. Tallman, 5 Watts & S. (Pa.) 556; Hardin r. Palmerlee, 28 Minn. 450 (10 N. W. 773). ' Lansing r. Sherman, 30 Micli. 49. 5 Robinson v. Kruse,29 Ark. 575. E. brought replevin against K. for cotton, and judgment went in his favor. He took the property and sold it. K. then sued K. in trover, for the value, and the court held he could recover, but cite no authorities. * Warner v. Comstock, 55 Mich. 615 (22 N. W. 64). See Wyman r. Bowman, 71 Me. 121. 5 Halcomb v. Briekley, 12 R. I. 255; Boilean v. Rutlin, 2 Exch. 6C5, 681; Hutt V. Morrell, 3 Exch. 240; Carter v. James, 13 M. & W. 137; Sweet V. Tuttle, 14 N. Y. 465; Buck v. Rhodes, 11 Iowa, 348. TITLE NOT DETERMINED UNLESS STRICTLY IN ISSOE. 065 in an undefended action of repleyin for a note in favor of tlie maker, which action was brought upon the ground that the note had been obtained by fraud, and in which only the banker having the note for the collection of interest thereon was made a defendant, it was held, under the circumstances, not to bar the owner of the note (an indorsee thereof for value before maturity) from maintaining an action thereon against the maker.' A judgment in replevin may be shown in miti- gation of damages in trespass for the detention of the prop- erty ^ An action for the recovery of specific personal prop- erty is not a bar to an action for trespass.^ § 1167. Does not bar a suit in equity to determine the rights of the parties. In an action of replevin for the recov- ery of certain cattle, judgment was rendered in favor of the defendant and against the plaintiff for all the cattle, and in the alternative for $1,948, if a return of all the cattle could not be had. Held, that such a judgment is not necessarily a judg- ment, that the defendant was the absolute, unqualified, and unconditional owner of the cattle, but is consistent with the theory that defendant held as mortgagee of the plaintiff, who was mortgagor, and that it is no bar to an action in equity to settle the matters between the parties.* § 1168. Title not determined unless strictly in issue. The action of replevin is possessory in its character, and unless the title to property is distinctly put in issue, the judgment determines nothing beyond the right of possession; and where the pleadings do not raise the question of title a j udgment assuming to settle the title is void, and may be at- tacked collaterally. ° But if the question of ownership is 1 Waite V. Triblecock, 5 Dill. (8 Circ. Iowa), 547. ^Briggs V. Milburn, 40 Mich. 512. ^ Wauborg v. Karst, 4 Mo. App. 563. * Armel v. Laytbh, 33 Kan. 41 (5 P. 441). 5 McFadden v. Eoss, 108 Ind. 51 2 (8 N. E. 161) ; Entsminger v. Jack- Bon, 73 Ind. 144; Kramer v. Matthews, 68 Ind. 172; Highnote v. White, 67 Ind. 596; Hoke v. Applegate, 92 Ind. 570; Van Gorder v. Smith, 99 Ind. 404. See also Davis v. Brown, 94 U. S. 423; Russell v. Place, Id. 666 EFFECT OF THE JUDGMENT. raised by the pleadings and there is a special finding on that point, the judgment is conclusive and binding/ Where the sale was conditional and a replevin action is brought in which the question of title was directly involved, held, that judg- ment for the plaintiff conclusively settled all questions of title, and the plaintiff could not thereafter bring an action to foreclose any lien the piirchaser might have on the property in controversy in the replevin suit/ When the writ and pleadings allege the title to the property replevied to be in the plaintiff, a trial upon the merits determines the owner- ship and is conclusive against the parties thereto/ § 1169. Judgment in replevin is binding not only on the parties, but their privies.* A judgment in replevin upon the merits is final and conclusive upon the parties and their privies, and a bar to a subsequent action of replevin.^ If one, on being sued for a personal chattel, gives notice to his warrantor to defend the title, the notice makes him privy to the record to the extent to which his rights have been ad- judged." Where a defendant in a replevin suit pleads prop- erty in a stranger and it is found for him, such finding is conclusive between the same parties in another suit for the same property. And a title acquired from said stranger, 606; Campbell r. Consalus, 25 N. Y. 613; Goblo r. Dillon, 86 Ind. 327 (44 Am. R. 308) ; Munday v. Vail, 34 N. J. 418 , Fairchild v. Lynch, 99 N. T. 359 ; King v. Chase, 15 N. H. 9 (41 Am. Dec. 675) ; Wood v. Jack- son, 8 Wend. 9 (22 Am. Deo. 603) ; Smith v. McCool, 16 Wallace, 560 ; Bigelow Estop, p. 92; Miles v. Walther, 5 Mo. App. 595. ' McFadden v. Fritz, 110 Ind. 1 (10 N. B. 120). 2 Campbell Printing Press Co. v. Walker, 43 Hun. (N. T. 449). ' Farnham v. Chapman, 60 Vt. 338 (14 A. 690). In this case plain- tiff bought a horse of defendant who had replevied the horse from athird party, and who sold Itto him before trial of the replevin suit, warranting the title. He was, however, beaten in the replevin suit and his vendee had to surrender the horse and sued on the warranty of title, and defend- ant claimed that the decision in replevin was not binding on plaintiff in this action. * Edwards v. McCurdy, 13 111. 496. *Cline V. Gant, 1 Heis. (Tenn.) 399. « Davis V. Wilbourne, 1 Hill (S. C), 27. CONCLUSIVE IN FEDERAL AND SISTEE STATE COUETS. 667 after the first findiBg, precludes the party pleading such title from showing a prior title in himself/ § 1170. Judgment in replevin a bar to a suit for dam- ages between the same parties only. In replevin suits damages are recoverable. If, therefore, the jury refuse to award them, the verdict is a bar to any other proceeding which seeks to recover damages, but if awarded and not col- lected, they may be collected in any proper action as against the obligors on an indemnifying bond.^ Where a trial in replevin is had all matters growing out of the controversy should be finally determined in that suit; if judgment is against plaintiff, and defendant neglect j}0 have his damages assessed in the replevin action, he cannot afterwards bring his separate suit for the amount of damages suffered.' Where, on replevin, the defendant is awarded a return and damages he cannot bring a separate suit for the value of the use of the property while in plaintiff's hands.* A judgment in replevin in an action between the owner and the sheriff, who had corraled certain cattle on the ground that they were affected with Texas fever, is no bar to an action by a third party against the plaintiff in replevin for damage for driving the identical cattle through the country whereby the cattle of this third party were infected with Texas fever. ^ § 1171. Judgment conclusive in federal and sister state courts. The judgment in a replevin suit in a state court is conclusive as to ownership in an action between the same parties, in the federal court, to recover the value of the ' goods.* A judgment in replevin rendered in a sister state between the same parties upon the same cause of action is as ' Peni-ose v. Green, 1 Mo. 774. 2 McAllister v. Clopton, 60 Miss. 207. A contrary rule was followed in Colby V. Yates, 12 Heis. (Tenn.) 267. 3 White V. Van Houten, 51 Mo. 577 ; Hohenthal f. Watson, 28 Mo. 360. * Davis r. Fenner, 12 B. I. 21. 5 Boyd V. Moore, 34 Kan. 119 (8 P. 255). 6 Qaflin v. Fletcher, 10 Biss. 281 (7 F. 851). 668 EFFECT OF THE JUDGMENT. conclusive as a bar as in the state where rendered and can be given in evidence under the general issue.' § 1172. An officer is liable on his official bond for the judgment against him in replevin. A judgment against a constable for nominal damages and for costs, in an action of replevin of goods attached by him, is a judgment for a mal- feasance for which his official bond is liable." § 1173. A trustee not personally liable. A judgment in replevin against one suing in an official or representative capacity must be enforced, not as a personal judgment, but against the trust estate.^ § 1174. The payment of the money judgment vests the title to the property in the defeated party. Where the value of the property in dispute is fixed by the verdict, and a judgment is rendered for the value thereof, and such money judgment is paid, the title to the property thereby becomes vcs ed in the party against whom such judgment was given. If a party take a judgment for the value and that is paid, he cannot afterwards claim the property also.* An unsatis- fied judgment in replevin is no bar to another suit in replevin for the same property against another defendant, whether the second defendant was a joint trespasser with the first, or a purchaser from him with or without notice. ° Where, a de- fendant in replevin obtains, a dismissal of the action and an order of restitution, and after accepting from the plaintiffs a deed of certain land in full satisfaction for the replevied chattel, procures a writ of restitution to be issued and exe- cuted, he is liable as a trespasser, the property in such chat- tel being transferred to the plaintiff by such acceptance of satisfaction." ' Cannon v. Brame, 45 Ala. 262. 2 Tracy r. Warren, 104 Mass. 376. * Ranney Adm. v. Thomas, 45 Mo. 111. • Marix v. Franks, 9 Kan. 132 ; Adama v. Broughton, 1 Andrews, 18. ^Turner v. Brock. 6 Heiss. (Tenn.) 50; Knott r. Cunningham, 2 Sneed, 204; Lovejoy r. Murray, 3 Wal. 1. ° Archiboque v. Miera, 1 N. M. 419. HOW SATISFIED. 669 § 1175. Of two defendants the one who pays takes the title to the property in dispute. Where two parties are defendant in replevin and the property is not taken, but judg- ment for its value rendered against them, which one of them pays alone, held, that as between the defendants, he who paid the judgment took a perfect title to the property in dispute.' § 1176. How enforced. The judgment in replevin must be enforced like any other judgment, although it is in the form of an order to the defeated party to return the property. If he does not do so, he is only liable civilly, as he would be for the non-payment of any other judgment. He is not liable for contempt for failing to obey the order of the court. '^ The successful party may have a writ of return or special execu- tion commanding the officer to take and return the property. A writ of retorno hdbendo cannot be awarded, unless it ap- pears from the issue tried and the verdict rendered that the plaintiff is not the owner.' A material variance between the execution and the replevin bond is fatal.' A writ of return cannot run to the sheriff of any county other than that in which the judgment was rendered. ° When property levied upon is replevied the lien of the sheriff is gone, but if he succeed and it is found in the possession of the plaintiff in replevin it may be seized on the writ de retorno.'' Where the pleas were non cepit, property in a third person, and justification of the taking, held, error to award a retorno habendo upon merely a verdict of not guilty.' See next chapter. " § 1177. How satisfied. The final judgment is only satis- fied by a return or payment according to its terms. But if the pa,rty acquired possession by his own exertion or by 1 Fox r. Prickett, 34 N. J. 13. 2 Hammond v. Morgan, 101 N. Y. 179 (4 N. E. 328). s Bourk V. Riggs, 38 111. 320. * Handly v. Ranking, 2 T. B. Man. (Ky.) 151. = Rathburn v. Ranney, 14 Mich. 382. 8 Acker r. White, 25 Wend. (N. Y.) 614. ' Hanford r. Obrecht, 38 111. 493. 670 EFFECT OF THE JUDGMENT. craft, it satisfies the judgment of return, as his possession cannot be disturbed. Where the property in an action for the recovery of personal property is taken from the defend- ant and redelivered to him on his giving bond, his posses- sion of it is not qualified by the bond he gave to secure the redelivery, and if plaintiff dismiss the action no order for the return is necessary. The possession of the defendant be- comes absolute in his own right and the bond functus officio} Or part may be returned and value paid for part; the part returned will be satisfaction pro tanto. "Where a judgment is rendered for a return of a number of hogs or their value at $4 per head, and the sheriff returns such part of the hogs as he is able to find, an execution for the value of those not returned at $4 per head may be enforced.' Where the judg- ment shows the value of each article separately, the officer can seize and return such as he can find and levy generally for the balance due.^ If the defendant give bond and refuse to surrender the property, he cannot afterwards surrender it in discharge of the action, or satisfaction of the judgment against him for its value.* Where goods are not taken, but are detained by defendant, he cannot satisfy a judgment against him in replevin by giving up the property and pay- ing costs, etc. Retorno habendo has no existence, except where the goods have been replevied and verdict is for defendant. ° § 1178. In conclusion — Summary. The judgment in replevin has the same force and effect as a judgment in any other form of action. If the title is involved the adjudica- tion is final as to title, and if the money judgment for value is paid and discharged it amounts to a transfer of the title to the defeated party. If the title is not involved, the ad- judication is conclusive as to the right of possession at the commencement of the action between the parties to the ac- ' Hackett r. Bonnell, 16 Wis. 471. ' Black r. Black, 74 Cal. 520 (16 P. 311). » Knox V. Noble, 25 Kan. 453. * Fisher v. Whoollery, 25 Pa. St. 197. ' Schofleld V. Ferrers, 46 Pa. St. 434. SUMMARY. 6Tl iion and their privies, under the circumstances existing at ihat time. It is conclusive and final on the subject of dam- ages or other secondary matters necessarily involved in the itigation of the main question — the right of possession ; f>ut as we shall presently see the judgment in replevin is fabject to appeal or proceedings in error as in any form of actioTu 672 WHAT IS A PfiOPEK EETUEN OF THE PEOX^EETI, CHAPTEE XXXVII. WHAT IS A PROPER RETURN OP THE PROPERTY. Section. Retomo habendo . . . 1179 Officer must take and deliver the property under such an order 1180 Return not always ordered . 1181 Duty of party in possession when return is awarded . 1182 Property should be returned to the custody from which taken 1183 What constitutes a return or tender of return . . 1184 What is a proper return un- der the order — In case of attached property— What officer 1185 To whom the property is to be returned on a writ of retomo babendo . . 1186 Section. Where property has been sold and replaced bj' other of same kind ' . . . 1187 The successful party may wait until the property is , tendered him . . . 1188 An actual return will alone satisfy the judgment of re- turn 1189 And a tender of property must be kept good to have the effect of satisfying the judgment — Sheriff's return conclusive .... 1190 The effect of a return is to satisfy the judgment of re- turn or value . . . 1191 § 1179. Retomo habendo. As we have seen where the result of the trial is against the party in possession, the court orders a return, or in default of a return a judgment for a certain sum of money equal to the value of the property. Under the general rule of practice, to which there are but few statutory exceptions, the money judgment is held in abeyance until it is shown that a return cannot be had, that is, the money judgment does not become a valid subsisting judgment, capable of being enforced, until it is shown that a return of the property cannot or will not be made. It now becomes an important question to decide what is a proper return or tender of return of the property, and under what OFFICEB MUST CABEY OUT OBDEB. 673 circumstances the successful party may proceed to collect his money- judgment. In most of the states there is no writ of retorno habendo as at the common law, the judgment being entered, that unless the party in possession, usually the plaintiff, return the property, he pay the money-judg- ment. As he was the moving party in seizing the property, this imposes upon him the duty of taking active steps for its return, if he would escape the payment of the money^judg- ment. The successful party may stand still and receive the property, or if it is not tendered to him, may proceed to col- lect his money-judgment, though he is not bound to do this, but may seize the property wherever he can find it. Or he may have a writ put in the hands of the officer, called a spe- cial execution for want of a better name, which commands the officer to take and return the property. This writ should describe the property as it is described in the finding and judgment, though under the common law the sheriff was not obliged to deliver the goods upon a writ of retorno, unless they were "shown to him." If there was any question about their identity,- and "none came to show the beasts," was a good return and excuse for not obeying the writ.^ § 1180. Officer must take and deliver the property under such an order. On a judgment of return to defend- ant, where an execution issued commanding the officer to take the property from the plaintiff in that action, or in whose hands soever the same might be within his county, and deliver the same to the defendant, or if that was impossible, then that he should satisfy the judgment as to the value by levy, etc., it is the duty of the sheriff to take and deliver the property, whether he finds it in the hands of plaintiff or some other person, unless that other person has a title to it su- perior to the party to whom he is commanded to deliver it ; and if he fail to do this and return that he can not take it ' Taylor v. Wells, 2 Saund. 74 b. , '^ Wilson V. Gray, 8 Watts (Pa.), 34; Bacon's Abr. title Replevin, H. 43 674 WHAT IS A PEOPEB EETUEN OP THE PEOPEETY. and deliver it because it is in the hands of a stranger, lie is liable for a false return upon bis official bond.' A writ was issued commanding the sheriff to take from the defendant, in an action of replevin, a certain mule for the. delivery of which the plaintiff in the action had obtained judgment. The mule was found in the possession of one who had pur- chased it from the defendant in replevin, while the action was pending, and with actual notice of the litigation. Held, that the purchase of the mule was at the peril of the buyer, who must abide the result of the action the same as the de- fendant therein, and it was the duty of the sheriff in executing the writ to take the animal from the purchaser, although he had paid full value for it.^ The sheriff's powers under a writ of return ai-e as great or greater than under the writ of replevin. § 1181. Return not always ordered. The ordering of a return is a matter largely within the discretion of the court, and the power will only be exercised in furtherance of jus- tice.' Where there has not been a trial on the merits the court should use great care in exercising this power, and should, where necessary, inquire into the facts far enough to act intelligently.* "Where a party who cannot maintain the action brings it, a return must be ordered.'' This power is exercised on the theory that a party should not be allowed to acquire a better title by an abortive attempt to replevy or by failure in the action than he had before; that nothing but a trial of the issue of title and right of possession will suffice to change the relations of the parties to the property ' Hoffman v. Conner, 76 N. Y. 121. 2 Swan+z F. Pillow, 50 Ark. 300. 3 Fowler v. Hoffman, 31 Mich. 221; Plant f. Crane, 7 Port. (Ind.) 486; Bartlett f. Kidder, 14 Gray, 450; Wheeler v. Train. 4 Pick. 168; Saffell V. Wash, 4 B. Mon. (Ky.) 92; City of Bath v. Miller, 53 Me. 317. * Mikesill v. Chaney, 6 Por. (Ind.) 62; Lowe v. Brighani, 3 Allen (Mass.), 430; Tuck v. Moses, 58 Me. 474; Smith v. Aurand, 10 S. & R. (Pa.) 92; Goodheart f. Bowen, 2 Bradw. (111.) 578; Bourk v. Rigga, 38 111. 320; Whitwell v. Wells, 24 Pick. 33. 5 Crabtree f. Clapham, 67 Me. 326. DUTr OF PAETT IN POSSESSION. 6?5 SO far as legal proceedings are concerned.' The exercise of this power is bounded by well defined rules. Propertv cannot be returned to a person from whom it was never taken or to a stranger to the suit.^ If plaintifp is nonsuited because defendant never had possession, it would be wrong to render a judgment for return;" see chap, on judgment In actions between joint owners, where it is held that the action cannot be maintained, a return must be ordered, or the plaintiff, though not entitled to sue, would do-ive the same benefit as if he had rightfully brought the acii->:a.* Plaintiff is under no obligations to return the property, unless ordered to do so by the court as a result of his proceedings. § 1182. Duty of party in possession when return is awarded. The obligation of a replevin bond, where a return of the property has been adjudged, imposes the duty of taking active measures to surrender the property, and not simply the passive submission to a forcible taking by legal process." It is the duty of plaintiff, when a return is ordered, to take active measures to redeliver the goods to the defendant in the same condition as when taken,' and such delivery by him is a waiver of other claims to the possession of the prop- erty so delivered.^ Where the one holding the property pending the litigation is defeated, and judgment for a return is entered against him, it is his duty to seek the other party and deliver the property to him, if he will receive it. If he fail to do this, there is a breach of the bond for which he and his sureties are liable. But where he sues out a writ 1 Hall r. White, 106 Mass. 600; Whitwell r. Wells. 24 Pick. 33. 2 Richardson r. Reed, 4 Gray, 441, 2 Gallagher r. Bishop, 15 Wis. 277. * Mason V. Sumner, 22 .Md. 312; Witham v. Witham, 57 Me. 447. ' Clark V. Norton, 6 Minn. 415; Ladd v. Prentice, 14 Conn. 117; Way V. Barnard, 36 Vt. 366. ° Jennison v. Haire, 29 Mich. 207. ' Parker v. SiuniLonds, 8 Met. 207; Berry v. Hoeffner, 50 Me. 171. See Washington Ice Company v. Webster, 62 Me. 363 ; Allen r. Fox, 51 N. Y. 502. " Rich V. Savage, 12 Neb. 413 (11 N. W. 863). 676 WHAT IS A PEOPEE EETUEN OF THE PEOPEETT. to get possession of the property, and on the property being seized and tendered him refuses to receive it, the judgment of return is satisfied.' § 1183. Property should be returned to the custody from which taken. Where property was replevied out of the hands of an officer, who held the same upon process issued in behalf of the defendant in replevin, a return of it to the same custody from which taken would be a sufficient return to the defendant.^ Where the property replevied was a steam engine and appurtenances which were not moved by the officer serving the writ, and on the trial were still re- maining where levied on, and the plaintiff, who was defeated, told the officer he wished to return the property, the officer refused to accept this as a compliance with the judgment, and got out an execution to collect the alternative judgment, the levy of the execution was enjoined, the court holding that in this bulky property and under the facts the offer to return was a compliance with the judgment for the return of the property. ^ § 1184. What constitutes a return or tender of return. In replevin on a judgment for defendant, if the sheriff take possession of the property, this is a lawful return to the de- fendant, and a substantial compliance with the conditions of the replevin bond.* If an action of replevin is dismissed for informality in the replevin bond, and judgment of return gi en for the defendant, and plaintiff returns the property to the place from which he first took it, he may bring another action of replevin for the same property against the same defendant, although the defendant had not actually received the property under the judgment in the first action.* On a judgment against the plaintiff in the alternative for a return or for its value as found by the court, an offer and tender of ' Douglass V. Douglass, 21 Wallace, (D. S. S. Ct.) 98. ' Osborne v. Banks, 46 Conn. 444. 8 Frey v. Drahos, 10 Neb. .594 (7 N. W. 319). * Carrico v. Taylor, 3 Dana. (Ky.) 33. "i Walbridge v. Shaw, 7 Cush. (Mass.) 560. TO WHOM PEOPERTY IS TO BE RETUENED. 677 the property at the place -where replevied, is good.' Where a portion of the property has been lost or destroyed, and its separate value has been found by the court, such value in money, together with the remaining goods, may be tendered.' In a replevin suit S., an officer, was awarded possession against the plaintiff M. B., M.'s bondsman, took the prop- erty and delivered it to S. under the judgment. R., who claimed to have bought from M. pending the litigation, imme- diately brought another replevin against S. ; held, that R. was bound by the decision in the first case, and that B., who had a chattel mortgage on the property made by E., thereby surren- dered his claim under the mprtgage.' § 1185. What is a proper return under the order — In case of attached property — What officer. Where attached property was replevied from constable Mower, and before the decision in the replevin case, which was against plaintiff and for a return, the attachment suit had proceeded to judg- ment, and an execution been issued thereon and placed in the hands of constable Warren, and plaintiff in replevin returned the property to Warren instead of to Mower, held, that this was a proper return and released plaintiff in replevin, as it could be sold to satisfy the attachment as well under the ex- ecution as under the attachment, and that plaintiff was re- leased by this retiLcn no matter what became of the property in Warren's hands.* § 1186. To whom the property is to be returned on a writ of retorno habendo. Where goods levied on by a sher- iff, and held by him under an execution, are taken from his custody by writ of replevin, they can be rightfully returned to him alone upon a writ of retorno habendo. The plaintiffe in execution, having never had the goods in possession, are > Eeavis r. Horner, 11 Neb. 479 (9 N. W. 643) ; Pickett v. Bridges, 10 Hump. 171. 2 Eeavis r. Horner, 11 Neb. 479 (9 N. W. 643) ; Pickett r. Briages, 10 Hump. 171. " Rich V. Savage, 12 Neb. 413 (H N. W. 863). * Richards v. Rape, 3 Bradw. (111.) 24. 6?8 WHAT IS A PEOPEE EETUEN OF THE PEOPEBTT. aot entitled to have return thereof made to them, but they must be returned to the sheriff, to be applied in satisfaction of the execution in his hands.' A return to his successor in office, or in executing the writ, would probably be within the meaning of these cases. § 1187. Where praperty has been sold and replaced by other of same kind. Where a marble yard was replev- ied against a distress for rent, and was run by the plaintiff pending the suit, marble being sold and other purchased in its place, on a judgment for a return a tender of what was on hand of the original marble, and that of equal value in lieu of that sold or lost, was held to release the sureties on the bond.^ The usual rule is that the tender of return must be of the identical property taken, and if other property is tendered back the defendant is not bound to take it in satis- faction of the judgment. ° § 1188. The successful party may wait until the prop- erty is tendered him, and if tender is not made according to the order of the court or within a reasonable time, if the time is not fixed in the judgment of return, he may enforce his alternative or money-judgment, but he is not bound to do so, and may take the property wherever he can find it.* § 1189. An actual return will alone satisfy the judg- ment of return. The party to whom the return is ordered to be made must derive some substantial advantage there- from; a fraudulent or pretended return is no return in law.° The offer of return must be unconditional," and the accept- ance of it must be unconditional.' Thus, where the court 'Blatchford v. Boyden, 122 111. 6^7 (13 N. E. 801); Eichardson v. Reid, 4 Gray. 441; Grace v. Mitchell, 31 Wis. 553; Mitchell v. Eoberts, 60 N. H. 486. 2 Sands v. Fritz, 84 Pa. 15. 3 Irvin V. Smith, 68 Wis. 227 (31 N. W. 912). * Kayser v. Bauer, 5 Kan. 202. ^ Eich V. Savage, 12 Neb. 413 (11 N. W. 86.S). « Torni)kin8 v. Batie, 11 Neb. 147 (7 N. W. 747). ' Williams r. Eikenbarry, 22 Neb. 211 (34 N. W. 373). THE EFFECT OF A EETTJEN. 679 ordered a return of the property and afterward rescinded the order and had the property placed back where it was, such return is no return and does not satisfy the final judgment or release the sureties.' Plaintiff cannot say he surrenders and returns it, but in fact still hold it by a keeper; he must make a l>07ia fide return and release all control over it. "Where the property replevied is left where taken, the fact that plaintiff's attorney wrote defendant, after final judgment in defendant's favor, that plaintiff did not claim it, is not a sufficient return if, in fact, plaintiff still kept an agent in charge of the property.^ § 1190. And a tender of property must be kept good to have the effect of satisfying the judgment — Sheriff's return conclusive. Where the defendant in replevin had judgment for a return of the property, or if a return could not be had, for its value, and an execution has been issued and levied on other property, on motion recalling the execu- tion, plaintiff cannot have judgment declaring such former judgment satisfied, except upon satisfactory proof and a find- ing that such judgment has been fully satisfied by a return of all the property to the defendant, or that they offered to return it to him personally; and if such tender was made before the execution issued, it must have been kept good. And where the sheriff has returned that a return of the prop- erty could not be had it cannot be contradicted on the motion to recall the execution.' § 1191. The effect of a return is to satisfy the judg- ment of return, leaving only the costs and damages to be dis- charged, to entitle the party to a full satisfaction ; that is, the judgment for value and interest is canceled by the return as well as the judgment of return.* And a proper offer to ' RobiDS V. Foster, 20 Mo. App. 519. See State, ex rel. Calvin, v. Six, 80 Mo. 61. 2 Bank v. Hall, 107 Pa. 583. 3 Irvin V. Smith, 66 Wis. 113 (27 N. W. 35 and 28 N. W. 351). Same case again in 68 Wis. 220 (31 N. W. 909). *• Smith V. Eoby, 6 Heis. (Tenn.) 546. 680 WHAT IS A PEOPEB BETUEN OF THE PROPEBTY. return if kept good would have the same effect. Where a proper offer to return has been made and not accepted, courts ■will restrain by injunction the enforcing of the money judg- ment.' 1 BeaTifl v. Homer, 11 Neb. 479 (9 N. W. 643). KONSUIT UNDEB THE COMMON LAW. 681 CHAPTER XXXYm DISMISSAL-NONSUIT AND REINSTATEMENT. Section, an- A nonsuit did not bar otlier action at common law 1192 Plaintiff cannot dismiss to tlie detriment of tlie otiier party 1193 Tiie same 1194 Neither can he dismiss as to a part of the property if it is claimed by defendant . 1195 The same 1196 But if defendant has retained the property, plaintiff may dismiss 1197 The rule as to damages on dismissal .... 1198 Where writ is quashed, judg- ment for return or value is proper 1199 But if defendant claim fur- ther relief, the plaintiff should be heard before judgment is entered . . 1200 Court should compel plain- tiff to prosecute diligently 1201 Defeated party cannot ap- peal and then dismiss . 1202 If a nonsuit is the result of an appeal, a return should be awarded .... 1203 Where plaintiff allows hisac- SecUon. tion to be dismissed, it will not be reinstated . . 1204 Dismissal for defects in the affidavit .... 1205 Judgment of return on non- suit 1206 When limited to value of special interest . . . 1207 On a nonsuit, judge may be compelled to award proper judgment .... 1208 If the court has no jurisdic- tion, return cannot be awarded .... 1209 If the court has jurisdiction, neither party can dismiss 1210 The action should not be dis- missed on slight grounds 1211 Right to dismiss lost if not acted upon in time . . 1212 Where proceedings in an ac- tion of replevin are stayed b.y injunction . . . 1213 Agreement to arbitrate — When a dismissal . . 1214 Defendant may stipulate for a dismissal .... 1215 Effect of judgment for a re- turn 1216 Effect of judgment of dis- missal 1217 § 1192. Under the common law ^ nonsuit suffered by the plaintiff did not debar him from bringing another action and 682 DISMISSAL. having another writ for the same property.' ' The English statute,^ which restrains the plaintiff from a second replevin, is only local in its application,' and permits him to proceed by a writ of second deliverance, thus accomplishing the same purpose. Judgment of nonsuit or discontinuance does not bar the plaintiff from another action for the same cause.* And the general rule in this country is that in order to be a bar there must be a trial upon the merits. See Chap. XXXVI. § 1193. Plaintiff cannot dismiss to the detriment of the other party. He cannot dismiss his suit so as to avoid a hearing as to the value or the damages. Where such pur- pose is apparent, it is the duty of the court to retain the case and hear and determine the questions as to damages and a return of the property.^ Where the property is taken, re- plevin differs from all other actions in this respect, that both parties are actors, and as the plaintiff had taken property from the possession of defendant, the law will not permit him to dismiss the action out of court over the objection of defend- ant. In such a case the court will retain jurisdiction at the re- quest of the defendant until it has put him in the same posi- tion he was before the action was brought, by returning the property to him.° Ordinarily the plaintiff has a right to dismiss his ajtion,but in replevin, after the property has been delivered to plaintiff, the position of the parties becomes, to all practical intents and purposes, reversed, and the law will ' 3 Inst. p. 9, 3 Blackstone 274-287; Baker v. PhilUps, 4 Johns. 190; Evans v. Brander, 2 H. Bla. 547. 2 Stat. West. 2d, 13 E. 1 C. 2. 'Doggett V. Robins, 2 Blackf. 418. * Hackett v. Bonnell, 16 Wis. 471; Westcott v. Back, 2 Col. 385. 'Ranney v. Thomas, 45 Mo, 112; Berghoff f. Heckwolf, 26 Mo. 512; Mikesell v. Chaney, 6 Port. (Ind.) 52. " Marshall v. Bunker, 40 Iowa, 121 ; Berry v. O'Brien, 103 Mass. 521 ; Dawson v. Wetherbee, 2 Allen (Mass.), 462; Mason v. Richards, 12 Iowa, 74; Wilkins v. Treynor, 14 Iowa, 393; Fleet v. Lockwood, 17 Conn. 233; Ranney v. Thomas, 45 Mo. 112; Broom v. Fox, 2 Yeates (Pa.), 530; Waldmon v. Broder, 10 Cal. 379; Hall v. Smith, 10 Iowa, 45. WHEN PLAINTIFF CANNOT DISMISS. 683 not rpermit the plaintiff to reduce the property to possession by means of this writ and then prevent an adjudication of its status by dismissing his suit. A plaintiff in replevin, after tak- ing the property, cannot dismiss the suit.' The court will retain the cause, hear defendant's proof, and render an appro- priate judgment.^ The plaintiff in replevin cannot, by a dis- conrtinuance of the action or by suffering a nonsuit, prevent a judgment being rendered against him for damages or for a retui-n of the property ; such act on his part merely amounts to an abandonment of the action by the plaintiff with the consent of the court, and does not affect defendant's rights or the jurisdiction of the court.' When the plaintiff does so dismiss the suit, the defendant may retain it or have it rein- stated for the purpose of having these issues determined. In such cases the plaintiff is regarded as in default.* The order for return must be made at the time of the dismissal ; it cannot be made at a subsequent term.^ The right to the return should be determined in the replevin suit and not left to a subsequent suit." Where the suit is dismissed, or for other reasons the plaintiff fails to maintain his action, the court should return the property to the defendant or take such other steps necessary to place the parties and property in statu quo.^ § 1194. The same. In an action of claim and delivery it is not competent for the plaintiff, after the property has 1 Aultman v. Reams, 9 Neb. 487 (4 N. W. 81). 2 Ahlman v. Meyer, 19 Neb. 63 (26 N. W. 584). ^ Brannin v. Bremen, 2 N. M. 40. *WilkiDS V. Treynor, 14 Iowa, 39.3; Kimnel v. Kint, 2 Watts (Pa.), 432. In some states no order of return is made, but the plaintiff is lia- ble on his bond lor the return or their value — Wiseman v. Lynn, 39 Ind. 254; Sanderson r. Lace, 1 Chand. (Wis.) 231; Savage v. Gunter, 32 Ala. 469— but the more general as well as the better rule is as given in the text. 5 Lill V. Stookey, 72 111. 495. " Harman v. Goodrich, 1 Green. (Iowa) 25; Mills v. Gleason, 21 Cal. 274. ' Boom V. St. Paul, &c., 33 Minn. 253 (22 N. W. 538). 684 DISMISSAL. been put into his possession, to move a dismissal, and if he refuse to plead or further proceed with the action, an alterna- tive judgment should be rendered against him for the return of the property or its value.' Plaintiff in replevin will not be allowed to dismiss his suit before the hearing of testimony as to the value of the property delivered to plaintiff, so that a proper judgment may be rendered for defendant.' Where a stranger to the title brings replevin, gets possession of the property, and then dismisses the action, judgment for its full value should be rendered against him, and he cannot show no title or limited interest in defendant.' § 1195. Neither can he dismiss as to a part of the prop- erty if it is claimed by defendant. It is error for the court to allow plaintiff to strike out of his petition a part of the property when defendant is claiming the return of that prop- erty. In replevin both parties are actors, and the issues ten- dered must be tried.* Where the bond given for a return only covers part of the property replevied the suit should be dismissed as to the property not covered by the bond.^ But where the property described in the writ is not taken, but other property, and the writ is dismissed, no ground for the assessment of damages exists. ° § 1196. The same — Defendant has choice of remedies. ' Manix r. Howard, 82 N. C. 125; Perry v. Tupper, 70 N. C. 538; Du- lin V. Howard, 66 N. C. 433; Wilson f. Wheeler, 6 How. Prac. 59. '^ Ranney v. Thomas, 45 Mo. Ill; BerghoH v. Heckwolf, 26 Mo. 512. 'Nelson v. Luchtemeyer, 49 Mo. 56. Plaintiff brought this action for the use of others, under a trust deed, and by mistake claimed property not referred to in the instrument. The decision is of course influenced b.y the statute which provides, that if a plaintiff "fails to prosecute his "action with effect, and without delay, and shall have the property in his "possession, and the defendant, in his answer, claims the same and de- "mands a return thereof, damages shall be assessed against the plaintiff "for the value of the property and for incidental injuries resulting frooi "the taking." 2 Wag. Stat. 1026, § 11. * Howell V. Foster, 65 Cal. 169. 5 Eastman v. Barnes, 58 Vt. 329 (1 A. 569). ' Parsell r. Genesee Circuit Judge, 39 Mich. 542. WHEN PLAINTIFF MAY DISMISS. 685 A plaintiff in a replevin action may, notwithstanding lie has obtained possession of the property under the writ, at any time before a final submission, dismiss such action without prejudice. Notwithstanding such dismissal, the defendant may, unless the property be restored to him, have his rights of property and possession inquired into and determined by the court ; on such a dismissal the court should order a re- turn and adjudge costs against plaintiff.' While a defend- ant may, where a plaintiff dismisses an action of replevin, as a matter of right, have his interest in the replevied property adjudicated, and in case he does this is bound by that ad- judication, this is not his exclusive remedy; he may sue on the bond.^ When a plaintiff suffers a discontinuance in re- plevin, the defendant may elect whether he will claim or waive a return.' Plaintiff in replevin, who was defeated and appealed from justice court, has a right to dismiss his case, and the defendant, upon such discontinuance, may elect to have a return, or upon notice an assessment of the value in lieu of a return.* A demurrer having been sustained to a petition in replevin, the defendant was entitled at his elec- tion to take a money judgment for the value of the property, or an order for a return.' § 1197. But if defendant has retained the property, plaintiff may dismiss. In replevin, where the property has been taken and redelivered to defendant on his giving a bond, the plaintiff may discontinue. ° In such a case the suit is really but an ordinary personal action, and by the dismis- sal the defendant is not injured or placed in any worse light than he was. The reason for the rule heretofore announced does not exist, and the rule does not apply. § 1198. The rule as to damages on dismissal is not 1 McVey v. Burns, 14 Kan. 291; Higbee r. McMillan, 18 Kan. 133. ^Manning v. Manning, 26 Kan. 98. 3 Wheeler r. Wilkins, 19 Mich. 78. «Soper F. Hawkins, 56 Mich. 527 (23 N. "W. 206). ^ Armel r. Lendrum, 47 Iowa, 535. « Hackett v. Bonnell, 16 Wis. 471. , — " 680 DISMISSAL. quite so clear as the rule that the property shall be returned. Where the goods were ordered returned for informality in bringing the suit, without any investigation into the merits, and defendant asked also an assessment of damages, the court denied his request, saying that the disputed questions of title were not determined, and that damages (beyond nom- inal) should not follow the plaintiff's failure to sustain his suit for mere irregularity.' So where the writ was abated and the property ordered returned, the court refused to as- sess damages upon the ground that there was no issue upon which they could be estimated.^ It would seem that it was proper for the court in such cases to hear evidence offered, and if from all the facts it appear that the defendant has avoided a trial upon the merits, and that the plaintiff fails from a mere irregularity when he otherwise would be likely to succeed, damages beyond costs should rarely be awarded.' If the action is dismissed for technical defects in the pro- ceeding, which would have prevented a trial on the merits, no assessment of damages can be made. It is the duty of the court in such a case to return the property to the defend- ant and give him nominal damages only, as the plaintiff is not precluded in such a case from bringing another action to determine his right to the property.* "When the plaintiff fails to make out a case, it is proper for the court to enter a nonsuit and proceed to assess defendant's damages."^ A plaintiff in replevin has a right to dismiss the action without leave of court ; on such dismissal the defendant is entitled to judgment as upon issue found against the plaintiff." § 1199. Where writ is quashed judgment for return or value is proper. "Where property is taken under a writ, (and described in the writ) and the writ is quashed because 1 Callomer v. Page, 35 Vt. 396. ^ McArthur v. Lane, 15 Me. 245. 8 Pierce r. Van Duyke, 6 Hill (N. Y.), 613. * Barruel r. Irwin, 2 N. M. 223. " Bath V. IngersoU, 1 W.yo. 280. « Maxey v. "White, 53 Miss. 80. COURT SHOULD COMPEL DILIGENT PKOSECUTIDN. 687 it is for an interest that cannot be taken in replevin, the de- fendant is entitled to a judgment for the value or for a re- turn.' Where an action of replevin is dismissed for want of a proper bond, and the property is still in the custody of the officer, he should be ordered to return it to defendant at the place from which he took if It is held in Rhode Island that, on dismissal for defective service or want of proper bond on defendant's motion, the court had no jurisdictisn to order a return of the property.' If, in a replevin suit, the plaintiff has given bond and obtained the property, and the writ be quashed and the suit abate, judgment should be entered for the return of the property, and a writ of inquiry awarded tO' ascertain its value and assess the damages,' the same as in case of a nonsuit.* § 1200. But if defendant claim further relief, the plain- tiff should be heard before judgment is entered. Where, in an action of replevin, the plaintiff dismisses his petition before an answer is filed, the defendant is nevertheless to have a judgment for his interest in the property replevied. But if he file an answer, notwithstanding the dismissal, claiming other and further relief, the plaintiff should be al- lowed to plead thereto, and introduce evidence upon the is- sues thus raised.^ § 1201. Court should compel plaintiff to prosecute dil- igently. In replevin, where the plaintiff has obtained the property, the court is justified in requiring of him a prompt obedience to its orders made for the purpose of securing a speedy trial, and if not obeyed, rendering judgment for de- fendant as if plaintiff had abandoned the case.' 1 Humphrey v. Bayn, 45 Mich. 565 (8 N. W. 556). This was replevin for one-third of seventeen thirty-seconds of a lot of wheat, and writ was quashed oh ground that the parties were tenants in common. Fryer v. Fryer, 6 Dana. (Ky.) 54. 2 Thurber v. Richmond, 46 Vt. 395. 8 Smith V. Fisher, 13 B. I. 624; Sanders r. Goodwin, 13 R. 1. 145. * Kendrlck v. Watkins, 54 Miss. 495. 5 Crist v. Francis, 50 Iowa, 257. • Becker v. Becker, 50 Iowa, 139. 688 DISMISSAL. § 1202. He cannot appeal and then move to dismiss the suit for defects. "Where a defendant in a replevin suit appeared at the trial before the justice and appealed from a judgment against him, it is his duty to perfect the appeal by filing all necessary papers, and he cannot properly move the court to dismiss plaintiff's suit because of the omission of the replevin bond from the papers filed with the transcript.' § 12u3. If a nonsuit is the result of an appeal, a return should be a warded. Where, on a trial on appeal from a jus- tice's court, a nonsuit is granted, an aflSrmative judgment may be rendered for the redelivery of the property or its value, and damages for its detention.^ § 1204. Where plaintiff allows his action to be dis- missed it will not be reinstated at a subsequent term of the court, without the reasons excusing his act are very strong and clear and the default was beyond his power to prevent. When plaintiff brings an action of replevin and seizes prop- erty, it is his imperative duty to be on hand ready to show up his title and claim to possession.' § 1205. Dismissed for defects in the affidavit. Dis- missal of a writ of replevin on account of defects in the affi- davit amounts to judgment of nonsuit, and in such case de- fendant's damages should be assessed.* When a replevin is dismissed for want of a declaration, and judgment rendered against the plaintiff for costs, the court should award a writ of retorno habendo, but if it fail to do so it cannot be done at a subsequent term.' Where the writ is quashed for a de- fect in the affidavit, and thereupon the cause is dismissed by the plaintiff, the question of title to the property in dispute 1 McArtliur v. Howett, 72 111. 358. 'Fugina v. Brownlie, 65 Wis. 628 (27 N. W. 408). ' French v. Venable, 2 Cranch. C. Ct. 509 ; Williamson r, Bryan, 2 Id. 407; McLeod v. Gloyd, 2 Id. 264; Sherborne r. King, 2 Id. 205; McDer- mott V. Naylor, 4 Id. 527; Thompson v. Wells, 3 Cranch. C. Ct. 5; Mc- Daniel v. Fish, 2 Cranch. C. Ct.l60; NichollsF.Hazel,2 Cranch. C.Ct. 95. 'Stall V. Diamond, 37 Mich. 429. « Lill V. Stookey, 72 111. 495. WHEN EETURN CANNOT BE AWARDED. 689 is not settled.^ Defects in either tlie affidavit or bond should be reached by motion to quash the writ, and are not ground for dismissal where the court had jurisdiction to issue the writ.^ § 1206. Judgment of return on nonsuit. If, for any rea- son, the plaintiff fail to prosecute his suit to effect, as by sub- mitting to a nonsuit on failure to plead over, on sustaining of a demurrer to his former plea, a return should be awarded.' "Where plaintiff took a voluntary nonsuit, defendant was en- titled to a judgment for a return of the property. In case of a nonsuit before the defendant has had an opportunity to plead, he shall have return without an avowry.* § 1207. When limited to value of special interest. On granting a nonsuit in an action for the unlawful detention of personal property, the real question litigated is the right of possession ; though the evidence show that plaintiff is the owner, yet if it fail to show that he is entitled to possession, the court should assess and enter in the alternative judgment the value of defendant's special interest only, and not the value of the whole property.^ § 1208. On a nonsuit judge may be compelled to award proper judgment. Where the service of the writ of re- plevin is set aside it amounts to a discontinuance, and the judge may be compelled by mandamus to proceed to hear evidence and assess defendant's damages, if he elect to have damages rather than a return.' § 1209. If the court have no jurisdiction return cannot be awarded. Where the action is dismissed on the ground that the court had no jurisdiction, a return of the property 1 Stockwell r. Byrne, 22 Ind. 6. 2 Pawkner v. Baden, 89 Ind. 587. 5 Kimball r. Citizen's Bank, 3 Bradw. (111.) .320. * Timp V. Dockham, 32 Wis. 146; Story's Plead. (Oliver's Ed.) 445. = Gaynor v. Blewitt, 69 Wis. 582 (34 N. W. 725). « Forbes, ex rel, v. The Judge, &c., 23Mich. 497; People r. Tripp, 18 Mich. 518; Lickfelt v. Kopp, 38 Mich. 313. 44 690 DISMISSAL. cannot be awarded.' This refers to jurisdiction to issue tlie writ, as if it was issued by a mayor's court which, by statute, had not the power t6 hear such cases. If it be dismissed for any other reason, the court would still have power to render the proper judgment. Thus, if the action be dismissed for some defect in service, or any other reason than that of jui'is- diction over the subject matter, the rule is different, and the court should order a return.^ Replevin cannot be brought for property held under execution, and, after a delivery of the property, be dismissed on the motion of plaintiff, on the ground that the statute prohibits the replevin of property held under execution. The court will have jurisdiction to make the proper order against plaintiff.^ Where a person illegally assumed to be a justice and issued a writ in replevin, and defendant came in and took a change of venue to a legal justice, he waived the error, and the legal justice has jurisdic- tion to try and dispose of the case, and it cannot be dismissed by plaintiff.* § 1210. If the court have jurisdiction neither party can dismiss. In a replevin action, after the court has acquired jurisdiction, it is not within the power of either party to withdraw without the consent of the other, so as to prevent a final determination of the right to the possession of the property as between them.^ Where property has been taken under a writ of replevin, either party may have the right to the possession determined, and a dismissal of the action by the other will not deprive him of that right. ° § 1211. The action should not be dismissed on slight grounds. It is not error to refuse to dismiss a possessory ' Gray v. Dean, 136 Mass. 128; Jordan r. Dennis, 7 Met. 590; Bur- dell V. Doty, 38 F. 491. 2 Gray v. Thrasher, 104 Mass. 373; Lowe v. Brigham, 3 Allen, 429; Bripgs V. Humphrey, 1 Allen, 371; Davenport v. Burke, 9 Allen, 116; Jaques v. Sanderson, 8 Cush. 271; Molnery v. Samuels, 125 Mass. 425. 3 Rood V. Hurd, 41 Conn. 321. * Graves v. Shoefelt, 60 111. 462. ^ Abren v. Brown, 2 N. M. 11. Moore r. Herron, 17 Neb. 697 (24 N. "W. 425). EIGHT TO DISMISS LOST IF NOT ACTED UPON IN TIME. 691 warrant on the- ground that it was not issued by the judge before whom the affidavit was made.' It is no ground for dismissing a writ of replevin that two cows are appraised at one sum." In a summary proceeding, such as a motion to c[uash a writ of replevin, the evidence to authorize a court to set aside its process ought to be clear and satisfactory.' Where an action of replevin is rightfully brought, dismissal as to one defendant does not give the other defendant a right to have it dismissed as to him.* Failure of plaintiff to give bond in replevin is no ground for dismissal. The suit can still be tried upon its merits.^ An insufficient bond is no ground of dismissal." The failure of the officer to select appraisers and appraise the property is no ground for quash- ing the writ or dismissing the action.' In replevin a dis- claimer of any interest in the property, filed by one of the defendants, is no reason for dismissing the suit against him, and his motion for such dismissal is properly refused.' § 1212. Right to dismiss lost, if not acted upon in time. After verdict in an action of replevin, it is too late to move to dismiss the action for insufficiency of the bond." A mo- tion to dismiss an action of replevin for the insufficiency of the approval of the replevin bond, cannot be made after an- swer to the merits."" " Meredith v. Knott, 34 Ga. 222. ^ Mansir v. Crosby, 6 Gray (Mass.), 334. ' Gordon r. Bncknell, 38 Iowa, 438. In this case defendants claimed that plaintiff had used deceit and made false representations, which in- duced defendant to bring the property into the county where replevied, and asked to quash the writ on that ground, which motion was denied. See also McLaine v. Hall, 26 Iowa, 297, and Knowles v. Picket, 46 Iowa, 503. * Porter r. Dalhoff & Co., 59 Iowa, 459 (13 N. "W. 420). ^McGuire v. Galligan, 57 Mich. 39 (23 N. W. 479). « Baker v. Harper, 1 J. J. M. 104; Greenwade v. Fisher, 5 B. M. 168; Hicks V. StulJ, 11 B. M. 53. ' Parlin r. Austin, 3 Col. 337; Eobinson v. Austin, 3 Col. 375; Wyatt r. Ereeman, 4 Col. 14. 8 Smith r. Emerson, 16 Ind. 355. » Bich V. Ryder, 105 Mass. 306. " Lathrop r. Bowen, 121 Mass. 107. 692 DISMISSAL. § 1213. Where proceedings in an action of replevin are stayed by injunction, under a bill in cbancery, but the decree in chancery merely settles the rights of the parties to the ownership of the property, and contains no order for its return or adjudication of its value, these matters remain to be disposed of in the replevin suit, and either party may be permitted to go on and introduce evidence on these points.' § 1214. Agreement to arbitrate — When a dismissal. An unconditional submission to arbitrators of the matters in controversy in a replevin suit will operate to discontinue the suit, and thereupon it cannot be said that the merits of the case have been determined in that action, and a surety on the bond will be discharged ; but a submission which provides that the award shall have the force and effect of the verdict of a jury, and that judgment may be entered thereon in that action, is distinguishable from one that contains no such stip- ulation. By such a submission the cause is not withdrawn from court. Such a submission is in the nature of a con- fession of the judgment afterward rendered.^ § 1215. Defendant may stipulate for a dismissal. The rule heretofore given is to protect the defendant whose prop- erty has been taken, if he choose to waive his right, or if his property has not been taken the rule does not apply. A stip- ulation for dismissal, without judgment, of a suit in replevin for property taken under a chattel mortgage, leaves the prop- erty in the mortgagee's hands, releases the sureties upon the replevin bond, and if the property is beyond reach leaves the mortgagee without adequate remedy.' § 1216. Effect of judgment for a return. Judgment of ' Dehr v. La:npton, 31 Iowa. 172. 2 Perigo V. Grimes, 2 Col. 651. See also Eewe v. Mitchell, 15 HI. 297; Camp V. Root, 18 Johns. 22; Perkins v. Rudolph, 36 111. 306; Archer >. Hale, 4 Ring. 464; Ex parte Wright, 6 Cow. 399; Green v. Patchen, 13 Weud. 293; Tates v. Russell, 17 Johns. 461; HiUs v. Passage, 21 Wis. 298; Merritt v. Thompson, 27 N. Y. 232; Lamy f. Remuson, 2 N. M. 245. 5 Casper v. Kent Circuit Judge, 45 Mich. 251 (7 N. W. 816). EFFECT OF JUDGMENT OF DISMISSAL. 693 return on account of a defect is no bar to another action. The return under such order leaves the property and the plaintiff's case where it was when he first commenced.' § 1217. Effect of judgment of dismissal. In some states the judgment of dismissal is held to be a final order ; in such cases it is appealable or reviewable on error.'' If it is not held to be a final order, it would not be reviewable. The dismissal of an action in replevin is a final adjudication against plaintiff, though it might not bar him from bringing another action, and judgment against him for costs and a return of the property should at once be entered by the court.* The order of a magistrate upon a possessory warrant, dis- missing the warrant without stating any reason, is no adju- dication of the right of possession, but a dismissal in the nature of a nonsuit.* ' Walbridge v. Shaw, 7 Cush. 560; Wilbur r. Gilmore, 21 Pick. 250; Morton r. Sweetser, 12 Allen (Mass.), 134. 'Jewell V. Lamoreaux, 30 Mich. 155. 3 Dahler v. Steele, 1 Mont. 206. See Lease r. Sherwood, 21 Cal, 151; Dawling v. Palack, 18 Cal. 625. * Roseberry r. Roseberry, 31 Ga. 122. 694 CEOSS AND SECOND EEPLEYINS — EECAPTION. CHAPTEE XXXIX. CROSS REPLEVIES, SECOND REPLEVIES, AND RECAPTION. . 1219 1220 Section. Distinction between the writ ot replevin and other writs 1218 Where the property is held by a special writ for that identical property, it can not be replevied . Judgment in trial of the right of property has the same effect . The issues made and tried in replevin are res ad/ (7 Acs Brennan v. Shinkle, 89 III. 604. 2 Holland v. Griffith, 18 Neb. 472 (14 N. W. 387); Gandy v. Pool, 14 Neb. 98 (15 N. "W. 223); Laugliliu v. Kavauaugh, 15 Neb. 39 (16 N. W. 753). ^ Bostick V. Brittain, 25 Ark. 482. * Coleman v. Reel, 75 Iowa, 304 (39 N. W. 510). ■^ Bigelow V. Doolittle, 36 Wis. 116. « Dickson v. Eandall, 19 Kan. 212; Miller v. Bogart, 39 Kan. 117. ' Goodell V. Ward, 17 Minn. 1. The objections to the affidavit were not raised in justice or district court, and plaintiff was succesBful in both courts. 8 Kruger v. Pierce, 37 Wis. 269. » Chandler r. Smith, 14 Mass. 315. WHAT DEFECTS AEE WAIVED BY APPEAL. 709 Exceptions in the court below to the sufficiency of a replevin bond are waived by pleading in the court above.' Objec- tions to the service cannot be mfeide for the first time in the appellate court. ^ Where the bond was found to be inappli- cable to the return, which was correct, the court refused to reverse the final judgment, though the return should have been quashed.' Where the parties to a replevin suit, with- out objection or remonstrance, go to trial upon the merits, the supreme court will not reverse, though the pleadings made no issue for the jury.* In an action of replevin, where there was judgment for defendant, held, that the judgment could not be assailed in this court on the ground that the defendant did not, in terms, allege that he was the owner of the property, when no objection on that ground was raised to the answer in the trial court, and it was very plain from all the pleadings that defendant claimed to own the property.' If the attention of the trial court is not called to its neglect to enter an alternative judgment, it cannot be taken advan'ajo of on appeal." Where the verdict is right an erroneous judgment will be corrected by the supreme court on appeal.' If a replevin action be commenced before a justice who does not have jurisdiction, the proceeding is void, and will be dis- missed by the appellate court.' Where a verdict in a re- plevin suit in the words, " We, the jury, find the right of the "property in the plaintifE, except $100, which was not cov- " ered by the mortgage," was changed in its form by the court, and judgment rendered for a return of the $100 by the plaintiff to defendant, held, that judgment should be reversed upon appeal" ' Camick v. Wilson. 34 Me. 593. 2 Davenport r. Burke, 9 Allen (Mass.), 116. 3 Hicks V. StuU, 11 B. Mon. (Ky.) 53. * Mathias r. SoUers, 86 Pa. 486. s Mclntye r. Eastman, 76 Iowa, 455 (41 N. W. 163). « "Woodbury v. Tuttle, 26 111. App. 211, ' Robinson v. Richards, 45 Ala. 354. 8 Richardson v. Davis, 59 Miss. 15. ^ Moore v. Devoid 14 Iowa, 112. 710 EEEOE AND APPEAL. § 1245. Defense cannot be changed upon appeal. On appeal a defendant in replevin cannot change his defense and defend as a bailee when in the first court his defense was a denial.' Most states provide by statute that a party who appeals a case must try it upon the same issues as in the lower court. This provision is in the interests of jus- tice, as it would be manifestly unfair to allow a party to try one line of attack or defense, and when defeated appeal to another court and there try an altogether different line. And replevin actions are governed by this rule. § 1246. How appealable value determined. The sum of the value of the property replevied and the damage con- stitute the amount in controversy, within the meaning of the law limiting the right to appeal to a certain amount.^ § 1247. After appeal taken, the judgment is held in abeyance. An appeal in replevin stops all efforts to enforce the judgment until final determination of the appeal, as in any other form of action.' The bond given in appeal super- sedes the judgment for the time being, and is an additional security to the successful party, if his good luck does not forsake him beforethe final decision is reached. § 1248. When return will be awarded in appellate court. In replevin, where the property has been delivered to plaintiff, if upon appeal upon questions of law alone the district court reverses the judgment generally, without de- ciding the merits of the action, the defendant is entitled, as upon a dismissal, to judgment for a return of the property, or its value, if a return cannot be had, and the parties are left as they were to proceed de novo as regards the property.* § 1249. Appeal does not open a judgment in appel- lant's favor for part of the property; each judgment in such ' TeU V. Beyer, 38 N. T. 161. 2 Andrews v. Baker, 59 Vt. 656 (10 A. 465); Fisk v. Wallace, 51 Vt. 418. ^ Corn Exch. Bank v. Blye, 102 N. Y. 305 (7 N. E. 49). * Terryll v. Bailey, 27 Minn. 304 (7 N. Vt'. 201). 711 a case is an entirety and stands or falls the same as a judg- ment in another action. When replevin is brought for a number of chattels, some of which belong to the plaintiff, and others to the defendant, although all are declared for in one count, the case is dealt with as if it were two counts, and each party was entitled to prevail upon one. Each party is an actor and may have judgment and legal costs, and an appeal by one party does not re-open or affect the judgment in his ^avor.' 1 Vinal V. Spofford, 139 Mass. 126; Seymour r. Billings, 12 "Wend. 285; Williams v. Beede, 15 N, H. 483; Powell r. Hinsdale, 5 Mass. 343. See Newell Co. v. Muxlow, 51 Hun. (N. Y.) 453. PART THIRD. QUESTIONS AEISING IN THE PKOSECUTION AND DEFENSE OF AN ACTION ON THE EEPLEVIN BOND. WHAT CONSTITUTES A BEEACH. 715 CHAPTEE XLI. WHAT CONSTITUTES A BREACH, AND "WHEN RIGHT OF ACTION ACCRUES ON THE BOND. Section. What constitutes a breach . 1250 The condition to prosecute without delay What is an unusual delay . The condition to prosecute with effect .... The same 1254 Dismissal on ground of no jurisdiction is a breach Voluntary nonsuit is a breach of this obligation . Failure to enter the suit in court is a breach . . A contrary rule held where the "court" was absent . Where the suit abates by re- moval of the court, bond not liable .... Failure in the suit is a breach of this condition 1251 1252 1253 1255 1256 1257 1258 1259 1260 Section. Failure by death, or other act of God .... 1261 The obligors may limit their liability to the successful trial in justice court . . 1262 But ordinarily, the obliga- tion refers to the final de- termination . . . 1263 The replevin ■ action must be finally ended, qr suit on bond will be enjoined . 1264 Breach of the condition to return 1265 Demand for return not nec- essary . . . . . 1266 The judgment of return in replevin is conclusive on the sureties .... 1267 The failure to pay a money judgment or costs, is a breach 1268 § 1250. What constitutes a breach. The several con- ditions of the replevin bond are distinct and several, and upon a breach of any one of them an action lies, though none of the others be broken, and the recovery may be the full amount of the penalty, the same as if all had been broken. And this is the case if the bond is void as to some of its ob- ligations; if the one for the breach of which the suit is brought is good, it matters not that some other one is not good.' The several conditions required to be inserted in a " Fisse T. Katzintine, 93 Ind. 490. 716 BEEAOH AND EIGHT OF ACTION. replevin bond are to be treated as separate and independent. The object and purpose of a replevin bond is to indemnify the officer who executes the replevin writ, and to indemnify the defendant, or person from whose custody the property is taken, for such damages as he may sustain.' And generally a right of action accrues immediately on the breach. Any other rule is statutory. § 1251. The condition to prosecute without delay is not broken by those delays always incident to the conduct of legal business in this country. But by assuming this ob- ligation the bondsmen agree that the plaintiff shall be ready to prove his claim at any time the court can hear him, or when the cause is reached for trial in its regular order, and that he will not upon frivolous pretexts postpone a final hearing. He is entitled to the usual and necessary delays granted by the court to procure witnesses, etc. The condi- tions to prosecute the suit to effect and to make return of the property are distinct, and the condition is broken and the bond forfeited by a failure in either.^ Evidence of breach of the former condition cannot, therefore, be held sufficient proof of a breach of the latter condition.* The sureties in a replevin bond are not discharged by delay in prosecuting the replevin suit where it does not appear to have been unrea- sonable and improper.* § 1252. What is an unusual delay is a matter to be de- termined in each particular case under the facts of that case. Thus, a failure to propecute for two years without good cause 1 Imel V. Van Derin, 8 Col. 90 (5 P. 803) ; Humphrey v. Taggart, 38 111. 228; 2 Sutherland on Damages, p. 42. " Vinyard v. Barnes, 124: 111. 346 (16 N. E. 254) ; Perreau v. Bevans, 5 Barn. & Cress. 284; Brown F.Parker, 5 Blackf. 291. 2 Vinyard v. Barnes, 124 111. 346 (16 N. E. 254) ; Thomas v. Irwin, 90 Ind. 557; Way v. Barnard, 36 Vt. 370; Collamer v. Page, 35 Vt. 392; Clark V. Norton, 6 Minn. 419; Pettygrove r. Hoyt, 2 Pair (11 Me.), 66; Badlaw v. Tucker, 1 Pick. 284; Kimmel v. Kent, 2 Watts, 432; Ladd v. Prentice, 14 Conn. 116; Cooper v. Brown, 7 Dana (Ky.), 333; Clary r. Roland, 24 Cal. 148; Gallarati v. Orser, 24 N. Y. 324. * Brown r. Fulkerson, 8 B. Mon. (Ky.) 393. PEOSECUTION WITH EFFECT. 717 Bhown was regarded as a forfeiture of this condition, though no judgment of nol. pros, was entered.' § 1253. The condition to prosecute with e£fect means that the plaintiff will prosecute his suit to a final conclusion successfully, and if for any cause he fail in the final result, or if he suffer a nonsuit or dismissal, the condition is broken, and an action will lie for the full penalty of the bond.^ It is not necessary that judgment for a return be entered; the failure to prosecute is the breach.' Even where defend- ant consented to the dismissal, it is still an actionable breach,* unless he consent to waive his right to damages.' Where defendant pleaded non cepit, and the plaintiff after- ward was nonsuited, there was no failure to prosecute with success." But as long as the suit is pending, no matter how much delayed, there is no breach of this condition.' The condition in a replevin bond, that the plaintiff will prosecute his suit to effect and without delay, is a substantive and in- dependent condition, and as material as any other in the bond,* and may be declared upon for a breach the same as any other substantive condition. § 1254. The same. The condition of a replevin bond, that the plaintiff shall prosecute the action with effect, means that he shall prosecute with success or to a successful de- ' Axford r. Perrett, 4 Bing. 586. 2 MoFarland, r. McNitt, 10 Wend. 330; Persse v. Watrous, 30 Conn. 144; Gould v. Warner, 3 Wend. 54; Humphrey v. Taggart, 38 111. 228; Langdoc v. Parkinson, 2 Bradw. (111.) 136; Balsley v. Hoffman, 13 Pa. St. 603; Doogan v. Tyson, 6 Gill. & J. (Md.) 453; Hansard v. Reed, 29 Mo. 473; Berghoff v. Heckwolf,26 Mo. 511. ' Gibbs V. Bartlett, 2 W. & S. (Pa.) 29; Sopris v. Lilley, 2 Col. 498; Elliott r. Black, 45 Mo. 373; Brown v. Parker, 5 Blackf. (Ind.) 292; Dias r. Freeman, 5 Term. R. 195 and 104. ^Stevison r. Earnest, 80 111. 513. 5 Hall V. Smith, 10 Iowa, 46; Berghoff v. Hickwolf, ?6 Mo. 511. "Cooper V. Brown, 7 Dana (Ky.), 333; Ladd v. Prentice, 14 Conn. 116 ; Persse v. Watrous, 30 Conn. 147. ' Brackenbury r. Pell, 12 East. 586; Harrison r. Wardle, 5 B, &A, 146. 8 Humphrey v. Taggart, 38 III. 228. 718 BEEAOH AND EIGHT OF ACTION. teriQinatioii, and is broken if the action is dismissed.' It is not necessary to the maintaining of an action for this breach of the bond that there should have been a judgment in the replevin action for a return of the property or for damages. This condition is distinct and independent of the other con- ditions of the bond, and for its breach an action will lie.^ § 1255. Dismissal on ground of no jurisdiction is a breach. The condition of a replevin bond was that the plain- tiff in replevin should prosecute the writ to final judgment, pay such damages and costs as the defendant might recover against him, and restore the same goods and chattels in like good order and condition as when taken, in case such should be the final judgment on the writ. The replevin writ, upon its face good, was dismissed on appeal for want of jurisdic- tion in the court below from which it issued. Held, that there had been a breach of the conditions of the bond. Held, further, that to satisfy the conditions of the bond, the plain- tiff in replevin must prosecute the writ to a final judgment on the merits of the case, affirming his own right of posses- sion, or ordering a return and restoration to the defendant.' § 1256. Voluntary nonsuit is a breach of this obliga- tion. Bond conditioned, first, to prosecute the suit with ' Boom V. St. Paul, &o., 33 Minn. 253 (22 N. W. 538); Morgan v. Griffith, 7 Mod. 380; Perreau v. Bevan, 5 Barn. & C. 284; Jackson v. Hanson, 8 M. & W. 477; Tumriions v. Ogle, 37 Eng. Law and Eq. 15; Gibbs V. Bartlett, 2 Watts & S. 29; Brown v. Parker, 5 Blackf. 291; Berghoff v. Heckwolf,26 Mo. 511; Mills v. Gleason, 21 Cal. 280; Smith V. Whiting, 100 Mass. 122; Parott v. Scott, 6 Mont. 340; Manning v. Manning, 26 Kan. 98; Wood v. Coman, 56 Ala. 283. 2 Boom V. St. Paul, &c., 33 Minn. 253 (22 N. W. 538) ; Balsly v. Hoff- man, 13 Pa. St. 603; Gardiner v. McDermott, 12 E. I. 206; Persse v. Watrous, 30 Conn. 139; Manning v. Manning, 26 Kan. 98; Hall v. Smith, 10 Iowa, 45; Smith v. Whiting, 100 Mass. 122 ; Elliott v. Black, 45 Mo. 372; Howard v. Reed, 29 Mo. 472. 2 Pierce v. King, 14 R. I. 611 ; Flagg v. Tyler, 3 Mass. 303; Roman v. Stratton, 2 Bibb. 199; McDermott i'. Isbell, 4 Cal. 113; Mills v. Glea- son, 21 Cal. 274; Sherry v. Foresman, 6 Blackf. 56; Berghoff v. Heck- wolf, 26 Mo. 511; Wiseman v. Lynn, 39 Ind. 250; Persse v. Watrous, 30 Conn. 139. FAILURE TO ENTER SUIT IN COURT IS BREACH. 719 eflPect; second, make return of said property if return be awarded; and third, save and keep harmless the officer in replevying the same. Upon the impaneling of a jury to try the case the plaintiff took a nonsuit. This was a clear breach of the first condition of the bond.' And costs incurred in getting the property back, or on the retorno hdbendo, are re- coverable as a breach of the second condition of the bond.'' The dismissal is a breach of the bond, even though it was ordered on motion of the obligee in the bond on account of the defect in the writ.' In suit on replevin bond, where the original replevin suit is dismissed without a' trial of the merits, and retorno ordered, a failure to return the property in accordance with the judgment of the court constitutes a breach of the replevin bond, for which the obligee will be entitled to recover nominal damages and costs.* Where the suit is dismissed and no return ordered, it is a breach of the bond to prosecute with effect, and the sureties are liable." § 1257. Failure to enter the suit in court is a breach. The object of a replevin bond is to indemnify the defendant in replevin, and is not merely to secure to the defendant the execution of any judgment he may recover. When, there- fore, the plaintiff fails to enter the suit in court as required by law, he has failed to comply with that obligation of his bond that requires him to prosecute the suit to final judg- ment. The provision for the entry of judgment for a return, in such cases, is for the benefit of the defendant in replevin, and not for the benefit of the plaintiff or his sureties, and it ' Langdoc v. Parkinson, 2 Bradw. (111.) 136; Humphrey r. Taggart, 38 111. 228. ''Langdoc f. Parkinson, 2 Bradw. (111.) 136. ° Waddell v. Broadway, 84 Ind. 537 ; Sammons r. Newman, 27 Ind. 508; Caffrey v. Dudgeon, 38 Ind. 512 (10 Am. R. 126). *Scheer v. Schwabacher, 17 Bradw. (111.) 78; Chinn v. McCoy, 19 111. 604; Stevison v. Eariist, 80 111. 513. 5 Wisemann r. Lynn, 39 Ind. 250; Brown r. Parker, 5 Blackf. 291; Wheat r. Catterlin, 23 Ind. 85; Potter v. James, 7 E. I. 312; Roman v. Stratton, 2 Bibb. (Ky.) 199; Elliott v. Black, 45 Mo. 372; Howard v. Reed, 29 Mo. 472. 720 BREACH AND EIGHT OF ACTION. is no defense to an action on the replevin bond that this was not done/ It is the duty of a plaintiff in a replevin suit to see that all the necessary steps are taken to bring the cause to trial, in order that both parties may have an opportunity to present their claims, and that the question of title may be fully determined. A failure to do this, either through his own negligence or the negligence of the officer employed by him, is a failure to prosecute to effect, and subjects him to an action on his bond.^ If the condition of the bond or under- taking is that the plaintiff shall prosecute his suit to effect without delay, or return the goods, it is broken by the with- drawal by the plaintiff of the writ of replevin from the hands of the officer before the return day, and the discontinuance of the action.' § 1258. A contrary rule held where the " court " was absent. Where, on the day of trial, both parties attended, but the justice was absent and the suit was no further prose- cuted, in an action on the bond, held, that the replevin suit was prosecuted as far as the plaintiff therein was able to prosecute, and the abatement of the suit by reason of the absence of the justice was not a breach of the condition in the undertaking to prosecute.* The defendant's remedy in this case, if the plaintiff retained the property, would be to ' Gardiner v. McDermott, 12 E. I. 206; Lindsay v. Blood, 2 Mass. 518; Smith v. Whiting, 100 Mass. 122; Id., 97 Mass. 316; Roman v. Stratton, 2 Bibb. 199; Morgan v. Griffith, 7 Mod. 380; Perreau v. Be- van, 5 B. & C. 284; Persse v. Watrous, 30 Conn. 139; GibbsF. Bartlett, 2 W. & S. (Pa.) 29; Bank f. Hall, 107 Pa. 583. 2 Allen F. Woodford, 36 Conn. 143. In this case the officer served the papers properly and took the property, but never made return to the court, and nothing further was ever done with the suit, and defendant brought suit on the bond. The sureties made the defense that it was no breach, as the failure of jurisdiction on account of no return was no fault of the plaintiff, but the court held that it was a breach of the clause in the bond "that he wiU prosecute the suit to effect." See Persse v. Wat- rous, 30 Conn. 139. 8 Persse v. Watrous, 30 Conn. 139; Humphrey f. Targatt, 38 111. 228; Gent v. Cutts, 12 Jur. (Eng.) 113. * Pierce v. Hardee, 1 Thomp. & C. (N. Y.) 557. FAILUEE BY DEATH OK OTHEE ACT OF G6d. 721 bring replevin for it, or, if allowed by statute, to arrest the original plaintiff for the unlawful detention. § 1259. Where the suit abates by removal of the court, bond not liable. Where, in consequence of the remoyal of a justice from the township, a replevin suit commenced be- fore him has abated, after the property had been taken upon the writ by the officer, a judgment upon the replevin bond upon special findings is not warranted in the absence of any find- ing that the property had ever been delivered to the plain- tiff in replevin, or was detained by him after the abatement of the suit. The remedy of a defendant who has thus been deprived of his property by a replevin suit, which has been so abated, is an action of replevin to recover it, or possibly of trover for its value, and not by an action on the replevin bond.' § 1260. Failure in the suit is a breach of this condition. A verdict for defendant is, in effect, a finding that the plain- tiff unlawfully took the property, that the defendant is en- titled to the possession of it, and that there has been a breach of the replevin bond in that the action has not been prose- cuted with effect.^ §1261. Failure by death or other act of God. If the plaintiff die pending the suit, and under the law of that jurisdiction the suit abates, it has been held to not be a breach of the condition to prosecute with effect, and that no action would lie for the non-performance of a condition made impossible by the act of God.' An action on a replevin bond 1 Kidder r. Merryhew, 32 Mich. 470. 2 Wheat F. Cattorlin, 23 Ind. 85; Rankin v. Kinney, 7 Bradw. (111.) 215. 'Badlam v. Tucker, 1 Pick. 284; Ormand r. Brierly, Carth. 519; Bacon's Abd. Title, Replevin D; Persse r. "WatrouB, 30 Conn. 147; Green V. Barker, 14 Conn. 431; Parsons r. Williams, 9 Conn. 286; Biirkle v. Luce, 1 Comet. (N. Y.)163; Id., 6 Hill (N, T.), 558; Morris r. Matthews, 2 Ad. & El. (N. S.) 297. 46 722 BREACH AND EIGHT OP ACTION. does not abate by death.' This is a matter of statute in each state. § 1262. The obligors may limit their liability to the successful trial in justice court. If the bond plainly show this was their intention, it will be upheld. If an under- taking, in an action of replevin commenced in justice court, limits the liability of the person who executes it to a judg- ment for a return of the property rendered by the justice, and such judgment is not recovered in the justice court, a recovery cannot be had on the undertaking, even if, on ap- peal, such judgment is rendered by the county court. If the statutory form of the undertaking is followed, the defendant can recover the value of the property and costs upon a judg- ment in his favor in the appellate court.^ In all cases the court should see that a proper statutory bond is given. § 1263. But ordinarily the obligation refers to the final termination, and is equally binding whether that final judgment be rendered in the court in which given or another court to which it has been removed. Plaintiff is bound to follow and successfully prosecute it no matter where carried. This was the common law rule,^ and the same rule has been followed in the states. A replevin bond covers the costs of all courts, even though the case be removed upon certiorari from before a justice, if a final judgment on writ of error award all costs.* It is no defense to a suit on a bond that it was given in one court, and the action, by a special statute, was transferred to and tried in another court. The oblisa^ tion of the bond is that the suit will be prosecuted to effect ' Waples V. Mcllvain, 5 Harr. (Del.) 381. 2 Mitchum v. Stanton, 49 Cal. 302. 'Balsley v. Hoffman, 13 Pa. St. 603; Gibbs r. Bartlett, 2 "W. & S. (Pa.) 34; Blacket v. Cressop, 1 Lutw. 688; Butcher v. Po ter, 1 Shaw 400; Lane v. Foulk, Comb. 228; Gwillim r. Halbrook, 1 Bos. & Pul. 410; Vaughn v. Norris, c. t. H. 137. * Monroe r. Standish, 46 Mich. 12 (Monroe v. Heintzman, 8 N. W. 571). CONDITION TO EETTJEN. 723 whereTer the law places it.^ The soundness of this doctrine was questioned in West Virginia, in a case commenced in state court, and removed to the federal court, and suit after- wards brought on the bond in state court. "^ Bat as we have shown the replevin suit is removable from the state to the federal courts, ante § 331, there is no reason why the bond should not answer for any judgment rendered there, as that was one of the possible and probable results of the suit when they assumed the obligation, just as much as the possibility of defeat in the state court. § 1264. The replevin action must be finally ended or suit on bond may be enjoined. No action can be brought on the bond so long as an appeal is pending ; the conditions of the bond do not become fixed and determined until the final determination of the action.^ Where defendant was successful in replevin and thereafter brought suit on the bond, and obtained judgment (in the meantime plaintiff had, without giving a supersedeas bond, taken the replevin case to the supreme court and reversed it) held, that it was proper for the trial court to vacate the judgment on the bond upon this showing.* Where, after the removal of a replevin suit from a state to the federal court, the state court went on and rendered judgment for a return, and suit was brought on the bond for a failure to return, held, that the federal court would interfere by injunction to restrain the suit on the bond in the state court." § 1265. The condition to return, if return be awarded, is the most important, because the most frequently violated, of any of the conditions of the bond. The duties imposed upon the defeated party by this obligation are to take active ' Reusch V. Demass, 34 Mich. 95. ^Eigga V. Parsons, 29 W. Va. 522 (2 S. E. 81); citing Myers v. Par- ker, 6 Ohio St. 501. 8 Corn Exch. Bank r. Blye, 102 N. Y. 305 (7 N. E. 49). *McMiUan v. Baker, 20 Kan. 50. ^Dietzsch r. Huidekoper, 103 U. S. 494; French, trustee, r. Hay, 22 Wall. 250. 724 BREACH AND BIGHT OF ACTION. steps to place the successful party in as good condition as lie was before the suit was commenced, by a return of the prop- erty to him in as good condition as when taken. This is never a pleasant duty, and one which the history of replevin litiga- tion shows has been evaded on every pretext which the in- genuity of the profession could devise. For a more full discussion of this subject the reader is referred to chapter XXXVII on Proper Eeturn, Part II. Suffice it to say here, that until the judgment of return is satisfied, either by a return of the property or the payment and acceptance of its alternate value as found by the court, a cause of action exists • on the bond, and no precedent steps are necessary to be taken before suing upon the bond. § 1266. Demand for return not necessary. A defend- ant in replevin, who has recovered a judgment for a return, may maintain an action upon a replevin bond, upon failure of the plaintiff in replevin to return the property, without a previous demand or suing out a writ of return. The execu- tion of the bond being admitted and a breach thus shown, the plaintiff is entitled to a judgment.' In the absence of any statute it is not necessary to have a writ of return issue ; it is sufficient that the order for a return was made and has not been complied with.^ But several states provide that a writ of return must be issued and returned unsatisfied before suit can be brought on the bond. Such provisions must of course be complied with. Under such a statute the proof of a nonsuit in the original action and order for a return, and the return of the writ de retorno hdbendo without the goods, are sufficient proof of the breach of the bond.' The I Wright V. Quirk, 105 Mass. 44; Douglas r. Douglas, 21 "Wallace (U. S. S. Ct.), 98; Sweeney v. Lomme, 22 Wallace, (U. S. S. Ct.) 214; Cook v. Lathrop, 18 Me. 260; Parker v. Simmonds, 8 Met. 205; Davis v. Hard- ing, 3 Allen, 302; Leighton v. Brown, 98 Mass. 515; Leonard r. Whit- ney, 109 Mass. 265. " Peck V. Wilson, 22 111. 206 ; Robertson r. Davidson, 14 Minn. 554; Gould V. Warner, 3 Wend. 54; Knapp r. Colburn, 4 Wend. 618; MoFar- land F. McNitt, 10 Wend. 330. »Hood r. Spaeth (N. J.), 16 A. 163. JUDGMENT OF KETURN.IS CONCLUSIVE ON SUBETIES. 725 sureties in an undertaking for the claim and delivery of property, that is in the hands of a sheriff under the writ of attachment, are liable for the damages which may be sus- tained by the officer and the attaching creditors by a failure to return the property. Their liability cannot be extended by statute, or the judgment rendered in the action. Their contract is that the principal will return the property if a return be ordered, and that he will pay any judgment that may be rendered against him, and an action can be brought against them without a demand of a return.' It is no de- fense to suit on the bond for a failure to return to say that the sheriff did not take the property when he could." Judg- ment for a return uncomplied with constitutes a breach.' Where the condition is to make return, if return be awarded, there can be no breach if no judgment of return.* § 1267. The judgment of return in replevin is conclu- sive on the sureties. The sureties upon a bond, in an action against them upon it, cannot controvert the validity of the 3 udgment ; and it is generally sufficient, to maintain the ac- tion, that a return of the property or an award of damages was adjudged, and that there has been a failure to comply with the judgment in this respect.^ A judgment for defend- ant in the replevin suit constitutes a breach of the replevin bond, and when admitted in evidence is conclusive of a right to recover upon the bond, saving the right of the plain- tiff in replevin to prove his title to the property in mitiga- tion of damages." The right of the defendant in replevin to the possession and return of the property is determined by ' Lomme v. Sweeney, 1 Mont. 584; Whitney r. Lehmer, 26 Ind. 504; Mason v. Richards, 12 Iowa, 73. ' Jeninson r. Haire, 29 Mich. 209; Burkle r. Luce, 6 Hill. 558; Peck F. Wilson, 22 111. 206. 3 Smith V. Pries, 21 111. 656; Davis v. Harding, 3 Allen, 302. * Clark r. Norton, 6 Minn. 415; Ladd v. Prentice, 14 Conn. 117. 'Peck V. Wilson, 22 111. 205; Mason r. Richards, 12 Iowa, 73. See Southerland on Damages, p. 47-8. « Rankin v. Kinny, 7 Bradw. (111.) 215. 726 BBEACH AND EIGHT OF ACTION. the judgment. When no return is awarded in the judgment for defendant, it will be presumed that it was made to ap- pear that the plaintifE had become entitled to the possession of the property.' § 1268. The failure to pay a money judgment or costs, awarded against the plaintiff, is a breach for which an action lies on the bond, and no demand is necessary before suing on the bond.^ Where defendant had judgment for costs, but not for a return, and plaintiff having no property was ar- rested and committed and released under the poor debtor's act, held, that the replevin bond was forfeited and on judg- ment for the penalty, execution should issue for the costs.' This on the theory that the bond covenants to pay the judg- ment that is rendered, and that the money judgment has become absolute by a failure to return the property, or a finding of the court that it could not be returned, and the entry of an absolute money judgment. In replevin the de- livery of the property to the plaintiff is the primary object of the action. The value is to be recovered in lieu of it, as an alternative, only in case a delivery of the specfic property cannot be had. After judgment "for the delivery of the " property or the value thereof, in case a delivery cannot be "had," the defendant has no right to pay the assessed value of the property and retain it as his own against the will of the plaintiff, although he has given a bond conditioned for the performance of the judgment, and thus had the property restored to him.* 1 Vinyard v. Barnes, 124 111. 346 (16 N. E. 254). 2 Cook V. Lathrop, 18 Me. 260. 2 Hovey v. Coy, 17 Me. 266. * Swantz V. Pillow, 50 Ark. 300, Mansf. Dig. § 5181; Harris f. Harris, 43 Ark. 535. WHAT FACTS AEE MATERIAL TO BE ALLEGED. 727 CHAPTEE XLIL ACTION ON BOND-HOW BROUGHT. Section. Debt is the proper form of action on the bond . What facts are material to be alleged .... The same .... Copies of pleadings in re- plevin are no part of the petition One cause of action well stated is sufficient Proper and improper allega- tions — Illustrations . The same .... The same — Illustrations — In 1269 1270 1271 . 1272 1273 1274 1275 Section, regard to return and de- mand thereof ' . . . 1276 Allegations by officer or oth- er party having only a special interest . . . 1277 Malice need not be alleged . 1278 Bond executed in wrong name, how sued . . . 1279 Defect apparent on face of bond after oyer may be reached by demurrer . 1280 In variance between bond and petition, recitals of ' bond will govern . . 1281 § 1269. Debt is the proper form of action on the bond where the distinction between the different forms of actions is still preserved.' The usual form of declaration in debt upon a penal or other bond may be followed. The assign- ment of the breaches should be a plain statement of the facts, and need not be in broader terms than the conditions in the bond.^ Under the statutes or practice acts, now in force in most of the states, a plain statement of the facts with the amount of the damage and prayer for relief will be sufficient. Any peculiarity in the local law must be followed and complied with. § 1270. What facts are material to be alleged. The first material fact is the commencement of the replevin suit, issuance of the writ, and the taking of the property. Second, 1 Pratt V. Donovan, 10 Wis. 378. 2 Humphrey v. Taggart, 38 lU. 228. 728 ACTION ON BOND — HOW BKOUGHT. , the giving of the bond ; usually a copy should be set out. . Third, the termination of the replevin suit, or the failure to prosecute it without delay. Fourth, the final order, if one was made, and the failure to comply with that order, (and issue and return nulla bona of execution if required by stat- ute). Fifth, damage, etc. »The record, in the replevin suit need not be recited in the petition, merely the conclusions given, and on the trial it should be introduced in evidence.' Where the law permits the defendant to give bond and re- tain the property, the fact that the property was returned to him should be alleged.^ Assignment of the breach need not be in any technical or formal manner. A statement which shows that the obligors have failed to keep any one of their obligations is sufficient. The statement that defendant did not prosecute the replevin suit with effect, but failed to do so, is sufficient to show a breach of the obligation to prose- cute with effect.' § 1271. The same. The statutory provisions in the various states, relating to the remedy on the bond, or under- taking of the defeated party in replevin, are so varied that it would be impracticable, within the limits of this work, to treat of them in detail. In general, the successful party in the replevin suit can only proceed against the sureties on the bond after a failure to satisfy his judgment on execution against his adversary, or on special execution for the return of the property.* The material facts to be alleged in a dec- ' Gould V. Warner, 3 AVend. 67; McGinnis v. Hart, 6 Iowa, 204; Nunn V. Goodlett, 5 Eng. (Ark.) 89; Eldred r. Bennett, 33 Pa. St. 183. 2 Nickerson v. Chatterton, 7 Cal. 570. 'Woolridge v. Quinn, 49 Mo. 427; Miller v. Commissioners, 1 Ohio, 271; Humphrey r. Taggart, 38 111. 228. * In some states the remedy is by scire facias. Thompson v. Eaymon, 8 Miss. 186. In others an execution issues against the sureties after a return by the sheriff, that the bond is forfeited. Frei v. Vogle, 40 Mo. 149. In others, the proceedings to recover judgment on the bond are summary. Harker v. Arndell, 74 N. C. 85. In others, the action is an ordinary action on the bond for its breach. David v. Bx-adley, 79 lU. 316; Pick v. Wilson, 22 111. 205. PEOPEE AND IMPEOPEE ALLEGATIONS. 729 laration on a replevin bond are the termination of the suit, and judgment for costs in the defendant's favor, and the order for the writ retorno habendo, and failure to satisfy this order. It is wholly unimportant what led to ,that result, or in what phraseology it was declared.' § 1272. Copies of the pleadings in replevin are no part of the petition. In a complaint on a replevin bond for a breach thereof in failing to return the property after a judg- ment therefor, it is not necessary to aver who were sureties and who principals in the bond, or to file copies of the writ of replevin, and the return of the officer thereon with such complaint.^ § 1273. One cause of action well stated is sufficient. A declaration alleging breaches of several conditions of a replevin bond is good, if it state a good cause of action upon one of the breaches, though the others be defectively alleged.' § 1274. Proper and improper allegations — Illustrations. In an action of debt upon a replevin bond, the petition need not allege that the court in which the replevin action was pending had jurisdiction, as the obligor is estopped to deny the jurisdiction, it being a court of his own seeking.* Where, in an action of debt on a replevin bond, the bond is stated in legal effect in the declaration, it is unnecessary to prove its execution.^ Where the replevin bond was for a delivery of the property "in case the return thereof shall be awarded," a petition which only alleges a failure to deliver is bad upon demurrer. It must allege that a return was awarded also. The breach assigned must be as broad as the condition of 1 Stevison v. Earnest, 80 111. 513. " Shappendocia v. Spencer, 73 Ind. 133. 2 Fisse V. Katzentine, 93 Ind. 490. * Bates V. Schoonover, 43 111. 494. ^ Horner v. Boyden, 27 111. App. 573. The Illinois statute requires that the execution of the bond in such cases be denied by a verified plea, § 33, practice act. See Eeed v. Phillips, 4 Scam. 39; Delahay v. Clem- ent, 2 Scam. 575: Gaddy v. MoCleave, 59 III. 182. 730 ACTION ON BOND — HOW BEOUGHT. the bond.' A petition which sets out the proceedings in which the defendant obtained the writ, the filing of the bond in replevin, the failure to prosecute, the rendering of a judg- ment upon the trial in favor of defendant therein, and the failure to pay or satisfy this judgment as required by the terms of the bond, is sufficient.^ A complaint in an action on a replevin bond, which alleges that the suit of replevin was commenced against A and B, and that the_ property re- plevied was in the possession. of both of them, and that judg- ment was rendered in favor of the defendants, shows a cause of action in favor of B, although it avers further that the lumber belonged to A.^ A complaint upon a statutory un- dertaking, describing the undertaking only by stating that it corresponds with the provisions of the statute, is defective ; but the defect is rather in form than in substance, and can be availed of only by objection before trial.* § 1275. The same. Where the writ was quashed for errors on its face and no judgment for return entered, and the defendant in replevin brought suit on the bond, alleging the breach to be the failure to prosecute the action to effect,- held, that under this assignment of a breach the value of the property or damages for its return could not be recovered.' In an action on a replevin bond in New York, it is not nec- essary to allege the title or estate of the defendant in the action of replevin in the premises, for the rent of which the distress was made, nor to aver the making of an affidavit previous to a distress for rent in the city of New York, nor to state the avowry or cognizance. ° Where the complaint alleged that "it was adjudged that plaintiff take nothing by "his writ," and a writ of retorno habendo was awarded and ' Colorado Springs Co. v. Hopkins, 5 Col. 206; Pick v. Wilson, 22 111. 205 ; Hunter v. Sherman, 2 Scam. 539. ' Keys V. McNulty, 14 Iowa, 484. ' Story V. O'Dea, 24 Ind. 326. * Mills V. Gleason, 21 Cal. 274. ^ Wall r. Humphreys, 4 Dana (Ky.), 209. « Gould v. Warner, 3 Wend. (N. Y.) 54. PEOPEB AND IMPEOPEE ALLEGATIONS. 731 delivered to the officer, and that the plaintiff did not pros- ecute his suit with effect or make return, held, that it suffi- ciently alleged a breach of the bond.' In petition on un- dertaking in replevin, facts were alleged showing the com- mencement of the action, the undertaking for the immediate delivery of the property in controversy, its delivery, and the failure to prosecute the action of replevin, or redeliver the property. The petition then alleges that by reason of the premises aforesaid, said undertaking has become forfeited to this plaintiff, and an action has accrued to this plaintiff against the said defendants, jointly and severally, and he hath right to demand and have from the said defendants the said sum of $1200. Held, that the facts so stated are suffi- cient to constitute a cause of action.^ § 1276. The same. Illustrations in regard to return and demand thereof. In a suit against the sureties on a bond given in a replevin suit, a complaint is not sufficient which does not aver that the value of the property was found by the jury, and that an alternative judgment was rendered and not complied with.^ In an action on a replevin bond, it is not necessary to aver the issuing and return of an execution upon the judgment rendered in replevin.* Where the petition alleged that by virtue of the replevin bond sued on, the property was taken from plaintiff and delivered to de- fendant, etc., held, sufficient and not necessary to allege a special demand of the property replevied.^ In an action on a replevin bond it is not necessary to aver the issuing of a writ de retorno hahendo and a return of elongata, but in an action against a sheriff for taking insufficient bond such aver- ments are necessary. ° In an action on a replevin bond, the ' Manning v. Pierce, 3 111. (2 Scam.) 4; Hunter f. Sherman, 3 111. 539. 2 Cooper F. McGrew, 8 Or. 327. 8 Clary v. Rolland, 24 Cal. 147. * Jennison v. Haire, 29 Mich. 207. 6 Cushenden v. Harman, 2 Tyler, (Vt.) 431. 8 Knapp F. Colburu, 4 Wend. (N.-Y.) 619; Hunter v. Sherman, 3 III. (2 Seam.) 539; Uuggon v. England, Harp. (S. C.) 215. 732 ACTION ON BOND — HOW BROUGHT. plaintiff need not allege demand of the property replevied upon the execution in the original suit, or notice to either of the obligors in the bond.' In an action on a replevin bond, it must be alleged that the property was restored to the plain- tiff in replevin.'' A petition which fails to allege that execu- tion had been issued on the judgment in replevin and returned unsatisfied is bad on demurrer.' A defendant in replevin cannot maintain an action on the replevin bond against the surety, the plaintiff having failed to prosecute his action, until he has obtained some judgment against the plaintiff' on which execution has been returned unsatisfied in whole or in part* In order to support an action upon a replevin bond it is not necessary for a judgment de retorno hahendo to have been entered in the replevin suit, or for the damages to have been assessed.'' § 1277. Allegations by officer or other party having only a special interest in the property. Where the prop- erty of a judgment debtor, levied upon to satisfy the judg- ment, is replevied from the sheriff by third parties, who fail to prosecute the replevin action, in an action by the judg- ment creditor on the undertaking in replevin, his right to recover rests upon his right to have the replevied property applied to the payment of the judgment in the original ac- tion, and when his complaint alleges that execution has issued on the original judgment, but does not allege that the judg- ment has not been satisfied, it is fatally defective. The com- I Wetherbee r. Colby, 6 Vt. 647; Peck r. Wilson, 22 111. 205. ^Nickerson v. Chatterton, 7 Cal. 568. s Hershlser v. Jordan, 25 Neb. 275 (41 N. W. 147). Section 196 of the code, provides "that no suit shall be instituted on an undertaking "in replevin until an execution issued on a judgment, in favor of a de- "fendant in an action, shall have been returned, that sufficient property '•whereon to levy and make the amount of such judgment cannot be "found in the county." * Pemble v. Clifford, 2 McCord (S. C), 31; Scott v. Elliott, 63 N. C. 215; Cowden v. Pease, lOWehd. (N. Y.) 333; Cornish v. Kusee, 17 Ark. 391. ' Gibbs r. Bartlett, 2 W. & S. (Pa.) 29; Bank r. Hall, 107 Pa. 583. DEFECT APPAEENT ON FACE OF BOND. 733 plaint must allege the delivery of the bond but need not al- lege its assignment by the officer to the plaintiff.' § 1278. Malice need not be alleged. In an action on a detinue bond it is not necessary to allege that the writ was sued out wrongfully or maliciously, nor to set out the affi- davit on which the writ was issued, or to take any notice of it, nor to allege that the plaintiff in the detinue suit did not have probable cause to sue; but an averment that plaintiff "did fail in his said suit in detinue, and has wholly failed "to pay plaintiff his costs and damages, sustained by reason "of the wrongful suing out of said detinue writ," is a suffi- cient averment of damage and states a cause of action.'' § 1279. Bond executed in wrong name how sued on. When the true name of the obligor is Joshua P. C, while the signature to the bond is J. P. C, and by mistake the name is written in the body of the bond, James P. C, the obligor may be sued by his true name, with an averment that he signed the bond by the name of J. P. C, and in the ab- sence of a plea of non est factum the bond would be admis- sible in evidence notwithstanding the mistake.' § 1280. Defect apparent on face of bond sued on after oyer may be reached by demurrer. The tenor of the bond declared on, as it appears upon oyer, is a part of the petition, and it is competent for the defendant to avail himself of any defect apparent upon the face of the bond, or variance be- tween its terms and the allegations in the declaration, after oyer by demurrer.* iParrott v. Scott, 6 Mont. 340 (12 P. 763); Winser v. Orcutt, 11 Paige, 578; Hedderick v. Pontet, 6 Mout. 345 (12 P. 765). 2 Baker r. Pope, 49 Ala. 415. See Anderson v. Dickson, 8 Ala. 733; Watt's Exrs. v. Sheppard, 2 Ala. 425; Pryor v. Beck, 21 Ala. 393. 8 Wood V. Coman, 56 Ala. 283. See Taylor r. Strickland, 37 Ala. 644, and cases cited. It has been held that where a contract was signed in an assumed name, suit must be brought on the assumed name, and a plea of misnomer would not avail the defendant. Gould Y. Barnes, 3 Taunt. 503 ; AVooster v. Lyons, 5 Blackf. 60. * Matthews r. Storms, 72 111. 316. 734: SUIT ON BOND — HOW BROUGHT. §1281. In variance between bond and petition, re- citals of bond will govern. Where the petition alleges that the bond sued on "is herewith filed," and then, in stating the conditions of the bond, varies or misstates them, the re- citals of the bond will control, and the variance is not avail- able on demurrer. Where the petition alleges that the de- fendants have failed and refused to pay the judgment ren- dered in the replevin proceedings, it is not necessary to aver that it is in force and unappealed from.' Where the declar- ation in stating the bond payable three months after date, says nothing of interest, and oyer is given of a bond bear- ing interest from date, the variance is fatal.^ ' Blackburn v. Crowder, 108 Ind. 238 (Q N. E. 108). 2 Salter v. Richardson, 3 T. B. Mou. (Ky.) 204. In the first case the l)nnd was made part of the petition, so that the variance was between 1 he two parts of the petition. In the second case it was between the pe- '. ■ tion and the proof.. BOND WILL BE CONSTBUED LIBEEALLY. 735 CHAPTEE XLIII. VALIDITY AND CONSTRUCTION OF BONDS. Section. A bond in replevin will be construed liberally for the purpose for whieli it was given Tlie same — ^Illustrations The delivery of the property to the plaintiff in replevin is a sufficient considera- tion That the bond never was de- livered is a good defense . Bond may be valid though not signed .... If the bond is good at com- mon law, a recovery may be had thereon . 1282 1283 1284 128.5 1286 1287 Section. Replevin bonds not dated, date from their delivery . Bonds taken under repealed law are void Surety not mentioned in body of bond— Mistake in name in body of bond- Not fatal . . . . But if defendant in replevin take advantage of such er- ror to dismiss the action, ho cannot then ask to re- cover on the bond Void bonds— Illustrations . Disability of one surety does , not release the co-obligors on the replevin bond . 1288 1289 1290 1291 1292 1293 § 1282. A bond in replevin will be construed liberally for the purpose for which it was given, and will be suffi- cient to support the action though not in strict conformity with the statute.' Thus, though a sheriff is required by stat- ute to take a bond in replevin from the plaintiff before serv- ing the writ, a bond executed afterward will be valid.'' A bond with condition to indemnify the sheriff, instead of to prosecute the suit, is good." Under a statute requiring the bond in replevin to be for the "return of the property "to the defendant in case judgment for a return of such 1 Fawkner r. Baden, 89 Ind. 587. 2 Nunn r. Goodlett, 12 Ark. 89. 'Lambden v. Conoway, 5 Harr. (Del.) 1. See Whittei'more v. Jones, 5N. H 3fi9 736 VALIDITY AND CONSTEUCTION OF BONDS. " property is rendered against him," a bond omitting this, but having all the other statutory requirements, creates a binding obligation.' A replevin bond, made in pursuance of the requirements of a statute, should be construed and given effect according to the legal intention of the parties, although by a clerical error the name of the plaintiff is inserted in one place where that of the defendant should be, the mistake being obvious, and the intention apparent." A bond by which the obligors acknowledge themselves "held and "firmly bound unto" the obligee in the specified penalty "for the payment of which," it is declared, "we, and each "of us bmd our heirs, administrators, and assigns," binds the obligors personally, notwithstanding the omission of the word, "ourselves."^ A bond given to the bailiff of a landlord, with the condition to prosecute an action of replevin, etc., in consideration of which he delivered up the distress, held, to be equally binding as if given to the landlord himself.* A bond given to the sheriff instead of to the plaintiff as re- quired by statute does not authorize a summary judgment against the sureties in the replevin action, but might be suf- ficient to maintain an action at law.' A bond given to an unauthorized deputy and without the word "seal" is never- theless obligatory on the maker and sureties. ° § 1283. Thie same — Illustrations. Whore the sheriff by mistake took an indemnity bond instead of a replevin undertaking, held, that the obligors could not escape liabil- ity on this ground that it was a good and valid instrument, and that a failure to pay the judgment according to the undertaking of the indemnity bond fixes and determines the measure of the liability of the obligor.' It is no objection ' Hicldin v. Nebraska, &c., 8 Neb. 463. ■ ' Green v. Walker, 37 Me. 25. » Wood V. Coman, 56 Ala. 283. * Bofll V. Russ, 3 Strob. (S. C.) 98. ' Wooldridgo V. Quinn, 49 Mo. 425. ' Henach r. Chaney, 61 Mo, 129. 'Martin r. Bolenbaugh, 42 Ohio State, "508; Wilson r. Stilwell, 9 BOND WILL BE CONSTKUED LIBEBALLY. 737 to a replevin bond that, in reciting the judgment on which it is predicated, it omits a credit entered on the judgment.' The validity of a replevin bond given to replevy a distress for rent is not affected by the fact that too great an amount of rent is distrained for.'^ "Where both personal and real property is attached and a replevin bond is given, it will be presumed that it was given for the forthcoming of the per- sonal property, and as applying to that only.' After judgment the defendants are estopped to set up technical defects in the execution of the bond.* A replevin bbnd conditioned in the sum of $2,000 "to produce the property, if demanded, in as good condition as it then was, and "deliver it to the proper "officer of the court," will be regarded as a bond in double the value of the property conditioned to pay its value and interest in the event defendant be cast in the suit, and the proper judgment thereon is for the penalty of the bond, which may be satisfied by the delivery of the property or payment of its value.^ When the terms of the instrument render it possible, the court will always adopt that construc- tion which gives to the bond some force and effect and not one that annuls it,' and will, if possible, carry out the inten- tion of the parties in making the instrument,* usually giving the words their common, ordinary meaning.' If their mean- ing is unintelligble or not explicit, the court will supply these defects according to the intention of the parties if that is ap- parent.* When the condition of the bond was that it should be void if the obligor should "not" pay, etc., the court pre- Ohio St. 467; Webb v. Pond, 19 Wend. 423; Conkey r. Hopkins, 17 lohns. 113; Kirskey v. Friend, 48 Ala. 276. ' Doe r. Cunningham, 6 Blackf. (Ind.) 430. 2 Dean v. Ball, 3 Bush. (Ky.) 502. 8 Miles V. Davis, 36 Tex. 690. ♦Hartlepp v. Cole (Ind.), 22 N. E. 130. ^ Kuhn V. Spellacy, 3 Lea. (Tenn.) 278. «2 Bla. Com. 179; Mitchell v. Ingram, 38 Ala. 395. ' Hawes v. Smith, 3 Fairfield (Me.), 429. 8 Teall V. Van Wyck, 10 Barb. 377. 47 738 VALIDITY AND CONSTEUCTION OF BONDS. sumed that the introduction of this word "not" was a mis- take, and permitted a recovery on what must have been the true intent of the parties.' So where the word " pound " was omitted as a sign of the denomination of the amount of money intended to be secured, it was held to not defeat a recovery.^ Where the bond bound plaintiff to prosecute, etc., and on defeat to pay such sum as the said (name of plaintiff) shall recover, held, to be a clerical error and not to defeat a recovery.' And where the bond was signed after the writ was served, this was held to not defeat a recovery.* § 1284. The delivery of the property to the plaintiff in replevin is a suflacient consideration for the bond given to secure its possession. ° No consideration is necessary to support an undertaking given upon a claim for the delivery of personal property, pursuant to the code, besides the claim itself, nor is it necessary that the undertaking should express a consideration. The obligors are estopped from disputing its validity." § 1285. That the bond never was delivered is a good defense, and can be shown under the plea of non est factum; but where the first bond was defective and a new one was filed without a'n order of court, the makers of the second bond, in suit thereon, are estopped from alleging that it was given without any order therefor.' The delivery is a part of the execution, and to be valid it must be executed, that is, signed and delivered, but this does not mean delivered to the officer or returned into court, where the law so re- quires. If, -with, the consent of the obligor, it has passed ' Bache r. Proctor, Doug. (Eng.) 367. 2 Coles V. Hulene, 8 Barn. & Cess. 568. 8 Green v. Walker, 37 Me. 27. < Cady V. Eggleston, 11 Mass. 285; Nunn r. Goodlett, 5 Eng. (Ark.) 100; Reeves v. Reeves, 33 Mo. 28. ^McFadden v. Fritz, 110 Ind. 1 (10 N. B. 120); Wolford r. Powers, 85 Ind. 294. « Harrison v. Utley, 6 Hun. 565; Bildersee v. Adin, 12 Abb.Pr. (U.S.) 324; Cook v. Horwitz, 14 Hun. (N. Y.) 542. ' Treman v. Morris, 9 Bradw. (111.) 237. WHEN EECOVEEY MAY BE HAD ON BOND. 739 beyond his control, it is delivered in tlie sense liere meant so as to bind him. It is not essential to the validity of an undertaking for claim and delivery that it be delivered to the sheriff as required by statute, or that the statutory pro- ceedings for which it is given be actually taken. The for- malities of the proceeding may be waived and the sureties will not be released. They are estopped from question- ing the recitals in the undertaking, and cannot show that the defendant was not in possession of the property and that the undertaking was not to be used to obtain delivery, etc' A replevin bond, signed in blank on Sunday at church, and delivered to an agent who delivers it on a week day properly filled up, and returned by the officer without attestation or endorsement of approval, is good and will bind the sureties thereto.^ § 1286. Bond may be valid though not signed. A re- plevin bond containing the principal's name in the body of it but not signed by him, is nevertheless valid as against the surety, if delivered by the latter with the intention that it shall be effective and binding.' In order that the replevin bond should be considered a statute bond, it is not necessary that the plaintiff in replevin should sign the bond or that it should appear on the bond that it was given in his behalf.* § 1287. If the bond is good at common law a recovery may be had thereon. Though the bond may not follow the words of the statute, if it is not repugnant to some statute a recovery may be had thereon, or if it is good as a common law bond the person damnified may recover thereon.^ A 1 Harrison v. Wilkin, 69 N. T. 412. See Coleman v. Bean, 1 Abb. (Ct. of App.) 394; Decker r. Judson, 16 N. Y. 439. ^Prather v. Harian, 6 Bush. (Ky.) 185; Hopkins f. Chambers, 7 Mon. (Ky.) 261. But in Indiana, a replevin bond signed on Sunday is void. Link r. Clemmens, 7 Blaekf. 479. = Cahill's Appeal, 48 Mich. 616 (12 N. "W. 877). * Howe r. Handley, 28 Me. 2411 5 Parratt v. Scott, 6 Mont. 340 (12 P. 763) ; Hedderick r. Pontet, 6 Mont. 345 (12 P. 765); Claggett v. Richards, 45 N. H. 360. 740 VALIDITY AND CONSTRUCTION OF BONDS. bond in less than double the value of the property replevied is a good replevin bond at common law.' An undertaking given in a replevin proceeding not provided for by the stat- ute or not conforming to the statute, if acted upon as valid by both parties, will be held to inure as a good common law agreement, enforceable according to its terms. ^ When the bond under which the property was obtp,ined has been vol- untarily executed, it cannot be avoided on the ground that it does not conform to statutory requirements.' Where the property has been surrendered because of the giving of the bond, it is no gi'ound of defense for either the principal or his sureties, in a suit on the bond, that the bond was not adapted to the replevin action, but to some other form of ac- tion.* § 1288. Replevin bonds not dated, date from their de- livery to the sheriff, and no execution can issue on such bonds until they are due, reckoning from the date of deliv- ery.^ Where a replevin bond was sued on, dated prior to the execution on which it purported to be taken, the presump- tion of law is that there was a mistake in the date of one of them." The date is not important if the bond was signed and delivered and the property turned over on the strength of the giving of the bond ; the exact time when it was done is immaterial. § 1289. Bond taken tinder repealed law. A writ to take property issued under a law which had been repealed is void, and the bond taken in such proceeding is absolutely ' Turk r. Moses, 54 Mo. 115. 2 Goodwin v. Bunzl, 102 N. Y. 224 (6 N. E. 399); Branch f. Branch, 6Fla. 314; Mitchell v. Ingram, 38 Ala. 395. Shaw f. Tobias, 3 N. Y. (3 Comst.) 188. ' Morse f. Hodsdon, 5 Mass. 314; Simonds v. Parker, 1 Met. 514. ♦Clark F. Clinton, 61 Miss. 337. ° Bettis F. Bailey, 2 Bush. (Ky.) 608. The contract here is to paynn- less the property be delivered within a certain time, say three months after return awarded. 6 Cook F. Bank, 5 J. J. Marsh (Ky.), 163. SUEETY NOT MENTIONED IN BODY OF BOND. 741 void for all purposes, and no action can be maintained upon it though the obligor obtained the property and the bond has been treated as valid by all parties, and the same rule applies to a second bond, substituted for the first one in the same proceeding.^ Where the change of the statute was only as to the manner of taking the bond, a different rule might apply ; thus it has been held that replevin bond, taken according to a repealed statute with one surety only, is not void.^ § 1290. Surety not mentioned in body of bond — Mis- take in name of party in body of bond — Not fatal. The fact that the name of the surety is not mentioned in the body of the bond does not affect its validity. If he sign and seal it, it is sufficient, and he would be bound. When the bond recites that C. instead of S. sued out the writ, and from the whole instrument it is clear that S. was intended, it does not affect the instrument, and a recovery can be had thereon under the proper averments.' It is no objection to a replevin bond in the first person plural, and signed by both principal and surety, that the name of the surety does not appear in the body of the bond.* But it is essential to the validity of a replevin bond that the name of the defendant in the suit appear therein ; being defective in that regard it is a nullity, and the omission cannot be supplied by averment or other- wise. ° A misdescription of the obligor in a replevin bond, when the records of the court show the error to have been subsequently corrected although no actual correction was made on the papers themselves, will not prevent the bond ' Hicks r. Mendenhall, 17 Minn. 453. 2 Simonds v. Parker, 1 Mete. (Mass.) 508. See also Bigclow r. Come- gys, 5 Ohio St. 256. But if motion or plea in abatement be made at the proper time, it will be declared void. Greely v. Currier, 39 Me. 516. 3 Afflld r. The people, 12 Bradw. 502; Hibbard v. McKindley, 28 111. 254. « Clark T. Bell, 2 Litt. (Ky.) 164. "> Arter r. The People, Use,, &c., 54 111. 228; Matthews v. Storms, 72 El. 316. 742 VALIDITY AND CONSTEUCTION OF BONDS, being admitted in evidence under proper pleading, in a suit for damages thereupon.' § 1291. But if defendant in replevin take advantage of such errors to dismiss the action, he cannot then ask to recover on the bond. Where a defendant in replevin pro- cured the dismissal of a replevin suit on the ground that the bond did not contain the name of an obligee, he will not be allowed to reform the bond and recover on it. An action cannot be maintained on such a bond.^ A plaintiff cannot be allowed to thus occupy inconsistent positions. See De- fenses, Part II. § 1292. Void bonds — Illustrations. Bond taken by justice of peace in a case in which he has no Jurisdiction is invalid for all purposes, and no recovery can be had thereon, and signers are not estopped to set up any defense even if con- tradictory to the recitals therein.^ But where the court had jurisdiction over the subject matter, the rule is different, and the sureties are estopped by the recitals of their bond. ' A bond taken to replevy property from an attachment by an officer not authorized to serve the attachment is void.^ No action will lie on a replevin bond, the penalty of which is "double the value of the property hereinafter mentioned to "be replevied," to be fixed by appraisers — no value being stated — especially if the value of 'the property is afterwards agreed between the parties, and never fixed by appraisers. ° The bond in re- plevin rests upon the writ. If that be absolutely void, the bond is also void, and no recovery can be had upon it.' A replevin bond taken by a sheriff, not in accordance with the < ' Blatchtord v. Bayden, 18 Bradw. (111.) 379. 2 Titus F. Berry, 73 Me. 127. 8 CaffreyF. Dudgeon, 38 Ind. 512; Tarbell f. Gray,4 6ray,444; Green F. Haskell, 24 Maine, 180; Libby f. Main, 2 Fairfield, 344; Bridge f. Ford, 4 Mass. 641. * Sammons f. Newman, 27 Ind. 508. ' Lawrence r. Featherstone, 18 Miss. (10 S. & M.) 345. "Case F. Pettee, 5 Gray (Mass.), 27, ' Eosen f. Fischel, 44 Conn. 371. DISABILITY OF ONE SURETY. 743 statute, does not bind the surety, and is no foundation for judgment against them, but it is evidence that their prin- cipal has the property, and therefore justifies a judgment against him/ An undertaking in replevin having more than the statutory requirements is so far invalid, and if taken by a public officer is void as having been taken colore officii, al- though the officer may not have designed to violate the law. The officer is the agent of the law and not of a party to the suit, and must know and act within his authority.^ § 1293. Disability of one surety does not release the co-obligors on the replevin bond. The bond was volunta- rily given, and to allow the obligors who were sui juris to set up the disability (minority) of a co-obligor to defeat it, would be to allow them to take advantage of their own wrong, and plaintiff in replevin or his sureties cannot defend on the ground of defects in the replevin writ.' The obligor of a bond in replevin cannot avoid his liability by showing that he was induced to execute the bond by the fraud of one of his co-obligors, in which the obligee had no participation whatever, as where one of the co-obligor's names was a for- gery.* It is no defense to the sureties that their co-obligee, the plaintiff in replevin, was a married woman, and had not capacity to sign the bond, and was not held thereon.' ' Fenn v. Harrington, 54 Miss. 733. 2 Cook V. Freudenthal, 80 N. Y. 202. In this ease defendant was under arrest in a replevin ease for fraudulently putting the property beyond the reach of the officer, and gave the bond for his release, and the officer added to the statutory conditions a clause for the payment of any judg. ment awarded against him, instead of for the return of the property, as would have been proper. 8 Go'odell V. Bates, 14 E. I. 65; Morse v. Hodsdon, 5 Mass. 314. * Bigelow V. Comegys, 5 Ohio St. 256. This is on the well settled rule that where one of two innocent persons must suffer loss by the fraud, or misconduct of a third person, he who first reposes the confidence and commits the first oversight, must bear the loss. i Coverdale r. Alexander, 82 Ind. 503. 744 PEOPEB PABTIEa. CHAPTEE XLIV. PROPER PARTIES. Section. Who are proper parties to a suit on the replevin bond . 1294 Suit by officer for use, etc. . 1295 Suit by usee in name of siier- iff 1296 An action on areplevin bond should be brought in name of real party damaged . 1297 A stranger cannot maintain an action .... 1298 Statute of limitations to suit on bond . . . 1299 Right of assignee of judg- ment to sue on bond . . 1300 A. substituted plaintiff may Beetion. bring the suit in his own name, on the proper aver- ments 1301 How brought in cases de- pending upon particular facts— Illustrations . . 1302 All parties interested may join in suit on bond . . 1303 Joint obligees should join in suit on bond . . . 1304 Suit on bond may be brought in any court of competent jurisdiction . 1305 Procedure in case of lost bond 1306 § 1294. Who are proper parties to a suit on the re- plevin bond is a question that is very simple so far as the defendants are concerned. The parties who signed the bond are all proper, and in the absence of a statutory provision necessary parties and none other are proper parties. But in regard to proper plaintiffs the practice of the courts has not been quite uniform; yet, on examination of the authorities it will be found that they are not bo far apart as at first ap- pears. The better and prevailing rule being that the party injured is the proper plaintiff in his own name. As the bond took the place of the property, and the plaintiff in the suit on the bond thereby lost his property, and the defend- ant gained it and is now withholding it, thus seeking to profit by an act which the court has adjudicated to be wrong. SUIT BY. OIFICEB FOE USE, ETC. 745 the bond must respond,' and the court will not let any tech- nical matter prevent a recovery. The suit on the bond is a new suit and may be brought in any court having jurisdic- tion.^ ( See Chap. XLI. ) Where the bond is taken to the sher- iff it is the usual practice for him to assign it to any one dam- aged, and let him bring suit in his own name. In the ab- sence of such assignment the action must be brought by sheriff for use, etc.^ Suit by sheriff need not be in the name of his office; his individual name, with proper words of de- scription, will be sufficient.* § 1295. Suit by officer for use, etc. A suit brought by a sheriff upon a replevin bond may, like any other suit by one having the legal right of action, as respects the defend- ant, be brought for the use of whatever person the sheriff chooses, and it is not necessary that the one for whose use the suit is brought should have any interest or connection otherwise with the subject of the suit.° Where there has been no assignment of the bond or of the judgment in re- plevin, nor refusal or neglect by the sheriff to enforce the bond, an action can only be maintained thereon by the sher- iff. It cannot be brought directly by the plaintiff in the exe- cution, unless the sheriff" refuse to bring the action.' In a suit on a replevin bond brought by the coroner "for use," etc., the party named as one of the usees is in no sense a party to the suit, nor is his presence in the suit as a usee in any form at all essential to the protection of his equitable rights to a portion of the damages recoverable on the bond.' In re- plevin against a sheriff for goods levied on by him under ^ Buel V. Davenport, 1 Root (Conn.), 261; Webster v. Price, 1 Root, 56. Suit on the bond is the only remedy; trover will not lie. Smith r. McGregor, 10 Ohio St. 461. 2 Show r. Tobias, 3 N. Y. 188. 3 Gould r. Warner, 3 Wend. 60. * Caldwell v. West, 1 Zab. (21 N. J.) 411. 5 Atkins F. Moore, 82 111. 240. « Greer r. Howard, 41 Ohio St. 591. 'Blatchford v. Boyden, 18 Bradw. (111.) 378. 746 PEOPER PAETIES. an execution, tlie bond is properly made to the coroner, and upon condition broken, tbat officer may sue thereon for the use of any person damaged, by the wrongful suing out of the writ, or by the failure of the plaintiff to return the prop- erty as awarded. And when the plaintiff in execution is also made defendant in replevin, and named as defendant in the replevin bond, he may be joined as one in use with the sher- iff ; but the right to enforce the entire liability being in the sheriff, the plaintiff in execution being joined as defendant in the replevin suit, or as a usee in the suit on the bond, can in no way affect the sheriff's right of recovery, or add to the liability of the obligors in the bond, and hence describing such plaintiff in execution as the assignee of a wrong person will not defeat a recovery or afford ground to exclude the bond.' § 1296. Suit by usee in name of sheriff is wholly under the control of the real party in interest bringing the suit. In an action on an undertaking in replevin given to a sheriff in his individual name, but put in suit by the real parties in interest, the sheriff has no authority, by a stipulation with one of the sureties, to dismiss such action as to such surety without the consent of the parties for whose benefit the un- dertaking was given. A dismissal under such circumstances is not a bar to a subsequent action on the undertaking pros- ecuted by the real parties in interest.^ When the condi- tions of the replevin bond are broken, any person injured may sue in the name of the sheriff to his own use.' These cases arise under a law providing that the bond shall be taken in name of the officer, and suit for damage shall be prosecuted in his name, or in name of one to whom he has assigned it, where the statute provides for such an assign- ment. § 1297. An action on a replevin bond should be brought 1 Blatchford v. Boyden, 122 111. 657 (13 N. E. 801). 2 Norton v. Lawrence, 39 Kan. 458 (18 P. 526). = Hanchett v. Buckley, 27 111. App, 159; Atkin v. Moore, 82 111. 240. BIGHT OP ASSIGNEE OP JUDGMENT TO SUE ON BOND. 747 in the name of the real party damaged. The sheriff has no interest in it and should not be joined as plaintiff.' The assignee of a replevin bond, taken to the coroner and assigned by him, may sue in his own name.^ The principal in a re- plevin bond need not be the plaintiff in the action but may be a third party, and if the bond be forfeited a judgment rendered against such third person as pidncipal is not erro- neous.^ A suit for special damage to one of several named in a replevin bond should be brought on the relation of the person on whom the damage fell.* The better way in the absence of a statutory provision is for the action to be brought in the name of the party claiming to be damaged in all cases. § 1298. A stranger cannot maintain an action upon a replevin bond given in a proceeding to which he was not a party and where he is not an obligee in the bond.° § 1299. Limitations to suit on bond. The action on bond in replevin is barred by time the same as any other form of action. The statute commences to run with the date of judgment for a return ; a mere delay for a less time than the statute does not release the sureties. ° § 1300. Right of assignee of judgment to sue on bond. Where a judgment in replevin is assigned to a third party for a legal consideration, as the payment of a debt, the as- signee becomes the real party in interest, and may bring suit on the replevin bond to enforce the judgment in his own ' McBeth V. Van Sickle, 6 Nev. 134; Curriac r. Packard, 29 Cal. 199; Lomme v. Sweeney, 1 Mont. 584. 2 Acker v. Finn, 5 Hill (N. Y.), 293; City Council r. Price, i McCord (S. C.),299. ^ Frei v. Vogel, 40 Mo. 149. * Commonwealth v. Kelly, 2 B. Mon. (Ky.) 459. ^Pipher r. Johnson, 108 Ind. 401 (9 N. E. 376.) ^See Hagan v. Lucas, 10 Peters (U. S.), 400; Lovejoy v. Bright, 8 Blackf . 206 ; Evans r. King, 7 Mo. 411 ; McRea v. McLean, 3 Port. (Ala.) 138; Lockwood v. Perry, 9 Met. 444; Burkle r. Luce, 1 Comst. (N. T.) 163. ' Schlieman r. Bowlin, 36 Minn. 198 (30 N. W. 879) . See also 2 Jones 748 PEOPEE PAETIES. § 1301. A substituted plaintiff may bring the suit in his own name on the proper averments. Where the plain- tiff, in an action for the claim and delivery of porsonal prop- erty, died after the execution of an undertaking to him by the defendant for the purpose of regaining possession of the property, and before the trial, and another person was sub- stituted in his place as plaintiff, held, that the substituted person was the party entitled to recover, and as such the undertaking took effect in his favor as the plaintiff entitled to a return of the property.' § 1302. How -brought in cases depending upon partic- ular facts — Illustrations. Where a replevin bond is made payable to an administrator individually, and he sues on it in his own name, but alleges that the action is brought for the benefit of the estate, and in an amended petition sets forth his representative capacity, judgment may be rendered in his name.^ Where the undertaking in replevin is given to the sheriff alone, the plaintiff in execution is properly joined with the sheriff as plaintiffs in a suit thereon.^ If one of two obligees in a replevin bond is insolvent, and an assignee is chosen subsequently to the taking of the bond, an action upon the bond must be brought in the name of the other obligee alone.* Upon a replevin bond for rent in Missis- sippi, the landlord cannot move for judgment in his own name without an assignment of the bond from the sheriff. Such motion can be made only in the name of the sheriff, his assignee, or successor in office. ° on Mortgages, § 1377; Bolen v. Crosby, 49 N. Y. 187; Hurt v. Wilson, 38 Cal. 263; Ullmann v. Kline, 87 Dl. 268; Bennett v. McGrade, 15 Minn. 132. ' Emerson v. Booth, 51 Barb. (N. Y.) 40. In regard to change of de- fendants in the replevin suit, by substitution, see Williams v. St. Louis, I. M. & S. By. 8 Mo. App. 135. '' Oliver v. Townseud, 16 Iowa, 430. » Walls V. Johnson, 16 Ind. 374. * Brown v. Brigham, 5 Allen (Mass.), 582. '^ Lazarus v. Trible, 9 Miss. (1 Sneed & M.) 575. WHERE SUIT ON BOND MAT BE BROUGHT. 749 § 1303. All parties interested may join in suit on bond. Where executions in favor of five different creditors were at tlie same time placed in the hands of a sheriff, and levied, upon the same goods which were taken in replevin by a third party, and on trial judgment rendered in favor of the sheriff for a return, and the sheriff assigned the undertaking in re- plevin to the five execution creditors, held, that they could bring a joint action thereon.' Holders of separate judg- ments, whose executions have been levied on personal prop- erty which has been taken from the sheriff by replevin, may unite as plaintiffs in a suit for breach of the replevin bond, and the assignee of one of the judgments, the assignment of which is technically defective, is a real party in interest as plaintiff.^ All parties interested may join in an action on the bond.' § 1304. Joint obligors should join. Where the under- taking was given to the plaintiff in execution and the sheriff jointly, and the plaintiff in execution alone brought suit thereon, held, that if this was a defect of parties it was waived by failure of defendant to demur on that ground.* § 1305. Suit on bond may be brought in any court of competent jurisdiction. When the plaintiff in detinue, or in a statutory action for the recovery of personal property in specie, commenced in the District Court of the United States, obtains possession of the property by executing the necessary statutory bond, and afterward suffers a voluntary nonsuit, the defendant may sue on the bond in a state court, and is not compelled to sue in a federal court. ^ A contrary rule was laid down in Missouri, where suit was brought on a rereplevin bond in a different court but in the same county the 1 Kaufman v. Wessel, 14 Neb. 161 (15 N. W. 219). 2 Thomas r. Irwin, 90 Ind. 557; Moore r. .Jackson, 35 Ind. 360; Walls r. Jolmson, 16 Ind. 374; Toles v. Adee, 84 N. T. 222. ' Eutlege r. Corbin, 10 0. St. 478; Tate r. 0. & M. R. R. 10 Ind. 174; Goodnight v. Goor, 30 Ind. 418; Bliss on Code Pleading, S 75, * Foster v. Bringham, 99 Ind. 505. » Wood r. Coman, 56 Ala. 283. 750 PROPER PARTIES. replevin suit was brought in.' This was on the ground that the action on the bond was but a continuance of the replevin action, and the court cited Burtus v. McCarty, 13 Johns. 424; Davis V. Packard, 6 Wend. 327. But it seems to the author that a suit on a replevin bond, especially when brought by the original defendant in replevin, is not a continuation of the original action, but a new and independent action, and like any other action can be commenced in the forum desired by plaintiff. § 1306. Procedure in case of lost bond. In a proceed- ing by motion to have execution against a surety on a lost replevin bond, the plaintiff must show by proof the former existence of the bond, substantially its contents, its loss, and that the surety was not released.^ It cannot be substituted by a copy except on leave of court. Where the bond is lost a substituted bond occupies the same position as the lost one. Where the statute requires the clerk to endorse forfeited on the bond, if the property be not delivered or judgment paid as called for by it, and the bond then is a lien, the same as a judgment, running for ten years, which was not done because the bond was lost, when more than four years after, suit was brought to substitute the bcni, and the sureties pleaded the statute which barred a simple contract in foui" years, held, a good defense.' ' McDermott f. Doyle, 11 Mo. 443. 2 Farrow v. Orear, 2 Duv. (Ky.) 261. ' Poland V. Henry, 64 Tex. 542. See AuBtin v. Townee, 10 Tex. 24 ; Burton v. Miller, 14 Tex. 299. LIABILIIY OF PKINCIPAL AND SUEETIES ON BOND. 751 CHAPTER XLY. LIABILITY OF PEINCIPAL AND' LIABILITY AND EIGHTS OF SURETIES ON THE BOND. Section. Liability of principal . . 1307 How courts regard the lia- bility of sureties to replev- in bonds .... 1308 Sureties' liability can not be greater than the princi- pal's 1309 A release to the principal will discharge the sureties . 1310 There must be judgment against the principal . 1311 The waiver of judgment for return and taking a money judgment releases the sure- ties 1312 The sureties cannot contra- dict or question the judg- ment against their princi- pal 1313 Sureties are bound by the judgment rendered in the replevin action . . . 1314 Judgment by confession or by agreement for a less amount than that claimed, if in good faith, is binding on the sureties . . . 1315 Sureties are not bound by a judgment rendered by col- lusion or fraud . . . 1316 Judgment maybe entered in the replevin action against the sureties only where the statute so provides . . 1317 The obligations of the sure- Section, ties will not be enlarged by the courts .... 1318 The liability is fixed by law and cannot be changed or released without the con- sent of the obligee . . 1319 The liability of the suret.y must be determined by the law in force at the time it was assiimed . . . 1320 The sureties' obligation only covers the default of their principal when the suit takes its ordinary legal course, and he is cast in the replevin action . . 1321 It is no breach where the lia- bility arises after the suc- cessful termination of the suit 1322 Subsequent surrender of the property by the officer to whom it is returned— re^ leaves 1323 Where the property pending the litigation ,is taken and disposed of legally, it re- leases the sureties . . 1324 Value at date of trial, and damages theextentof their liability .... 1325 The sureties are not liable for damages which accrued prior to the judgment for a return .... 1326 752 LIABILITY OF PKINCIPAL AND SUBETIES ON BOND. Section. Effect of a compromise with apart of the sureties . 1327 Judgment in favor of the plaintiff on first trial as to all, and defeat as to one, defendant on retrial does not release the sureties . 1328 But sureties will not be re- leased on any frivolous pretext— Illustrations . 1329 Sureties cannot contradict the recitals of their bond . 1330 Change in character in which plaintiffs sue, and addition of other plaintiffs will not release the sureties . . 1331 A legal change of defendants does not release the sure- ties 1332 Effect of agreement to delay, or neglect to enforce claim on bond .... 1333 A discharge in bankruptcy is no defense . . . 1334 Voluntary payment by surety cannot be recovered back from principal . . 1835 Contribution and subroga- tion 1336 If surety pay the judgment they are entitled to the property .... 1337 § 1307. Liability of principal. The existence of a re- pl6\dn bond does not preclude the defendant in replevin from resorting to other remedies against the plaintiff, if the latter wrongfully retains the goods taken on the writ.' He is liable without regard to the bond and may be made to answer in any proper remedy, the same as for any other wrong. If he sign the bond, he thereby creates a new obli- gation, and a plaintiff in replevin, who joins in the under- taking to prosecute the action and restore the property delivered to him, in case of a judgment to that effect is bound by the terms of the instrument to the same extent as any other obligor.^ But this new obligation does not protect him or lessen his liability in any other form of action to enforce his obligation independent of the bond. A plaintiff in re- pleArin who gets the property is bound to prosecute the action to final judgment, pay the costs and return the property, if such is the judgment of the court' Extent of the liability of the principal obligor in a replevin bond, determined in cases depending upon particular facts.* ' Scott r. Scott, 50 Mich. 372 (15 N. W. 5] 5). 2 Buck r. Lewis, 9 Minn. 314. ^ Kayser v. Bauer, 5 Kan. 202. *Kercheval v. Harley, 1 Meigs. (Tenn.) 412; Case v. Eobelin, 1 J. J. KELEASE TO PRINCIPAL WILL DISCHAEGE SURETIES. 753 § 1308. How courts regard the liability of sureties to replevin bonds. Although the principal in a replevin bond is regarded as having no equities as against his opponent after a final decision in the case, still where he acted in good faith under an honest belief of a right, it will be con- sidered in a suit on the bond. As the question then is who shall suffer of two innocent parties, the sureties or the de- fendant in replevin, they are regarded as standing on an equal footing and the finding will be in favor of the one having the better equity under all the facts. If the posses- sion of the claimant be wrongful in the popular acceptance oi. the term, if it be inequitable and unconscientious, acquired for instance in violation of a trust, or by force, violence, or fraud, he should, in all events, be responsible for the value •of the property. But if he held by title acquired in good faith, if his claim be not destitute of equity, or have prob- able foundation in law, if it be conscientious, he cannot be •treated as a willful wrongdoer, not relievable even as against the act of Divine Providence. In short, his responsibility must depend upon the peculiar circumstances of the partic- ular case. Therefore, one who gave bond for the delivery of a slave to which he believed he had a right is relieved from liability by the emancipation of the slave pending the suit.' § 1309. Sureties' liability cannot be greater than the principal's. In debt on a replevin bond against the principal and surety, the surety made default, the principal pleaded an absolute release and obtained judgment. Held, that the plaintiff could not have damages assessed against the surety.'' § 1310. A release to the principal will discharge the sureties. An absolute release "of all demands whatever," executed by the plaintiff to the principal obligor of a replevin Marsh (Ky.), 29; Moore v. Campbell, 36 Vt. 361; Ladd v. Prentice, 14 Conn. 109. ' Pait V. McCutchon, 43 Tex. 291 ; Porter v. Miller, 7 Tex. 479. See iCarpenter r. Stevens, 12 Wend. 589 ; Parsons on Contracts III, 217. 2 Thomas v. Wilson, 6 Blackf. (Ind,) 203. 48 754 LIABILITY OF PBINCIPAL AND SURETIES ON BOND. bond on whicli the suit -was brouglit is a discharge of the bond.' A replevin bond is discharged by the, rendition and discharge of a judgment in the replevin suit, on a verdict for the defendant that "defendant recover his costs."^ Stipula- tion for dismissal without judgment releases the sureties upon the replevin bond.' Where the plaintiff replevied property and the issue was property in defendant and others and verdict in favor of defendant generally, and he brought suit on the replevin bond, obtained judgment, and then set- tled with the plaintiff in replevin, and the other parties, who were alleged to be part owners, attempted to collect on the bond, they were perpetually enjoined.* § 1311. There must be a judgment against their prin- cipal. The sureties on a replevin bond are not liable until there has been a finding and judgment in the replevin suit against their principal. ° Where plaintiff in replevin fails to prosecute iis action, defendant should have his damages as- sessed and an order for the return of the property, to put himself in position to sue on the bond.* Where defendant in replevin took judgment and execution for his costs with- out praying a return, which execution was satisfied, when he brought suit on the replevin bond for the value of the goods, held, that the action, could not be maintained.' The sureties on a replevin bond are not liable unless there is a judgment of return; a mere money judgment, as in an action for dam- ages against their principal, does not make them liable.' A judgment which does not award a return does not impose any liability upon the sureties.' No damages for a non- 1 Thomas v. Wilson, 6 Blackf. (Ind.) 203. 2 Chambers v. Waters, 7 Cal. 390. » Casper r. Kent Circuit Judge, 45 Mich. 251 (7 N. W. 816). 'Edwards v. McCurdy, 13 111. 496. 5 Scott V. Elliott, 63 N. C. 215. ^ Clark V. Morton, 6 Minn. 412. 'Pettygrove v. Hoyt, 11 Me. (2 Fairf.) 66. 8 Jaggar r. The L. & G. Mfg. Co., « Dalys. 251; Gallarati r. Orser, 27 N. T. 324. » Mitchum v. Stantou, 49 Cal. 302. 3UBETIES CANNOT CONTBADIOT JUDGMENT. 755 return are recoverable on a replevin bond unless there has been a judgment for a return.' § 1312. The waiver of judgment for return and taking a money judgment releases the sureties. A replevin bond, in replevin of attached property, is not a security for the debt sued on, but is a security for the forthcoming of the very prop- erty levied on or its value. ^ If the very property be aban- doned by the plaintifif, if he take no judgment of foreclosure upon it but a personal money judgment only, then the sure- ties are released. It is not like taking a nonsuit as to an ordinary surety, which may be followed up by a new suit. It is a clear abandonment of the cause of action as against the obligors on the replevin bond. The liability of the obligors does not arise until after judgment against the debtor. They did not stand good for the debt but for the property, and as the judgment ignores the property, there is nothing in the judgment for them to respond to. It is also necessary to show that the debt cannot be made out of the principal before the sureties can be made to respond. Of course this is only in cases where a return is possible, and does not apply to cases where return cannot be had, and in North Carolina a different rule has been laid down. The court say that an agreement to dispense with a return and take a money judgment is binding on the sureties, but the first is the better rule.' § 1313. The sureties cannot contradict or question the judgment against their principal. That judgment is con- clusive upon all parties, so far as the issues involved are con. cerned. But it must be a judgment regularly obtained upon the issues involved in replevin. Where other issues are involved they are not bound by the result. Thus, where $44 due on an account between plaintiff and defendant was in- cluded in the judgment for the value of the replevied prop- 1 Wright r. Marvin, 59 Vt. 437 (9 A. 601). ^ Toland r. Swearingen, 39 Tex. 447. » Council v. Avorett, 90 N. C. 168; Bobbins r. Killebrew, 95 N. C. 19. 756 LIABILITY OF PRINCIPAL AND SURETIES ON BOND. erty, tlie sui-eties are not bound and may assail tlie judgment on this point. For them it is a defense pro tanto? During the pendency of a repleyiu suit, the sureties to the replevin bond are treate^ as in court ; and not objecting, they are con- cluded by a judgment to which the principal consents,^ and such a law is constitutional.' But where the attorneys had stipulated that judgment should be entered for the value, and not for a return, it was held that the sureties were not concluded by such a judgment, but could show that the property was where it could be delivered.* The sureties have a right to insist that the judgment be in the alternative for a return of the property, but if they fail to appear and exert this right, they are concluded by the judgment, though not in strict accord with the statute.' An action can be maintained against the sureties where judgmfnt has been rendered against their principal in the replevin suit, simply for the recovery of the possession and not in the alternative for the recovery or the value. This judgment cannot be questioned collaterally." § 1314. Sureties are bound by the judgment rendered in the replevin action. Where defendant, in an action of replevin, gave a redelivery bond and kept the property and was finally defeated in the action, the sureties on this bond in the absence of collusion, or fraud are bound by the judgment against defendant in the replevin suit.' The sureties are bound by all steps their principal may take in good faith in the action and by the final result, and if the court have jurisdiction 1 Lee V. Hastings, 13 Neb. 508 (14 N. W. 476). 2 Wells V. Griffin, 2 Head. (Tenn.) 568. 5 Pratt V. Donovan, 10 Wis. 378. * Lee V. Hastings, 13 Neb. 508 (14 N. W. 476). ^ Dorrington v. Meyer, 8 Neb. 211. ^Marix r. Franko, 9 Kan. 132; Whitney v. Lehmor, 26 Ind. 503. See also- as sustaining these views. Hall v. Smith, 10 Iowa, 45 ; Hawley v. Warner, 12 Iowa, 42; Mason v. Richards, 12 Iowa, 72 ; Koffer r. Harlow, 5 Allen, 348; and as not endorsing this view, see Nickerson v. Chatter- ton, 7 Cal. 568; Chary v. Roland, 24 Cal. 147. ' Kennedy v. BrOwn, 21 Kan. 171. JUDGMENT BT CONFESSION OB AGEEEMENT. 757 they are bound by the order made at the final hearing.' The amount of the judgment recovered by defendant is conclusive in a subsequent suit upon the replevin bond.^ And nothing short of the full and complete satisfaction of this judgment will release them and satisfy the terms of the bond/ In detinue, or the statutory action in the nature thereof, if the plaintifE has obtained the possession of the property at the commencement thereof, and afterward dismisses his suit, it is the duty of the court to have the alternate value of the prop- erty assessed by the jury, with the value of the hire or use thereof, and to render judgment against him for the same; but the rendition of this judgment is not necessary to author- ize or sustain a common law action on the replevin bond under which plaintiff acquired the possession of the prop- erty.* And in such a case ownership of the property cannot be shown in bar of the suit on the bond though it has been permitted in mitigation of damages.' A judgment in detinue on the merits is conclusive as to the ownership of the prop- erty in a subsequent action on the replevin bond.' § 1315. Judgment by confession or by agreement for a less amount than that claimed, if in good faith, is binding on the sureties. The sureties in a claim property bond, given by defendant in replevin for the retention of the prop- erty pending the suit, are not released from liability by the fact that, on the trial of the replevin suit, the defendant con. fussed judgment in favor of the plaintiff without the knowl- edge of said sureties, no fraud or collusion being shown in such confession. If, however, the sum confessed included other matters, so far it would be a defense, and that question ' Firkins r. Kudolph, 36 111. 310; Burrall v. VanderbUt, 1 Bos. (N. YJ 637. 2 Oontril r. Babcock, 11 Col. 143 (18 P. 342). = Hicks V. McBride, 3 Phil. (Pa.) 377. * Ernst Bros. r. Hogue, 86 Ala. 502 (5 So. 738). « Savage v. Gunter, 32 Ala. 467. • Ernst Bros. v. Hogue, 86 Ala. 502 (5 So. 738). 758 LIABILITY OE PBINCIPAL AND SUEETIES ON BOND. ahould be left to the jury.' But where the case is regularly tried and a verdict rendered by a jury, but the judgment by consent of the parties to the suit is entered for the amount of a lien instead of for the property, as contemplated by the jury, the sureties are bound by the judgment.'' § 1316. Sureties are not bound by a judgment ren- dered by collusion or fraud. While sureties on a replevin bond are concluded by a regular judgment against their principal,^ they are not bound by a secret confession of judg- ment, fraudulently and collusively made between their prin- cipal and the obligee, and they may enjoin the prosecution of a suit on the bond where their principal, without their knowledge, has stipulated that the defendant ma,y take judg- ment* Where attached property was replevied by plaintiff and bond given, and plaintiff and defendant afterward agreed that the attachment should stand, held, that the sureties on the replevin bond should be allowed to intervene and defeat the attachment suit and sustain the replevin suit if they could.^ § 1317. Judgment may be entered in the replevin ac- tion against the sureties in some jurisdictions; but this is not the general rule, and where done is by virtue of an ex- press statute. Several states, after trying that plan, abolished it by statute. It is not deemed necessary to enter into a fur- ther discussion of such proceeding." The code of Iowa pro- vides, §§ 3229-3242, that a judgment for money against the plaintiff shall be against the sureties on the bond, and this 1 Bradford v. Frederick, 101 Pa. 445; Lee v. Hastings, 13 Neb. 508 (14N.W. 476). 2 Estey V. Harmon, 40 Mich. 645. ' Williams v. Vail, 9 Mich. 162; Lothrop r. Southworth, 5 Mich. 4361 Hirshler v. Reynolds, 22 Iowa, 152. * Wriirht V. Hoke, 38 Mich. 525; King f. Baldwin, 17 Johns. (N. Y.) 384; Viel v. Hoag, 24 Vt. 46. 5 Burch V. Watts, 37 Tex. 135. « Pratt V. Donovan, 14 Wis. 378; Klcety v. Dilles,45Wis. 485; Clerk's Office I'. Hufstetter, 67 N. C. 449; Boylston r. Davis, 74 N. C. 78; Har- ker Y. ArundeU, 74 N. C. 85. COUETS WILL NOT ENLARGE SUBETIES' OBLIGATION. 759 has been held to authorize a judgment against the sureties upon the disposition of the case, without requiring them to be brought into court by formal proceedings.' Double dam- ages may be assessed against the sureties on the bond, where the statute under which it is given provides for it.^ § 1318. The obligation of the sureties will not be en- larged by the courts. The liability of the surety depends upon the bond, but the plaintifE in replevin is liable without reference to the conditions of the bond.^ The sureties are liable only to the extent they are made so by law, and this liability cannot be increased by stipulation of attorneys with- out the sureties' consent.* The undertaking of a surety in replevin is to be construed strictly and is not to be enlarged by the courts.^ The liability of the obligors in a replevin bond is, in case of failing to restore the property if ordered to do so, to pay the damages assessed in the action of re- plevin and costs, but this does not include attorney's fees." Where one of the conditions of the bond is that the property will be returned "if a return be adjudged by the court," the sureties are not liable for the property unless there is a judg- ment for a return; a verdict is not sufficient,' A judgment, by agreement dispensing with the provision for a return of the property, releases the surety on the bond so far as. the value of the property replevied.* The California courts have carried this doctrine to the extreme, and declared that where ^Mclntire v. Eastman, 76 Iowa, 455 (41 N. W. 162); Hershler 7. Keynolds, 22 Iowa, 154. 2 Brannin v. Bremen, 2 N. M. 40. 2 Creailier v. Ford, 1 Heis. (Tenn.) .307. *Lee V. Hastings, 13 Neb. 508 (14 N. W. 476). = Vinyard v. Barnes, 124 lU. 346 (16 N. E. 254). ^ Kenley v. Com. for Henderson, 6 B. M. 583. 'Thomas v. Irwin, 90 Ind. 557; Chambers v. Waters, 7 Cal. 390; Mills V. Gleason, 21 Cal. 274 ; Clary v. Roland, 24 Cal. 14.S ; Nickerson v. California Stage Co., 10 Cal 521; Clark F.Norton, 6 Minn. 412; Ladd v. Prentice, 14 Conn. 109; Badlam v. Tucker, 1 Pick. 284; Cooper v. Brown, 7 Dana (Ky.), 333 ; Ashley v. Peterson, 25 Wis. 621 ; HoUensbee V. Ritchey, 49 Ind. 261; Pipher v. Johnson, 108 Ind. 401 (9 N. E. 376). , 8 Gallarati v. Orser, 27 N. Y. 324. 760 LIABILITY OF PBINOIPAL AND SUEETIES ON BOND. the bond contains the provision, if a return be awarded by the court, it will not extend to an award of a return by any other court than that in which the bond was given.' The liability of sureties on a replevin bond is determined by stat- ute, and the- fact that circumstances render a judgment against their principal impossible, where that is a statutory prerequisite to suit on the bond, cannot enlarge their liabil- ity.'' Where plaintiff took the property, and on trial verdict was rendered for a return of the replevied property, or for its value as assessed, but the clerk erroneously entered an absolute money judgment, the surety successfully defended suit on his bond on the ground that this judgment enlarged his liability.' Where the original debtor died, after prop- erty was attached and replevied, but before judgment was rendered in the suit, held, in action by the creditor on the replevin bond, that the lien created by such attachment was, by such debtor's death, dissolved, and that the creditor could not recover.* § 1319. The liability is fixed by law and cannot be changed or released without the consent of the obligee. One who signs a replevin bond assumes all the liability the law gives to such a bond, and can by no personal arrange- ment with the party for whom he signs limit or affect such liability. The bond is a protection to the adverse party, and he alone can release or relieve the surety.^ The sureties are only liable for the value of the goods and costs. ^ ■ § 1320. The liability of the surety must be deter- ' Mitchum y. Stanton, 49 Cal. 302. 2 Scott V. Soott, 50 Mich. 372 (15 N. W. 515). 8 Berthold v. Fox, 21 Minn. 51. * Green v. Baker, 14 Conn. 432. ' Hosg Y. Green, 17 Kan. 327. Here the surety took security when he signed the bond. His principal was successful, and after the statutory time had expired without appeal being taken, with bond, he surrendered his security, notifying the parties. The parties afterwards consented that appeal be taken, and his principal was defeated on appeal. I think no court has gone further to charge the surety. « Taylor's Landlord and Tenant, § 745. EXTENT OF SUEETIES' OBLIGATION. 761 mined by the law in force at the time it was assumed. And where judgment is obtained against him and sale of his property is necessary to satisfy the judgment, the property must be taken and sold under the law in force as it then was. His only connection with the case is by the bond, and the bond takes efEect from its date, and the law in force at that time is the law by which his liability is measured and de- termined.' § 1321. The sureties' obligation only covers the default of their principal when the suit takes its ordinary legal course and he is cast in the replevin action. Where plain- tiff in replevin, whose property had been attached, entered into an agreement with defendant (plaintiff in attachment) that the attachment should stand, held, that the obligation of the sureties on the replevin bond were only bound for the forthcoming of the property attached, if the proceedings in the attachment were regular and proper and the property levied on subject to the attachment, and this agreement did not bind them or prevent their making any defense their principal could. ^ The liability of a defendant, upon a bond executed to the plaintiff " to perform the judgment of the "court in the action," extends only to such judgment as the court may render on the claim for possession of the property sued for,^ The sureties may in all cases stand upon the exact terms of their contract.* Both principal and surety are discharged by an unconditional reference of a replevin suit to arbitrators, but not by a reference which provides that the finding of the arbitrators shall have the force and effect of a verdict, and that judgment shall be entered there- on. ° A replevin bond is for the special purpose of proteot- > Stockwell V. Kemp, 4 McLea (C. Ct.), 80. 2 Burch V. Watts, 37 Tex. 135. s McKee r. Pope, 18 B. Mon. (Ky.) 548. *Fullerton v. Miller, 22 Md. 5; Tarpey v. Shillenberger, 10 Cal. 390; Clary r. Holland, 24 Cal. 147; Clark v. Norton, 6 Minn. 412.. "Perego v. Grimes, 2 Col. 651; Perkins f. Rudolph, 36 111.306; Archer V. Hale, 4 Bing. 464. See Moore r. Bowmaker, 6 Taunt. 379 ; Aldridge 762 LIABILITY OF PRINCIPAL AND SURETIES ON BOND. iug the obligee or his assignee in the suit in which it is given, and no action can be brought thereon for damage de- termined in a subsequent suit between the same parties about the same property.' A settlement may or may not bind them according to circumstances. If not bound by the settlement they may sometimes be held on the failure to prosecute diligently or to effect.^ § 1322. It is no breach where the liability arises after the successful termination of the suit. The conditions of the forthcoming bond are only broken by a failure in the suit and a failure to perform the judgment rendered. Where a plaintiff seized property in replevin to enforce a lien, and on trial his lien was upheld and judgment in his favor, and defendant then tendered the amount of the lien and de- manded a return of the property which plaintiff refused to return, held, that the sureties on his 'bond were not liable, that this was not a breach of the bond.' Where a party, claiming to be the owner of a chattel in the possession of another, replevies the same, but on trial his interest is ad- judged to be that of a mortgagee only, but entitled to posses- sion, the surety upon his replevin bond is discharged from liability thereon.* The bond is not liable for a penalty in- curred in another suit or proceeding.^ § 1323. Subsequent surrender of the property by the officer to whom it is returned. A subsequent surrender of the property by the constable under a claim of exemption does not affect the rights of the surety on the replevin bond. F.Harper, 10 Bing. 118; Coleman v. Wade, 2 Seld. (N. T.) 44; Bowman y. Moore, 1 Exch. 35.5; Leighton r.Brown, 98 Mass. 516; Eldred v. Ben- nett, 33 Pa. St. 183. ' Boyer v. Fowler, 1 Wash. 101. 2 Harrison v. Wilkin, 69 N. Y. 413; Coleman v. Wade, 2 Seld. (N. T.) 44; Hallett v. Mountstephen, 2 Dow. & Ry. 343. s Ja,cobs V. Nathan, 83 Ala. 271 (3 So. 607). * Edwards i'. Cottrell, 43 Iowa, 194. See Pettygrove v. Hoyt, 11 Me. 66; Clark v. Norton, 6 Minn. 413; Mitchum v. Stanton, 49 Cal. 304; Collins V. Hough, 26 Mo. 150; Bolsley v. Hoffman, 13 Pa. St. 606. ' Boyer v. Fowler, 1 Wash. Ter. 119. LIABILITY OE SURETIES EOR DAMAGES. 763 His obligation is satisfied when the property is returned to the proper party, and he cannot be held responsible for the use made of it after its return,' § 1324. Where the property pending the litigation is taken and disposed of legally, it releases the sureties from the obligation to return it. The sureties in an undei-taking in replevin are released from their obligation to return the property if it is taken by due process of law without their fault, and held or sold, so that a return is rendered impos- sible.^ The theory of these cases is that the property being in the custody and control of the court, it has ordered or allowed it to be so disposed of that a return is impossible. The status of the property is thus settled in favor of the obligors on the bond, just as much as if there had been judg- ment in the replevin action in favor of their principal. § 1325. Value at date of trial and damages the extent of their liability. The obligors on a forthcoming bond in replevin are only liable for the value of the property at the date of the trial, and damages of detention, which value must be shown by legal evidence.' Sureties on a replevin bond are bound only for the value of the property not forthcom- ing on demand and within the penalty of the bond.* § 1826. The sureties are not liable for damages which accrued prior to the judgment for a return unless they are included in the judgment rendered against their principal.^ The same principles govern as in the case of other bonds. ° 1 Eichards v. Rape, 3 Bradw. (111.) 24. 2 Caldwell f.' Gans, 1 Mont. 570; Hogan v. Lucas, 10 Pet. 400; Hunt r. Robinson, 11 Cal. 262; Buckle v. Luce, 1 Comst. 171; Lockwood v. Perry, 9 Mete. 444; McRea v. McLean, 3 Porter, 138; Evans v. King, 7 Mo. 411; Ackerman v. King, 29 Tex. 291; Kercheval r. Harney, Meigs. O'Grady r. Keyes, 1 Allen (Mass.), 284. " Heeves v. Beeves, 33 Mo. 28 ; Sammons v. Newman, 27 Ind. 508. 5 Tousey r. Bishop, 22 Iowa, 178. * Van Duyne v. Coope,l Hill, 557; Decker v. Anderson, 39 Barb. 347. 'Rodesbaugh v. Cady, 1 WestL. M. (Ohio), 599. " Bigelow V. Comegys, 5 Ohio St. 256, ' Auerbach v. Marks, 10 Dalys. 171 . ^Schnaider v. Niederweiser, 28 Mo. App. 233; Carpenter v. Stearns, 32 Mo. App. 132. EFFECT OF AGREEMENT TO DELAY OE NEGLECT. 767 and the addition of other plaintiffs will not release the sureties. A surety in a judicial proceeding must be consid- ered as contracting with a view to what the law prescribes, and as assenting to all the lawful consequences of his act ; and the sureties on a defendant's bond in replevin, for the retention of the property, must be considered as' having con- tracted with reference to the law applicable to the trial and final determination of the case. Where the suit was brought by his principals as executors, and on the trial they were permitted to change their designation to heirs at law and add other heirs at law as co-plaintifPs, it does not release the surety.' § 1332. A legal change of defendants does not release the sureties. Where an action of replevin was brought against the owner's agent, and the owner afterward substi- tuted as the defendant by the court, the sureties on the re- plevin bond are not thereby released, but stand bound for the indemnity of the new party equally as if he had been the original and only defendant.^ A contrary doctrine was followed in Tennessee.^ Where the assignee of a debtor brought replevin against an officer who had levied on the debtor's property, and died before the determination of the suit in replevin, which was revived in name of his successor as assignee, and judgment finally rendered for the sheriff, held, that this was no defense to the sureties and ' that they were liable for the judgment." A surety in a replevin bond may be discharged on the trial, and another person substi- tuted in his place in order to render the surety competent as a witness for plaintiff.^ § 1333. Effect of agreement to delay or neglect to en- force claim on bond. The sureties upon a replevin bond ' Jamieson v. Capron, 95 Pa. 15. 2 Hanna v. International Petroleum Co., 23 Ohio St. 622. 'Smith V. Eoby, 6 Heis. (Tenn.) 546. * Greer v. Howard, 41 Ohio St. 591. » Amos V. Sinnott, 5 111. (4 Scam.) 440. 768 LIABILITY OP PEINCIPAL AND SURETIES ON BOND. will not be discharged by an agreement to stay execution against tbeir principal, made under sucli circumstances that equity would not enjoin an execution taken out in violation ■of the agreement.' Under the Kentucky statute of 1828, a surety in a replevin bond is discharged by a failure to sue out execution within twelve months after the bond falls due, notwithstanding the death of the principal.^ Where sure- ties in a replevin bond agreed in writing that the execution might be stayed any length of time which the plaintiff might direct, and no time was fixed by the plaintiff, held, that after the lapse of time, from 1838 to 1851, without the plaintiff's suing out execution, the sureties were released.' § 1334. A discharge in bankruptcy is no defense. Where a defendant in an action of replevin has given a bond for the forthcoming of the property, and afterward became bankrupt and received his discharge in bankruptcy, judg- ment may be rendered against him for the restoration of the property, notwithstanding his discharge,* and his discharge in bankruptcy does not release the surety on his replevin bond.' Though the principal would be released by the dis- charge in bankruptcy, a directly contrary decision was an- nounced by the Tennessee court,' and it may be supported by many cogent reasons, but the law as laid down by the supreme court of the United States would be considered the better guide by most courts. § 1335. Voluntary payment by surety cannot be re- covered back from principal. When a surety pays a debt he must be legally bound for it to enable him to recover it of his principal, and the principal must also at the same time be under a legal obligation to pay the debt. Where ' Tousey v. Bishop, 22 Iowa, 178. 2 Brown v. Fulkerson, 8 B. Mon. (Ky.) 393; Band r. PatterBon, 2 B. Mon. (Ky.) 378. 3 MoCauley v. Offutt, 12 B. Mon. (Ky.) 388. * Eobinson v. Soule, 56 Miss. 549. 5 Wolf V. Stix, 99 U. S. 1. " Choate r. Quinicliett, 12 Heis. 427. WHEN SURETIES ENTITLED TO PEOPEETT. 769 a sxdi in replevin, after bond given and property taken, waa settled by an agreement between the parties, the plaintiff agreeing to pay the defendant a certain sum, but where no judgment is rendered, if the surety on the replevin bond afterward, without the request of the plaintiff, pay the amount agreed to be paid to the defendant, he cannot recover the same of his principal, the payment being voluntary on the part of the surety.' § 1336. Contribution and subrogation. Sureties on the replevin bond of an administrator may recover from the sureties on the administrator's bond the amount they have been compelled to pay by reason of the administrator noi* performing the judgment rendered against him in the re- plevin case.^ Where sureties on a replevin bond pay the judgment against them and their principal, they have a right to have the judgment marked to their use, that they may have process upon it against their principal.' A surety on the last replevin bond is not entitled to contribution from surety on the first.* No equity or right of subrogation accrues to a surety in a replevin bond who has not paid the debt.^ A replevin bond is one of indemnity only, and a surety on such bond is entitled to be subrogated to all the rights of his principal and to avail himself of the same de- fenses — recoupment, for instance — which were open to the^ latter." § 1337. If sureties pay the judgment, they are entitled to the property. The sureties in an undertaking in replevin must return the property after a judgment has been ren- dered for such return if it is in their power so to do, and ' Hallensbee v. Eitchey, 49 Ind. 261. ' State to use, &c., v. Dailey, 7 Mo. App. 548 ; Eanney 7. Thomas, 45 Mo. 112. ^ Jennings v. Hare, 104 Pa. 489. <■ Brooks V. Shepherd, 4 Bibb. (Ky.) 572. ' Glass V. Pullen, 6 Bush. (Ky.) 346. 6 Sildner r. Smith and wife, 40 Md. 602. 49 770 LIABILITY OF PEINCIPAL AND SURETIES ON BOND. they are entitled to the property if they pay the judgment in the suit in which the property has been attached. The condition of a replevin bond, to return the property, is com- plied with if the sheriff acquire possession under a subse- quent attachment or execution.' ■ CaldweU f. Gans, 1 Mont. 570; Hunt r. Bobinson, 11 Cal. 273, MEASUEE or DAMAGES IN SUIT ON THE BOND. 771 CHAPTEE XLYL PROPER MEASURE OF RECOVERY IN SUIT ON BOND. Section. The measure of damages should be compensation . 1338 The same — Illustrations . 1339 Loss from interruption of business should be recov- ered in the replevin action, 1340 Vindictive and punitive damages are not recover- able 1341 In justice court the damages are not limited by the ju- risdiction of the justice . 1342 Limit of damages recovera- ble—Illustrations . . 1343 The value found in the re- plevin suit with interest is a proper item of recovery on the bond . . . 1344 Interest on the value should be allowed .... 1345 Where value not found in the replevin suit, actual value allowed . . . 1346 Measure where property at- tached to real estate and Section, mortgaged, and not actu- ally taken possession of . Rule in replevin of attached property .... Damages, how determined — Limit 1349 Where part of the goods is returned injured . In case of distress . Measure of damages, suit by one having special interest only In case of partners As between mortgagee and mortgagor .... Where only nominal dama- ges will be allowed Where suit dismissed . Rule of damages in suit on delivery bond Costs of court and of re-tak- ing the prbperty and at- torney's fees Interest on the penalty of the bond may be allowed when needed 1347 1348 1350 1351 1352 1353 1354 1355 1356 . 1357 1358 1359 § 1338. The measure of damages in suit on the bond should be compensation. There is no reason for any other measure of damages, as the judgment comes out of the surety who, no matter how flagrant a wrongdoer the princi- pal may have been, should not in good conscience be called upon to make the one he has wronged more than whole. By the common law the makers of the bond were liable for the 772 PEOPEE MEASURE OF KECOVEEY IN SUIT ON BOND. full amount of the penalty named, but even under the com- mon law courts of chancery frequently interfered in case of oppression or hardships, and relieved the sureties from the full penalty, when it did not require that amount to compen- sate the wronged party.' And this is now the well settled rule in several states, made so by statute. But there are sev- eral different ways of accomplishing this result. In some states the practice is to enter judgment for the full penalty of the bond, and at the same time enter an order that it shall be satisfied on the payment of a less amount, which is fixed at the amount of damages plaintiff has sustained.^ But the more general practice is to render judgment on the suit on the bond for just the amount the sureties are expected to pay, which should be full compensation to the wronged party, and to treat the sum named as the penalty of the bond, the same as it is treated in other statutory bonds, such as attach- ment and injunction, as a limit beyond which the sureties are not liable in any event, and not as a measure of the right of recovery. By the bond the plaintiff in replevin binds him- self that if defeated he will restore the property in like good order and condition as when taken. Where the damages are assessed nisi, and the property is not returned, the de- fendant in a suit on the replevin bond is entitled to the value of the goods and interest from date of demand in addition to the damages and costs in the replevin suit and interest, and if the damages for the unlawful detention are not as- sessed in the replevin suit, the defendant may recover in an action on the replevin bond all damages sustained by such taking, which is ordinarily the value of the goods when taken with interest.' ' Wyllie T. Wilkes, Doug. (Eng.) 523. Sir Thomas Moore swore by the body of God that he would grant an injunction, unless the law judges were satisfied upon the payment of full compensatory damages. ' Gould r. Warner, 3 Wend. 54; Odell v. Hole, 25 111. 208; Frazier r. LaughUn, 1 Gilra. 347; Hunter v. Sherman, 2 Scam. 544; Marsh r. Wright, 14 ni. 248; Toles r. Cole, 11 111. 562. ' Washington Ice Company v. Webster, 62 Me. 341. LOSS PROM INTEEEUPTION OF BUSINESS. 773 § 1339. The same — Illustrations. Where grain taken on a writ of replevin was threshed and sold by the plaintiff, and upon the trial the ownership was found in the defendant, the measure of his recovery was held to be the market value of the grain at the time of the trial, less the cost of thresh- ing and marketing, it not appearing that plaintiff had acted in bad faith in obtaining the writ.' Where a person, as a means of getting possession of lumber loaded on cars under a contract of sale without paying for it, brings a replevin suit against the vendor, which goes against him, and leaves the vendor to obtain payment by a suit on the replevin bond, the jury may give as damages the value of all the lumber on the cars though its amount was under-estimated in the re- plevin bond, and they may add interest on the value of the lumber during its detention.^ If in a judgment for a return upon a replevin suit there be no assessment of dainages occa- sioned by the detention, and if, upon the restitution writ, no return of the goods was obtained, the damage for the deten- tion may be assessed and allowed' in an action upon the re- plevin bond, and in such case the damage will be computed from the time of the original taking.' The proper measure of damages determined in actions upon replevin bonds, in cases depending upon particular facts.* § 1340. Loss from interruption of business should be recovered in the replevin action. 'A manufacturer, from whom the entire machinery of his cloth printing factory in . running order and actual use was replevied, including steam apparatus for supplying the motive power, took judgment for a return and for damages assessed by computing interest on the appraised value of the property from the date of the writ to the date of the judgment, under an agreement ex- pressly provided to be without prejudice to his action on the ' Clement t. Duffy, 54 Iowa, 632 (7 N. "W. 85). 2 Story V. O'Dea, 23 Ind. 326. 3 Smith V. Dillingham, 33 Me. 384. ^ Ackerman v. King, 29 Tex. 291; Ormsbee v. Davis, 18 Conn. 555; Leighton r. Brown, 98 Mass. 515. 774 PROPER MEASURE OF RECOVERY IN SUIT ON BOND. replevin bond. On the demand of the officer upon a writ of return, tender was made of all of the machinery except the steam apparatus, with an ofEer to pay the value of that or re- place it. This tender was not accepted, and the writ was re- turned in no part satisfied, and suit brought on the bond; Held, (1) that the officer had a right to treat the property as an organized whole, and refuse the offer to return part of it; (2) that tl^e manufacturer's claim for damages in the ac- tion of replevin included compensation for the general in- convenience and loss resulting from the interruption of his possession, and for the expense, trouble, and delay of restor- ing the factory to its former condition, as well as interest on the value of the property; but (3) that the claim was an en- tire claim and no portion of it recoverable in the suit on the bond, notwithstanding the proviso in the agreement under which he took his judgment; and (4) that the measure of his damages in the suit on the bond was the same which, under the ordinary circumstances attending a sale, might reasonably be agreed upon as a fair price for the property, between a seller desirous of selling and a buyer desirous of buying it, as a whole, to be used in the place from which it was taken, and for the purposes for which it was intended and arranged.' § 1341. Vindictive and punitive damages are not re- coverable in a suit on a replevin bond for a breach of the conditions thereof. The actual damages sustained by the defendant in replevin by reason of the wrongful suing out of the writ, are the only damages which can be properly averred and recovered in such an action. Attorney's fees paid in defending the replevin suit and damages arising from the depreciation in the value of the property during its wrong- ' Stevens v. Tuite, 104 Mass. 328. The court held that defendant was entitled to an amount of damage sufficient to put his mill machin- ery back in running order, as it was when taken, but that such damage should be given in the replevin suit, and not in suit on the bond, and cite Fuller v. Shattuck, 13 Gray, 70; Homer r. Fish, 1 Pick. 439; War- ren V. Comings, 6 Cush. 103; Bennett v. Hood, 1 Allen, 47. LIMIT OF DAMAGES EEOOVEBABLE. 775 ful detention may be recoTsred. But damages to the good will of the business of the defendant in replevin cannot be so recovered. "Where the declaration does not aver and claim specific damages for each of the several injuries men- tioned, what is said as to such injuries may be rejected as surplusage.' § 1342. In justice court the damages are not limited by the jurisdiction of the justice. In the summary pro- ceedings against plaintiff and his sureties for failure to pros- ecute an action for the claim and delivery of specific personal property, before a justice of the peace, judgment may be rendered for the value of the property in any amount up to the full penalty of the bond, though it be in excess of the justice's jurisdiction in ordinary cases.'' Having chosen their forum they cannot set up the jurisdictional limit of that forum as a bar to prevent an unwilling and wronged litigant from receiving full compensation for the injury they have inflicted. Where, under the practice, the defendant moves for his dam- ages in the same court in which the replevin action was brought, this would, seem to be a salutary and proper rule, but would not apply if defendant brought an independent action on the bond. § 1343. Limit of damages recoverable — Illustrations. On a judgment for a return or the value, if the judgment is not performed, the defendant can recover on the replevin bond the damage to him not exceeding the value of the prop- erty not returned.^ It is upon the plaintiff to show how much he has been damaged, and this is ordinarily done by proving the value of the property replevied. The bond stands in the place of the property, and if the plaintiff is sole owner or is responsible to a third person, he is entitled to its full value.* The damages in case of a nonsuit are for a failure 1 Dalby v. Campbell, 26 III. App. 502. 2 Brunschweig r. Schaper, 4 Mo. App. 579. ' Landers v. George, 49 Ind. 309. * Leonard v. Whitney, 109 Mass. 265; Austin v. Moore, 7 Met. 116; 776 PBOPEK MEASUBE OF EECOVEBY IN SUIT ON BOND. to return, but not for the original taking and detention.' A replevin bond is only given to indemnify the obligee for any damages which may be adjudged him in the particular suit in which the bond has been given. ^ The fact that the plain- tiff in an action of replevin was compelled to deposit a sum of money with his surety in the replevin bond as indemnity is not admissible in evidence as a foundation of a claim for damages.' Where the property taken is not returned or found in the replevin suit, the measure is the value of the property and not what it sold for.* In an action against sureties on a replevin bond, judgment can only be given for the penal sum mentioned in the bond and costs of suit, and not for the value of the replevied property when such value exceeds the sum fixed in the bond.^ A replevin bond to the sheriff was conditioned that if the sheriff should defend the replevin suit the obligors would indemnify and save him harmless from all costs, charges, and expenses which he should incur in defending such suit ; Held, that no damages could be recovered, nor anything for costs, charges, and ex- penses not actually paid." § 1344. The value found in the replevin suit with in- terest is a proper item of recovery on the bond. The find- ing of the jury in the replevin suit as to the value of the ice, where and when it was taken, is competent and conclu- sive evidence, as against the obligors, of such value. The plaintiff in the suit on the bond can recover that amount with interest thereon from the date of the verdict in the re- plevin suit, where there has been a total failure to return.' Stevens v. Tuite, 104 Mass. 328; Sahnigham v. Carter, 12 Wend. 131; Sedgwick on Damages (5th Ed.), 500-1. ' Ginaca r. Atwood, 8 Gal. 446. 2 Boyer r. Fowler, 1 Wash. Ter. 119. » Danniels v. Fitch, 8 Pa. St. 495 ; Wilson v. Hillhouse, 14 Iowa, 199. * Schrader v. Wolflin, 21 Ind. 238. 5 Fraur v. Little, 13 Mich. 195. « Scott V. Tyler, 14 Barb. (N. Y.) 202. ' Washington Ice Company v. Webster, 125 U. S. 426 (8 S. C. K. 947). INTEEEST ON THE VALUE SHOULD BE ALLOWED. 777 The recovery on the bond is measured by the damages awarded in the replevin snit. The claim for damages by either party is entire and indivisible, and cannot be recov- ered, a part in each of several actions.' A -judgment for a return of the property or its assessed value fixes the measure of the liability of the principal and his sureties on a replevin bond." The finding of the jury, as to value of the property taken, will not be evidence of its value against the plaintifE or his sureties on the replevin bond in any but the statutory replevin.^ Upon a writ of inquiry of damages, upon a judg- ment by default or on demurrer for the plaintiff in an action upon a replevin bond, the value of the property as set out in the replevin is prima facie the measure of damages subject, to parol evidence of the actual value.* Where the property could have been returned but was not, but was converted, the value with interest thereon was allowed." § 1345. Interest on the value ,should be allowed. In an action on a replevin bond the plaintiff is entitled to re- cover as damages the value of the goods, and generally in- terest thereon from the judgment of a return, and the costs of the original action.^ Interest is recoverable in an action of debt on a replevin bond where the defendant has not re- turned the property.' The recovery against the sureties on a bond or undertaking can never exceed the penalty of it, and the costs incurred in the action on the bond.* Interest of course is recoverable where the property has not been re- turned." ' Stevens v. Tuite, 104 Mass. 328. i 2 Carroll v. Woodlock, 13 Mo. App. 574. ' Gordon v. Williamson, 20 N. J. L. 77. ♦ Gibbs V. Bartlett, 2 Watts & S. (Pa.) 29. 6 WaUs V. Johnson, 16 Ind. 374. ^ Peacock v. Haney, 37 N. J. L. 179; Caldwell r. West, 1 Zab. 411. 'Hopkins v. Ladd, 35 111. 178. 8 Hefford v. Alger, 1 Taunt. (Eng.) 218. » Caldwell v. West, 21 N. J. L. 411; Leighton v. Brown, 98 Mass. 515; Hopkins v. Ladd, 35 111. 178 ; Ackerman v. King, 29 Tex. 291. 778 PEOPEE MEASUEE OE EECOVKEY IN SUIT ON BOND. § 1346. Where value not found in replevin suit, actual value allowed. In an action on a replevin bond for failure to make return of the goods, the damages, not 'having been assessed in the replevin suit, may be assessed at the actual value of the goods at the time of the replevin. It was not necessary to have this value settled in the replevin action or to have judgment for a return.' Where plaintiff in replevin by his own act, as dismissing (or taking a change of venue unauthorized), prevents the assessment of damages in that suit, they may be recovered in a direct suit on the bond. If the replevin suit is tried on its merits, and the damages are not settled, they can not be recovered in an independent action.^ § 1347. Measure where property attached to real estate and mortgaged and not actually taken possession of. Although it is not a good excuse that it is not in the power of defendant to return the property,' still upon the question of damages this may be shown, or it may be shown that the property was never actually taken into custody because at- tached to the realty and mortgaged. And in such a case the measure of damages would be the amount of the loss sus- tained by the execution creditor by the failure of the defend- ant to deliver the property at the time required; not what the property would have been worth if unaffected by infirm- ity or prior liens, but its value subject to any defects or incumbrances that existed at the time replevied.* § 1348. Rule in replevin of attached property. Dam- ages recovered by an officer upon the replevin bond for re- plevin of attached property are held in trust, after payment of his fees and expenses, for the benefit of both the attach- ing creditor and the debtor.^ The surety on the replevin 1 Gibbs r. Bartlett, 2 W. & S. (Pa.) 29; Bank v. Hall, 107 Pa. 583. ^ Morrison v. Yancey, 23 Mo. App. 670; White v. Van Houten, 51 Mo. 577. ' Buckmaster r. Beames, 4 Gilm. 443. * Jackson r. Bry, 3 Bradw. (111.) 586; Dehler v. Held. 50 111. 491. ' Mattoon v. Pearce, 12 Mass. 406. DAMAGES, HOW DETEEMINED — LIMIT — ATTACHMENT. 779 bond of a defendant in attachment, where it is proposed to enter judgment against him, may contest original liability on the bond, or show a discharge from its obligations. But he cannot plead to the action or interpose any defense, nor can he complain of mere errors in the action against his principal. His right to defend in the trial court commences after the finding against his principal. The bond is what connects the surety with the case, and after the bond has been given and the property delivered, his liability cannot be changed.' It is not competent for the sureties in a replevin undertaking to prove that the owner had no attachable inter- est in the property, or that the attaching creditor was not injured by their failure to return the same.^ § 1349. Damag^es, how determined — Limit — Attach- ment. In suit on the bond the liability is not to be meas- ured by the value of the interest in the property of the attachment debtor, for whose debt it was seized by the sheriff. The value of the property at the time it was re- plevied, limited by the debt still due on the attaching cred- itor's judgment and the penalty of the replevin bond, are the elements for ascertaining the damages in the suit on that bond.' The measure of recovery on a replevin bond, where the judgment in replevin was for the face of certain attach- ment writs, is not the amount of that judgment, but defend- ants may show that the judgments rendered in the attach- ment proceedings were for a- less amount than that called for by the writs of attachment, and this is not a collateral attack of the judgment rendered in replevin.* Where goods were replevied from an attaching officer, and the plaintiff proved to be a wrongdoer, without title to any part of the goods attached, in an action upon the replevin bond, the defendant cannot show in defense the invalidity of the attachments, nor 1 Atkinson r. Foxworthy, 53 Miss. 733. 2 Caldwell v. Gans, 1 Mont. 570. ^Sweeney v. Lomme, 22 Wallace, 208. * Wheaton v. Thompson, 20 Minn. 175. 780 PBOPEE MEASUBE OF EECOVERY IN SUIT ON BOND. claim that the officer, after paying off the attachment, was accountable for the residue of the property attached to him ; nor could a mere release to the officer, by the debtor, of all claim to the goods inure to the benefit of the defendant.^ § 1350. Where part of the goods is returned injured. Where there is a judgment of return against the plaintiff in replevin, and he fails to return some of the goods, and re- turns the rest injured by bad packing and storage, the meas- ure of damages in a suit on his undertaking is the value of the goods not returned, with legal interest from 'the time of the replevin, and deterioration in value of those returned; resulting from the causes named, with legal interest thereon from the date of their return ; and the failure of the jury in replevin to assess the value of the property does not affect the recovery on the bond.^ § 1351. In case of distress. The liability of the secur- ities on a replevin bond, executed in the proceedings under a distress warrant, is limited to the amount found to be due on the claim, to secure which the distress warrant was issued and the costs of the suit. They are not liable to the extent of their bond for any other amount for which judgment may be rendered against their principal in the same proceeding arising out of another cause of action.' In an action on a replevin bond, the value of the goods, if less than the rent due, or the rent due, if the value of the goods exceed it, is the measure of the plaintiff's damage, and where evidence of ' Farnham r. Moor, 20 Me. 508. ^^Yelton r. Slinkard, 85 Ind. 190; Whitney v. Lehmer, 26 Ind. 503; Noble r. Epperly, 6 Ind. 468 ; Chissom y. Lamcool, 9 Ind. 530 ; Mitchell r. Burch, 36 Ind. 529 ; Blackwell v. Acton, 38 Ind. 425 ; Stevens v. Mc- Clure, 56 Ind. 384; Eobinson v. Shatzley, 75 Ind. 461; Singer Manufac- turing Company v. Doxsy, 65 Ind. 65; Brown y. Parker, 5 Blackf. 291. ' Crawford v. Hagood, 40 Tex. 395. This case started out as a re- plevin of property seized for rent, and both parties brought in accounts against the other in the progress of the suit, and finally judgment was rendered againsb plaintiS for the rent claimed, and much more on other causes of action, and defendant attempted to collect his whole judgment out of the sureties on the replevin bond. SUIT BY ONE HATING SPECIFIC INTEEEST ONLY. 781 the value of the goods was excluded at the trial a new trial was awarded.' Judgment ought not to be rendered on a three months' replevin bond for interest from a day anterior to the date of the bond. It should be for interest from that date on the rent and costs of the distress. If the interest is from such anterior day, it may be deducted as erroneous on appeal.^ § 1352. Measure of damages — Suit by one having spe- cial interest only. In an action on a replevin bond, a party having a special property in the articles replevied is entitled to recover, as against a stranger having no interest therein, not merely to the extent of his special interest, but the full value of the property, and the excess beyond his special interest he will hold in trust for the general owner.' Personal prop- erty owned in common was attached on mesne process against one of the owners, and replevin brought in the name of all against the attaching officer and dismissed. Held, that the measure of damages in an action on the replevin bond was the value of that one's interest.* The sureties on a replevin bond are only liable to the extent of the value of the property re- plevied, and the jury, in finding against the defendant in at- tachment, should assess the value of the property as well as the amount of the debt." When the defendant in replevin is an officer who has acquired a special interest in or title to the property replevied by virtue of a writ of attachment against the owner, he is entitled to retain custody of the property until the demand is satisfied. But in the absence of an order awarding the property to his custody, he must affirma- tively show, in an action on the bond, that the demand has not been been satisfied; otherwise it will not appear how or to what extent he has been damnified.' A sheriff suing on a > Hart v. Tobias, 1 Brev. (S. C.) 199. "Williams v. Howard, 3 Munf. (Va.) 277. ' Atkins V. Moore, 82 El. 240. * Bartlett r. Kidder, 14 Gray (Mass.), 449. ^ Young r. Pickens, 43 Miss. 553. « Imel r. Van Doren, 8 Col. 90 (5 P. 803) ; Petrie r. Fisher, 43 HI. 442; 2 Sutherland on Damages, p. 46. 782 PBOPEE MEASUBE OF EECOVEEY IN SUIT ON BOND. replevin bond is entitled to no more than, will indemnify him.' The defendant in replevin should, upon the replevin bond, recover no more than his legal damages ; and if he had no more than a possessory or partial interest in the property, and was in no position to hold the entire interest for someone else, then he should not recover the full value. ^ § 1353. In case of partners. Where one partner attempts to replevy from another the defendant's damages are in pro- portion to his interest in the property.' A plaintiff who brings replevin against a partner and gets possession of firm property, when sued on his bond, cannot urge his part owner- ship in mitigation of defendant's damages. He must com- pensate the defendant for the damage or return the property." So where a landlord was a joint owner with his tenant, and so defeated the action of his tenant and had judgment of returUjand sued on the bond, held, that he could only recover the value of his interest. ° § 1354. As between mortgagee and mortgagor the meas- ure of damages in an action upon the replevin bond is the amount due on the mortgage ; and evidence tending to prove that that relation existed between the principal obligor and the plaintiffs in replevin should be received.* § 1355. When only nominal damages will be allowed. Where defendant had no title he can onlyrecover nominal damages on the bond.' In an action by the obligees against the obligors in a replevin bond, where the title to the prop- erty was not determined in the replevin suit, and the title thereto and the right of possession are in a person other ' Lindner v. Brock, 40 Mich. 618. 2 Pearl v. Garlock, 61 Micli. 419 (28 N. W. 155). = Crabtree v. Chapham, 67 Me. 326. ♦ Chapham v. Crabtree, 72 Me. 473. » Mason v. Sumner, 22 Md. 312. « Perigo V. Grimes, 2 Col. 651 ; Warner v. Matthews, 18 HI. 83; Sedg- wick Measure of Damages, 580. ' Jones F. Smith, 79 Me. 452 (10 A. 256). EULE IN SUIT ON EEDELIVERY BOND. 783 than tlie obligees, they are only entitled to nominal damages.' In a suit on a replevin bond the plaintiff may recover dam- ages for detention, although these were not assessed in the judgment in the replevin suit.^ In the absence of evidence showing the value of property replevied, and the value of its use since judgment was given in the replevin suit, only nominal damages can be allowed. Upon the condition in the bond to prosecute the suit to effect and without delay, damages for detention of the property, pending the replevin suit and before judgment for a return was given, cannot be recovered unless they were awarded in the replevin suit.' § 1356. Where suit dismissed. Where the plaintiff voluntarily dismisses an action of replevin after he has taken the property, the defendant may commence an independent action on the bond and recover therein all his damages sus- tained by the taking of the property, including therein, if the title be in him, the value of such property.* If a plain- tiff in replevin neglect to prosecute the replevin to final judgment, in conformity with the conditions of his bond, the defendant in replevin may have judgment for nominal dam- ages in an action on the bond, even if he had no lawful title in the replevied property.' But where plaintiff withdrew his action and the court found the title against him, the sure- ties are bound by this finding in the replevin action and can not show in bar of their liability that the property belonged to their principal, as that would be a collateral attack on the jadgment in the first action." § 1357. Rule of damages in suit on redelivery bond. In an action on a bond given by the defendant in replevin, ' StockweU r. Byrne, 22 Ind. 6. See Crabbs v. Koontz, 69 Md. 60 (13 A. 591). 2 Thomas r. Spofford, 46 Me. 408. 3 Sopris V. Liiley, 2 Col. 496. * Manning r. Manning, 26 Kan. 98. 5 Smith V. Whiting, 100 Mass. 122. ° Ormsbee v. Davis, 16 Conn. 567. A contrary decision is announced in Allen v. Woodford, 36 Conn. 143, but the facts are not identical. 784 PEOPEE MEASUEE OF EECOVEEY IN SUIT ON BOND. on a claim of property, conditioned for a return of goods, the measure of damages is the value of the goods ; the costs in the replevin suit cannot be recovered in this action. It is otherwise in an action on the replevin bond given by the plaintiff in replevin.' The damages allowed in suit on any statutory bond are governed largely by the statute and by the wording of the bond on which the suit is brought. If the delivery bond follow the form laid down for the replevin bond the rule of construction is the same. Where the de- fendant in replevin gives bond and retains the property, this bond is liable for costs of "the action if adjudged against de- fendant; his surrender of the property does not afEect their liability for costs." Where the plaintiff recovers judgment for the possession of the property (which is still in defend- ant's possession), with damages for its detention and for a fixed sum in case a return cannot be had, he cannot main- tain an action against the surety on the bond given by defend- ant until an execution has been issued for the return of the property and returned unsatisfied.' § 1358. Costs of court — Costs in retaking the prop- erty — Attorney's fees recoverable. The costs of a retorno habendo, as well as the costs in the replevin suit, are part of the damages recoverable on the replevin bond. If there was a breach of the bond in not returning the property, the plain- tiff should be allowed to show all it cost to get the property back in a suit on the bond.* Attorney's fees and costs, in- curred in defending the action in detinue, and any damages actually sustained from the seizure and detention of the prop- erty, are legitimate subjects of recovery, but loss of time and ' Lutes T. Alpaugh, 23 N. J. L. (3 Zab.) 165. ' Phillips r. Cooper, 59 Miss. 17. ' Eager r. Clute, 10 Hun. (N. Y.) 447; *Langdoc r. ParkinBon, 2 Bradw. (Dl.) 136; Tibbal r. Cahoon, 10 Watts, 232; Balsey v. Hoffman, 1 Harris (Pa.), 603; Arnold r. Bailey, 8 Mass. 145; Lutes v. Alpaugh, 3 Zab. (N. J.) 165; Leighton v. Brown, 98 Mass. 515; Seldner v. Smith, 40 Md. 602; Peacock v. Haney, 37 N. J. L. 179. INTEREST ON PENALTY OF THE BOND. 785 hotel bills paid, while procuring sureties on the replevin bond, or in attendance on the trial, are too remote and variable.' Costs and expenses of defending the replevin suit are propei elements of recovery on the replevin bond.'' In an action on a replevin bond containing a condition "for the payment "of all costs and damages occasioned by the wrongful suing "out" of the writ, attorney's fees may be recovered.' Costs incurred by defendant in the replevin suit are recoverable by him in an action on the bond, but costs made by plaintiff are no charge on the bond, but are the personal obligation of the plaintiff,* § 1359. Interest on the penalty of the bond may be allowed when needed. The liability of the surety in re- plevin is limited by the penalty of the bond ; his liability may be less than that amount — it cannot be more — and the costs of the suit on the bond.° The more difficult and disputed question is, whether, after breach of the condition, the sureties are liable for interest for the delay in payment, by way of damages for the breach. The Michigan court, by a divided bench, after an exhaustive review of the authorities, held that interest could not be recovered on the penalty.^ But I think, upon the authorities, the better doctrine is that the party wronged is entitled to interest on the penalty of the bond ' Foster r. Napier, 74 Ala. 393. See also Boiling v. Tate, 65 Ala. 417; Eenfrew v. Hughes, 69 Ala. 581; Mills v. Long, 58 Ala. 458; Fer- nusoii V. Barber, 24 Ala. 402. But see Davis r. Crow, 7 Blackt. (Ind.) 129; Kenley v. Commonwealth, 6 B. Mon. (Ky.) 583. 2 Sweeney r. Lamme, 22 Wallace (U. S. S. Ct.), 208. » Harts V. Wendell, 26 111. App. 274. See Dalby v. Campbell, 26 111. App. 502. * Kellar v. Can- (Ind.), 21 N. E. 463. i^Kellar v. Carr (Ind.), 21 N. E. 463; Heftord f. Alger, 1 Taunt. 218 Evans v. Brander, 2 H. B. L. 547; Paulr.Goodluck,2 Bing. (N.C.)220 Wilde r. Clarkson, 6 Term, 303; Branscombe v. Scarbrough, 6 Q. B. 13 Clark V. Bush, 3. Cow. 151; Farrer v. United States, 5 Pet. 372; Hunt F. Bond, 2 Dowl. 558; Ward v. Henley, 1 Y. & J. 258; Gould F.Warner, 3 Wend. 54; Kaufman f. Wessel, 14 Neb. 161 (15 N. W. 219). 8 Fraser v. Little, 13 Mich. 198. 50 786 PEOPEE MBASUEE OF EECOYEEY IN SUIT ON BOND. from the date of tlie judgment in repleyin to date of judgment on the bond, if his damage in tlie replevin suit was equal to or greater than the penalty named in the bond.' The dam- ages on a replevin bond may exceed the amount of the bond by the interest on the amount named in the bond from the date of the breach, if the whole penalty be needed to indem- nify the obligee.^ • Brainard r.' Jones, 18 N. T. 35; Hughes f. Wicklifte, 11 B. Mon. 202; Walcott V. Harris, 1 R.I. 404; Leighton r. Brown, 98 Mass. 516; Judge of Probate v. Hey dock, 8 N. H. 493; Murfree Official Bonda, § 609, and cases cited; Carlon v. Dixon, 14 Or. 298 (12 P. 394). ' Wyman r. Eobinson, 73 Me. 384. SES'ENSES TO SUITS ON BEFLKTIK BOND. 787 CHAPTEE XLYTL DEFENSES TO SUITS ON REPLEVIN BOND. Section. What defenses are proper to suit on the bond . . 1360 "What defenses may be set up 1361 Any material alteration in bond is a good defense . 1362 The judgment in replevin is conclusiTe as to all matters properly triable in that action 1363 Matters litigated in the re- plevin suit cannot be re- tried in the suit on the bond 1364 Property in a stranger is no defense to suit on the bond 1365 The obligors are estopped from alleging irregularities back of the judgment in replevin .... 1366 The same — Illustrations . 1367 Defects in the replevin pro- ceedings are of no avail in the suit on the bond . . 1368 Where the replevin suit was not tried on its merits more latitude is allowed in mak- ing defense .... 1369 The same 1370 Pel contra. .... 1371 The plea must answer all the material allegations of the petition .... 1372 The same — niustrations . 1373 Pleads held not good under certain circumstances . 1374 Satisfaction,no judgment,re- lease, are all good defenses 1375 Section. That the property has been eloigned or ceased to exist or died— Howfar a defunse 1376 That it cannot be returned no defense .... 1377 What may be shown in miti- gatioii of damages . . 1378 Bule against a stranger to the title is more strict . 1379 Matters in mitigation of damages— Illustrations . 1380 That the plaintiff has been partly paid in another pro- ceeding is a defense pro tanto 1381 The same 1382 Set-off may be allowed in suit on bond . . . 1383 Illustrations of matter not allowed to be shown in mitigation of damages . 1384 Evidence — In certain cases — Illustrations . . . 1385 The judgment and pleadings in the replevin case are competent evidence in the suit on the bond . . 1386 A party in his suit on the bond must occupy a posi- tion consistent with his position in the replevin suit 1387 4. return to be a full defense must fully comply with the order of the court . . 1388 A return of part of the prop- erty is a defense pro tahto 1389 New title acquired since the 788 DEFENSES TO. SUITS ON EEPLETIN BOND. Section, bond was given and before thejudgment in replevin no defense — Res adjudicata . 1390 Effect of a return after suit brought on bond . . 1391 It is a good defense that plaintiff had the possession of the property . . . 1392 Section. Damages for failure to return should be recovered from the replevin and not from the appeal bond . . 1393 In an action for the mali- cious prosecution of a re- plevin suit .... 1394 § 1360. What defenses are proper to suit on the bond. In the absence of any statutory provision on the subject, it may be said in general that any defense is proper by the obli- gors in a suit on a bond except such matters as were properly in issue in the replevin action ; as to such matters the decision there rendered is conclusive, and they cannot be re-examined into, and what was there decided is a matter of law to be deter- mined by the court. The obligors cannot show irregularity in the replevin proceedings. Such defenses are concluded by the judgment in replevin. Courts have made a distinction between matter offered only in mitigation and matter offered to bar a recovery, allowing more latitude in the former than in the lat- ter case, and where the replevin was dismissed or no t tried upon the merits more latitude has been allowed. The aim of the courts in suits on the bond has been to give full compensation for injury and nothing more. Yindictive or punitive damages are unknown in this action. § 1361. What defenses may be set up. Any fact which the defendant is not estopped by the judgment to set up may be availed of to limit the amount for which he and the sureties shall be held liable on the bond. The;rights of the parties are capable of adjustment in a suit upon the bond.' Thus, when the ownership of the property is not settled in the replevin suit, as it ordinarily is, it may be set up in the suit on the bond,^ where the statutes permit the averment of 1 Leonard r. Whitney, 109 Mass. 265. 2 Sherry y. Toresman, 6 Blacld. 56; Davis v. Crow, 7 Blackf. 130; Williams v. Vail, 9 Mich. 162; Cushenden v.Harman, 2 Tyler (Vt.),431. AS TO WHAT JUDGMENT IS CONCLUSIVE. 789 such matters and their relitigation, as it does in some states.* It must be pleaded and shown affirmatively that the case comes within the statute.'' That another bond has been given under an agreement that it should take the place of the property, is a bar to a suit on the replevin bond.^ In an action of replevin where the defendant and sureties give a redelivery bond, and the property is returned to the defendant, and afterward judg- ment is rendered in favor of plaintiff, and against the defendant in the alternative, which judgment is not performed or satis- fied, and the plaintiff sues on the bond, held, that no defense can be set up in the action on the redelivery bond which could, with- reasonable diligence, have been set up or interposed in the replevin action.* § 1362. Any material alteration in bond is a good de- fense, and avoids the bond. Thus where the principal erased his name from a bond to a United States marshal, without the consent of his sureties, but with the consent of the mar- shal, it operated as a release of the sureties.^ The decision could be better put upon the ground of the release of the principal than on the ch'ange of the bond. A replevin bond is governed by the same rule as to alterations as any other bond. § 1363. The judgment in replevin is conclusive as to all matters properly triable in that action, and such mat- ters cannot be urged in defense of a suit on the replevin bond." But it was afterwards held under a statute, passed to meet just such cases,' that sureties could attack the judg- ' Chenn v. McCoy, 19 111. 606; Eev. Stat. 111. 1874, 853. 2 King V. Ramsay, 13 111. 622. 8 Busch V. Fisher (Mich.), 41 N. W. 325. * Boyd V. Huftaker, 40 Kan. 634 (20 P. 459). See Hartlepp v. Cole (Ind.) 22 N. E. 130. s Martin v. Thomas, 24 How. (U. S.) 316. ' Jacobson r. Metzgar,43 Mich. 403 (5 N. W. 445) ; Williams v. Vail, 9 Mich. 162. ' "In any action prosecuted on such bond, given by the plaintiff in an "action of replevin for the deliverance of any property, the defendant "may show, in mitigation of the damages, that the obligee in such bond 790 DEFENSES TO SUITS ON BEPLEYIN BOND. ment in replevin by showing that one of them had a special interest, as a chattel mortgage on the property which ante- dated the levy thereon.' The sureties on a replevin bond cannot question the ownership of the property in a suit on the bond on this question. The judgment in replevin is conclusive, and it will be presumed, that the verdict and pleadings were sufficient to support the judgment rendered in that action.^ It is no defense to an action on a replevin bond, that the amount thereof was less than double the value of the property replevied, although such defect may have been cause for a dismissal of the action of replevin be- fore the trial. In a suit upon the replevin bond, the de- fendant is estopped from setting up the insufficiency of the penalty of the bond as a defense, after the writ of replevin has been issued and possession of the property obtained upon it,' or that the bond was void.* Neither can he set up as a defense that the writ issued by the justice was defect- ive, and that on appeal the circuit court dismissed the ac- tion for want of a proper writ and summons in the justice court. The dismissal is a breach of the bond, even though it was ordered on motion of the obligee in the bond, on ac- count of tbe defects in the writ.^ "had only a lien upon, or special property, or part ownership in, said "property at the time of commencement oJ siiit in replevin, and that the " defendants, or either of them, had at the same time a part ownership or *' other valuable interest in said property; and if such lien, special prop- "erty, part ownership, or other interest of said obligee, with interest "thereon, amount to less than the value of the property replevied, acor- "rcsponding reduction shall be made from such value." Comp. L. § «766. 1 Henry v. Quackenbush, 48 Mich. 415 (12 N. "W. 634). ^MoMurchy v. O'Hair, for use, etc., 67 111. 242; Hawley v. Warner, 12 Iowa, 42; City Council v. Price, 1 McCord (S. C), 299. 8 Trueblood r. Knox, 73 Ind. 310; Caffrey r. Dudgeon, 38 Ind. 512 <10 Am. R. 126); Deardorf v.Ulmer, 34 Ind. 353; Wiseman v. Lynn, 39 Ind. 250; Tyler r. Bowlus, 54 Ind. 333. * Chaffee v. Langston, 10 Watts (Pa.), 265. ^WaddellF.Bradway,84lnd. 537; SammonsF.Newman,27 Ind. 508; Caffrey f. Dudgeon, 38 Ind. 512 (10 Am. R. 126). WHAT OBLIGOBS AEE ESTOPPED EEOM ALLEGING. 791 § 1364. Matters litigated in the replevin suit cannot "be retried in the suit on the bond. The same matters litigated in a replevin suit may not be re-examined in a suit upon the replevin bond.' Having received the property he cannot defeat his liability by plea that the bond was given for ease and favor, or that the law was unconstitutional,^ nor that he was not indebted.' All matters determined in the replevin suit are res adjudicata, and cannot be inquired into in the suit on the bond.* § 1365. Property in a stranger is no defense to suit on the bond. The plaintiff in a replevin suit, in which the judg- ment was that the property replevied should be returned to the defendant, cannot avoid a recovery against him on the replevin bond by showing that the said property belonged to a stranger.^ A plea to an action on a replevin bond, given in attachment, that the property attached and replevied did not belong to the defendant in attachment, but to a stranger, is bad.' § 1366. The obligors are estopped from alleging irreg- ularities back of the judgment in replevin. Where the plaintiff in a replevin proceeding obtains possession of the property, neither he nor his sureties can, in an action on the bond, impeach the sheriff's return, or question the authority of the person who seized the property apon the writ and from whose hands he accepted it,' and they are estopped to deny the regularity of the proceedings or to say that there was no considenb.tion for the bond executed by them.^ In ' Colorado Springs Co. r. Hopkins, 5 Col. 206; "Warren v. Matthews, 18 m. 83. 2 Magrnder r. Marshall, 1 Blackf. 333. ' Warner v. Matthews, 18 lU. 83. * Denny v. Reynolds, a4 Ind. 248 ; Wallace r. Clark, 7 BlackE. 298. ^ Smith V. Lisher, 23 Ind. 500; Lomine v. Sweeney, 1 Mount. 584. «Sartin v. Weis, 3 Stew. & P. (Ala.) 421. ' McPadden v. Boss, 108 Ind. 512 (8 N. E. 161) ; City Council v. Price, 1 McCord (S. C), 299; Chaffee v. Langston, 10 Watts (Pa.-), 265. 8 McFadden v. Fritz, 110 Ind. 1 (10 N. E. 120) ; Hartlepp y. Cole McRrae v. McLean, 3 Port. (Ala.) 138. WHAT MAY BE SHOWN IN MITIGATION, OF DAMAGES. 799 with arid suit is brought on the bond, defendants may show in mitigation of damages that since, the taking under the writ the property in whole or in part has ceased to exist, the question being the actual damage to the plaintiff or those he represents.' If a live animal be replevied and there is judgment of retorno habendo, it is a good plea to a suit on the replevin bond that the animal died without the de- fendant's fault. ^ Where the plaintiff acted honestly in a be- lief of right he has usually been released by the death or destruction of the property clearly without his fault, but the contrary rule has usually been followed in all cases where he was a trespasser ai initio. See Chap. XXX. § 1377. That it cannot be returned is no defense. It is no defense in an action upon an undertaking in replevin that the property is in such position that it cannot be reached; the undertaking can only be satisfied by a redelivery of the property or by payment of the judgment.' § 1378. What may be shown in mitigation of damages. We have seen what may be shown to defeat a recovery; let us now see what may be shown in mitigation of damages. A slight examination of the authorities will prove that this is merely a question of the amount of the damages. Many things may be shown and considered by the court in de- termining the just amount for which judgment should be rendered, which would not be allowable in bar of the action on the bond. A little thought will show us that this is a right and necessary rule. A person who has signed a bond by which another's property has been wrongfully torn from him, can not be heard to say he is not liable at all, but can sfeow that his liability is much less than the penalty named in the bond. Otherwise great injustice might be done in the assessment of the amount of recovery. In the applica- tion of this rule the courts have not always distinguished I Tuck F. Moses, 58 Me. 461. " Carpenter v. Stevens, 12 Wend. (N. Y.) 588, » Harrison r. Wilkin, 78 N. Y. 390. 800 DEFENSES TO SUITS ON EEPLEVIN BOND. clearly between a defense pleaded in bar, and the same de- fense pleaded in mitigation of damages, and this inattention to legal distinction has led to some confusion and a lack of uniformity in the decided cases. § 1379. Rule against a stranger to the title is more strict than against one who in good faith thought he had a title or interest in the property in question. "Where the "defendant in the replevin suit succeeds and sues on the re- "plevin bond for the value of the property, the defendant "cannot show, in mitigation of damages, that the right to "the property was in himself; but he can show that the "plaintiff's title was of short duration, and was terminated "soon after the judgment in the former suit. But if the "action is against a mere stranger, the rule would be differ- "ent; and in such a case the plaintifE who holds the prop- "erty by virtue only of some lien should recover the full "value.'" § 1380. Matters in mitigation of damages — Illustra- tions. It may be shown in mitigation of damages in an ac- tion upon the bond, that the original action failed merely because it was prematurely brought,^ and in an action upon the bond for a breach by one of the owners of the replevied property, he can only recover to the extent of his interest.' It may also be shown in mitigation of damages that since the taking by virtue of the writ, the interest of the plaintiff in the suit on the bond has in whole or in part terminated.* If the suit on the bond is by the defendant in the original suit, the defendant in the suit on the bond may show that the interest of the plaintiff was merely that of a levy, and 'Fie}d on Damages, § 837; Fallon v. Manning, 35 Mo. 271; Frei r. Vogel, 40 Mo. 149. See Sutcliff v. Dohrman, 18 Ohio, 181 (51 Am. Dec. 450); Glann v. Tounglove, 27 Barb. 480; Rockwell r. Saunders, 19 Barb. 473; Tiedman v. O'Brien, 36 N. Y. Sup. Ct. 539; Tracy r. Veeder, 50 Barb. 70 (35 How. Pr. 209). 2 Davis V. Harding, 3 Allen (Mass.), 302. = Bartlett v. Kidder, 14 Gray (Mass.), 449. * Tuck V. Moses, 58 Me. 461. "WHEN PLAINTIFF HAS BEEN PARTLY PAID. 801 that the execution has been satisfied.' Where goods were levied on for a debt of a copartner, and were replevied by his copartner, who was defeated on the ground, of the co- partnership, and the affairs of the copartnership had not been wound up, and suit was brought on the replevin bond, defendants were allowed to show the insolvency of the co- partnership in mitigation of damages.^ Property in the plaintiff in an action of replevin is no defense to an action on the bond, but the fact goes in mitigation of damages. The sureties on the bond are estopped from denying the re- cital of value in the bond, and such recital is sufficient evi- dence of the value of the property.^ Where property owned by several was levied on by process against one only, and the others replevied and sold the property and judgment went against them, held, that in a suit on the bond they could, in reduction of the damages, show the extent of their undivided interest, as the replevin suit only decided that the officer was entitled to hold possession and sell whatever in- terest the defendant in' execution had in the property, and that suit on the bond could not be enjoined.* Where the party plaintiff shows a judgment in his favor in the replevin suit uncomplied with, he is at least entitled to nominal dam- ages and costs of his suit on the bond.^ § 1381. That the plaintiff has been partly paid in an- other proceeding is a defense pro tanto. Where attached goods were replevied, the plaintiff failed in the replevin suit and judgment was also rendered against him in the attach- ment proceedings on which execution was issued, and levied on the same goods, and an action was also brought against the sureties on the replevin bond. Held, that in the suit ' Heyden v. Anderson, 17 Iowa, 158; Buck v. Khodes, 11 Iowa, 348. ^ Hacker v. Johnson, 66 Me. 21. s Wiseman v. Lynn, 39'Ind. 250; Trimble v. The State, 4 Blackf. 435 ; May V. Johnson, 3 Ind. 449; Guard v. Bradley, 7 Ind. 600; Sammons v. Newman, 27 Ind. 508; The German M. Ins. Co. v. Grim, 32 Ind. 249. ♦Safford v. Gallup, 53 Vt. 291; Leonard v. Whitney, 109 Maes. 265. ' Crabbs r. Koontz, 69 Md. 60 (13 A. 591). 51 802 DEFENSES TO SUITS ON BEPLETIN BOND. on the bond the sureties were entitled to have the proceeds of the sale of the goods first applied in discharge of their lia- bility on the reple>dn bond, and that the right to have them so applied constituted to that extent an equitable defense to the action.' Sureties on a replevin bond conditioned to re- turn the property that had been held by the sheriff under attachment, may show in mitigation of damages that the demand on which the attachment was taken out had been afterward paid, or that the sheriff had again taken it and sold it on other writs. Sureties on a replevin bond are not parties to the action in replevin, and have no control over if That the costs have been collected on execution is no de- fense to the main action on the bond for the property or damage, other than assessed costs. ^ § 1382. The same. In a suit on the redelivery bond it is no defense that, pending the replevin action, the property was turned over to a receiver of the defendant in that action ; but it would have been a good defense to the replevin action. Where it appears that the money which the property brought at receiver's sale was claimed by the plaintiif and part of it paid to him by the court, this may be shown in mitigation of damages on the bond.* In a suit upon a replevin bond for failure to return property, where the replevin case was not tried on its merits, and where defendant claims title by purchase under an execution sale, it is necessary, in order to support such title for defendant, to prove a valid judgment and an execution issued thereon. The fact that the plaintiff in this action has received the proceeds arising from a con- stable's sale of the goods replevied does not estop him from recovering damages for a failure to return the property ; but the amount so received should be deducted from the judg- ment for the value of the property recovered in this action.' 1 Struman r. Robb, 37 Iowa, 311. 2 Lindner v. Brock, 40 Mich. 618. 'Kafor r. Harlow, 5 Allen (Mass.), 348. * Boyd V. HuHaker, 39 Kan. 525 (18 P. 508). ' Ledford v. Weber, 7 Bradw. (HI.) 87. MATTER NOT ALLOWED TO BE SHOWN. 803 § 1388. Set-off may be allowed in suit on bond. In an action on a replevin bond a surety thereon, who has be- come owner of a judgment under which a valid levy was made, is entitled to have the amount of the judgment de- ducted from the value of the replevied property, if the claim was not presented with those upon which the lien was grounded. So, also, property owned by the principal in the bond may be deducted though included in the lien, if it had not belonged to the execution defendant and had gone to a bona fide holder. But it cannot be shown as a defense that property already adjudged to belong to the principal in the bond was really only held by him to sell on commission.' Damages against an oflScer personally for a false return in an attachment proceeding cannot be recoupea against dam- ages recovered by him on the replevin bond for replevin of the attached property; such damage he holds in trust for those he represents.^ In law defendants sued on a replevin bond are not entitled to set off an indebtedness due from the plaintiff to their principal ; but in the present temper of the law and of the courts for reaching the merits of a litigation, it seems that insolvency of the plaintiff is a sufficient ground for the allowance of a set-off existing in favor of the princi- pal against the plaintiff, and this equitable right is strength- ened where the principal also is insolvent.'' There is no reason on principle why set-off or recoupment should not be allowed in suit on bond in replevin as fully as in any other form of action. § 1384. Illustrations of matter not allowed to be shown in mitigation of damages. In a suit on the replevin bond the bondsmen will not be allowed to introduce evidence to show the plaintiff to have been but a part owner of the prop- erty replevied in order to reduce the damages.* If but a ' Henry r. Ferguson, 55 Mich. 399 (21 N. W. 381). ' Mattoon r. Pearce, 12 Mass. 406. 'Coffin V. McLean, 80 N. Y. 560; Smith F.Fellon,43 N. Y. 419; Bals- ley V. Hoffman, 13 Pa. St. 603. * Williams v. Vail, 9 Mich. 162. 8U4 DEFENSES TO SUITS ON EEPLEVIN BOND. part owner lie would have a better right- than defendant. In a suit on a replevin bond, where the plaintiff had become nonsuit, the defendant cannot show property in the plaintiff in replevin in reduction of damages.' In an action on a re- plevin bond the defendant cannot question the constitution- ality of the statute under which the bond was executed. ^ A partner having wrongfully obtained possession of firm prop- erty by replevin, cannot urge the partnership character of the goods in mitigation of defendant's damages in a suit on the bond.' § 1385. Evidence in certain cases — Illustrations. It is error, in an action on a replevin bond, to refuse to let the plaintiff prove that the property has not been returned, as the condition of the bond requires.* This is the very gist of plaintiff's case. In a suit on the bond the plaintiff must prove the return of an execution unsatisfied, in whole or in part, though the plea of non est factum alone be interposed.* There is no liability on a replevin bond without proof of ex- ecution in the action, and its return no property; the judg- ment in replevin should also be put in evidence. ° Where the suit was abated, through no fault of the plaintiff, and there is no proof that the property was delivered to him or that he detained it after the abatement, judgment against him on the bond can not be sustained.' A sheriff's return that no replevin bond was given is conclusive and defeats an ac- tion upon an alleged bond." § 1386. The judgment and pleadings in the replevin ' Smallwood v. Norton, 21 Me. 83. "Weaver v. Field, 1 Blackf. (Ind.) 334. » Clapham v. Crabtree, 72 Me. 473. « Smith r. Pries, 21 111. 656. 'Cowdin V. Stanton, 12 Wend. (N. Y.) 120. • Phillips V. Waterhouse, 40 Mich. 273; Williams v. Vail, 9 Mich. 162. The Michigan statute requires that an attempt ,to collect on esecntion must be made before the sureties are liable. ' Kidder r. Merryhew, 32 Mich. 470. 8 Green v. Kindy, 43 Mich. 279 (5 N. W. 297). JUDGMENT AND PLEADINGS IN THE KEPLEVIN CASE. 805 case are competent evidence in the suit on the bond and are prima facie eTidence that there was such a suit, that the property was taken, what was done with it, in some cases of the value and of the final result ; in the absence of other evidence fchey are conclusive on all these points, but if contradicted, are only prima facie. In an action on the bond the papers in the replevin suit are proper evidence.' When the bond recites the gross value of the property replevied, such fecital may be evidence of the value of all the articles mentioned collec- tively. But if a portion of the property has been returned according to the conditions, such recitals afford no evidence of the value of the remainder which has not been returned.^ The value of the property recited in the bond is competent, and if uncontradicted, sufficient evidence against the obligors of the value of the property;' but it is not conclusive.* The officer's return and the appraisal in the action of replevin were not evidence of the value of the property against the defendant in replevin, now plaintiff, who had no part in pro- curing the appraisement to be made.^ But any witness of competent knowledge may testify to the value of the property." In an action upon an appeal bond, entered into by a defend- ant in replevin, against whom there was a final judgment for a return, held, on an inquiry of damages that the plaintiff might give in evidence the value of the goods replevied ; that the record of the replevin was proper evidence to identify them, and that the appraisement was prima facie evidence of their value.' 1 Ginnis v. Hart, 6 Iowa, 204; Stevison v. Earnest, 80 111. 513. 2 Sopris r. Lilley, 2 Col. 496. See Eigg v. Parsons, 29 W. Va. 522 (2 S. E. 81). ^ Wright V. Quirk, 105 Mass. 44; Parker v. Simonds, 8 Met. 205. * Clap r. Guild, 8 Mass. 153 ; Mattoon r. Pearoe, 12 Mass. 406. ^ Kafer v. Harlow, 5 Allen, 348; Leighton v. Brown, 98 Mass. 515. ^ Vandine v. Burpee, 13 Met. 288 ; Commonwealth v. Dorsey, 103 Mass. 412. The rule in Massachusetts is to enter judgment for the full penalty of the bond, but issue execution for only so much of the penal sum as is due and payable in good conscience. ' Karthaus v. Owings, 2 Gill. & J. (Md.) 430. 806 DEFENSES TO SUITS ON EEPLEVIN BOND. § 1387. A party in his suit on the bond must occupy a position consistent with his position in the replevin suit. Where, in an action of reple-vin, defendant successfully defends on the ground of covertupe, a judgment cannot be rendered in her favor against the plaintiff and his sureties on the re- plevin bond.' In a suit on a replevin bond defendant can not allege that no demand for a return was made, unless he also offer to return the property ; neither can he show that the property belonged to another and he could not return it; nor can he defend on the ground that the verdict and judg- ment in replevin are not full and complete.^ The object of a replevin bond is not merely to indemnify the officer, but to furnish an additional remedy and security to the defendant in case plaintiff fail to sustain his action ; and where posses- sion of property is obtained on replevin before a justice, the plaintiff in that suit insisting that he had jurisdiction, even if the justice had not jurisdiction of the subject-matter (rails in a fence), the obligors in the replevin bond will be es- topped from urging such fact in defense in a suit on the bond.' The change by the plaintiff of an action of replevin brought to recover goods, alleged to have been obtained by fraud, to an action of assumpsit, operates to affirm the sale as to all the goods in question, and the plaintiff cannot thereafter defend an action on the replevin bond on the ground of fraud in the purchase of the goods.* When judg- ment has been given for joint defendants, plaintiffs, when they are sued on the bond, cannot allege that one only owned the property, and so support a counter-claim against him.' ' Durning v. Waddingham, 12 Mo. App. 145. ^ Robbius V. Foster, 20 Mo. App. 519; Nelson r. Luchtemeyer, 49 Mo. 56; Sweeney v. Lomme, 22 Wall. 208. ^Fahnestock v. Gilham, 77 111. 637; Petrie y. Fisher, 43 111. 442; Bates V. Williams, 43 111. 494; Shaw v. Havekluft, 21 111. 127; Smith v. Whitaker.-ll 111. 417. * Horner v. Boyden, 27 111. App. 573. He cannot affirm as to part and rescind as to another part. Benjamin on Sales, §§ 433, 442 ; Coni- han V. Thompson, 111 Mass. 270; Hanchett v. Eiverdale, 15 111. App. 57; Barhydt v. Clark, 12 111. App. 647. ' Einggenberg v. Hartman (Ind.), 20 N. E. 637. ) M ( I , ( I TITLE ACQUIEED SINCE BOND WAS GIVEN. 807 § 1388. A return to be a full defense must fully com- ply with the order of the court. A return of the goods to the sheriff is no answer to an action on the replevin bond. The return required by the bond is a return to the party from whom taken, in pursuance of the judgment of the court, not a mere redeliyery to the sheriff.' Where the judgment in a replevin suit is for the defendant, for the return of the property and costs, it is no defense to a suit on the bond that the plaiatiff in replevin returned the property. The failure to prosecute the replevin suit with success renders the obligors liable at least to nominal damages.^ § 1389. A return of part of the property is a defense pro tanto. The plaintiff in a replevin suit is bound to ac- cept an offer to return a substantial part of the property re- plevied, and such offer is a defense pro tanto to a suit for damages for a non return. ° A attached certain property, in- cluding a horse. replevied it, but ultimately failed in his action, and judgment was rendered for a return, damages and costs. All the property was accordingly returned except the horse, which, during the pendency of the two suits, died, without the fault or negligence of any one; Held, in a suit on the replevin bond, that was not liable for the value of the horse.* § 1390. New title acquired since the bond was given and before the judgment in replevin no defense. Res ad- judicata. Where property levied on by virtue of an execu- tion is replevied, and the issue is title to the property, and judgment of return to defendant, the plaintiff cannot after- ward defend a suit on the bond, for a failure to return the property, by asserting a new title to the property acquired after the bond in replevin was given, and before judgment for a return. The judgment in replevin is final and conclu- 1 Gould V. Warner, S Wend. (N. Y.) 54. sCrabbs v. Koontz, 69 Md. 60 (13 A. 591). 8 Harts V. Wendell, 26 111. App. 274. «Melvin r. Winslow, 10 Me. (1 Fairf.) 397. ' 808 DEFENSES TO SUITS ON EEPLEVIN BOND. sive as to all issues properly triable under the pleadings in that action.' § 1391. Effect of a return after suit brought on bond. Where, in replevin proceedings, the plaintiff is awarded a return of the property, it must be returned without demand ; but if it be returned after suit is brought on the bond, this fact should be considered at the trial in mitigation of dam- ages.'' It is a good defense to an action on a replevin bond that the defendant had surrendered all the property replev- ied, except a part which was missing, and that, instead of the latter, other and more valuable articles of the same de- scription had been delivered to plaintiff, who had accepted the same :' — on the theory that, if there is no actual dam- age, plaintiffs could at the most only recover nominal damages. A different ruling was made in a case on a supersedeas bond, where itwas held not permissible to show in defense thatthere had been a recaption of the property in dispute by one in the interest of the plaintiff in replevin.* But the rule followed in June v. Payne, supra, is the proper one. § 1392. It is a good defense that plaintiff had the possession of the property, and that it was for that reason impossible to literally comply with the order.^ It is a good defense in an action on a replevin bond, to recover the value of the property replevied in default of its return, to show that the plaintiff had taken such property into his possession by other process prior to judgment in the replevin suit. A ' Carr r. Ellis, 37 Ind. 465; "Wallace r. Clark, 7 Blackf. 298; Davis v. Crow, 7 Blackt. 129; Sherry v. Foresman, 6 Blackf. 56; Smith v. Llsher, 23 Ind. 500; Denny v. Reynolds, 24 Ind. 248; Whitney v. Lehner, 26 Ind. 503; Abdil v. Abdil, 33 Ind. 460. » June V. Payne, 107 Ind. 307 (7 N. E. 370). ' Sands r. Fritz, 84 Pa. 15. This was replevin for marble in a marble yard, and the yard appears to have been run and marble sold out and other put in in its place while the suit was pending. * Buck V. Collins, 69 Me. 445. ^ Barnett v. Selling, 3 Abb. New Gas. 83; Nosser v. Corwin, 36 How. Pr. 540. IN AN ACTION FOB MALICIOUS PROSECUTION. 809 plaiutifp cannot have the property and a judgment against the sureties for its value at the same time.' § 1393. Damages for failure to return should be re- covered from the replevin, and not from the appeal bond. In replevin, where plaintiff in justice's court faited to ap- pear, and judgment went against him and a retorno habendo was awarded, and he appealed and gave the ordinary appeal bond, and the appeal so taken was dismissed, and judgment of retorno habendo was awarded, in order to recover damages for not making return of the property replevied, suit should be brought on the replevin- bond and not upon the appeal bond.' § 1394. In an action for the malicious prosecution of a replevin suit, evidence of the commencement of successive suits by the defendant upon the same groundless claim, is admissible to show malice. The damages recoverable in such an action include all the loss which the plaintiff sus- tained in his business as the direct and natural result of that suit, and all the expenses incurred in defense, including counsel fees. Taxable costs would be no compensation.' ' Demers v. Clemens, 2 Mont. 385; Lomme r. Sweeney, 1 Mont. 584; Caldwell v. Gans, 1 Mont. 570. 2 Kautzler v. Albertson, 18 Bradw. (111.) 313. 8 Magmer v. Renk, 65 Wis. 364 (27 N. "W. 26). In this case replevin was brought for a top wagon, harness, etc., with which defendant in re- plevin, who was a baker, delivered his bread, upon a chattel mortgage which plaintiff had, but for which he had paid nothing. The jury found that he did not act in good faith, but wilfully and maliciously and with intent to injure the defendant in replevin. INDEX OF CASES CITED. BEFERBNCES ARE TO PAGES. A. PAGES. A. & P. R. E. Co. r. Chino 171 Abbey v. Searls 696 Abbott V. Ziegler 360 Abbotts V. Barry 131 Abdil V. Abdil 808 Abeel v. Van Gelder 554 Aber r. Bratton 39, 478 Abrams v. Jones 332, 706 Abren v. Brown 690 Acker r. Campbell.. ..131, 133, 267 F. Finn 747 F. White 373,375,669 Ackerman r. King 773, 777 Ackley v. Finch 87 Ackworth v. Kemp 319, 337 Adams v. Adams 576 V. Broughton 668 V. Champion 635 V. Corriston,184,284,285, 289 V. Davis, 170 V. Goddard 587 r. Hubbard 404, 428 r. McGlinchy 347, 634 F.Smith 139 F.Wildes, 99,212,250, 419 F.Wood 15,661 Addison f. Overend 630 Adkison f. Hardwick 193 Adriance f. Eutherford 42 PAOEB. Adridge v. Harper 761 Afflld F. The People 741 Afflerbaeh v. McGovern....283, 656 Ahlman v. Meyer 683 Aiveton F.Davis .335 Alabama Bank F. Barnes 59 Albright v. Brown..... 235 Alden v. Carver 52, 57, 58, 257 Alderman v. Manchester.. 614, 650 Aldrich v. Re.ynolds 182 Alexander v. Burnham 341 F. Southey 260 Alford F. Bradeen 120 Allaire F. Whitney 527 Allen F. Agnew 27 v. Butman 532, 661 F. Crary, 31, 151, 233, 256, 337, 342, 343, 423 F. Darby 645 F. Dykers 522 F. Ford.. 136 F. Fox, 382, 457, 460, 467, 469, 471, 473, 475, 476, 477, 478, 479, 482, 497, 675 F. Judson, 96, 348,457,458, 540, 541 F. Kennedy 92 F. Miller 164 F.Smith 56,7.0 V. Staples 147, 156 812 INDEX OF CASES CITED. PAGES. Allen V. Tayor 48 V. Van Ostrand 178 V. White 224 F. Woodford. ..720, 783, 794 r. Wright 95 Allis r. McLean 478, 542 Allison F. Chandler 478 V. Matthieu..l32, 133, 221 AUred r. Bray 542 Alsayer v. Close 484 Alvord v. Haynes 231 Alwood V. Euckman, 19, 21, 297, 398 Am. Exp. Co. V. Parsons 483 American Tool Co. v. Smith ... 170 Amery y.Delamere 'tI, 80, 523 Ames V. Mississippi Boom Co., 14 45, 209, 292, 293 Amory v. Flyn 45 Amos r. Dougherty 135 r. Sinnott, 42, 313, 394, 395, 406, 767 Anchor Milling Co. r. Walsh, 476, 477, 550 Anderson r. Dickerson 733 V. Dnnn 397, 400 r. Hopler,195, 198, 279 V. Lane \. 608 T. McLeod 656 V. Mills 431 r. O'Laughlin 609 T-. Straub 183 F. Strauss 182 F. Talcott, 391, 411, 550, 564, 565 F. Tyson 458,632 F. Wehe 299 F. Worley 175 Andrew v. Cox 123, 207 V. Dieterick 132 Andrews r. Baker 710 F. Costican 66,467 F. Shattuck 258 F.Smith 570 Angell F.Keith 149 PAGES. Angell F. Rosenbury 568 Anon, 2 A. T. K 4 Dyer 452 Antrim r. Gilson 236 Applegate v. McClurge's Heirs 554 Appleton F.Barrett, 253, 261,600, 602, 613, 706 Applewhite f. Allen, 292, 302, 303, 439 Archebeque v. Miera 668 Archer v. Hale 692, 761 Arendale v. Morgan 215, 218 Armbruster v. Wilson 177 Armel v. Layton .' 665 F. Lendrum 148, 685 Armistead v. Bernard 149 Armry v. Delamlrie 69 Armstrong v. Burrell 357 F. McMillan ...401, 430 Arn F.Parker 567 Arnold v. Allen 353, 765 F. Bailey 784 Arosemena v. Hinckley 128 Arter v. The People, Use &c., 354, 741 Arthur v. Gale 553 F. Wallace.. ..264, 367, 601 Arundel r. Trevil 49 Asbell F. Tipton 389, 658 Ascher v. Schaeper 529, 559 Ash F.Putnam, 130, 131, 132, 217 F. Mathes 581 Ashby V. West 400 Ashley f. Peterson 759 Ashmun v. Williams 186, 192 Ashton F. Touhey 598 Astley F. Capron 577 Atherton f. Fowler 468, 469 Atkins V. Barwick 217 F. Burnes 392 F. Moore, 537, 540, 546, 745, 781 F. Womeldorf 21 Atkinson v. Foxwothy 779 Atlantic E. R. Co. v. Cleino 168 INDEX OF CASES CITED. 813 PAGES. Ator T. Rix 643, 654, 570 Auberry v. Fiske 106 Auerbach r. Marks 766 Augier v. Ash 349 Auld V. Kimberlin, 286, 287, 306, 407, 705 Aultman v. Mallory 135 V. Eeams 683 V. Steinan 332, 500 F. Stickler 399, 532 Austice r. Holmes 306, 397 Austin r. Craven 205 V. French 442 r. Holt 194 V. Moore 775 r. Secrest 654 r. Thompson 554 r. Townes 750 Austin's Exrs. r. Jones, 441, 464, 465 Axford r. Perrett 354, 717 Ayres r. Hewitt, 129, 131, 247, 267 B. Babb T. Talcott 420, 422 Babcock v. Ashmead 350 F.Gill 204 F. Trice 421 Babe f. Coyne 566 Bach F. Tuck 583 Bache v. Proctor 738 Bacon v. Cropsey 337 F. Davis 18, 39, 40, 49 F. Robson 245 Badger f. Phinney, 10, 14, 69, 134, 230, 257, 258 Badlam v. Tucker, 148, 355, 358, 716, 721, 759 Baer f. Martin 229, 358, 549 Bagley v. Bolis 429 Bailey r. Boyne 401 F. Burton 96 V. Colby 107 r. Ellis 287 PAQES. Bailey v. Long 97 F.Shaw. 521 F.Swain 399 F. Troxell 58,312 Bain r. Clark 388, 390 Baird v. Porter 390 F. Taylor 647 Baiter f. The People 618 Baker v. Campbell 35, 66 V. Cardwell 289 F. Dailey 331, 439, 460 F.Drake, 513, 521, 528, 541, 542 V. Dubois 281, 293, 384 F. Pales, 48, 52, 57, 69, 230 F. Harper 691 F. Howell 189, 193 F. Kelly 554 F.Phillips 353,682 F.Pope 365,733 F. Washington 224 F. Wheeler, 120, 206, 488, 509, 523 Baldwin f.. Burrows.! 410, 603 F. Cash 14 F. Cole 247 F. Whittier 352 Bales V. Scott, 288, 291, 458, 632 Ballard f. Burgett 127 Ballon F. .Jones 442 V. O'Brien, 247, 248, 251, 270 Balsley F.Hoffman, 370, 717, 718, 722, 762, 765, 784, 795, 803 Baltimore Ins. Co. f. Dalrym- ple 512 B. & M. E. R. F. Young Bear, 398, 410 Bancroft r. Blizzard 252 Banfleld v. Haeger 310 Bank r. Blye .624 F. Corrollton Ill F.Hall 679,720,778 T. National Bank 313 814 INDEX OF CASES CITED, FAQES. Bank r. Eeese 525 Bank of Toledo v. Shaw 76 Banks r. Angell 28 F. Bowen 600 Barbour F.White, 92, 226, 333, 630 Bardwell r. Stubbert, 279, 305, 550 Barhydt v. Clark 806 Barker v. Green 335 F. Stacey 93 Barksdale v. Appleberry, 458, 465 Barraon v. Olippert 436 Barnes F. Bartlett, 113, 114, 326, I 467, 513 F. Gardner 259 F. Martin 151 F. Tannehill,178, 309, 398 Barnett v. Selling 41, 47, 808 F. Thompson 522 F. Timberlake 88 Barney r. Brannon 9, 422, 654 F. Braunson 57 F. Douglas, 338, 478, 481, 535 BaiT F. Hughes 391, 461 Barret v. Scrimshaw 68 V. Hall 621 F. Turner 57, 64 F. Warren, 10, 132, 144, 246,251,264 Barron f. Cobleigh 212 F. Lands 60 Barruel v. Irwin 382, 686 Barry r. Bennett 523 F. O'Brien 68, 565, 639 F. Eogers 112 V. Sinclair 356, 358 Bartels v. Arms 69, 250 Bartlett f. Brickett, 48, 223, 410, 467, 654 F. Goodwin 53, 118 F. Kidder, 485, 674, 781, 800 Basford v. Mills 576 Bass F. Irvin 618 Bassett v. Armstrong 68, 109 | PAGES. Bassett f. Brown „... 137 Batchelor v. Walburne 15, 281 Bates r. Buchanan, 455, 456, 604, 652 F. Conkling 248 F. Nellis 26 F. Schoonover 729 F. Snider 540 F. Stanton 106, 107 F. Wiggins 59, 98 F. Wilbur 96, 594, 598 F. Williams 806 Bates Co. Bank f. Owen 375 Bath F. IngesoU 686 F.Miller 661 Battis F. McCord 604, 706 F. Hamlin, 78, 150, 343, 534, 539, 540, 613, 695 Bayard f. Jones 52 Bayless f. Lefaivre, 51, 71, 78, 178 Beach f. Botsford....404, 428, 570 F.Derby 292 F. Schmultz 212 Beals F. Guernsey 468, 471 Bean v. Hubbard 150, 152 Beatty v. Brown 199 Beaumont v. Greathead 527 Beazley v. Mitchell 215 Becker v. Becker 687 F. Dupree 507 F. Kilgore 88 F. Vandercook 255 Beckwith r. Phillips...55, 141, 289 V. Philoe 598 Bedault r. Wales 131 Bedford v. Penney 433, 637 Beebe v. De Baum 306, 555 Beecher v. Derby Bridge Co.... 499 Beemia r. Wylie 598, 629 Beer v. Wuerpul 147, 697, 698 Beers f. St. John 186 Belcher v. Van Duzen 117 Belden v. Laing, 52, 86, 415. 698, 416, 431, 696, 697 Belk F. Broadbent 338 INDEX OF OJi^ES CITED. 815 PAGES. Belkin v. Hill 660 Bell F.Bartlett,453,463,695,701, 702 V. Campbell 469, 473, 479 r. Hogen 118 r. Judge, &c 328 V. Matheny 63 r. MoTiahan 54 r. Pharr 87,465 r. Thomas 356 Bells r. Kinson 157 Beloit F. Morgan 663 Belt r. WorthiDgton 358, 795 Bemus r. Beekman, 455, 598, 602, 644, 647, 653 Benesch v. Waggner 370 Benjamin r. Stemple 539, 540 Benner v. Peiffer 123 Bennet r. Butterworth 606 Bennett r. Allen 352, 354, 358 F. Berry 321 F. Hollown 396 F.Hood 498, 663,774 r. Lockwood, 498, 508, 510 F^. McGrade 748 F. Schuster, 75, 234, 555 Bensley v. McMillan 397 Bent F. Bent, 200, 249, 349, 352 F. Steinburg 663 Bercich f. Marye 483 Berger v. Clippert 568 Bergesch f. Keevil 53, 293, 303 Berghoff f. Hickwolf, 355, 453, 682, 684, 717, 718 F. M'Donald ....228, 229 Bern v. Mattaire 290 Bernal f. Hovious 110 Berrien v. Westervelt 279, 282 Berry v. Berry 35 F. Dwinel 526 F. Hoeffner. 675 F. O'Brien 682 V. Wilson 584 Berson v. Nunan 635 PAGES. Berthold f. Fox, 57,458,465,469, 471, 506, 512, 515, 626, 706 F. Holman 183, 394 Bertwhlstle v. Goodrich 250 Bessell v. Drake ^.. 48 Bethea v. McLennon 441, 465 Bettls F. Bailey ;. 740 F. Taylor ...'. 465 Betts F. Lee 204, 206, 493 Beveridge v. Welch, 497, 510, 538 Biok F. Reese 359, 501 Bidault F. Wales 133 Biddle f. Parke 446 Bigelow F.Comegys,741,743,766, 792 r. Doolittle, 456, 467, 476, 471, 708 Bilbo F. Henderson 168, 169 Bildersee v. Adin 738 Bill V. Campbell 585 Billings F. Tucker 105 . F. Thomas 344 Bills F. Kiuson 176 F. Vose 447 Bingham r. Hill 309 F. Morrow 281 Binsted r. Buck 255 Birks F. French 73 Bisbee v. Fadden 62 Bispham r. Taylor 334 Bissell F. Hopkins 468 Black F. Black 76, 606, 670 F. Foster 556 F. Winterstein, 528, 531, 533, 624 Blackburn v. Crowder 734, 798 Blacket r. Cressop 722 Blackie v. Cooney ....469, 471, 605 Blackman v. Wheaton 410 Blackwell v. Acton.. .498, 499, 647 F. Ator 780 F.Hunt 319 Blair v. Ray 348 Blake v. Darling 326 816 INDEX OF CASES CITED. PAGES. Blake v. Everett 554 V. Groves 571 V. Powell 574, 607 Blakely r. Duncan 606 F.Patrick 44 Blakeslee v. Rossinan 404, 595 Blakir v. Sands 412, 426, 440 Blanchard v. Child, 244, 265, 267, 701 Blanche v. Bradford 389 Blatchford v. Boyden, 229, 231, 679, 742, 745, 746 Blessing v. Rico 267 Blevin v. R. R. Co 106 Bliss v. Badger 17, 408 Y. Whitney 190 Blizzard v. Walker 178 BlobaumF. Gambs 537 Bloodworth v. Stevens 421 Bloomer r. Craig 432 y. Juhel 388,447 Bloomingdale v. Chittenden... 283 Blot Y. Boicean 522 Blue Valley Bank v. Bane....8, 548 Bly V. U. S 72, 204, 212 Blystone y. Burgett 93 Boardman y. Sill 424 Bobb F. Taleott 17 Bobo Y. Partton 441 Bodine y. Simmons 80 Bodley y. Reynolds 510 Bofll Y. Russ 736 Bogan V. Stoutenburg 249 Bogard y. Jones, 11, 53, 57, 71, 394 Bogarc y. Bnrkhalter 510 V. Phelps 341, 568 Bohlen r. Arthurs 115 Boileaii v. Rutlin 664 Boies Y. Witherell 447 Boise Y. Knox 54 Bolander y. Gentry 158 Bolen V. Crosby 748 r. Nunn 428 Boiling Y. Tate 785 PAGES. Bolon V. O'Brien 241 Boly Y. Griswold, 633, 645, 646, 793 Bond Y. Mitchell, 284, 297, 311, 314 F. Padelford 51,75 V. Patterson 768 F.Ward 247,252 Bonner f. Coleman, 453, 455, 644 Bonsted f. Orvis, 467, 482, 506, 512, 541 Bonney y. Smith 699 Bonsall f. Comly 7, 29,152 Boody Y. Keating 216 Booker F. Jones 99 Boom F. St. Paul, &o 683, 718 Booth F. Ableman, 163, 403, 434, 451, 458, 470, 533, 538, 541, 613 Borsc F. Thomas, 314, 401, 469, 565, 566 Bosley f. Farquar 331 Bosseker f. Cramer 601 Bostick F. Brittain....56, 583, 708 F. Buttam 113 Boston & M. R. Co. f. Brown, 271 Boston, &o., F. Dana 216 Boston Loan Co. f. Myers 477 Bosworth F. Trowbride 698 Bouchand v. Diaz 663 Boughton F. Bruce.. .247, 257, 263 Bouldin f. Alexander 33, 106 Boulware f. Craddock '. 264 Bourk F. Riggs, 393, 409, 596, 647, 669, 674 Bourne f. Hocker 33 Boutelle f. Waren,9,88, 141, 422, 433, 534, 654 Bowen v. Benson 88 F. Fenner 104 F. Hutchins 232 F. Roach 115, 183 F. Sehuler 131, 133, 136 F. Turner 250 Bower v. Higbee 194, 198, 200 INDEX OF CASES CITED. 817 PAGES. Bower v. Tallman, 14, 44, 342, 453, 486, 653, 664 Bowman r. Eaton 257 T. Moore 762 Boyee r. Cannon 472, 568 Boyd V. Adams 392 F. Huftoker 789, 802 V. McAdams 396, 406 r. Moore 236, 667 Boyden v. Frank, 39, 145, 338, 343 Boyer v. Fowler 762, 776 Boylston v. Davis 519, 758 Boynton v. Page 116 r. Warren 96 Brackenbury v. Pell 717 Brackett v. Bullard 93 V. Whidden 168, 391 Bradford r. Frederick 758 Bradley v. Fuller ,.. 572 r. Gamelle 234, 485 r. Halloway 337 V. Michael 55, 68 V. Morse 288 Bradshaw F. Warner 122, 127 Brady r. Whitney 466, 660 Bradyall y. Ball. 373, 381 Bragdon v. Penny 434 Bragg r. Massie 553 Brainard v. Jones 786 Bramwell V. Hart 582 Branch v. Branch, 224, 298, 329, 354, 356, 360, 707, 740 r. Morrison 193 r. Wiseman, 110, 399, 402 653 Brannin v. Bremen, 598, 683, 759 V. Johnson, 478, 510, 542 Branscombe v. Scarborough, 765, 785 Bray r. Saaman 429, 696 Breckenridge v. Johnson, 155, 159 Brennan v. Shinkle 500, 708 Brent r. Hagner 47 Brewer r. Fleming 44, 195 52 PAHES. Brewster v. Carmicliael....l98, 456 F.Siiriman,457,480, 559 Briarly v. Cox 190, 191 Brice v. Elliott 172 Brichman r. Ross 566, 635 Bridge v. Ford 742 T. Layman.. ..279, 282, 285 Bridges y. Hawkworth 82 Briggs V. Dow 601 F. Gleason 12,452 F. Humphrey 690 F. Large 27 F. Mason 347 F. Milburn 660,665 F. Wiswell 327, 357 Bringhurst v. Pollard 170 Brisco F. McElween 503 Bristol F. Braidwood 573 F. Burt 209, 242, 255 F. Wilsraore, 131, 132, 142 217, 218 Britt F. Aylett 53, 56, 57, 394 Brizee v. Maybee, 477, 480, 496, 503, 505, 508, 524 Broadwater f. Darne 16, 42, 66 Broadwell v. Paradice, 61, 480, 481, 537, 540 Brock F. Barr 428 Brockway v. Burnap, 37, 39, 41, 49,60,230,231,297 F.Kinney 602 Brockwell f. Saunders 57 Brommell v. Hart 55 Brooke v. Berry 3, 44, 577 Brookover f. Esterly 87, 595 Brooks F. Shepherd 769 Broom r. Fox 682 Brothers fI Hurdle 193, 196 Brotton v. Clawson 184 Brower v. Goodyer .-. 131 Brown f. Allen 506, 507 F. Bemen 91 F. Beraent 87 V. Bissett, 337, 387, 391, 571 818 INDEX OF OASES CITED. PASES. Brown f. Brigham.. 748 F.Caldwell ......42, 189, 193 r. Campbell 218 r. Chiopee 6, 55, 562 y. Compton 337, 338 F.Cook 247 F. Coon 263 V. Crockett 83 F. Cumminga 510 F. Davis 349 F. Emmerson 528 F. Fitch 245 F. Fulkerson 716, 768 F. Jolinson....440, 466, 646 F. Keller 386 F. Parker, 355, 716, 717, 718, 719, 780, 796 F. Peevy 432 F. Poland 243, 303 F. Sax, 198, 203, 204, 291, 526 F. Smith, 14, 44, 77, 177, 451, 452, 602, 619 F. Stanford 637 F. Thomas 225 F. Wallis 188,190 F. Webster 570, 645 Brownell v. Manchester, 51, 75, 148, 223, 224, 481, 769 Browning v. Bancroft 131 r. Hanford 349, 377 Browns v. Holmes, 98, 257, 289, 292, 425, 460 Brown's Admx. f. Manning.... 110 Brubaker r. Ponge 554 Bruce v. Learned 503 V. Ulery 341 F.Westervelt 17, 72, 106 Brueghurst r. Pollard 285 Bruen v. Ogden 15, 33, 163 Bnindage r. Camp 138, 218 Bruner f. Dyball, 132, 242, 248, 373, 377, 380, 701 Brunschweig r. Schaper 775 Brush F. Fowler 345 PAGES. Brnsley f. Hamilton 107 Bryan F. Smith 54 F. Spurgin 441 Bryant r. Hendee 152 F. Osgood 38 F. The State, 155, 324, 342, 347 Buch F. Fulton 223 Buchman v. Harney 128, 129 Buck F. Colbath, 160, 162, 164, 252, 337, 339, 343, 404 F.Collins 808 F. Lewis 752, 792 F. Payne 68 F. Eemsen 533, 536, 539 • F. Khodes 664, 801 Buckley v. Buckley, 15, 16, 49, 147, 206,214,291,453,488, 615, 647, 702 Buckmaster v. Beames....778, 798 Buel F. Davenport 370, 745 Buell F. Ball 168,169, 172, 437 F. Schaale 169, 170 Bufflngton f. Gerrish,' 130, 131, 132, 139, 142, 267 Bugle F. Meyers 368, 867 Bull F. Griswold 198, 202, 487, 509 Bullis F. Montgomery 344' Bulmer v. Jenkins 358,359 Burbank v. Crooker 122 Burch r. Watts 758, 761 Burdett v. Hunt 292 Burdick r. McVanner 12, 91 Burgert v. Borchert 420 Burk V. Birchard 613 Burke f. Koch 646 Burkeholder r. Rudrow, 316, 519 Burket v. Boude 26, 27 F. Pheister 603 Burkle f. Luce, 379, 381, 426, 721, 725, 747, 766 Burnell v. Hunt Ill Burnett r. Lockwood 500 Burnley f. Lambert 423 INDEX OP CASES CITED. 819 PAQBS. Burns r. Cooper 21 r. Lldwell 433 Burr V. Dougherty, 14,15,49, 247 Burrage v. Melson, 16, 140, 316, 510 Burrall r. Vanderbilt 757 Burrill r. Hopkins 471 Burrows v. Waddell 261, 439 Burt r. Burt 40, 423, 481, 537 V. Butcher 522 Burton r. Curyea 105, 138, 218 F. Fulton 341 T. Hough ;.... 104 V. Miller 750 V. Wilkinson 106, 341 Busby V. Noland 174 Busch V. Fisher 789 Bush r. Lyon 56, 75 V. Rawlins 374 Busick V. Bumni 305, 306 Buside v. Fischer 437 Bussey r. Page 184 Bussing V. Rice, 132, 247, 267, 701 Buster v. Newkirk. 45 Butcher y. Green 453 r. Porter 393, 645, 722 Butler V. CoUens 132, 478 r. Mehrling, 457, 473, 477, 478, 507, 542 r. Miller 87 Buttorfleld v. Hensley 360 Butters r. Haughwout, 132, 138, 139, 218, 244, 246, 253 Button T. Chapin 520 V. Hoffman 48 Butts r. Collins 82 V. Screws 385 Byer r. Fenstermacher 390 Byrd v. Hall 131 V. O'Houlin 54 Byron r. Chapin 531 r. Crippen 31, 42 C. PAOES. Cable r. Dakin 473, 503 Cady V. Eggleston 357, 738 Caffrey v. Dudgeon, 719, 742, 790, 792 Cagill r.Wooldridge 158 Cahill's Appeal 739 Cahn V. Reid 137 Cain r. Williams 764 Caldwell v. Arnold 163, 337 T. Bartlett 132, 218 V. Bruggerman, 530, 560 565, 607 F. Castard 196,579 F. Cleadon 388 F. Cowan 106 r. Fen wick.... 49, 440, 464 F. Gans, 380, 763, 770, 779, 809 F. Pray , 262 V. West, 287, 353, 467, 515, 745, 777 Callomer v. Page 686 Calvin v. Bacon 102 Camp F. Root 692 Campan v. Konon 179 Campbell v. Consalus 666 r. Head 285,293 F.Jones 608,635 F. Quackenbush 262 F. Williams, 16, 52, 57, 155, 428, 581 Campbell Mfg. Co. f. Walker... 123 Campbell Printing Co. f. Walker 666 Canifax v. Chapman 339 Cannon v. Braun 668 F. Folsom 522 F.Kinney 54, r. Sipples 338 F.White 5|71 Cantril f. Babcock 536 Capital Lumber Co. f. Hall .... 429 Cardinal v. Smith 168, 175 820 INDEX OP CASES CITED. PAGES. Carew v. Matthews, 160, 163, 164, 267, 426 Carey v. Bright 503 Carkin v. Babbett 149 Carl T. McGonigal 251 Carlisle r. Burley 224 V. Weston 12 Carton v. Dixon 765, 786. Carison t. Small 284, 297, 445 Cariton v. Davis 291 r. Dixon 280 Carney r. Doyle 285, 401, 551 V. Gleissner 77, 490 Carnick v. Wilson 709 Carothers r. Van Hagan, 618, 630 Carpenter r. Hale 226 V. Jones 587 V. Lewis 193 F.Starr 229 r. Stevens 440, 464, 646, 753, 766, 799 Carr v. Bamett 434 r. Ellis 662, 797, 808 V. Phillips 160, 163 Carrel v. Early '440, 464, 465 Carrico v. Taylor 676 Carrier v. Carrier 600, 629 V. Gale 554 Carroll f. Harris 392, 393 F. Hussey 147, 150 F. Pathkiller 11, 475 F. Woodlock 663, 777 Carson r. Applegarth, 604, 620, 632 F. Golden 497, 535 Cartelyob v. Lansing 522 Carter v. Carter 478 F. Commander 706 V. Duggan 363 F. Farlely 127 F. James 664 F. Piper 393 r. Streator 441, 484 Carty f. Blevins 49 F. Fenstemaker 96 PAGES. Carty f. Hudsons 447 Caruthers v. Humphrey 273 Carver v. Carver 792 Cary f. Hewitt 16,96, 373, 442 F. Hotailing 131, 232 Case V. Campbell 87 F. Pettee 354, 742 F. Rebeline 752 F. Woleben 381 Cash F. Quinchett 364, 368 Casper r. Kent Circuit Judge, 232, 692, 754 Cass V. Gunnison 620 .F. N.Y.&N.H.E.R.,226,243 Cassell F.We8ternStageCo.,16, 68, 574 Cassidy v. Elias 438 F. Fleck 303,322 Castle F. Thomas 322 Caswell V. Distrioh 21 C. & S. W. E. R. F. N. W. Packet Co 288 Cate V. Cate 176 Catherv. Bray 617 Catlin F. Warren 134 CatterlinF.Mitchell...l63,281,315 Cay ward f. Doolittle 324 C, B. & Q. B. E. Co. F. Painter, 126 441 Center f. Gebney 282 Central E. R. Co. v. Fritz 192 Chadbourn v. Rahilly 699 Chadwiek v. Badger 354, 367 F. Broodwell ....433, 540 F.Miller 4,6,7,639 Chaffee f. Harrington, 55, 70, 112 F. Langston.355, 790, 791 Chamberlain v. Brown 705 F.Winn 584 Chambers v. Hunt, 112, 114, 115, 117, 227, 406, 407 F. Waters 754, 759 Champion f. Vincent 527 Chandler f. Allison 507, 509 F. Edson 206 INDEX OF CASES CITED. 821 PAGES. Chandler v. Lincoln, llj, 391, 409, 411, 550, 652 F.Smith. ...236, 337, 708 Chapman v. Andrews 12, 42 V. Kerby 543 V. Kerr 419 Charlotte, &c., v. Stouffer, 188,' 191 Chas.BaumbachCo. f. Miller... 143 Chase r. Allen 399 F. Ewing 554 Chatterton v. Saul 186,297 Chauvin F.Valiton 478 Chenyworth r. Daily 257 Cheyary v. Jenkins 168 Chicago Dock Co. r. Foster .... 218 Chicago T. P. B. R. v. Lowell, 105 Chicago, &c., f. Northwestern, 559, 401 Chickering r. Raymond 48 Childs V. Childs, 18, 104,396, 541, 600, 613 F. Hart 288, 312, 313 Chiles F. Drake 506 Chilson F. Jenneson 627 Chinn v. McCoy 719, 789, 796 F. Russell, 12, 73, 150, 252, 286, 429 Chipstead v. Porter 339 Chissom v. Hawkins 19, 21, 49 F. Lamcool 575, 780 Choate v. Quinichett 768 Choen v. Porter 408 ChristolF. Craig 316 Christy f. Scott 91 Church F. De Wolf 630 V. Drummond 360 F. Frost 229 Churchill r. Lee 149 City Council v. Price, 747, 790, 791 City of Bath f. Miller 674 Claflin F. Carpenter 186 F. Davidson 608, 658 r. Fletcher 667 F. Thayer 352, 360, 367 PAQES. Claggett F. Richards, 356, 365, 739 Clap F. Guild 326, 558, 805 Clapham F; Crabtree 804 Clapp F. Shepard 48, 226 F. Trowbridge 642 F. Walter, 457, 475, 478 Clark F. Adair 355, 462, 639 F. Bales 631 F.Bell 367,741 F. Beneflel 295 F. Bush 785 F. Clinton 740 F. Connecticut 369 F. C. R. R. R 354 F. Dunlap 3.")0 F. Griffith 44,119 F. Heck 602, 611 F. Howell 199, 795 F.Keith 452,602 F. Lamoreaux 434 F. Lewis, 173, 244, 246,247, 248, 251, 252, 255, 270 F. Martin 458, 477, 479 F.Norton 83, 338, 355, 716, 725, 754, 759, 762, 775 F. Pinney 482, 513 F. Reyburn 184 F. Shee 292 F. Skinner, 14, 55, 150, 154, 165, 224 F. Stipp 178 F. Warner 632, 641 F. West, 15, 52, 86, 416, 696, 698 Clary v. Roland, 632, 716, 731, 759, 761 Clay F. Coperton 404, 428 Clayton v. Ganey 300, 431 F. Johnson 144 Cleaves v. Herbert 69, 89, 285 Clement f. Duffy 773 Clements r. Glass 475 F.Wright 578,579 822 INDEX OF CASES CITED. PAGES. Clerk's Office v. Hufstetter 758 Cleveland v. Shoeman 234 Clift r. Shocby 553 Climer v. Russell 154, 165 Cline V. Gant .' 666 V. Libby 88 Clinton F.King 334 Clowes V. Hawley 47 Coats r. Farington 157 Coates T. Hopkins 574 Cobb V. Downs 218 V. Megrath 54 Cobbey v. Wright 164 Cobum r. Harvey 27 Cochran v. Golwold 457, 654 V. Winburn 485 Coddington v. Bay 139 Cody V. Eggleston 352 Coe V. Gregory 175 T. Peacock 534, 541 Coffin V. Gephart 37, 39 r. Knott 435 T. McLean 803 Cogan V. Stoutenburgh 155 CoghUl F. Boring, 122, 126, 129, 131, 135, 650 Coit F. Waple8,288,290, 393, 599, 602 Colborn f. Barton 303 Colby F. Yates 667 Cole F.Mann 31 F. St. L. &P. Ry 249,424 Cole, Admr., v. Conoly, 346, 466, 570 Colegrove v. Dias ^. 260 Coleman v. Bean 739, 765 F. Reel 630, 708 F. Wade 762 Coles F. Hulene 738 CoUamer f. Page, 639, 653, 658, 716 Collier r. Beckley 245, 423 F. Tearwood 227, 416 Collins F. Evans, 57, 106, 394, 565, 643 PAGES. Collins F. Hough 6, 453, 762 F. Makepeace 597 F. Wellington 164 CoUman v. Collins 80 Collorab F. Taylor 11 Colo. Nat. Bank v. Lester 356 Colorado Springs Co. f. Hop- kins 730,791 Colt F.Eves 331, 337 Colton F. Mott 112 Colwell F. Brower 74 Colwlll F. Reeves 213 Coman v. Thompson 557 Com. Bank r. Kortwright 522 Commissioner's Rush Co. v. Stubbs 186 Commonwealth v. Dorsey 805 F. Kelley 747 F. Kennard.... 345 F. Marrow 618 F. Moses 224 F. Rees, 334, 335 Congregational Soc. v. Elem- ming 190, 198 Conihan v. Thompson 806 Conkey r. Hopkms 737 Conklin v. Parsons 192 Conley r. Derre 158 Connah v. Hale 248, 256 Conner F. Comstock, 138, 240, 247, 253, 566, 637, 652 F. Henderson 136 Connoly v. Edgerton 615 Connor r. Bludworth 185, 296 Constantine v. Foster, 550, 565, 645 Contril v. Babcock ; 757 Conyers v. Ennis 134 Cook F. Bassett 140 F. Bouk 740 F. Farrington 137 F. Freudenthal 362, 743 F. Hamilton 459, 463 F. Hartle 523 INDEX OF CASES CITED. 823 PAGES. Cook V. Hopper 536 V. Horwitz 738 y. Howard 71 r. Lathrop 724, 726 V. McElvey 606 Cool V. Roche 8, 395 Cooley V. Davis, 147, 150, 155, 156 Coombs r. GorcIen....l49, 439, 442 Coomer y. Gale Mfg. Co 230 Coon V. Bowles 388 T. Congden 427 r. Male 20 Cooper V. Blakeman 393 r. Browu, 78, 360, 639, 714, 716, 759 V. McGrew 731 F. Peck 657 r. Thompkins 160, 163 V. Watson 193, 202 Cope T. Romeyne 184 Copeland v. Majors 599, 632 Copland r. Basquet 125 Coply F.Rose '. 11 Copuro F. Builders' Ins. Co 436 Corbitt F. Brong 13 F. Heisey 18, 79, 419 F.Lewis 116,223 Corcoran v. White 227 CordwillF. Gilmoro 575 CorneU f. Cook .' 349 F.Lamb 26 Com Exch. Bank f. Blye, 158, 483, 624, 625, 626, 710, 723 Coniish F. Kusee 732 Cory F. Silcox 527, 618 Coryton f. Lithebye 112 Cotter F. Doty 155, 444 Cotton F. Watkins 93, 95 Council F. Averett 632, 755 Courtis F. Cane, 215, 220, 245, 250 F. Case 248 Courtland f. Morrison 226 . PAGES. Coverdalo v. Alexander, 365, 369, 743 Coveriee v. Warner 11, 34, 395 Covin F. Hill 218 Cowden v. Lockridge 500 Cowdin F. Pease 732 F. Stanton 804 Cowling V. Greenleaf 648 Cox F. Albert 310 F. Currier 82 F. Fog 55 F. Grace 306, 308, 309, 386 F. Hardin 106 F. Morrow 10, 52, 60 Crabbs f. Koontz, 541, 783, 801, 807 Crabtree v. Chapham, 115, 674, 782 Craig F. Davis 444 F. Grant 573 F. Kline 33, 487, 488, 504 Crans v. Cunningham 302 Cranz v. Kroger 242, 253, 556 Crapo F. Seybold 119 Cravath v. Plympton 224 Crawford v. Furlong, 258, 314, 401 F. Hagood 780 F.Wright 37 Creamer f. Ford, 13, 358, 758, 793 Creighton f. Newton, 399, 437, 527 Crenshaw f. Moore 54 Cresson v. Stout, 178, 182, 187, 190 Crews F. Pendleton 182 Criddle v. Criddle 554 Crippen f. Morrison 586 Crist F. Francis 687 F. Parks 282, 302 Crites F. Littleton 705 Crittenden f. Lingle 149, 371 F. Steele 305 Crocker f. Hoffman 599, 603 F.Mann,27,31, 33, 68, 71 824 INDEX OF CASES CITED. PAGEa. Crockett v. Grain 110 Croft F. Franks 164 Cromeline v. Brink 182 Cromwell v. Ovvings 148 Cropper v. Coburn Ill Cropsy F. Perry 177 Crosby v. Baker 345 F. Jeroloman.., 662 F. Leng 216 Cross F. Hulett 115 Crosse f. Bilson 388, 451 Grouse v. Derbyshire 21 Crow F. Vance 91 Crowfoot F. Gurney 92 Crum F. EUiston 89, 385, 303 F. Hill 187 Cruts F. Wray 541 CuUum F. Bevans 33, 114, 565 Cumberland f. Tilghman 512 Gummings f. Gann, 80, 254, 255, 353, 394, 506, 507, 577 V. McGill 35, 558 V. Stewart 226, 625 F. Tindall 224 F. Vorce, 6, 244, 247, 257, 306 Cunard f. Franklin. 407 Cunningham f. Baker 21, 251 Curd F. Wunder 67 Curdy f. Brown 52 Cure F. Wilson .' 282 Curriac f. Packard 747 Currier f. Ford 56, 60, 70 Curtis F. Cutler 297 F. Groat, 193, 204, 206, 493 F. Jones 79, 390, 412 F. Ward 488 Cushenden f. Harman 731, 788 Gushing v. Longfellow, 486, 512, 524, 525 Cusick F. Cohen 366 Cusson F. Stout 71 Cutler F. Eathbone, 279, 282, 303 Cutting F. Grand Trunk Ry.... 271 D. PAGES. Daggett F. Bobbins, 154, 700, 701 Dahler f. Steele 693 Dalby v. Campbell 785 Dalglish F. Grady 27 Dame v. Baldwin 220 F. Dame 30, 32, 69, 191 F. Fales 338 Damm f. O'Gonnell 533 Damon f. Bryant 404 D. & M. R. Co. F. Steinburg ... 574 Damron v. Roach 316, 510 Dana f. Bryant 601 F. Fiedler 526 Daniel v. Daniel 42 Daniels v. Brown 19 F. Cole 314 F. Nelson 168 F. Patersou 354 Danniels f. Fitch 221, 776 Darby v. Cassaway 478 Darling v. Conkling 287 F. Tegler, 240, 257, 268, 541 Darrett v. Donnelly 553 Dart F. Horn 308, 618 Darter v. Brown 446 Dascey v. Harris 144 Dashler f. Dodge 410 Daugherty v. Cooper 88, 654 Daumiel v. Gorham 252 Davenport v. Burke 690, 709 F. Ledger 503, 543. David F. Bradley 533, 728 F. David 290 Davidson f. Gunsally 290, 540 F. Waldron, 52, 53, 163 Davies f. Richardson Exrs .512 Davis F. Bayless 333 F. Brown 665 F. Calvert 396 V. Crow, 499, 501, 788, 796, 808 F.Easley, 198, 203, 204, 290, 579 INDEX OF CASES CITED. 825 PAGES. Davis r. Fenner 480, 667 V. Fish 618 V. Gambert 703 V. Harding, 643, 724, 725, 800 V. Loftin 71, 73 F. Lottich 392 V. Oswt'll 509 V. Bandolph 37, 39 F.Scott 73,145 F. Soltish 115 F. Stewart 133 F.Taylor 186 F. Tyler'...: 391 F. Warfleld 309, 400 F. Wilbourne 666 Davison v. Gill 337 Dawling v. Palack 693 Daws F. Green 53 F. Morse 109 F. Eush 458 Dawson v. Wetherbee, 565, 643, • 650, 682 Day F. Comptou 156 F. Vallette 662 Dayton r. Fry, 83, 392, 403, 404, 411 Deacon r. Powers 113, 223, 286 Deaderick v. Oulds 82 Deaker v. Matthews :.... 312 Deal F. Osborn 457, 466 Dean f. Ball 737 F. Oppenheimer 299 Deane v. Lockwood 127 Dear v. Osborn & Co 585 Dearborn v. Kelly 357 Deardorf v. Ulmer, 287, 360, 363, 365, 790 Dearing v. Ford 240, 248 Dearman v. Blackburn, 30, 148, 166, 697 DeBow F. Applegate 360, 361 Deck r. Smith 467 Decker r. Anderson 765, 766 PAGES. DeeliGr f. Judson, 739, 765, 792, 793 F. Livingston 112, 389 Deeter v. Sellers 248 DeForest.F. Lute 316 Degering f. Flick 610, 638 Dehler v. Held 778 Dehr v. Larapton 692 Delahay r. Clement 729 Delanoy r. Holcomb 244, 248 Delaney v. Canning 417 Delaware K. E. Co. v. Pretty- man 172 Delin v. Stohl 130 Demers r. Clemens 809 Demick f. Chapman 71 Demott V. Hagerman 195, 196 Deniston v. Draper 374 Denney f. Eeynolds, 791, 797, 808 Dennis r. Snell 445 F. Crittenden 301 Denton v. Smith 263, 560 Denver v. Frame 103 Depew V. Leal 286, 302 Derby f. Gallup 468, 471 DeRequine v. Lewis 359 Derraott f. Wallaoh 407 Derter r. Sellers 75, 261 Desha r. Pope 54 Deshler r. Dodge 166 Deshon v. Bigelow.. 122, 218 DeThomas v. Witherby 440 Detroit Daily Post v. McAr- thur 506,507 Devendorf r. Wert 527 Devereux v. Burgm.in 471 Devlin v. Coleman 313 Devries f. Phillips 554 Dewey v. Bawman 91 Dewint v. Wiltsie 510, 543 DeWitt F. Morris 325, 337, 464 DeWolf V. Harris, 112, 113, 114, 117, 226, 227, 386, 556 Deyo F. Jennison 150 Deyoe f. Jameson.... 234, 660, 698 826 INDEX OP OASES CITED. PAOBS. Dezell V. Odell 33, 59, 61, 83 Dias r. Freeman 717 Dibble v. Morris , 499 Dick V. Smith 475 Dickinson r. Boyle 510 F. Hendryx 796 F. Lovell 653 F.NoIand, 308, 432, 640 Dickson v. Mathers 54, 57, 394 F. Eandal, 76, 252, 385, 587, 708 Dietzsch r. Huidekoper 723 Dillenback v. Jerome, 36, 224, 523 Dillingham F.Smith, 213, 400, 608 Dillon F. "Wright... 33, 42, 388, 404 -Dilworth v. McKelvy, 91, 433, 536 538, 539, 631, 654 Diraond v. Downing 577 Ditson F. Eandall £18 Divssy F. Morgan 370 Dix F. Van Wyck 17, 412 Dixon F. Hancock.. 42 V. Niccolls 19, 21 F. Thatcher, 51, 106, 366, 400, 447 D. L. & W. R. R. Co. F. ToJfey, 601 Doak F. Exrs. of Snapp 526 Doane v. Lockwood 128 Dodd F. McCraw 151 F. Thomas 429, 660 Dodge Y. Brown 213 F. Chandler 533 F. Runnels 471 Dodworth f. Jones 57 Doe F. Cunningham 363, 737 F. Martyr 219 Doering v. Kenamore 227 Dogan F. Bloodworth 159 Doggett F. Bobbins, 14, 33, 165, 682 Dolan T. Van Demark 539, 541 Dolby F. Campbell 775 Domestic S. M. Co. v. Arthur- hultz 92 FAGEB. Donaldson r. Farwell 131, 134 V. Johnson, 599, 612, 621 Donohoe r. McAleer 381, 462 Doogan v. Tyson 358, 717 booley F. Crist 186, 189 Doom F. Lockwood 272 Dorr F. Dudderar 185 Dorrington v. Meyer 654, 756 Dorsey r. Gassaway, 453, 473, 475, 503 F. Manlove 503,510 Dorus F. Somers 368 Doty F. Gorham..: 186 Douch F. Eohner 152 Dougherty v. Bonavia 90 F. Cooper 534 F. Haggin 605 Doughty F. Brown 663 Douglas F. Gardner, 288, 322, 352, 366 r. Kraft 509, 514, 522 F. Newman 236 F. Wolf 44, 72 Douglass F. Douglass 676, 724 F. Garrett, 393, 455, 527 Douty F. Bird 507 Dover v. Rawlings 392 Dow F. Rattle.... 630 F. Sanborn 131 F. Sudbury 175 Dowell F. Richardson, 165, 285, 352, 529, 608, 619 F. Taylor 339 Downard f. Grolf 182 Downs F. Beck 513 Dows F. Bignall.. 45, 292 F. Rush 632 Doxon F. Duke 410, 435 F. Hancock 52 Doyle F. Dobson 553 Dozier v. Joyce 54, 424, 645 Drake v. Auerbach 44, 48, 485 F. Wakefield 576 INDEX OF OASES dlTED. 827 PAQES. Drane v. Hilzheim 606, 607 Draper v. Ellis 248, 289, 301 Draycott v. Piot 292 Dresher v. Carson 658 Driscoll r. Place 337 Drummond v. Hopper, 12, 102, 105, 15^ Dubois r. Glaub 507, 526 V. Harcourt 55 T. Hutchinson 431 F. Webster ,.... 172 Duboise v. Kelly 197 Dudley v. Hawley 216 V. Ross, 40, 168, 171, 173, 311 Dufer r. Hayden 123 Dufresne v. Hutchinson 102 Dugan V. Nichols 256 Duggon V. England 731 Duke V. Shackelford 124 Dulin r. Howard 684 Dunbar f. Bittle 599 F. Bowls 127 r. Scott 361 Duncan v. Brennan 57, 75 F. Green 42 F. Spear 71, 645 Dunham f. WyckoH....71, 73, 166, 297 Dunkin f. McKee 61, 83 Dunn F. Crocker 309 Dunning r. James 168 F. South 104 Dunott V. Hagerman 112 Durfee v. Jones 82 Durham f. Shannon 553 Durning v. Waddingham 806 Durrell v. Haley 139 Durst F. Burton 478, 523, 526 Dwight F. Brewster 249 F. Enos 462, 632, 641 Dyer f. Clark 112 F. Grand Trunk 271 Dynes r. Hoover 337, 338 Dyson r. Ream 436 PAGES. B. & C. R. R. Co. F. Marsh 270 Bads F. Stephens 281, 378 Eagle F. Uohrheimer 555 Eakin f. Eakin 112, 549 Eames v. Snell 100 Earl F. Camp 152, 341 F. Tupper 499 Earle v. Burch 72, 235, 614 East Boston Co. v. Person 303 East India Co. f. Hensley 102 Eastern r. Fleming 59 Eastman v. Barnes 356, 684 F. Premo 572 Easton f. Worthingtou, 598, 632, 645 Eaton F. Caldwell 461, 598 F. Monroe 122, 231 F. Southby 14, 44 Eberstein v. Camp ,.. 75 Ecker v. Moore 576 Edeiine r. Thompson, 394, 406, 619 Edge F. Parker 157 Edgell F. Tucker 92 Edgerly f. Emerson 290 Eddy F. Bea), 282, 293, 302, 309, 384 r. Davis 44 F. Hall 186 Edmonds f. Groves , 406 Edmunds v. Hill 82, 265 F. Leavitt 577 Edwards f. Cottrell 235, 762 F. McCurdy, 407, 666, 754 F. Talcott 418 Eggleston f. Mundy, 34, 96, 582 Eiesdrath f. Knauer 53, 56 Eiseley v. Malchow 595 Ela F. Shepard : 341 Ela & Another v. Bankes, 595, 660 Eldred r. Bennett 728, 762 F. The Oconto Co., 210, 211, 240, 246, 290, 601, 603 828 INDEX OF OASES CITED. PAGES. Eldred v. Woolaver 648 Eldridge v. Adams 6, 249 Elgee V. Lovell 314 Elkins V. Griesemer 156 EUengbor v. Brackken 253, 294 Elliot V. Black, 191,342,717, 718, 719 V. Powell 200, 562 V. Whitraore 152, 286 Ellis V. Cleveland 347 V. Culver 15, 114, 620 V. Howard 554 F. Lerener 37 V. Wire 525 Ellsworth V. Henshall 294 Elves V. Mawe 188 Ely V. Ehle, 30, 32, 69, 256, 297, 800, 392, 393 Emerick v. Sloan 7, 168, 172 Emery v. Cobbey 49 Emmerson v. Booth 748 Emmett v. Briggs 408 Emmons v. Dowe .55, 602, 662 Empire S. T. F. Co. v. Grant... 97 Engle V. Jones 341 English V. Caldwell 575 F. Dalbrow 328 Enos V. Bemis 168, 311, 4.34 Entsminger r. Jackson, 18, 286, 295, 665 Erb F. Perkins 157. Erlinger v. The People 355 Ernst Bros. f. Hogue 697, 757 Eslava f. Dillihunt 607, 632 Esson F. Tarbell 37, 93, 582 EsteyF. Harmon 758 Esty F. Love 233 Etter F. Edwards 255 Evans v. Bouton 282 F. Brander, 23, 334, 353, 682, 785 F. King 380, 747, 763 V. Parker 349 Evelette f. Blossom 31, 271 Everett v. Buchanan 65, 300 Everett v. Coffin 79, 250 F. Saltus 315 Everit f. Walworth, 603, 604, 636 Ewing F. Blount 181, 458, 525 V. Van Arsdale 388, 391 & parte Wright 692 P. Faddis F. WooUomes 76 Fagen v. Davison 510 Paget F. Brayton, 300, 302, 316, 451, 573, 615 Fahnestock v. Gilham, 186, 191, 356, 357, 806 Fairbanks v. Malloy 129 F.Phelps .....52,68 F. Witter 499 Fairchild v. Lynch 666 Fairfield v. Nye 95 Fairman v. Fluck, 390, 420, 422 Falkner f. Baden 792 Fallon F. Manning, 453, 481, 537, 538, 539, 800 Fant V. Wilson 792 Farington v. Payne 248 Farland v. Farmer 107 Farley f. Lincoln, 124, 138, 139, 142, 144, 218, 257 Farmer v. Calvert 400 Farmers &c. f. St. Clair....; 613 Farmers L. & T. Co. .v. Com. Bank 463,604 Farnham f. Chapman 370, 666 F. How 282 F. Moore, 536, 537, 780 Parrant v. Thompson 105 Farrar v. Chauffetete 250 F. United States 785 Farrow v. Orear 750 Parwell f. Fox 290, 291, 324 F. Hanchett, 128, 132, 267 F. Rogers 100 Faulkner v. Brown 540 F. Harding 204 INDEX OP CASES CITED. 829 FAOE3. Faulkner r. Klamp 219 V. Meyers 602 Fawcett r. Osborn 217 Fawkner v. Baden 689, 735 Fay V. Duggan Ill, 227 Fayette Ins. Co. v. Rogers 223 Feagin f. Pearson 45 Fedder v. Abrahams 37 Federhen r. Smith 372 Felton V. Hales 105, 269 Fenn v. Harrington 7,43 V. Harrison 102 Fenner r. Kirkman 258 Fenney r. Fechtner 151 Fensier v. Lammon 160, 627 Ferguson r. Barber 785 v. Hogan ■. 478 r. Moore :..348, 361 F. Eafferty 485, 582 T. Butherford 574 r. Thomas 91 Y. Washer 151 Femald v. Chase 38, 247 V. Linscott .--184 Ferrell v. Humphrey, 399, 437, 446 Fettyplace v. Dutch 62 Fich r. Hollinger 511 Fidler v. Delavan 297 Field F. Post 456 Finch F. Blount 523 F.HolIenger 262 Finehout v. Grain 313, 326 Fink F. Flanagan 302 Fiquet F.Allison 21 Firestone f. Meshler 232 First Natl. Bank f. Crowley, 141, 536, 537 r. Dunn 375 Fisher r. Busch 432, 698 r. Gordon 429 F. Marquett 430, 700 r. Peirson 447 V. Prince 523 V. WhooUery, 14, 370, 457, 458, 462, 670 PAOEB. Fishli F. Fishli 662 Fisk F. "Wallace 710 Fisler v. Beall 425 Pisse V. Katzentine 715, 729 Fitch F. Dunn 83 F. Newberry 80 Fitzer f. McCannon 604 Fitzhugh F. Wi in»,Ti .4.57, 632, 641 FJack F. Warner .' 124 Flagg F. Tyler 718 Flanders r. Locke 200, 575 F. Chamberlain 273 Flannigan v. Goggins 48 F. L. & T. Co. F. Cone 455 Flatner f. Good 234, 582 Fleet F. Lockwood, 356, 369, 639, 682 Fleming r. Hawley 430 F.Wells 699 Fletcher v. Lee 334 F. Wilkins....'. 14 Fleutge F. Priest 46, 433 Florence S. M. Co. f. Warford. 215 Florence Soap Co. v. Jacobus. 138 Florrance f. Goodin 356 Flynn f. Jordan 556 Folmar v. Copeland 36 Fonda f. Van Horne..lO, 151, 256 Fontleroy r. Aylmer 284 Fora F. Dyer , 441 Forbes f. Shattuck, 119,209, 210, 214, 689 Forbes exrel. f. The Judge, &c. 329 Ford F. Bushor 377 F. Ford , 77, 178 Fordyce r. Pipher 405 Poredice v. Rinehart 291, 608 Porkner v. Shafer 143 Forsyth r. Wells, 47, 205, 486, 500 Fort F. Saunders ,,.. 524 Forth F. Pursley 68, 106 Forty F. Imber : 388 Foshay r.Furguson, 217,247,267 F. Riche 447 830 INDEX OF CASES CITED. ' PASES. Fobs r. Stewart 150, 153 Poster V. Bringhain 647, 749 V. Chamberlain 417 V. Gaffleld 597 T. Napier 785 V. Pettibone, 838, 339, 343, 344, 695, 702 V. Tucker : 216 Fowler v. Down 53, 157 F. Hawkins 19 V. Haynes 540 T. Hoffman, 532, 648, 674 F. Parsons 273 Fox F. Prickett 4, 290, 669 F. Webster 133 Foy F. Reddick 192, 197 France v. Gaudet 484 Francisco v. Benepe 243 Frank f. Flanagan 298 Franklin v. Pendleton 765 Fralick F.Presley 475 Frans f. Young 120 Franz f. Hilterbrand 341 Fraser f. Davie 389 F. Little 785 Fraur v. Little 776 Frazier f. Fredericks.. ..16, 32, 456 F. Laughlin 599, 772 Freas f. Lake 597, 602 Frederich v. Gaston 577 Frederick v. Mecosta 626, 650 Freeborn v. Norcross, 488, 469, 470 Freeman f. Bluet 319 F.Davis 367 F. Harwood 525 F. Howe, 147, 157, 159, 160, 161 F. Speegle 61 Frei f. Vogle, 360, 481, 538, 539, 728, 747, 800 Freier v. Cowles 497 French f. Howard 663 F. Venable 688 French, Trustee, f. Hay 723 rABEB. Freshwater v. Nichols 56, 71 Frey f. Drahos, 460, 496, 528, 535, 538, 676 F. Leeper 373, 381 Frierson f. Frierson 118 Fries f. Porch 156, 627 Frink v. Flannigan, 302, 384, 385 Frisbee v. Langworthy, 88, 93,94, 96, 399, 413, 596 Frizell v. "White 52, 57 Frolick r. Presby 553 Frost F. Catizens'Natl. Bank... 143 F. Mott 52, 60 Frothingham f. McKusiek 184 Fryatt f. The Sullivan Co., 192, 198 Fryer f. Fryer 350, 687 Fugate F. Stapleton 626 Fugina r. Brbwnlie 688 Fuller F. Acker 93 F. Chamberlain 631 F. Lewis 264 F. Paige 213 F. Shattuck 498, 774 F. Tabor 191, 249 Fullerton v. Miller 355, 761 Fulton F. Heaton 341 Fultz F. Wycofl 507 Funk F. Israel, 147, 156. 640, 641 Furbank v. Goodman 91 Furber v. Dearborn 96 Furguson f. Carrington 136 Furman f. Tenny 562 Furniss f. Hone 135 Furrow v. Chapin 76, 234, 658 G. Gaddy f. McCIeave.. 729 Gafford f. Stearns 36, 54, 417 Gage F. Wayland 87 Gaines f. Tibbs, 388, 406, 426, G31, 653, 706 Gainsford f. Carroll 513 F.Griffith 765 INDEX OF OASES CITED. 831 FAQBS. Gale r. Rector 796 Gallagher v. Bishop, 38, 40, 231, 638, 675 r. Goldfrank 154 Gallarati r. Orser 716, 754, 759 Galloway v. Bird 3, 41 Galusha v. Butterfleld 393 Galvin r. Bacon, 102, 217, 246, 247, 269 r. Smith 251 Gaudy v. Pool 435, 708 Gardiner r. McDermott....718, 720 Gardner v. Boothe 248 V. Bugby 663 F. Campbell, 147, 150, 1 54, 165, 166 V. Deitch 46, 118, 119 V. Heartt 184 F. Humphrey 29, 389 F.Lane, 295, 325, 426, 577 F. Matteson 90 F. Scovill 289 Garland F. Bartt-ls 604, 657 GarUck v. Bower 605 Garlin f. Strickland, 352, 360, 366 Garrett F. Carlton, 73, 74, 145, 301 F. Wood, 465, 471, 473, 506, 512, 535 Garritt v. Vaughan 434 Garth f. Caldwell 44, 182, 615 F. Howard 423 Gartside v. Nixon 52, 57, 66 Garvin V. Paul Ill, 112 Gaes F. Van Wagner 578 Gates F. Bennett 72, 431 F. Gates 57 Gavigan v. Scott 578 Gay F. Morgan 657 v. Stancell 697 Gaynor v. Blewitt, 65, 300, 613, 689 Gear f. Bullendick 197 PAOES. Gedday f. Witherspoon 428 Geisendorf f. Eagles 530 Gelbreath v. Jones 230 Gelston f. Hoyt 156 Gent F. Cutts 720 Gentry v. Barnett 440 F. Borgis 298, 404 Gerard v. Dill 798 German American Bank v. White 399 German Ins. Co. f. Grim 801 Gest F. Cole 42 Gibbins v. Peeler 221 Gibbons v. Dillingham, 193, 199 Gibbs F. Bartlett, 355, 464, 717, 718, 720, 722, 732, 777, 778 F. Chase 150, 256, 467 F. Child.« 100 V. Cruikshank 473 ,F. Jones 220, 248 F. Usher 47 Gibney r. Marchay 554 Gibson v. Jenny 150, 153 F. Mozier 396, 562 F. Stevens 62, 110 Gidday v. Witherspoon 642 Giddey f. Altman 576 Gilbert v. McCorkle 127 Gilchrist v. Moore, 240, 247, 253, 587 Gildas F. Crosby 41,49 Gillerson f. Mansur 64, 198 Gillespie v. Burleson 553 F.Brown 16 Gillett F. Treganza 60 F. Roberts 240, 243, 253 Gillham f. Kerone 17, 539 Gilligan f. Stevens 517, 567 Gillilan f. Kendall 99 Gillis F. Wofford, 506, 512, 550 Gilman r. Hill 212 Gilmore f. Newton, 252, 248, 249, 251,252, 255, 2G5 832 INDEX OF CASES CITED. PAGES. Gilmore r. Wilbur 113 Gilson V. Wood 512 Girable v. Ackley, 33, 150, 252, 381 Ginaca r. Atwood 776 Ginnis r. Hart 805 Gipson V. Bump 391 Gist V. Loring 304 Gittings V. Carter 128 Glann v. Younglove, 453, 604, 800 Glass V. Black 150 V. Pinekard 640 F. Pullpn 769 Glasscock v. Hayes 473 V. Nave 404 Glassford v. Hackett 335 Glazier v. Clift 399 Gleason v. White 112 Glenn v. Brush 349, 411 Globe Works v. Wright 702 Glover r. Chase 6 V. Huunewell 112 Gluck V. Cox 59 Goble V. Dillon 666 Godfrey r. Brown 231 V. Bullin 388 Goff V. Harding 39 F. Kilts 45 V. O'Conner 184, 186 F. Shannon 44 Going V. Orus 31, 76 Goldschmidt v. Berry 132 Goldsmith f. Bryant 259 F.Wilson, 560, 573, 607 GoU F. Hinton 110 Goodell F. Bates 743 F. Ward 708 Goodheart f. Bowen, 148, 376, 674 Gooding v. Shea 531 Goodnight f. Goor 749 Goodman v. Aylin.... 388 F. Church 536 F.Floyd 485 T.Kennedy 59,634 PAGES. Goodrich f. Fritz, 147, 150, 404 F. Hanson .' 577 F. Jones 191 Goodwin v. Bunzl 740, 764 Gordon v. Bucknell 691 F. Clapp 553 F. Farrington 157 F. Harper, 68, 106, 216, 290 F. Jenny, 32, 212, 381, 382, 459, 496, 497, 498, 531, 765 F. Williamson 777 Gore F. Jenness 184 Gorton r. Falkner 342 Gotloff V. Henry, 406, 565, 603, 652 Gottschalk F. Klinger 419, 627 Gould V. Barnard 640 F. Barnes 733 F. Cayuga Co. Nat. Bank 128 F. Scannell, 413, 447, 453, 455 V. Warner, 717, 724, 728, 730, 745, 772, 785, 807 Goulet F. Asseler 482 Governor v. Munroe 362 Grace f. Mitchell, 10, 11, 40, 230, 231, 337, 678 Graff F. Shannon 48 Graham r. Myers 68, 230 F. Newman 86 F. Nowlin 588 F. Rogers 92 F. Shaw 567 F. Wells 335, 369 Grand Rapids Go. v. Lyon 102 Grange Warehouse f. Owen.... 123 Grantv. Booth 336 F. Steiner 99 Graves f. Cowan 211 F. Shoefelt, 321, 354, 367, 438, 690, 765 F. Sittig, 352, 451, 453, 470, 509 INDEX OF CASES CITED. 833 PAGES. Gray r. Allen 437 V. Dean 690 V. Earl 436 F. Holdship 184 V. Jones 558 V. Nations 16, 462, 556 V. Parker, 52, 203, 205, 210, 291, 394, 400, 566, 574 V. Rawson 27 r. St. John 131, 133 V. Thrasher 690 Greaner v. Mullen 134, 577 Greeley v. Currier, 358, 360, 639, 741 Green r. Burke 612, 721, 760 V. Dingley 393, 564 V. Dunn 256 V. Haskell 742 F. Holden 166, 333 r. Kindy 349, 804 r. Lewis 624 F. Patchen 692 V. Smith 441 F. Thomas 570 r. Umphrey 219 F. Walker 736, 738 Greenfield Bank f. Leavitt, 512, 513 Greenwade v. Fisher 691 Greer f. Howard 745, 767 F. Powell 512 Gregory r. McDowell 526 F.Morris 70 F. Schoenell 137 Gremer v. Briggs 258 Greve f. Dunham 126 Grier v. Cowan 389 Griffin v. Lancaster 231 F. L. L E. E 398 Griffith F. Bogardus 45, 292 F. Fowler 220 V. Smith, 78, 147, 150, 166, 343, 392, 695 Grindrod r. Lauzon 168 Grinnell v. Phillips 331 53 PAGES. Grist F. Cole 147 Griswold v. Boley 248, 251 Groat F. Gile 293 Groff F. Belche 209 Gross F. Bogard 72 Grover v. Huckins 140 Guard v. Bradley 801 Guild V. Rogers 26 Guille F. Wong Fook, 292, 412, 608 Gulath F. Waldstein ...606, 637 GuUett F. Lamberton 197 F. Otey 385,555,794 Gunning v. Williamson 513 Gunson v. Woodfall 216 Guthrie v. Jones 188, 190, 191 F. Weaver 45, 337 Guyon r. Rooney 627 Gwillim F. Holbrook 722 G. W. R. E. Co. F. McComas.... 80 H. Haase v. Mitohell 127, 272 Hacker f. Johnson, 59, 110, 639, • 801 Hackett v. Bonnell,670, 682, 685, 700 F.Potter 118,227 Hadley v. Hadley 231, 232 Hadson r. Warner 281 Haeger v. Marcus 37, 39 Haff V. Spicer 282 Hagan r. Deuell 147, 698, 702 F. P. & W. R. R., 373, 374, 375, 376, 379, 380, 507, 747, 763 Hager f. Clute 784 Haggard v. Wallin 8, 314 Haggerty f. Wilbur 340 Haight V. Haight 630 Haile v. Hill 464, 465 Hainer f. Lee 470,475 Halbrook f. Hyde 211 Halcomb r. Bricldey 664 Hale F. Fitch 797 834 INDEX OF CASES CITED. PAQES. Hale V. Wigton 288, 705 Hall V. Amos 27 T. Draper 269 V. Durham, 126, 182, 184, 294, 298, 386 V. Edrington 473 V. Gillmore, 130, 131, 133, 427 r. Hall 177 r. Hinline 407 V. Jenness,403, 533,610, 632 V. Monroe 364 r. Moriarity 551 V. Naylor 131 T. Eobinson 226, 245 F. Smith, 355, 453, 682, 717, 718, 756 V. Tittabawassec B. Co... 271 V. Tuttle, 106, 147,151, 166, 337 T. White, 37, 223, 229, 230 257, 651, 675 Halleck y. Mixer, 195, 198, 224, 306, 311 Hallenbake v. Fish 68, 557 Hallensbee r. Eitchey 769 Hallet r. Byrt, 163, 338, 343, 702 V. Fowler 53, 637 V. Mountstepheii...335, 762 r. Novion 523 Halliday v. Lewis 51, 52 Halloek r. Eumsey 172 Hallowell r. Milne 706 Halsted v. Cooper 394 Hamaker r. Blanchard 82 Hambly r. Trott 224 Hamer v. Hathaway, 522, 524, 525 Hamilton r. Browning, 251, 452, 619, 651 F. Clark, 45, 637, 653 F. Duty , 236 F. Iowa Bank 561 F. Singer Sewing Ma- chine Co 259, 266 PAGES. Hamilton r. Stewart, 188, 191, 342 Hammer r. Wilsey 467 Hammond r. Eaton 308 V. Lynes 130 r. Mead 54 F. Morgan, 141, 616> 669 F. SoUiday 528, 570 Banauer r. Bartels, 262, 475, 481 Hanchett v. Buckley 746 V. Eiverdale 806 F. Sorg 128 Handley f. Hathaway 361 Handly r. Eankins 669 Hanford r. Obrecht, 596,617,653, 669 Hanna f. Baily 296, 309 F. International, &c., 235, 767 F. Steinberger 163 Hannebutt F.Cunningham 159 Hannum r. Norris 326, 365 Hanover r. Coyl 507 Hanrahan f. O'Reilly 190, 191 Hansard f. Read 717 Hanselman f. Kegel 467, 480 Harbough v. Albertson 792 Hardin v. Joice 74, 424 F. Palmerlee 664 Harding f. Coburn 245, 292 Hardy v. Clendening 150, 256 F. Donnellan 110 F. Keeler 373 F. Moore 572 Hare v. Stegall 28 Harker v. Arundell 728, 758 Harkey v. Tellman, 117, 230, 439 Harkis v. Demont 539 Harlan v. Harlan, 33, 52, 58, 186, 190, 195, 198, 200, 210 Harman f. Fisher 183 Harmon v. Goodrich 576, 683 Harper v. Baker 132, 392 F. Mofiet 589 INDEX OF OASES OITEl). 835 FASES. Harriman v. Wilkins 353, 363 Harrington r. Hubbard 132 Harris v. Austell 148, 152, 609 r. Harris, 44, 46, 635, 726 V. Hillman 257 r. Newman 203, 206. V. Smith, 51, 75, 122, 218, 224, 764, 799 Harrison F. Harrison 513 T. Ho£f, 193, 196, 197, 697 r. Mcintosh, 42, 52, 114, 218, 407, 447 V. Ryan 464 F. Utley 738 F. Wardle .717 F.Wilkin.. .739, 762, 793 Harrod v. Hill 643 Hart F. Blake 478 F. Fitzgerald, 15, 46, 118, 227, 291, 432 F. Livingston 269 F. Morton , 211 F. Ten Eyck 213 F. Tobias 781 F. Vinsant 200, 579 Hartford r. Jones 255, 290 Hartgraves r. Duval 640 Hartlepp v. Cole, 165, 286, 360, 737, 789, 791 Hartman v. Keown 77 Harts F. Wendell..... 785, 807 Hartt F. McNeel 549 Harwood r. Smith 216 F. Smethurst, 6, 42, 69, 394, 406, 564 Haskill F. Andros 150 Hass V. Prescott .296, 615 Hatch F. Coddington 434 F. Dwight 184 F. Fowler, 17, 38, 52, 53, 58, 297, 569 F. Hart 499 Hathaway v. St. John 232 Haven f. Emery 191 PAGES. Haverstick v. Fergus 64, 141 Hawes f. Robinson 295, 296 F. Smith 737 Hawk F. Leppel 154 Hawkins v. EcMes 388 F. Hoffman 257 F. Taylor 379, 380 F. Johnson 287 F.Roberts 298 Hawley v. Warner, 457, 756, 790 F.Bates 308 Hay r. Hayes 337 Hayden v. Anderson 457, 533 F. Shed 338 Haydon f. Haydon 110 Hayes f. Campbell 269 F. Miller 225, 226 Haynes v. Crutchfleld 295, 606 F. Knowles Ill F. Ledyard 574 Haysett v. Ellis 554 Haythorn f. Rushforth, 34, 68, 256, 269 Haywai^d v. George 96 Haywood v. The State 45 Hazard f. Hall 60 Hazzard v. Burton 269, 404 Heagle v. Wheeland, 154, 159, 165, 172, 173 Heald f. Cushraan 604 Heap F. Jones , 88, 433 Heard f. James, 12, 202, 203, 206, 506, 507, 526 Heath f. West 54 Heaton f. Findley 189, 190 Hebel f. Scott 625 Hecht F. Dettraan 182 Hecklin f. Ess 280 Hedderick r. Pontet 733, 739 Heddy r. Fuller 611 Hedman r. Anderson 395, 437 Hedrick r. Gobble 554 Heffner r. Reed 629 Heftord v. Alger 777, 785 Helen f. Gray 58, 79 836 INDEX OP CASES CITED. PAGES. Heller r. English 618 Hellings v. Wright ...302, 388, 407 Hemenway v. Bassett 184 Henach v. Chancy.. ..361, 367, 736 Henderson v. Desborough,287, 560 r. Felbz 70, 230 T. Lanck 209, 210 Hendricka v. Decker, 178, 297, 512 Hendriekson v. Waker 614 Henry v. Ferguson 660, 803 r. Fine 248 V. Qackenbush 790 Henshaw v. Bryant 131 Hpnaley v. Brodie 193, 199 Herbert v. Waters 454 Herdic v. Young, 14, 15, 33, 58, 202,473,487,488,496, 503 Herley v. Hume , 403 Heron v. Beckwith 602 Herron r. Hughes....l02, 249, 289 Hersey v. Benedict 137 Hershey v. Fry 169 Hershiser v. Delone 299, 597 r. Jordan 732 Hershler v. Eeynolds 759 Herzberg v. Sachse, 225,233, 454, 596 Hess V. Griggs 65 Hewett V. Hatch 63 Heuitson v. Hunt 6 Hewitt V. Jenkins 295 r. Morris 412 Hewlett V. Owens 117 Hewson v. Saffen 603, 621 Hexter v. Schneider 264, 429 Heyden v. Anderson 801 F. Smith 539 Hcyland v. Badger.. .12, 53, 87, 91 Ht-yman v. Covell 160, 163, 432 Hibbard v. McKindley 741 Hibbs V. Dunham 163 Hickey v. Hinsdale, 11, 15, 18, 39, 49 Hicklin v. Nebraska 736 PAGES. Hickman v. Dill 9, 88, 422, 654 Hicks V. Britt 149, 243, 248 V. Fluitt 61 r. McBride 757 F. Mendenhall 369, 741 F. Stull 366, 691, 709 Higbee v. McMillian 685 High F. Johnson 616, 634 Highnote v. White 291,665 Hiles F. McFarlaue 328 Hilger v. Edwards 68, 560 Hill F. Bloomer 640 F. Butler 296 F. Covell 242 F. Durham 18 F. Fellows 564, 634 F. Freeman 52, 125, 131 F. Graham 170 F. Miller 17 r. Nelms 370 r. Robinson 53, 57, 292 F. Seager 115 F. Stocking 389, 612 F.Wilkinson, 309, 627, 643, 654 F. Wright 175 Hillings V. Wright 198 Hills V. Parker 158 F. Passage Hillyer v. Brogden 61 Hilson F. Blain 29 Hilton F. Osgood 148 Hinchman v. Batterson 112 F. Doak 645 Hinckley v. Kreitz 765 F. West 599 Hines v. Allen 166, 699 F. Ament 191, 192, 193 F. Chambers 264 Hinkson v. Morrison 440, 465 Hinnian F.Borden 331, 334 Hirschorn v. Carnny 127 Hirshler v. Eeynolds 758 Hiscock F. Greenwood 206 Hisler r. Carr 525 INDEX OF OASES CITED. 837 PAGES. Hoag V. Breman 698 Hobbs V. Hobbs 77 r. Meyers 563, 566 Hocker v. Strieker 336, 370 Hodgeden v. Hubbard 11 HodgeH r. Lathrop 47 Hodgkms v. Dennett 437 Hodson V. Warner. ..122, 127, 163 Hoeffner v. Stratton 640 Hoeser v. Kraeka 606, 607 Hoester v. Teppe 519 Hoffman v. Carow, 215, 216, 220, 250 V. Conner 345, 674 V. Noble 267, 636, 653 V. Steinan 656 Hofheimer v. Campbell 363 Hogue V. Fanning 609, 630 Hohenthal v. Watson, 453, 458, 667 Hoisington F.Armstrong, 314,445 V. Brakey 233, 663 Hoke V. Applegate 293, 665 Holbrook v. Wight, 12, 248, 249, 256, 315, 563 Holcomb V. Davis 177, 254 Holderman r. Manier 417 Holiday v. Hicks 292 F. Lewis 60 HoUaday v. Bartholomae 97 Holland f. Griffitli 708 Hollensbee v. Ritchey 759 Holler V. Colson 59, 794 Holliday v. CaTnsell 223 F. M'Kinne 624 Hollingsworth v. Dow 79 HoUis F. Smith 224 Holly V. Flournoy 497, 525 Holmark f. Molin 122 Holmberg v. Dean 399, 401 Holmes v. Bell 91 V. Godwin.. ..308, 494, 519 F. Sawtelle 554 Helton F. Binns 115, 117 V. Lewis 407 PAGES. Homan r. Laboo, 240, 241, 243, 529 Home Ins. Co. v. Howard 127 Homer f. Fish 498, 774 y. Hathaway, 467, 509, 514 Hood F. Jndkins 175 V. Spaeth 627, 724 Hoodley v. Watson 499 Hooker f. Hamill, 415, 458, 496, 632, 652 Hoover v. Hayes 31, 197 F. Rhoads....282, 299, 462 Hopewell v. Price 452, 577 Hopkins v. Barney.. .393, 395, 455 F. Chambers 739 V. Drake 9, 154, 166 F. Hopkins...l5, 390, 447 V. Ladd 777 F. Thompson 226 Hopper F. Miller 56, 70, 104 Horner v. Boyden 729, 806 Horr F. The People 345 Horton v. Home 641 F. Vowell 353 Hoskins f. Robins 461 Hosmer v. Moseley 570 Hotchkiss F. Ashley, 17, 416, 602, 618,619 V.Hunt 122, 293 F. McVickar 55 Houf F. Ford 302, 606, 632 Houghtailing v. Usborne 618 Houghtaling v. Hills 315 Houghton F.Newberry ".. 37 F. Peck 478, 541 F. Ware 366, 367 Houselman f. Kegel 76, 459 Houston F. Smythe 581 Hove F. McHenry 40 Hovey v. Coy ...659, 726 Howard f. Black 387, 396 F. Braton 644 V. Crandall 166 F.Dili 27 F. Reed 718,719 838 INDEX OF CASES CITED. PAGES. Howe V. Freeman ICl V. Handley 360,558, 739 F. Oyer 341 Howell V. Foster 304, 406, 684 r. Kropse 268 y. Skink 182 Howes V. Newcomb , 98 Howland v. Fuller 153, 562 V. Howland 76 T-. Woodruff 76,122 Hoyt V. Thompson 226 Hubbell r. Allen 99 Huber v. Shearick 149 Huckell V. McCoy., 350, 628 Hudd v. Eavenor 24 Huddleston v. Huey 36, 55 Hudler v. Golden, 32, 168, 169, 170, 172, 174, 401 Hudson V. Mase 245, 247 ' V. Snepes 421 r. Swan, 115, 120, 315, 392 V. Young 473 Huebner v. Koebke 87 Huobschmann v. McHenry 197 Huff V. Gilbert 602, 612 Huggeford v. Ford ..461, 467, 558 Hughes V. NewBone 362 V. Wicklifie 786 Hull V. Halstead 658 V. Hull 70, 212 V. Jenness 234 V. Tuttle 55 Human v. Pettitt 554 Hume V. Tufts 54 Humfrey v. Misdale 454 Humphrey v. Boyu..ll8, 326, 687 V. Taggart, 354, 355, 716, 717, 719, 720, 727, 728 Humphries r. Eeed 271 Hundley v. Buckner 225 Hungerford v. Bedford, 194, 200, 205, 486, 488, 496 Hunn r. Hough 379, 380 PAOHB. Hunt r. Bay State Iron Co 191 r. Bennett, 408, 599, 602, 611 F.Bond 785 V. Chambers, 12, 13, 14, 18, 51, 57, 69j 71, 113, 117, 411, 564, 565 V. Mootry 697 T. Moultrie 653 F.Pratt 150 F. Eobinson, 15, 377, 379, 380, 703, 770 F. Eou.smanier 228 F. Strew 31, 58, 72, 106 F. Williams 262 Hunter F. Hoole 630 F. Hudson, 130, 131, 284, 297 F. Le Conte 447 F. Sherman, 730, 731, 772 Hurd F. Gallaher 471, 653 V. Simonton, 284, 285, 289, 386 F. West 11,292 Hurlburt v. Goodeill 447 Huron v. Beckwith, 18, 400, 598, 629 Hurst F. Gwennap 158, 218 Hurt F. Wilson 748 Hussey r. Thornton 125, 131 Huston F. Wilson 602 Hutchins f. Buckner 469, 475 F. Hutchins 249 F. Weldin.; 75 Hutchinson r. Bobo 249 F. Dubois Ill F. McClellen, 14, 333, 348 Hutchison f. The Common- wealth 210 Hutt F. Bruckman 17, 90 F. Morrell 664 Hutton F. Denlon 796 Hyatt F. Adams 507 F.Wood 151 INDEX OF CASES CITED. 839 PAGES. Hyde v. 0ookson,204, 206, 212,488 V. Noble 102, 218, 257 r. Patterson 384 r. Stone 468,471 I. I. & St. L. R. & C. Co. r. Ogle, 487 Ice V. Lockridge 297, 314 Esley r. Stubbs," 106, 166, 337, 695, 701, 702 Imel r. Van Derin 716, 781 Inberville r. Self 444 Ingalls V. Bulkley, 240, 245, 247, 255, 256, 270, 391, 395, 563 F. Lord 483 Ingersol v. Emmerson, 55, 68, 71, 103, 104, 218 Ingersoll v. Van Bokkelin, 485, 540 Ingle V. Mudd 592, 599 F.Scott .....283 Inglebrjght v. Hammond, 21, 209, 210 Ingxaham r. Hammond, 392, 408, 645 F. Mead 407 V. Martin 57, 87, 643 Inhabitants of Brooklyn v. Sherman 62 Iron Cliff Co. r. Lahais 155 Iron Co. V. Tilghman 457 Irvin V. Smith 678, 679 Irving r. Motly 133 Irwin r. Knox 602 Isaac V. Clark 10, 256, 274 Ives V. Carter 499 V. Humphreys 125 Ivey V. Hammock 22, 111 J. Jack V. Martin 601 Jacks V. Smith 25 PAGES. Jackson v. Anderson 292 r. Bard 554 v. Bronson ,.. 184 F. Bry 778 V. Cunningham 88 F.Hale 42 F. Hansen 718 F.Hubbard 85,427 F. Miller 554 F. Rutherford 36, 417 F. Sparks 18, 218 F. Stockard 118 F. Virgil 282, 302, 554 Jacob F. Nathan 762 Jacobs r. Parker 627 Jacobson v. Metzgar 789 Jacoby f. Laussatt, 256, 269, 274, 512, 523 Jagger F. The L. & G.Mfg. Co. 754 JarrardF. Harper 610, 629 James v. Dulap 391 F. Fowler 295,438,582 F. Griffin 126 F. Stratton 110 F. Van Uuyn 568 ■ Jamison v. Capron 224, 767 F. Moore 503 Janner v. Joliffe 147 Jansen f. Acker 344 F. Eftey,' 397, 399, 401, 632, 639 Jaques r. Sanderson 325, 690 Jaquith r. Davidson 461 Jarroll f. McDaniel 114 Jefferson f. Chase 102, 123 Jeffrey v. Bastard 334, 363 Jeffreys v. Greeley 584 Jenkins v. Steanka-, 212, 559, 604 Jenney r. Jenney 425 Jennings v. Gage, 122, 128, 129, 132, 138, 218 F. Hare 769 F.Johnson, 371, 457, 533, 534, 541 F. Prentice 569, 568 840 INDEX OF CASES CITED. PAOES. Jennison v. Haire, 356, 371, 675, 725, 731, 792, 793 Jessop F. Miller 122, 242, 258 Jetton V. Smead, 226, 409, 458, 555, 632 Jewell F. Lamareaux 693, 707 Jimlson v. Reifaneider 438 Jiminerson v. Green 65, 68 Joint School Dist. r. Kenien, 34, 72, 300 Johnson v. Barber 194 V. Carnley, 18, 52, 54, 69, 71, 284, 285, 440 r. Elwood 182 F.,Evans 110 T. Fellows 658 F. Garliclc 37, 40 r. Howe, 187, 253, 395, 409, 551, 603, 644, 647 F. Johnson 247 F. Marshall, 497, 522, 525 F. Mcintosh, 72, 204, 212 F. McLeod 606 F. Monell, 131, 133, 298, 379 F. Moore; 582 F. Neal, 55, 68, 212, 284, 297, 314, 565, 643, 650 F. Peck 215, 217, 218 F. PruBsing 38, 61, 94 F. Sumner 523 F. Weathervvax 765 F. Weedman 473 F. Willey 102 F. Wing 177, 178 F. WoUyer 393 Jones F. Allen 249, 520 F. Anderson 55, 59, 606 r. Clouser 177 F. Dodge 46, 119, 423 F. Evans 88 F. Gundrin : 25 F. Hicks 539 PAGES. Jones V. Julian 597 V. Lowell 485 F. Peasley 381 F. PuUen ,..606, 607 F. Eahilly 398, 468 F. Sinclair 79 F.Smith 782,794 F. Spears 253, 265, 550 F. Taylor 93 F. Thomas 182, 183 F. Thompson 110 F. Ward 149, 587 Joplin F. Carrier 220 Jordan v. Dennis 690 F. Owen 165 F. Thomas 206, 647 Josslyn V. McOable 188, 635 Joyner r. Miller 83, 436 Judd F. Fox, 106, 154, 165, 166, 172, 388, 444 Judge of Probate v. Heydock, 788 June F. Payne 808 Just F. Porter 459 K. Kaehler v. Dobberpuhl 168, 301 Kaeftner v. Stratton 635 Kafer v. Harlow 756, 802, 805 Kammon v. Lane 156 Karr r. Barstow 308, 663 Karthaus v. Owings 42, 805 Kaster v. Pease 262 Kates F. Thomas 641 Kauffman F. Schilling, 21, 209, 210, 291, 294 Kaufman v. Wessel 749, 785 Kautzler v. Albertson 809 Kavanagh v. Phelps 561 Kay F. Noll 436, 549 Kayser f. Bauer, 370, 382, 647, 678,701,752 Keaggy v. Hite, 420, 483, 512, 513 Keegan v. Cox 118, 223 INDEX OF OASES CITED. 841 FAQEB. Keeler r. Field 125 Keep V. Kaufman 476 r. Moore 274, 424 Keesling v. McCall 312 Kehoe r. Rounds, 279, 282, 458, 648 Keite f. Boyd 425 Keith r. Bradburry 391 r. Johnson 341 Kellar v. Carr 763, 785 Kelleher v. Clark 270, 701 Keller f. Boatman, 308, 411, 611, 707 Kelley f. Burchfleld 140 ■ F. McKibben, 469, 500, 605, 629 Kellogg F. Adams 71 F. Churchill, 148, 150, 166 F. Freeman 441 F. Olson 253 F. Turpie 136 Kelly F. Altemus 476 F. Bliss 304 Kelsey v. Griswold 245 Kelso F. Saxton 324, 648 Kenash v. Lane 425 Kenaston v. Moore 290 KendaU f. Fitts, 359, 451, 462, 463, 615 F.Stokes 663 Kendrick v. Watkins 687 Kendy v. Green 119 Kenley v. Commonwealth, 759,763, 785 Kennedy f. Beck 323, 707 F. Brent 331 F. Brown 756 r. Clayton 400, 437 F.Shaw 398,400 F. Strong 512,523 F. Whitehead 539 F. Whitmore 523 F. Whitwell 512 Kennett r. Fickle, 400, 421, 479, 562 PAGES. Kennet v. Robinson.... 242, 254 Kenney v. Crocker 163 F. Degman 185 F. Mallory 360,361 Keog F. Daniel 188 Kerby v. Meller 60 Kercheval f. Harnpy 752, 763 Kerley v. Hume, 69, 256, 561, 639 Kern r. Huidekaper, 165, 315, 408 Kerr v. Drew 434 Kerrigan v. Bay 577 Kersen brock F. Martin 531 Kesler r. Hayes 353 Ketcham r. Hill 553 Ketehum v. Brennan 574, 606 Keys F. McNulty 730 Keyser v. Harbeck 132, 218 F. Watterburry 168 Kidd F. Beldin 60 Kidder f. Merryhew 721, 804 Kiefer r. Carrier 57, 261 Kier v. Peterson 189 Kilby F. Wilson 131, 217, 218 Kilgore v. Smith 421 Killey r. Scannell 252 Killian v. Carrol 53, 81 Kimball v. Adams 44, 443 F. Citizens Bank 689 F. Cunningham, 128, 129, 136 F. Farnum 268 F. Lohmas 198, 199 F.Thompson, 115, 118, 120, 227, 650 F. True 287,352,363 Kimberly r. Patchen 209, 210 Kimmel V. Kint 355, 683, 716 Kinoaid r. Bradshaw 353 Kindy f. Green 21, 118, 227 King F. Baldwin 107, 758 V. Chase 331, 666 F. Conneoy 557 F.Ford 177 F. Hoare 663 F. Mason 136 842 INDEX OF CASES CITED. PAOES. King- r. Orser, 39, 261, 343, 311, I 538 V. Ramsey, 609, 645, 652, 789 Kingsbury v. Buchanaii,16, 56, 402 Kingsbury's Exrs. r. Lane's, 13, 14 Kingsford v. Merry 218 Kingsland v. Clirisman 91 Kinney v. Crocker 162 Kinsey v. Leggett 80, 125 Kipp r. Wiles 512 Kirby F.Miller 68 Kirch V. Davis 190, 191, 304 Kireher r. Schalk 184 Kirk V. Morris 3, 84 Kirkham r. Hargraves 249 Kirkpatriek r. Cooper, 293, 296, 302, 599 r. Snyder 58 Kirskey v. Friend 737 Kitchell V. Vanader 103 Kitchen v. Clark 272 Kittridge v. Holt 149 Klsety V. Delles 422, 455, 758 Kline v. Kline 120 Kloeckner r. Bergstrom 143 Klotz V. Macrady 112 Knapp V. Colburn 724, 731 y. Roche 313 K Smith 39,231,233 y. White 64 Kneas v. Fitter 340 Knott r. Cunningham 668, 703 V. The People 379 Knowles v. Lord 349 v. Pickett 691 r. Pierce 619 Knox V. Heliums 63 V.Noble 288,670 Kofer V. Plarlow 559 Koper V. Cotton 618 Kortwright v'. Com. Bank 522 Kouns V. Bank 367 Kramer v. Matthews, 18, 662, 665 KrauertF. Simon 138 PAGES. Krause f. Curtis 408 F. Cutting 601, 602 Krosmopolski v. Paxton 42 Krug F. Herod 549, 557 Kruger v. Pierce 334, 708 Kuehne r. Williams 47 Kuhn F. Newman 109 F. Spellacy 737 Kuhns F. Gates 255, 552 Kunkle F. State 151 Kyle's Admr. f. Kyle 554 Laborde v. Eumpa 456 LaCrosse r. Robprtson 533 Lacy V. Farnharm 282 F. Gibony 92 F. Weaver 19, 20, 21, 46 Ladd F.Billings, 110, 114, 118, 227 F. Brewer 469, 479, 645 F. Newell 625 F. North 83, 231 F. Prentice, 675, 716, 717, 725, 753, 759 Laflin f. Griffith 93 LaFontain v. Green 5S LaGrange v. State Treasurer.. 46 Lamb f. Day 452 Lambden f. Conoway, 355, 356, 735 Lambert v. McCloud 437 F. McFarland....604, 632 Lamberton r. Foote 610 Lammers v. M&yer 398, 609 Lamotte v. Wisner 37, 55 Larhphrey v. Munch 574 Lamping f. Kunon 240 F. Payne 405, 631 Lamy v. Eemuson, 327, 460, 558, 692 Lam Tip f. Ching Sing 143 Lance v. Cowin 215 Lander v. Ware, 389, 503, 504, 506 INDEX OF CASES CITED. 843 PAGES. Landers v. George, 392, 400, 446, 645,662, 775, 797 Landler r. Bresnaham 210 Lane v. Chadwick 270 r. Foulk 722 V. Sparks 400 Lang V. Daugherty 629 Langdoe v. Parkinson, 357, 717, 719, 784 Langdon v. Buel 85 V. Paul 184, 195, 198 Lanraan v. Des Moines 175 Lansing r. Sherman 664 Lanyon r. Woodward 20, 658 LaPlace v. Aupoix 253, 260 Latham r. Blakely 184 Lathrop r. Blake 61 V. Bowen 37, 691 r. Cook 11, 147, 150 V. Locke 243 Latimer v. Hotter 9, 538 V. Wheeler 243, 557 Lanbenhoimer v. McDermott, 86 Laughlin v. Fairbanks 88 V. Kavanaugh 708 V. Main 164 V. Thompson, 331, 338, 384, 410, 418 Laurendan r. Pugelli 195 Lavacool f. Boughton 172 Lavelle r. Lawry 609 Lavigne v. Euss 388 Lawrence r. Burnham, 110, 114, 116, 291 r. Coyne 152 F. Featherston 722 F. Maxwill 243 V. State 81 Lawson r. Lay 12, 248 F. Patch. 186 Lawyer v. Baldwin 48 Lay F. Lawson .". 465 Laymon f. Hendrix 631 Layward r. Warren 230 Lazard v. Wheeler 226, 227 PAGES. Lazarus v. Trible 748 Lea r. Terry 291 Leadbetter f.. Kendall 338 Lear r. Edmonds 24 Learned v. Bryant 104 L. E. & St. L. E. E. F. Payne, 286, " 301, 310 Leavitt r. Metcalf 150, 153 Lecky v. McDermott 102, 397 Ledford v. Weber 802 Ledley v. Hays 243, 252, 264 Lee F. Gould 256 F. Grimes 794 F. Hastings 632, 756, 759 F. Portwood, 216, 217, 219, 437 Leesev. Sherwood 693 Lefler r. Field....! 436 LeFlore f. Miller 58, 79 Lehman v. Kellerman, 35, 56, 195 Leibert v. McHenry 68 Leighton r. Brown, 515, 559, 724, 702, 773, 777, 784, 786, 805 F. Harwood...,..157, 158 F.Stewart 460, 624 Lendauer v. Teeter 462 Lenox f. Fuller 661 Lentz F. Flint 431 Leonard r. Hannon 326 F. Maginnis, 264, 467, 63,3 F.Stacy 659 F. Stickney 199 F. Tidd 250 V. Whitney, 88, 466, 538, 570, 654, 724, 775, 788,801 LeEoy r. East Saginaw Ey., 168, 171, 172, 248, 251, 428 Leroy r. McComiell 289, 561 Lesser r. Norman 461 Lester v. East 58, 64 F. McDowell 68, 394, 562 Letson r. Dodge ,..; 765 8i4 INDEX OF CASES CITED. PAGES. Leven r. Smith 122, 125 Leverty r. Snethen 243 Levi V. Darling 402 Levin r. Russell 310, 312 Levy r. Cowan i^ll Lewis V. Blair 349 r. Brackenridge 309, 385 F. Buck 162, 609, 653 r. Burnham....;. 577 r. Lewis 602 V. Marten 588 T. Mason 78 r. Masters, 241, 244, 245, 248, 562, 588 Lewisville v. Holbom 165 Libby v. Main 742 V. Murray 37, 40, 41 Lickfelt r. Kopp..;...: 689 Lightfoot r. Jordan 230 Lill r. Stookey 641, 683, 688 Lilliard v. Whitaker 512, 523 Lillie r. Dunbar 194 V. McMillian 466 Lills, &c., V. Russell 261, 577 Linch r. Welsh 206 Lindauer r. Teeter , 601 Linder v. Brock 361, 782, 802 Lindley v. Kelley 20 ^ F. MUler, 28, 387, 389, 390, 420, 444 Lindsay v. Blood .-720 r. Perry 49 Lindsay Exrs. v. Armfleld 331 Lindsey v. Wyatt 561 Ling V. King 182 Lingham v. Warren 24 Lininger r. Herron 95 Link V. Clemmens 361, 739 Linn v. Wright 581 Linscott V. Trask 574 Linsley v. Bushnell 499 Lisenby r. Philps 115 Litchfield v. Halligan 409 Litchman r. Potter 294, 325 Litterel r. St. John 247 PAOES. Livermore r. White 81 Livingston v. Farish 20 F.Smith 411 F. Superior 356, 358 Livor F. Orser 87, 153, 53& Lloyd V. Brewster 131, 139- V. Goodwin 68, 541 Lobdell V. Stowell 522, 525. Locke F. Hedrick 552 Lockhart v. Little 291 Lockwood F. Bull, 61, 83,242,249 F.Perry, 380,381, 700, 747, 763 Loeschman f. Machin, 93, 102,. 255 Logan F. Houlditch 260 Loker r. Damon 509, 541 Lomme r. Sweeney, 725, 747, 791, 809 Long F. Cockrell 536, 537 Lood F. Green 142: Loomis F. Foster 396 F.Tyler 16,391 F.Youll, 283, 285, 549, 582 Lorch F. Altman 419 Lord F. Bicknell 335 F. Poor 332 Lorton f. Fowler 95' Lothrop F. Locke 557 F. Southworth 758- Lougee f. Colton 394 Louthain f. Fitzer...231, 232, 557 F.May 57a Loveday v. Mitchell 6& Lovejoy v. Bright 361, 747 F. Jones 102 F. Murray 668, 703 Lovensohn r. Ward 16, 42a Lovett V. Burkhardt 373, 377 Lovigne v. Russ 388 Low F. Freeman 141, 553 V. Martin, 46, 213, 214, 291, 608 I Lowe F. Brigham 639, 674, 69» INDEX OF OASES CITED. 845 PAGES. Lowry r. Hall, 13, 14, 68, 220, 373, 394, 431, 695 V. Mansfield 329 L. S. & M. S. E. R. r. EUsey, 54, 56,79 L. S. & M. S. Ry. V. Roach 172 Lucas V. Daniel 608 Ludden r. Leavitt 52, 224 Luddington v. Peck 388 Lufkin V. Preston 21, 439 Lugden r. Beasby 183' Lugenbeal r. Lemert 371 Luha V. Holt 184 Lull V. Matthews 184 Lummons v. Austin 104 Luut c. Brown 54 Lupen r. Marie 125 Lupton V. White 213, 214 Lutes V. Alpaugh 784 Luther v. Arnold 326, 352 Lutz V. Yount 253, 437 Lyle V. Barker 537, 538, 539 Lyman v. Becannon 563 Lynch v. Bueher 245 T. Thomas 423 F.Welsh 571 Lynd v. Pickett 152 Lytle V. Crum 433 M. Machette r. Wanless, 424, 475, 477, 481, 601, 608 Mack V. Parks 342 MacKey r. Dellinger 272, 422 MacKinleyF.MacGregor.lSl, 135, 392 Macklot r. Davenport, 168, 169, 173 Macomber v. Saxton 97, 655 Maddux v. Usher 124, 160, 163 Madigan v. McCarthy 186 Madl&on Nat. Bank F. Farmer, 297, 419 Magdeburg v. Uihlein 104 PAGES. F.Scott 574 F. Siggerson 324 Magmer v. Renk 809 Magruder f. Marshall 765, 791 Mahoney r. Smith 606 Maids F. Watson 707 Mains r. Perkins 407 Mairs v. Ta.ylor 653 Malcolm r. Loveridge, 132, 138, 218 Mallock F. Fry 44 Mallory v. Willis 206 Malone v. Stickney 294, 298 Maloney v. Griflin, 409, 430, 695, 698 Manheimer r. Harrington 133 Manix f. Howard 684 Manley v. Headley 299 Mann r. Grove 528, 616 F. Welton 152 Manning v. Albee, 129, 132, 219, 439 F. Bresnahan ....536, 573 F. Keenan 322, 345 F. Manning, 685, 71 8, 783 F. Mitcherson 45, 235 F. Pierce 731 Mansfield v. Blackburn 186 Mansir r. Crosby 691 Manty f. Arneson ,. 156 Maple F. Vestal 168, 170 Marbury r. Madison 47 Marchman v. Todd 256, 577 Marford v. Unger 174 Marienthal f. Shafer 57, 221 Marix v. Franke 632, 668, 756 Markham v. Jandon 513, 522 F. Middleton 602 Marks f. McGhee 42 i, 628 Marsh f. Pier 114 F.White 11,151,772 Marshall v. Bunker* 16, 682 F.Davis, 10, 11, 12, 31, 83, 36, 55, 133 9M. 297, 393 846 INDEX OF CASES CITED. PAGES. Marson v. Plummer 131 Marston r. Baldwin 3, 131 F. Eoe 188 Martin r. Bagley 96, 644 V. Boleubaugh 736 T. Hill 93 F.Mott 173,174 r. Porter, 204, 206, 487, 524, 526 r. Ray 407,415,586 y. Scofield 196 r. Thomas 789 r. Watson, 61, 83, 297, 394, 402, 404, 564 Martinez v. Martinez 9, 298 Martz V. Putmau 145, 584 Marx r. "Woodruff 177 Mason r. Bichards, 632, 639, 682, 725, 756, 793 V. Sumner, 485, 675, 782, 795 Masson r. Bovet 129 Masterson v. City of Brooklyn, 501 Matheny r. Mason 106 Mather v. Hutchinson 565 r. Trinity Church, 189, 193, 195 Mathias v. Sellers 274, 416, 709 Matlock V. Fry 46 y. Straughn 413, 652 Mattenwan Co. y. Bentley, 129, 131 Matthews y. Cole 516, 520 y. Sherwell 483 y. Storms, 354, 733, 741 Mattingly v. Crowley 346, 641 Mattison v. Bancus 95 Mattoon y. Pearce, 440, 467, 778, 803, 805 Mattson y. Haniseh 391, 600 Matzon y. Griffin 185 Maxey v. White, 231, 301, 327, 686 Maxham r. Day 49, 342 Maxon y. Perrott 163, 231, 329 Maxwell y. Hannon ; 705 PAGES. Maxwell r. Light 577 May y. Johnson 801 Mayberry y. Cliffe, 380, 382, 458, 460, 469, 478, 485, 496, 505, 516, 522, 542 Mayhue v. Snell 36, 696 Mayo y. Winfree 26 McAdams v. Walbran 258 McAllister y. Clopton 667 y. Lawler 182 McArdle y. McArdle 445 McArthur v. Currie 70, 257 y. Hogan 284 y. Howett 480, 688 y. Lane, 112, 113, 432, 439, 686 y. Oliver 15, 113 y. Sane 639 McAuliSe r. Mann 188 McAvoy V. Medina 81 McBeth y. Van Sickle 747 McBrayer y. Dillard 566 McBrian r. Morrison 40 McBride v. McLaughlin 503 McCabe y. Morehead, 455, 503,508 McCartney r. Wilson 98 McCarty y. Gage 341, 404 y. Quimby 472 y. Vickery 132 McCauley y. Offutt 768 MoChing y. Bergfleld 419 McClain v. Cherokee 299 McClaughry y. Cratzenberg, 168, 172, 175, 279, 282, 285, 302 McClellen y. Marshal 641 McColgan y. Huston 321 McCombie v. Davies 79, 250 McConnell y. Kibbe 527 McCormick y. MoCormick 638 y. Riewe 187 McCourt y. Bond 325, 569 McCoy y. Anderson 168, 171 y. Beck 285 INDEX OF CASES CITED. 847 PAGES. McCoyJr. Cadle 18, 79, 89 V. Cornell 483 V. Reck 165, 311 McCraw r. Welch 402, 569 McCue V. Tunstead 635 McCuUough r. Hellwig 272 McCurdy 7. Brown 57, 64 McDaniel v. Allen 46 r. Fish 688 V. Fox 538 McDermott v.. Doyle 354, 750 T. Isbell, 688, 718, 765, 792 McDonald r. Holmes 232 V. McDonald 584 y. North, 467,471, 500, 508, 511 r. Norton 504 r. Prescott 404, 407 V. Scaife 504, 505 F.Smith 219,247 McDorrgall r. Travis 228 McDowell F. Bissell 213 McEldury y. Flannigan, 46, 113, 116 McElvain v. Mudd 424, 466 McEvoy F. Hussey 48, 299 McFadden v. Fritz, 410, 666, 738, 791 F. Ross 18, 665, 791 McFarlan f. McCIellan 563 McFarland f. McNitt 717, 724 McFerrin v. Percy 418 McPitridge v. Piper ,. 126 McGavock v. Chamberlain, 457, 478, 480 McGee r. Given 340 f. Overby.... 411 McGill V. Howard 419 McGinnis v. Hart 457, 637, 728 F. Savage, 123, 203, 482 McGlothlin r. Madden 74 McGoon r. Ankeny 226 McGough F. Wellington 554 McGuffle F. Dervine 363 FAdES McGnire f. Benoit 89 F. Gallegan 472, 691 McHugh F. Robinson 41 Mcllvaine f. Holland, 392, 407, 640 Mclnery f. Samuels 690 Mcintosh F. Parker 417 Mclntyre v. Carver 79 F. Eastman, 422, 581, 709, 759 Mclsaacs r. Hobbs, 33, 57, 68, 95, 96 McKay f. Batchellor 174 F. Draper 706 McKeal r. Freeman 637, 638 McKean v. Cutter 4Sl, 615 MoKee f. Judd 226 F. Metraw 385 F.Pope 761 McKennon v. May 56, 210 McKesell v. Chaney 636 McKesson' v. Sherman 302 McKinney r. Green 657 McKinnis f. L. R. M. R. & T. R. R 202 McKinnon f. McEwan 478, 542 McKnight v. Dunlap 408, 636 F. Morgan 217 McLain v. Hall 691 MoLarren f. Thompson 453 McLaughlin v. Piatti, 74,104, 119 McLean v. Cook 341 McLean Co. v. Long 487 McLeod F. Gloyd 688 V. McGhie 483 F. Gates 147,148 McMahill v. Walker 66 McMillan v. Larned 233, 327 McMillian v. Baker 723 McMorris v. Simpson. 101 MoMurchy v. O'Hair 790 McNail F. Zeigler 125, 134 McNamara v. Eisenleff 654 McNeil F. Arnold, 240, 247, 251, 255, 267 84:8 INDEX OF CASES CITED. PAGES. McNeal v. Leonard 643 McNorton v. Akers 89, 535, 571 McPeaker. Hutchinson 554 McPhereon v. McBlhinch, 306, 388, 389 McEae v. McLean, 379, 747, 763, 798 McTaggart v. Rose 410 McVey v. Burns 685 Mead v. Johnson 141, 210 V. Kildoy 52, 60 Meany v. Head 34, 393 Meaux V. Rutgers 355 Meeker v. Chicago Cast Steel Co 524 Meixell v. Kirkpatrick 638 Melcher v. Lamprey, 149, 150, 166 Meldrum v. Snow 62, 122 Mellen v. Baldwin 426 Mellor V. Spateraan 527 Melton V. McDonald 56, 66 y. Smith 137 Melvin v. Winslow....440, 464, 807 Menckens v. Menkens 483 Mendlesohn v. Smith 17 Mennie v. Blake 3, 12, 14, 382 Mercer v. James 594, 630 V. Jones 523 M. & T. Bank v. F. & M. Bank 513 Meredith v. Kennard 643 V. Knott 68, 691 Merrell F.Denton 89 Merriam v. Lynch 261, 697 Merrill v. Butler 456, 462 V. Dixon 198 F. Wedgewood, 399, 400, 649 Merritt f. Lumbert 425 F. Lyon.... 570 F.Miller 151 F. Thompson 692 Mersereau v. Norten 110 Mervine v. White 87 Messer v. Bailey, 349, 453, 462, 463 PAGES. Meshke v. Van Doren 522, 538 Metton F. McDaniel 8 Metzner f. Graham 374 Mexal F. Dearborn 315 Meyer f. Mosler 225 Meyer Bros. f. Lane 304, 385 Meyers v. Schemp 186 Miches f. Tousley 152 Middleton v. Bryan 464, 558 F. Quigley 601 Mikesell v. Chaney 674, 682 Miles F. Davis 737, 763 F. Stevens 25 F. Walther 91, 666 MilhoUaud v. Pence 295 Miller f. Adsit 35, 59, 71, 224 F. Baker 256 F. Bogart 385, 708 F. Cashman 349 F. C, M. &St. P. R. R... 299 F. Commissioners 728 F. Commonwealth 360 F. Darling 214 V. Davis 343 F. Eatman 118 F. Foy 152 F. Garling 508 F. Hahn 308 F. Hudson 165 F. Jones, 36, 54, 55, 71, 606 F. Krueger 608 F. Langton 426 F. LePiere 63 F. McGelm 174 F. Moses 348 F. Sleeper 12, 393, 435 F. Trets 601 F. Warden 33, 431 F. White 9, 373, 376 F. Whitson, 469, 475, 515, 520 Milliken v. Selye, 148, 279, 280, 282, 352 Milling F. Butts 574 Mills F. Kan. Lumber Co., 550, 642 IKDEX OF CASES CITED. 849 PAnES. Mms V. Gleason, 647, 683, 718, 730, 759 r. Long 785 V. Alalott 115 r. Mills 600, 605 V. Eedick 186, 187, 197 Millspaugh v. Mitchell, 240, 253, 264 Milton F. McDaniel 574 Minchrod v. Windoes, 291, 294, 310 Minkwitz v. Steen 476 Minthon v. Lewis, 475, 477, 552, 559, 560, 584 ■ Mires v. Solebay 260 Mitchell V. Alestree 645 r. Burch, 498, 503, 508, 780, 797 r. FranMin 27 V. Hinman, 51, 75, 82, 418, 433 F. Ingram 737, 740 F. Boberts, 11, 14, 37, 39, 52, 55, 148, 232, 393, 678 r. Smith 160 V. Williams, 248, 257, 259 r. Worden 138 Mitchum f. Stanton, 722, 754, 760, 762 Mix V. Kepner 454, 499, 519 Mixer v. Cook„ 125 Mobley r. Letts 97 Moffatt r. Green 58 Mohn r. Stoner 78, 293 Monroe v. Heintzman 722 V. Standish 722 iIont«ith T. G. W. P. Co 107 Kontgomery v. Black 644 Moody r. Whitney 182, 488 ifoor V. Watts 321 Moore v. Bowmaker 761 F. Campbell 753 F. Crocket 441 V. Devol 599, 709 r. Erie R. R. Co 209 54 PAOES. Moore v. Herron, 380, 624, 640, 690 F. Hitchcock 79 F. Jackson 749 F. Kepner, 8, 399, 496, 653 F. McKibbin 101 F. More 31 F. Ryan 424 F. Sample 110 F. Schaltz 542 F. Shenk, 457, 458, 564, 655 F. Stevens 447 F. Vrooman 614 F.Washburn 75 F. Westervelt 377 Moorhouse v. Donaca 250, 581 Moorman v. Quick, 52, 57, 71, 285 Moors V. Parker 792, 793 More F. Clepson 291 Moreley F.Anderson 32 Morey v. McGuire 184 Morford v. Unger 169 Morgan v. Bradley 226 v. Congdon 79 F. Craig 34, 147, 159 F. Durfee 341 F. Evans 337 F.Gregg 209,522 F. Griffith 718,720 F. Hedges 116 F. Jandon 523 F. Morgan, 300 F. Pierson 109 F.Powell 487 F.Reynolds, 457, 473' 475, 477 F. Spangler 236, 422 Morgner v. Biggs 58, 563, 574 Moriarity r. Stafieran, 9, 127, 128, 129, 137 Morin f. Bailey 441 Morish v. Mountain 644 Morril v. Corbin 134 Morrill r. Titcomb.. ^54 Morris v. Burley..... 598 850 INDEX OF OASES CITED. Morris v. Baker, 335, 336, 468, 538 T.Cannon 42 r. Danielson 51, 71, 574 F. DeWitt 166, 695, 698 T. Matthews,..., 721 F. Pugh 242,258 F. Bucks 263 F. Van Voast 83, 359 Morrison r. Austin 634 F. Blodgett 110 F. Judge 87 F. Lewis 310 F. Lurabard 38, 39 V. Yancey 529, 778 Morse r. Hodsdon, 356, 740, 743, 792 F.Pike 292 F. Eeed 75, 177, 178 F.Stone 539,645 Morseman f. McKenley 135 Morton v. Baldwin 69 F. Sweetser 693 Moseley f. Andrews 152 F. Baker 441 Moser f. Jenkins 247, 411 Moses F. Morris 231 Moslier f. Vehue 185 Moulton F. Bird 394, 644 F. Smith 602, 661 Mound F. Monmouth 223 Mount F. Derick 253, 259, 260 Mowrer v. Helterstine 170 Mowry r. Walsh 142, 217, 218 Moychan r. Moore 273 M. R. R. F. Finney 507 Mt. Carbon Coal Co. f. An- drews, 170, 172, 174, 175, 285, 404, 406 Muck F. Folkroad 300 Muggridge.F. Eveleth 54, 55, 68 Mulheisin r. Lane 83 Mulholm F. Cheney.. .147, 149, 150 Mnller f. Jewell 600 Munday f. Vail 660 PAGES. Munis F. Herrera 155 Munroe f. Merrill 347 F. Stickney 527 Munsell v. Flood 654 Munson r. Harronn 159 Murdock v. Will 287, 363 jMurphy v. Jenkins 460 F.Sherman, 155, 265, 438, 469- F. Tendall 35 F. Wilson , 339 Murray v. Burling 47 F. Cone 554 F. Paisley 394 Musgat F. Pumpelly 273 Musgrove f. Beckendorff 525 F.Hall 32,148 Musprot F. Gregory 389 Myers f. Clark „ 335 F. Credle, 39, 229, 233, 237 F. Mayfield 389- F. Moulton 651 F. Parker 723 Myrick f. Bell 241, 242 N. Nalor F. CoUinge 18& Namee f. Braley 392 Nash F. Fredericks 226 F. Mosher, 10, 102, 103,132, 218 Nashville f. Alexander, 308, 348, 460, 620 National Bank v. Bayley 62 F. Crocker.. ..62, 70 F. Dearborn, 5 9, 62,70 Neal F. Williams,.-, ~ 218 Neblet f. Smith 190 Neely f. Lyon -...— ™ 11 Neff V. Thompsos, *Jl, »4, 55, 151, 256, 440 Neis F. Gillen 395, 4-58, 637 Nellis F. Bradley 138, 129 INDEX OF CASES CITED. 851 PASX9. Nelson v. Bowen 600 V. Iverson 249 r. Luchtemeyer 684, 806 r. Mclntyre 561 y. Smith 178 Nesbitt V. St. Paul, 202, 204, 220, 509 Nettleton v. Jackson 433 Newcomer v. Alexander 286 Newell r. Hayden 152 V. Horn 554 F. Newell, 241, 242, 247, 251, 290, 313, 316 Newell Mill Co. r. Muxlow, 530, 711 Newhall v. Dunlap 31 Newkirk v. Dalton 216, 220 Newland v. Willetts 368 Newlein v. Reed 615 Newman v. Bean 110 F. Bennett, 223, 243, 259, 260 r. Jackson 206 F. Jenne 247, 587 F. Jones 253 F. Tymeson 96 Newton v. Brown 427 F. Gardner 116, 223 F. Howe 211 Niagara Elevator Co. f. Mc- Namara 32, 169, 534 Nicholas r. Chapman 255 Nicholas Ins. Co. v. Alexander 457 Nicholls F. Hazel 688 Nichols F. Dewey 198 F. Dusenbury, 388, 389, 447, 631 F.Mase 47 y. Michael, 128, 129, 131, 230, 344, 423, 439 F. Nichols 309 F. Patten 38 F. Pinner 131, 134, 138 F. Standish 282, 792 Nicholson f. Dyer 73, 126, 549 F. Hancock 6, 577 PAGES. Nicholson f. Mitchell 378 Nickerson v. Cal. Stage Co 759 F. Chatterton, 15, 637, 641, 728, 732, 756 Nieler f. Kelly 525 Nightingale v. Scannell....509, 538 Nisbet V. Patton 259 Niven v. Burk 89 Noble F. Adams 32, 131, 132 F. Epperly, 57, 457, 565, 582, 655, 780 Noe F. Gibson 157 Nolan F. Jones 131, 576 Noland v. Leech 606 Noles V. Marable 104 Nollkamper v. Wyatt 447, 557 Norten v. The People 36, 224 North F. Turner 226 Northampton Paper Mills Co. F.Ames 184 Northrup v. McGell 486 F. Trask 196 Norton f. Lawrence 746 F. Pettibone 554 F. Kockey 177 F. Simonds 63 Nosser v. Corwin „ 808 Nottingham v. Vincent 620 Noviori F. Hallett 156 Nowlen f. Colt 214 Noxon F. Hill 509, 538 Nunan f. City, &c., 31^^ Nunn F. Goodlett, 348, 356, 357, 728, 735, 738, 765, 792 Nutting F. Nutting 139 Nye V. Liscomb 366 N. Y. Guarantee Co. f. Flynn, 458 467, 470 O. Oaks F. Wyatt, 399, 4.01, 437,5fi3 O. & M. K. K. Co. F. Kerr 138 F. Noe... 247, 270 Oberfelder v. Kavanauoh 567 Hq'A INDEX OF CASES CITED. PAOEB. O'Brien r. Haynes 328 V. Kusterer 188 T. Palmer 599 O'Connell v. Jacobs 256 O'Conner v. Blake 643 F. Gidday 38 x^Union Line.. ..404, 407 Odell V. Hole 473, 496, 772 Oden V. Stubblefield 553 O'Donald v. Constant 131 O'Donnell v. Seger 152, 286 Offutt V. Flagg 93 Ogden v. Stock.. .44, 186, 189, 579 O'Grady v. Keyes 357,766,792 O'Keef V. Kellogg, 226, 529, 599, 619 Olds F. Andrews 94, 405 Oleson F. Merrill, 6, 244, 248, 288, 306 Oliver r. Townsend 748 ■01mst«ad F.Hotailing 131, 132 Olson F. Martin 575 Ombony v. Jones 197 O'Neal V. Wade 461, 796, 797 O'Neil F. Bailey 241, 258 O'Neill F. Henderson 267 Only V. Dickinson 630, 652, 653 Onstatt F. Ream 291, 294 O'Eeilly v. Good, 168, 169, 170, 172, 401 Ormand v. Brierly 721 Ormsbee v. Davis 773, 783 Ormsby v. Dearborn 137 F. Nolan 649 F. Vermont Copper Co 467,512 Orner f. Hollman 166, 577 O'Kourke F. Hadcock 266 Ortman f. Lovereign 196 Osbom F. Gantz 127 Osborne v. Banks 676 Osgood F. Carver 338 F. Coates 554 F. Green 177, 388, 391 F. McConnell 599 PAGBS. Osgood F. Nichols 106 Oskaloosa f. Nelson 633 Oswald F. Hutchinson 244, 251 Oswego F. Landrum 267 Otis F. Jones 467 F. Sill 79 F. Williams 344, 345 Otter F. Williams, 420, 508, 512, 513 Ousley F. Hardin 507 Outhouse V. Allen 567 Overseers f. Overseers 553 Oviatt F. Pond 468, 471, 542 Owen F. Boyle..... 11, 27 F. Nail 307 Owens F. Conner 26 F. Gentry 599 Owings F. Owings 112 Oyster v. Oyster 183 P. Pace F. Pierce 88, 92 Pacey f. Powell 18 Pacific Ins. Co. v. Conard, 499, 507 Packard v. Getman....68, 249, 557 Page F. Crosby 42, 256 F. Fowler, 195, 196, 197, 469, 514, 521, 522, 525, 577, 651 F. Ramsdell 393 Paige F. Smith 158 Pain F. Whittaker 104 Paine f. Hall 149 Pait F. McCutchen 753 Pakas F. Racy 64, 605 Palen v. The 0. & M. E. R 542 Palmer v. Corwith 170, 173 F. Meiner8....469, 652, 657 Pangborn v. Ruemenapp 128 Pangburn v. Patridge, 31, 33, 36, 55, 71, 166 Parham f. Riley, 16, 53, 215, 220, 221, 349, 453, 462 Park F. McDaniel 316, 499, 510 INDEX OF OASES OITED. 853 FA01SS. Parker v. Browning 158 V. Garrison 20, 36, 214 Y. Hall 357 r. Middlebrook 245 V. Patrick 139 V. Simonds, 558, 675, 724, 765, 805 T. Storts 579 Parkes v. Wilcox 536 Parks V. Barkham...293, 302, 828 Parlemon v. Young 66 Parlin v. Austin 691 Parmalee r. Loomis 660 Parnell v. Hampton 639 Parish F. Thurston 127, 131 Parratt v. Scott 718, 733, 739 Parrish v. Morey 138 Parsell v. GeneseeCircuit Judge 684 Parsley v. Huston 404, 406 Parson v. Wright 211 Parsons v. Boyd 36, 104, 118 y. Dickinson 226 V. Harper 499 V. Hedges. 437 V. Martin 512 V. Webb 102, 247 V. Williams 721 Partridge v. Philbrick 107 V. Swazey 247 Patapsco V. Magee 472 Patchen v. Wilson 224 Patchin v. Pierce 87 Patten v. Bradley 28 Patterson v. Fowler 895, 400 F. Haight 420,421 F. Parsell 325 F. Seaton 374, 381 V. United States 601 Pattison f. Adams, 68, 284, 297, 298, 811, 314, 408, 447 Patton F. Campbell 131, 184 F. Hammer 406 Patty F. Mansfield 429 Paul F. Goodluck 786 FAOB8. Paul F. Hodges 801 F. Luttrell, 3,65, 244, 288,, 289, 557 Pawell F. Bradlee 698 Payment f. Church 569 Payne f. Bruton, 221, 279, 282, 301 F.Drews 331 F.June 123,603 Peaceable f. Watson 554 Peacock f. Haney 777, 784 F. Pittsburg 423 F. Rhodes 142i Pearce f. Twichell....224, 225, 463 Pearsol v. Chapin 137 Peake f. Conlan 250, 392, 574 Pearl v. Garlock 660, 782, 794 Pearson v. Eaton 250, 460, 616 Pease f. Smith 243 Peck F. Bonbright 124, 596 F. Jenness 160 F.Wilson 724,725 Peebles F; Morris 112 Peet r. Speicer 126 Peirce v. Hill 842 Pelkington F.Trigg 45 Pemble v. Clifford 732 Penington f. Streight 321 Penniuf^ton f. Chandler 564 Penny f. Little 27 Pennybecker v. Dougal 196 F. McDougal, 186, 192, 197, 198, 486 Penrose v. Green 667 Penton v. Kobart 188 People F. Albany 169, 170, 174 F. Core 287,334,863 F. McCormick 796 F. McGarren 81 F. Neill 37& V. New York 391, 040 V. Niagara 644 F. Superior 375 F. Supervisors of. Che- nango 175, 447 854 INDEX OF CASES CITED. PAGES. People V. Tripp 634, 689 People, ex rel. Fletcher, v. Lee, 363 Perigo F. Grimes 092, 7G1, 782 Perkins v. Barnes 242, 243 V. Oliver 306 r. Eudolph 692,757 F.Smith, 279, 282, 292, 293, 296, 385, 386 V. Thornberg 345 y. Walker 663 Perley v. Balch 136 V. Foster, 51, 52, 71, 75,82 Perreau f. Bevan, 335, 716, 718, 720 Perrin v. Claflin , 339 Perry v. Lewis 630 F. Richardson, 147,150,165 V. Stone 62 F. Tupper 684 Persels f. McConnell 94 Person v. Wright, 115, 236, 247 311 Persse v. Watrous, 354, 355, 356, 365, 717, 718, 720, 721, 765, 792 Peters v. Elliott 70 F. Parsons 254, 408 F.Stewart 82 Peters Box Co. f. Lesh 102 Peterson v. Espeset 249 F. Haight 422 F.Polk 585 Petre f. Duke 4, 290 Petrie f. Fisher, 348, 357, 765, 781, 806 PettingUl F.Merrill 49 F. Eideout 216 Pettygrove v. Hoyt, 14, 355, 454, 716, 754, 762 Peyton f. Robertson 529 Pfennig v. Griffith 663, 697 Phelan v. Bonham 177 Phelps F. Owens 510 Phenix f, Clark, 223, 279, 282, 285, 286, 302, 528 FACES. Phillip F. Allen 199 Phillipi Church v. Harbough, 360 Phillips F. Cooper 784 F. Elwell 589 F. Gastrell 200 F. Hall 82, 151, 256 F. Harris, 33, 106, 147, 337, 632 F. Hide 555 F. Kent 601 F. Melville .' 605 F. Monges 420, 422 F. SchoU 8, 574 F. Spotts 343,344 F. Stroup 194 F. Townsend 447 F.Walker 147 V. Waterhouse 804 Phipps F. Boyd 389, 391 F. M;irtin 207 Piazzek v. White 209, 529 Pick F. Wilson 728, 730 Pickard v. Lowe 93 Pickens f. Oliver 304, 306, 455 Pickering f. Pickering 112 Pickett F. Bridges, 460, 604, 607, 677 Pickins f. Sparks 434 Pico F. Martinez 540 F. Pico 413 Picquet v. McKay 59 Pierce v. Benjamin 512 F. Hardee 720 F.Hill 3,6,155,436 F. Hoffman 572 F. Humphreys 370 F. Jackson 116 F. King 718 F. Rehfuss 324, 342, 385 F. Roche 583 F. Stevens 56, 68, 87 F. Van Dyke, 6, 34, 242, 244, 247, 253, 264, 306, 313, 458, 653, 686 Pike F. Goudell 388 INDEX OF CASES CITED. 855 FADES. Pilkington v. Trigg 8, 47, 294 Pinkerton r. JR. R. Co 522 Piper V. Martin 187 Pipher v. Fordyce 375 V. Johnson 747, 759 Pirani r. Barden, 12, 247, 305, 306, 352, 353 Pitt F. Owen 125 Pitts V. Hale 425 V. Wilder 554 Plainfield v. Batchelder 396 Planer v. Smith 635 Plant V. Crane 674 Piatt V. Brown 499 Platte V. Hebbard 79 Plimkett V. Moore 355, 363 Poinsett v. Taylor 331 Poland r. Henry 750 Polite V. Jefferson 61 Pollard V. Stoval 141 F. Thomas 145 Pomeroy v. Trimper, 83,|287, 292, 326, 425,426 Pool F. Loomis 328, 348, 352 F. Webster 299 Poole F. Adkisaon 102, 241 Poor F. Darrah..... 431, 703 F. Woodburn, 128, 129, 133, 144, 453, 619, 624 Pope F. Jenkins 419, 435 F. Tillman 290, 324 Porter v. Chandler 438 F. Dalhoff & Co 1G4; 691 F. Wellett 453, 658, 753 Portland Bank v. Stubbs, 34, 271 Pothonier f. Dawson 259 PottF. Oldwein, 42, 147, 156, 168, 173 Potter F. Hall 319 F. James 719 F. Mardre.. 31, 202, 203 F. North 4, 28, 290, 483 Powell F. Bradlee, 60, 125, 133, 134,138,147, 217,218, 700, 702 Powell F. DeHart 295 F. Hinsdale. ..452, 619, 711 F. Smith 190 F. Stiekney 295, 298 F. Triplett 447 Power F. Kindschi 173 F. Tilford 203 Powers F. Bassford 257 F. Benedict 127 F. Florence 27, 507, 542 Poyen v. McNeal 303, 327 Pozzoni F. Henderson 153, 538 Prater f. Frazer, 52, 54, 71, 285, 297 Prather v. Harlan 739 Pratt F. Donovan, 459, 632, 728, 756, 758 F. Parkman 62 F.Tucker 619,641 Prentice v. Ladd 114, 116 Prentiss v. Kennard 643 Prescott V. Heilner 294, 608 Presley f. Powers 249 Preston v. Spaulding 134 Priam v. Barden 267 PribbleF. Kent 102 Price F. Helyer ; 12 F. Talley 118 Prime v. Cobb, 241, 244, 246, 251, 267 Pringle r. Phillips, 241, 244, 253, 563 Prior F. White 96 Proctor F. Tilton 124 Prosser r. Woodward, 284, 297, 446, 565, 645 Prout F. Root 92 Pryor v. Beck 733 Pugh F. Calloway, 83, 456, 463, 531 Pullen F. Kensenger 171, 172 PuUiam f. Burlingame, 106, 115, 400 Puncheon v. Hill 653 Purple F. Purple 362, 866 856 INDEX OP OASES CITED. PAGES. Purvis r. Moltz, 220, 244, 254, 257 Putnam v. Cushing ....96, 206, 263 y. Parker 112 F. Wise 227 r. Wyley 54, 72 Pyle r. Pennock 189 r. Warren 240 Q. Quackenbush r. Henry 38 Quin V. Wallace 24 Quincy v. Hall 387, 645, 649 R. Eadliff V. Dolinger 130 Eae V. MeCrea 4 Kafferty v. Haldron 505 Baiford v. Hyde 147, 150, 392 Kallroad Co. v. Roach 31, 32 Ralston r. Bla,ck 100, 337 y. Hughes 195 r. Strong 332 Rambo v. Wyatt 606 Ramsay v. Bancroft 56 Eamsdell r. Buswell, 11, 12, 14, 31, 230, 345 Eamsden v. AVilson 150 Ramsey v. Waters 602, 610 Rand r. Sargent 38 Randall r. Cook 96, 313 Rankin r. Greer 95 r. Kinney 183, 721, 725 Ranney v. Tiiomas, 655, 668, 682, 684, 769 Rapabje v. Emony 292 Raper v. Harrison.'. 241, 245 Rapp V. Vogel 110 Ratiibone v. Boyd 195, 660 Rathburn r. Ranney' 321, 669 Rawley r. Brown 240 Ray V. Gardner 196 T. Horton 156 PAGES. Read r. Hutchison 136 r. Middleton 119, 294 Reavis v. Horner 677, 680 Rector r. Chievalier, 12, 30, 32, 425 Redding r. Page 242 Reddington v. Nunan 500 Redmon r. Hendricks, 71, 95, 394,. 453, 562 Reece v. Hoyt 112 Reed v. Carpenter 707 F. Pliillips 729 F. Reed 419 F. Wilson 655 Rees r. Coals 99 F. Morgan 601 Reese f. Harris, 36, 53, 68, 104, 291 F. Jared 197,486 F. Mitchell 89 Reeside r. Fischer 147 Reeves r. Reeves 738, 766 Regina v. Birmingham 554 F. West 81 Reigert v. Voelker 305 Reiley F. Haynes 554, 702 Reinheimer v. Hemingway, 59, 112, 113, 114, 227 Reist F. Heilbrinner 425 Remdall v. Swaokhammer 429 Remington v. Bailey 568 F. Cady 110 F. Cushen 299 Renfrew r. Hughes 785 Renick r. Boyd 182 Repine v. McPherson 567 ReschF. Senn 552 Reticker v. Wachtel 134 Reusch F. Demass 723 RevesF. Wilborne 380 Rewe F. Mitchell 692 Rex F. Lewis 334 F. Monkhouse 148 Reynolds f. Copeland, 272, 285, 311 INDEX OP OASEB CITED. 857 PAOBS. Reynolds v. Lounsbury 289 F. McCormick, 46, 115, 485, 550, 585, 617 V. Salle 34, 153 V. Schiller 191 Rhea v. Rines 141 Rhlnes v. Phelps .' 375, C95 Rhoades v. Drummond 587 Rhoads v. Wood, 83, 457, 539, 540 Rhodes f. Bunts 602 F. Burkart 369 Riccards v. Cornforth 387 Rice F. Cribb 91 F. Crow 65 F. Nickerson 500 Rich F. Baker 196 F. Peufleld.... 227 F. Ryder, 54, 59, 111, 116, 367, 691 F. Savage, 675,677, 678, 699 Richards f. Kirkpatrick 148 F. Rape 677, 763 Richardson f. Adkins 602 F. Davis 709 F. Jones 420 F.Reed, 11, 39, 40, 223, 229, 230, 231, 455, 675, 678 F.Smith 397,404 F.Steele, 395, 399, 437 F. York 194, 198 Richey f. Burnes 520 Bickabaugh v. Bada 500 Rickells f. Dorrel,35, 44, 198,200, 203, 204, 342 Ricker F.-Kelley 186 Rickner f. Dixon 639 Riddle f. Driver 206 F.Parke 400 F. Weldon 27 Ridenour v. Beekman 549, 612 Ridge F. Wilson 26, 27 Riess r. Dellea 596, 624, 655 Biewe v. McCormick 35, 187 | PAGES. Riford F. Montgomery 220 Rigg F. Parsons 723, 805 Rightmyer v. Raymond ...204, 206 Riley f. Boston Water Power, 182, 202, 220, 245, 251 F. Noyes 234 Ring F. Billings 193, 199 Ringgenberg v. Hartman 806. Ringo F. Field 393, 551 Ripley f. Davis 468, 471, 5l2 F. Dolbier 249- Ritchie v. Schenck 586 Rives F. Wilborn 377 Roach F. Binder 247, 553 F. Moulton 287, 363 Bobbins v. Foster. ...609, 679, 806 F. Killibrew 632,755 F. Packard 483 F.Walters 473. Roberts f. Berdell 240 F. Dauphin Bank, 44, 184, 342 F. Johannas 409 F. Marsen 425 F. Mason 499 F. Norris 88, 588,663 F. Randel...31,37, 39, 288 V. Tennell 388, 444 F. White 90, 424 F. Wj'att 61, 104, 228 Robertson F.Davidson 724 F.Jones 205,487 Robins F. Kitchen 577 Robinson v. Atlantic 157 F. Austin 691 F.Baker 80,273 F. Burrows, 468, 471, 512 V.Calloway, 51, 284, 297, 400, 562 V. Champlin 105 F. Fitch 296 F. Kruse 664 T. Richards, 10, 527, 636, 709 858 INDEX OF CASKS CITED. PAGES. Eobinson r. Mansfield 151, 256 F. Shatzley, 251, 528, 709, 780 V. Skipworth 251 r. Soule 768 F. The People 364 F.White 706 Rockey v. Burkhalter 370 Rockwell r. Saunders, 52, 212, 394, 408, 800 Roderbaugh f. Cady 766, 792 Rodman v. Hendricks 460 F. Nathan. .144, 454, 620 Rogers r. Arnold, 12, 31, 36, 53, 54, 55, 284, 393, 395, 406,408,411,440,545, 565 F.Davis 230 F. Hine 216, 249, 250 F. Kerr 2 F. Ledwell 401 F. Whitehouse 62, 124 Roland v. Gundy 102 Rolston F. Black 256 Romain f. Van Allen, 513, 522, 525 Roman f. Stratton, 356, 718, 719, 720, 792 Romberg v. Hughes, 472, 475, 476 Romick v. Perry 656 Ronge F. Dawson 6, 612 Eooch F. Binder 255 Rood F. Hurd 690 Roof F.Stafford 10 Root F. Bonnema 213, 247 F. French 139, 142, 218 F. Woodruff 288, 291 Roper F. Lane 64, 212, 437 Rose V. Cash 18, 228 F. Gallup 211, 528 F. Pearson 424, 465, 606 F. Tolly 55, 612, 628, 630 Roseberry f. Roseberry 693 Rosen v. Fischel 742 Ross F. Cassidy 73 f. Draper 225 PAGES. Ross F. East Saginaw 168 Y. Hawthorn....l54, 163, 164 F. Johnson 249 Rotch F. Hawes 105 Roth F. Williams 273 Rousdall F. Tewksbury 91 Roush F. Washburn 662 Rowan v. Teague 603, 611 Rowark v. Lee 458, 632 Rowe F. Bowen 429 F. Hicks 8, 234 F. Page 157 F. Sharp 122 Rowell V. Klein 12, 33, 185 Rowland v. Mann 393 Rowley v. Bigelow 131, 139 F. Gibbs, 32,440,496,497, 519 Rozell F. Denver L. W. Co 705 R. R. Co. V. Noe 240 Ruck V. Morris, 290, 291, 292, 295, 385 Rucker v. Donovan 74, 126 Ruse F. Harris 55 Rush Co. V. Stubbs 187, 199 Russ F. Buterfleld 348 Russell F. Allen 113, 114, 214 F. Butterfleld 481, 648 F. Minor 68 F. Place 665 F. Richards 192 F. Smith, 98, 444, 458, 497, 509, 538 y. Walker 36,417 Rutledge v. Corbin 749 Ryan f. Akeley 794, 795 F. Brant, 128, 129, 132, 136 F. Clanton 93 Ryan-Ream Cattle Co. r. Slaughter 174 Ryder v. Hathaway, 21, 206, 209, 210, 211, 212, 291, 493 INDEX OF CASES CITED. 859 PAGES. Saeltzer v. Ginther 360 Saflel V. "Wash, 34, 153, 649, 674 Safford r. Gallup 661, 801 Sager v. Blain, 44, 45, 68, 292, 557 Sahnigham v. Carter 776 Salkold V. Skelton 645 Salmon r. Fewell 182 Salter v. Richardson 734 r. Sample 185, 186, 189 Saltus r. Everett 215, 218, 421 Sammons r. Newman, 719, 742, 766, 790, 792, 801 Sampson v. Efeynolds 343 Saras V. Armstrong 349 Samson v. Rose 185, 211, 498 Samuel r. Agnew, 154, 163, 164, 165 Sanborn v. Coleman 102 r. Leavitt, 149, 695, 702 V. Osgood 137 r. Eoyoe Ill Sandeford r. Hess 404, 570 Sander v. Goldsmith 37 Sanders v. Goodwin 687 F. Reed 184,195 F. Young 110 Sanderson v. Lace 639, 683 r. Marks 313 Sandler r. Bresnahan 597 Sands v. Fritz 678, 808 r. Phieffer 195, 198 Sanford Mfg. Co. v. Wiggins, 12, 52, 392, 404 Sanger v. Kinkade' 309 Sapsford v. Fletcher 390 Sargeant v. Courrier 19, 21 Sargent F. Franklin 523 F. Metcalf 122 V. Sturm, 131, 139, 218, 264, 267 Sarjeant f. Blunt 101, 102 Sartin v. Weis 362, 657, 791 Saunders v. Jordan 49, 54, 140 FAQEB. Savacool r. Boughton 343 Savage v. Gunter 683, 757 r. French 663' F.Perkins 242,437 F. Russell..... 606 Savercool v. Farwell 526 Savfry v. Hoys 44 Savile v. Roberts 452 Saw F. Levy 166 Sawtelle v. Rollins, 12, 31, 33, 69, 71, 157, 226 Sawyer v. Huff 394, 564 F. Merrill 247 Saxton F. Williams 87, 95, 530 Sayers v. Holmes 455, 460, 620 Sayward v. Warren 411 Scattergood f. Wood 497 Scay F. Bacon 206 Schaffer r. Faldwesch 287, 401 Sclieer r. Schwabacher 719 Schell F. Husenstine 429 Sohemmelpennich r. Bayard... 102 Schenck v. Long 110, 283 Schermerhorn v. Buell 182 F. Mitchell 405 F. Van Volken- burgh 71 Schlenker v. Risley 567 Schlieman v. Bowlin 747 Schmidt f. Bonder 230, 245 F. Nunan 469 Schnaider f. Niederweiser, 763, 766 Schofleld F.- Ferrers, 316, 504,505, 510, 637, 670 F. Whitelegge, 244, 289, 310, 311, 312 School Dist. F. Lord 56 F. Shoemaker, 395, 399, 416, 515, 527 Schoonmaker v. Kelly 129 Schrader v. Wolflin 96, 776 Schreoppel v. Corning 47 Schroeder v. Clark 429. Schulenberg r. Campbell 12 860 INDEX OF CASES CITED. PAOEB, Schulenberg v. Harriman, 72, 198, 211, 212, 220, 223, 401, 565 Schultz V. Hickman 519 Schwabacher v. Kane 137 Schwartz f. Skinner 113 Scriven v. Moote 182 Scrugliam v. Carter 110, 116 Scott V. Elliott, 60, 468, 519, 782, 754 r. Fuller 388 r. Hughes 427, 440, 464 F. Eogers, 102, 513, 521, 522 F.Scott 752,760 F.Tyler 776 Scudder v. Worster 293, 435 Seabury f. Ross 528 Seals F. Edmondson 58 Seamon v. Luce, 152, 457, 534, 539, 540, 636 Search f. Miller 594 Sears f. Wingate 421 Seaton v. Higgins 150 Seaver v. Dingley, 69, 131, 133, 242, 243 F. Lincoln 247,327, 588 Seavey v. Dearborn 212 F. Potter 137 Seay r. Bacon 647 Seeman f. Allard.. 572 F. Feeny 507 Seibel f. Siemon 441 Seibert r. McHenry, 212, 225, 565 Seidenbach f. Riley 398 Seimraons f. Austin 51 Seip F. Tilghman 227, 265, 705 Selden f. Cashman, 506, 507, 510, 542 Seldner r. Smith 18, 542, 784 Seldon f. Hickok 117 Seligman v. Kalkman 131 Sellar v. Clelland 526 Sellars w Kelly 550 Sellick F. Phelps..! 375 Selway F.Fogg 136 PAGES. Semmes v. Spregg 558- Sensenbrenner f. MatJiews 561 Sergent v. Gile 102, 107" Severence f. Meliek 461, 497 Sewell's Falls Bridge f. Fisk... 542 Sexey f. Adkinson 140- Sexton F. McDowd 15, 325, 344 Seymour F.Billings, 309,393, 452,. 658, 711 F. Van Curen 35, 199- Shackleford v. Smith 554 Shaddon v. Knott 52, 57, 166 Shahan v. Smith 650 Shappendocia v. Spencer.^ 729 Sharon f. Nunan 45, 264 Sharp F. Parks 215- F. Whittenhall 14, 150- Shaw F. Becket 175 F. Coster 343 F. Havekluft 806- F. Hoffman 316 F. Levy 698 F. Tobias, 740, 745, 792, 793- F. Webster 336 Shea F. Watkins 150 Shearick f. Huber....l47, 149, 404 Sheble v. Curdt 63, 88 Sheldon v. Van Buskirk 343- Shell F. Haywood 187 Shelton f. Berry 282, 302 Shenuit f. Brueggestradt 475- Shepard f. Butterfield 454 F. Cross 225 F. Philbriek 182 Shepherd F. Boyce 391 F. Johhson,482, 512, 513 ■ F. Thompson 554 Sheppard F.Melloy 72t Sherborne v. King 688 Sherman v. Clark 479, 512,632 Sherron f. Hall 148, 225- Sherry v. Foresman,718, 788, 796,. 808 F. Picket! 138- Shewell F. McKinley : 328- INDEX OF OASES OITED. 861 PA0E8. Shipman v. Clark, 337, 339, 343, 344,695 Shoemaker v. Simpson, 191, 240, 243,247,249,251,253 Shomo r. Caldwell, 51, 55, 71, 285 Shorey v. Hussey 331 Shorlan v. Govett 348 Short V. Barker 216 Shotwell V. Wendover 523 Shover r. White 110 Shufeldt V. Pease 138 Shulenburg v. Harriman 560 Shumway r. Leakey 76 V. Rutter 252 Shute r. McMahon 657 Shuter v. Page 394, 406 Siedeiibach v. Riley 400 Sildner v. Smith and wife 769 Silloway r. Brown 114 Silsbury v. McCoon,202, 203, 343, • 488 Simcoke r. Frederick, 53, 303, 322, 388, 562 Simmons v. Brown 507 F. Jenkins, 96, 211, 395, 446, 557, 558 r. Lettystone 249 F.Lyons 251,312 Simonde t. Parker, 366, 367, 740, 741 Simpson r. DeHaven 44 F. McFarland, 42, 82, 387, 394, 406, 565, 639, 640, 643, 644 F. Perry ...618, 631 F. St. John 159 F. Wrenn, 31, 70, 107, 249, 253, 255, 577, 586, 588 Sims F. Boynton 417 F. Glazner 213 F. Mead 274 F. Reed .- 151, 152 Simser f. Cowan 312 Sinclair v. Murphy 106 PAOES. Singer Mfg. Co. f. Doxsee, 604, 780 F. Benjamin 402 F.Rhodes 369 F. Sammons ... 620 Single F. Barnard 602, 614 F. Schneider, 205, 471, 488, 494, 496, 505 Sirrine v. Briggs 478 Skidmore f. Taylor 45, 292 Skilton F. Winslow 233, 343 Skinner f. Chicago, &c., 397 F. Stouse 133,256 Sk.ipp F. Harwood 110 Slack F. Brown 510 F. Heath 362 Slayter f. Williams 247, 313 Sleeper f. Osgood 164 Sloan V. Anderson 299 Slocum F. Mayberry 162 Small F. Bixley 658 F. Hutchins 106 Smallwood f. Norton 804 Smith F. Archer 249 F. Aurand 389, 674 F. Bahr..... 618 F. Benson 186 F. Brennan 125 F. Colson 389 V. Cflolbaugh 632, 634 F. Crockett 6, 42 F. Danie 125 F. Demarris 661 F. Dennis 131 F. Dillingham 773 F. Dodge 289, 610, 642 F. Doty 128, 129 F. Emmerson, 75, 293, 309, 384, 385, 646, 691 r. Fellon 803 F. Field 135 F. Fisher 366, 687 F. Fyler 389 F. Goodwin 184 F. Graves, 51, 71, 216, 441, 549 862 INDEX OF CASES CITED. PAGES. Smith r. Gouder 526 F. Griffith 478, 523, 526 F. Hague 198 F.Houston, 16, 527, 528, 600, 602 F. Howard 368 F. Huntington, 12, 42, 147, 149 F. Jensen 566, 586, 587 F. Lisher 791,797,808 F. Little 411 F. Lyons 125, 166, 218 F. Martin 554 F. McCool 666 F. McFall 352, 367, 368 F. McGregor, 371, 381, 639, 745 F. McLean, 93, 240, 242, 246,247,248, 249, 251, 253, 291, 324, 384 F. Meldreu 600 F. Mitchell 568 F. Mohler 569 F. Montgomery, 150, 305, 306 F. Morgan 394 F. Morrell 213 F.Mosby -797 F. Orser 55 F.Phillips 89,531,613 V. Plonier 68, 106 r. Powers 554 F. Pries 725, 804 F. Rice 68, 114 V. Eoby 471, 679, 767 F. Sherman 510 F. Sherwood 510 F. Smith, 77, 132, 262, 601, 653 F.Snyder, 393, 453, 455, 653 F.Stanford, 35, 291, 294, 295 r. Trawl 353 r. Welch 247 PAosa. Smith F. Whitaker 806 F. Whiting, 59, 333, 336, 357,358,527, 718, 720, 783, 794 F. Williamson, 18, 57, 223, 243 F. Winston, 401, 404, 453, 639 F. Wood 225, 601 F. Woodleat 273 F. Young. 260 Sneathen v. Grubbs 141 Snedeker v. Quick, 290, 324, 325 Snook F. Davis 399, 401, 418 Snow V. Como Street Ey 394 F. Boy 328, 329 Snyder f. Norris 797 F. Vaux, 195, 198, 201, 202, 204, 206, 291, 493 Soloman v. Dawes 256 F. Hathaway 127 Somis F. Brewer 139 Soper F. Hawkins 685 Sopris F.Lilley, 355,454, 717, 763, 783,805 F. Truax 247, 399 Soria f. Davidson 603 South Plank r. Hixon 44 Southall F. Garney 295, 391 Southern Warehouse f. John- son 606 Southwick F. Smith ..^ 42, 56 Spalding f. Spalding 286 Sparks r. Compton 97 F. Heritage.. .398, 400, 653 F. Spicer 192 Speer f. Skinner 373, 377 Spencer v. Bidwell 298 F. Blackman 250 F. Dickerson 366, 367 F. McGowan, 11,151, 343, 389 F. Roberts 37, 52 Spicer f. Waters 512 Spooner f. Boss 118 INDEX OF OASES OITED. 863 PAOES. Spoor r. Holland 485 Spores Y. Boggs 418 Sprague v. Birchard 337 r. Clark, 51, 52, 55, 57, 69, 284, 285 r. Kneiland 415 SpraightB v. Hawley 216, 250 Spratley v. Kitchens, 328, 606' 697 Spring T. Bouriand 150, 695 Sproule r. Fords 512, 523 Spur V. Skinner 362 Spurgeon v. Spurgeon 76 Squires r. Smith 94, 148, 256 Stacy V. Parnham 279 Staley Furnishing Co. v. Wal- lace 302 Stall T. Diamond 688 Stanbaeh r. Eexford 399 Stanchfleld r. Palmer, 245, 247, 253, 291, 556 Standard Oil Co. v. Bretz 232 Stanfleld r. Stiltz 578 Stanley r. Donohoe 477 F. Gaylord, 51,75,102 103,216,246,248,251 r. Neale 59 V. Robinson 46 Stansfleld r. Hellawell 356 Stapleford r. White, 7, 34, 68, 247 Stark V. Stark 765 Starky v. Kelly 522 Starr v. Hinshaw 309 State r. Barrels 156 ,v. Boisliniere 334 r. Booker 149 V. Doepke 45 V. Jennings, 249, 331, 343, 344 r. Kinkaid 472, 532 r. McCann 81 r. Smith 340 T. Stevens 333, 336. 352 r. Welch 326, 346, 359 r. Wilson 323, 332 PAGES. State ex rel. v. Dunn, 361, ,367, 609, 636 State ex rel. Calvin v. Six 679 State ex rel., etc. v. Williams.. 341 State for use, etc., F.Farrar.... 655 State to use, etc., r. Daily, 75, 769 V. Piatt 660 Stearns r. Raymond 211 Steele v. Farber 182 T. Matterson 598, 651 Steinwender v. Outley 137 Stephens v. Frazier 571, 649 V. Halstead 403 V. Scott 310, 603, 611 Stephenson r. Hart 132 V. Little 212, 214 Stern r. Mason 418, 560 Sterner v. Hodgson 178 Stevens r. Chase 55 V. Cunningham 103 r. Eno 64 r. McClure 506, 780 r. McMillin 634 r. Osman..... 290, 309 V. Smith .' 511 r. Tuite, 14, 16, 373, 381, 457,467,473,477,498, 511, 774, 776, 777 v. Williams 557 Stevenson v. Miller 356 r. Ridgley 42 V. Smith 316, 510 Stevison r. Earnest, 309, 717, 719, 729, 805 Stewart r. Ball's Admrs 207 V. Drake 520 F. Emerson 131 F. Fitch 601 F.Mills 396 F. Taylor 605 F. Wells.. .31, 34, 231, 337 Stickney r. Allen 485 F. Smith.. ..284, 297, 410 Stillman f. Squire, 247, 306, 331, 587 864 INDEX OF CASES CITED. PAGES. Stiles V. Griffith, 156, 168, 173, 173 Stimpson v. Reynolds, 339, 344, 695 Stinson v. Farnham 334 St. John V. O'Connel 256 St. Louis V. Rudolph 92 St. Louis & Alton R. R. v. Cas- tello 205,292 St. Martin v. Desnoyer 14, 280 Stockwell V. Byrne 689, 783 V. Kemp,, 761 v. Phelps 35, 195 V. Veiteh, 31, 168, 172, 173 Stoddard v. Gilman 171, 444 Stoker v. Craue 284 7. Yerby 54 Stokes V. Stevens 113 Stolberg v. Ohnmacht 282 Stoltz V. The People 602 Stone V. Bird.. ..150, 252, 553, 618 V. Hopkins 281, 353- F. O'Brien 265, 554 V. Quail 294 V. Wilson 33 Storey v. Roberts 342 Storm y. Livingston, 257, 259, 260, 264 Storms V. Eaton 696 Story V. O'Dea > 730, 773 Stousbury v. Arkwright 554 «tout V. LaFollette... 374, 375 Stow r. Yarwood „ 420 Stowell v. Lincoln 527 V. Otis 440 Strang r. Whitehead 510 Strasburger v. Barber 507 Stratton v. Allen 247, 253 Strauss v. Crawford 117 Street v. McClerken 555 7. Nelson 198, 199, 202 Streeter v. Streeter, 28, 390, 420, 421 Strickland v, Parker 63 String F. Bourland , 147 PAGES. Stringer f. Davis 403 Strohm f. Hayes 572 Strong F. Bank 243 F. Keene 527 F. Lawlor....; 28 F. Whitehead 499 Struman f. Robb 802 Strutt F. Smith 136 Sturges F. Keith 514 Styles F. Griffith ' 174 Sudbury f. Stearns 48, 223 Suggett V. Cason 66 Sullivan f. Stephenson 155 Summer v. Waugh 132 Summers v. Jarvis 658 F. Parker 657 Summons v. Austin 71, 75 Sumner v. Cook 552, 626, 632 F. Woods 417 Sunberg f. Babcock 656 Supervisors, &c., f. Manny, 175 Surles V. Sweeney 251 Susquehanna F.Finney.. ..293, 577 Sutcliffe F. Dohrman, 485, 534, 541, 800 Sutherland v. Carter 21, 294 Sutro F. Hoile 124, 135, 416 Suydam v. Jenkins, 440, 458, 459, 464, 467, 471, 477, 484, 488, 508, 513, 523, 525 Swain v. Alcorn 140 F.Roys 528 Swann v. Shewell 319, 323, 333 Swantz F. Pillow 674, 726 Swartz F. Skinner 117 Swearinger f. Magruder 391 Sweeney f. Lomme, 609, 633, 724, 779, 785, 793; 806 Sweet F. Tuttle 664 Sweetzer v. Mead.... 651 Swett F. Boyce 229 Swift F. Barnes, 515, 522, 525, 558 F. Crocker 327 Swindell v. Warden 554 INDEX OF CASES CITED. 865 PAGES. Syford f. Shriver 177 Sylte F. Nelson 422, 446 T. Taggart v. Hart 34 Talbot V. De Forest. ..91, 165, 166 Talcott F. Anderson 391 F. Belding 240 F. Crippen 450, 478 F. Henderson 133 Tallman v. Tweck 251 Talmage f. Scudder 253, 264 Talvandi f. Crepps 235, 406 Tancil f. Seaton 82 Tancre f. Pullman 283 F. Reynolds 253, 283 Tandle v. Crane 289 Tandler v. Saunders 73, 480 Tannahill r. Tuttle 91 Tarbell r. Gray ; 742 Tardy v. Howard 611, 621 Tarpey v. Shillenberger 761 Tarpy v. Shepherd 527 Tate F. 0. & M. E. R 749 Tatum F. Sharpless 80 Taylor v. Duesterberg....: 553 r. Hathaway 597, 598 T. Jenkins 441 F. Ketchum 527 F. Moore 389, 390 F. Morgan 503 F. Morton 500 F. Richardson 130 F. Riddle 291, 293, 557 r. Seymour 252 r. Strickland 733 r. Taylor 76 F. True 42 F. Velby 11, 178 r. Wells 290,324,673 Teall F. Van Wyck 737 Teeple f. Dickey 232 Tell F. Beyer '. 312, 710 Temple f. Alexander 237 55 PAGES. Terry v. AUis 482 Terryll f. Bailey 409, 663, 71® Teschner f. Deveron 378 Tessier r. Crowley 299 F. Englehart 297 Thatcher r. Franklin 144 F. Harlan 274 Thayer f. Turner 136, 137, 144 The City Bank r. R. "W. & 0. R. R 59 The City of Fort Dodge f. Moore 293 The D. & F. Missionary Soc. f. Hinman..; / 376 The People v. Wiltshire 332 The People, Use, &c., v. Core, 332, 362 Therber v. Richmond 639 Thbmas f. CroJut 184 F. Freligh 133 F. Irwin .....716, 749, 759 F. Spofford, 363, 515, 558, 783 F. Wilson 753, 754 F. Winters 127 F. Wiseman 423 Thomas of Motyshale f. Ab- bott of Cirencestor 319 Thompson v. Blanchard 133 F. Bronson 409 F. Butler 154, 165 F. Button, 71, 106, 172, 596, 599, 601 F. Eagleton..... 625 F. Jones 140 F. Lacy 79 F. Merohenney 553 F. Musser 599 F. Pearce 295 F. Peck 9, 127 F. Raymon 657 F. Rose 133, 578 F. Scheid,399, 481, 634 F. Shirly 260 r. Sweetser 400 866 INDEX OF OASES CITED. FAQBS. Thompson v. Trail 274 V. Wedge 127 T. Wells 688 Thornburg r. Hand 567, 574 Thome y. Colton 212 Thorp r. Burling 250 Thurber v. Richmond 356, 687 Thurston f. Blanchard, 128, 129, 130, 131, 132, 133, 136, 247 Tibbal v. Cahoon 14, 765, 784 Tibbies v. O'Connor 765 Tice V. Norton 389, 390 Tiedman v. O'Brien 461, 800 Tifft V. Tifft 223 Tift V. Verden 14, 657 Timp F. Dockham, 69, 416, 455, 635, 638, 689 Tison r. Bowden 55, 150 Titcomb v. Wood, 131, 132, 216, 219 Titsworth r. Frauenthal, 485, 583 Tittemore v. Labunty 55 Titus F. Berry 742 Todd F. Gordy 765 Toft V. Chapman ;..... 243 Toland f. Swearingen 755 Toles F. Adee 749 F. Cole 772 Tome F. Dubois 226 Tomlin r. Fisher 14 Tomlinson f. Collins 55, 562 Tompkins f. Batie 678 Tomplin f. Addy 217 Torian f. McClure 138 Torrey v. Burnett 187, 188 Tousey f. Bishop 766, 768 Town F. Evans 14, 564 F. Tabor 439, 549 F. Wilson 386, 561 Towne r. Sparks 35, 400 Town of LeKoy f. McConnel... 601 Townsend v. Bargy 540, 541 F. Brooks 606 Tracy v. New York, &c 35, 462 PAOE3. Tracy v. Teeder 800 F. Warren 72, 668 Trapnall r. Hattier, 30, 32, 132, 267 Trask v. Magaire 168 Travers f. Inslee 14, 168, 173 Treadwell f. Brown 110 Treat r. Hathorn 260 F. Staples 157, 529 Treman f. Morris, 358, 479, 482, 738 Trevilian r. Pyne 387 Trieber v. Knabe 27 Trimble v. State 801 Tripp F. Howe, 353, 367, 384, 385 F. ;Leland 233 F. Riley, 119, 209, 210, 214 Tronson f. Union Lumber Co. 312 Trotter f. Taylor 393 Trottie v. Myly 22, 136 Trowbridge v. Bosworth....77, 698 F. Sickler 571 Troy, &c., R. Co. f. Kane, 168, 169 Trudo F. Anderson, 244, 247, 251, 261, 267, 270 True F. Plumby '618 Trueblood f. Knox 790, 792 Truelock v. Rigsby 29, 388 Truitt F. Revell 4, 461, 571 TrutteU f. Harrill 697 Tuck F. Moses, 348, 353, 356, 365, 367, 494, 515, 519, 558, 640, 674, 740, 799 Tucker f. Edwards 225 F. Parks 436,510 ' Tuckwood F. Hanthorne 633 Tuley F. Manzey 652 TuUis F. Qrthwein 153 TuUy F. Fairly 122 F. Harloe ,....525, 559 Tummons f. Ogle 718 Tunple F. Alexander 364 Turberville f. Self 577 Turner v. Belden 554 F. Bondaleer 305 INDEX OF CASES CITED. 867 PAQEB. Turner v. Brock 068, 703 r. Cool 564 T. Langdon 575 r. Lilly 14 F. Reese, 378, 430, 583, 696 V. Eetter 421, 482 Turpie F. Fagg— , 582, 583 Turrill r. Crowley 79 Tuttle F. Cook 331 F. Eobinson, 233, 244, 252, 589 Twelles f. Coldville 334 Twinam r. Swart, 153, 264, 266, 467, 470, 479, 480 Tyler v. Bowlus 790 F. Davis 764 F. Freeman ...60, 69 Tyner v. Hays 400, 628 Tyson f. Bowden , 696^ Tyus F. Rust 79 U. UUmann f. Kline 748 Underwood f. Tatham 257 F. White, 549, 696, 602, 609, 636, 645, 652, 653 Union Lumber Co. r. Troueon, 78,. 344, 695 Updike F. Henry 64, 141 Upson F. Easford 553 U. S. F. Brown 355 F. Cook 72, 204, 212 F. Dantzler 376 'F. Kennan 42 U. S. Express Co. f. Keefer 295 Usry F. Rainwater 112, 119 V. Yaiden v. Bell, 6, 12, 30, 314, 365, 415 Vail F. Lewis 387 Valentine f. Jackson 389 PAGEB. Valle F. Cerre '.. 233 Van Alstine v. Kittle 460 Van Baalen f. Dean, 56, 74, 418, 566 Van Buskirk f. Purington 80 Van Cleef r. Fleet 131, 142 Vanderburgh r. Bassert 336 F. Van Valken- burgh,284,297, 311, 314 Vanderford f. Foster 605 Vanderhorst r. Bacon 265 Van Der Minden v. Elsas 310 Vanderslice r. Newton 510 Vandine f. Burpee 805 VanDuyne v. Coopo 766 Vaneter f. Grossman 154 Van Gorder f. Smith 229, 665 Van Horn v. Overman 407, 656 Van Husen f. Knouse 273 Van Namee r. Bradley, 54, 56, 71, 392, 404, 409, 645 ' Van Pelt v. McGraw 184 Van Valkenburgh v. Thayer... 249 Van Winkle v. Udall 331 Vaughan f. O'Brien 663 Vaughen v. Owens 567 Vaughn v. Norris 722 Vausse f. Russell, 44, 186, 193, 195 Veazie f. Somerby 575 Vennum f. Thompson 296, 556 Ventres v. Smith'. 220 Verner v. Bosworth 140 Verry r. Small 399 Vickery f. Sherburne 392, 893 Viel F. Hoag 758 Vinal F. Spofford 658, 711 Vinson f. Ardis 59 Vinton f. Mansfield 235, 798 Vinyard r. Barnes, 705, 716, 726, 759 V. M. R. R. Co. F. Ragsdale.... 316 Vocht F. Reed 168, 172 Voge F. Breed 662 868 INDEX Oi" CASES CITED. PAGES. Vogal F. Badcock, 296, 297, 305, 311 Vollum V. Simpson 453 Voorhees v. Earl 128, 129 Voorhis v. Freeman 189 Vosburgh r. Welch 467 Vose r. Hart, 391, 392, 393, 409, 647 r. Stiokney 252 Vrooman f. King 554 W. Wachstetter f. State 765 "Waddell r. Broadway, 719, 790, 792 F. Magee 589 "Wade F. Mason 55, 68, 105 Wadley r. Harris 300 Wagar f. Briscoe 188 Wagner f. C. & T. E. R. Co 191 •Waid F. Gailord 31 F. Gaylord 231 Wainscott r. Smith 58 Wait F. Triblecock 14, 665 Wakeman f. Barrows 143, 157 F. Lindsay 630 Walbridge f. Shaw 639, 693 Walcot F. Pomeroy 52 Walcott F. Harris 786 Waldraan v. Broder,110, 645, 652 682 Waldron f. Leach 324 Walker r. Fenner 112, 115 F. Hampton 346 F. Hunter 618, 641 F. Spring 115, 392 Wall F. Humphrey 730 Wallace r. Brown 40, 53, S4 F. Clark 791, 796, 808 r. Hilliard, 598, 599, 601, 604, 632 Wallen v. Rossman 568 Wallingsford f. Bennett 165 Walls F. Johnson, 457, 748, 749, 777 P1BE9. Walpole F. Smith, 52, 57, 60, 83, 247, 394, 396, 643 Walsh F. Adams 110 Waltman f. Alison 388, 561 Wambold v. Vick 552, 567 Wanborg v. Karst 665 Wangler v. JFranklin 420, 624 Waples F. McIIvain 722 Ward F. Anderberger 446 F. Eyre 213 F. Henley 785 F. Henry 163 F. Macauley 12 F. Masterson, 602, 632, 642 F. Taylor 149 F. Worthington 114, 211 Warder v. Hoover 243 'Wardrobe v. California Stage Co 507 Ware v. Brookhouse 554 F. Percival 175 Ware River R. R. Co. f. Vibard, 642 Warner v. Aughenbough, 291, 295, 296, 385, 462, 463 F. Caulk 420, 421 F. Comings 498, 774 F. Comstock 664 F. Cushman 21,214 F. Hunt, 56, 541,613, 649 F. Matthews, 53, 87, 409, 457, 782, 791 F. SaukCo. Bank, 292, 526 Warren f. Cole... 487, 499 F. Forney 25 F. Leland, 52, 82, 19^, 224 Warring v. Warren 554 Washburn v. Cutter 194 F. Huntington 601 F. Mendenhall 644 Washington r. Love, 114, 211, 230, 439 Washington Ice Co. F. Webster, 453, 473,496,499, 511,515,528, INDEX OF CASES CITED. 869- .PAGES. 541,558,675, 772, 776 Waterburry v. Wester velt 538 Waterhouse v. Smith 38 Waterman r. Matteson, 37, 183, 184, 651 r.Eobinson,12,52,68, 82 r. Todd 577 Waters v. Reuber 187, 199, 302 Watkins v. Baird 217 r. Page, 147, 287, 339, 343, 695, 697, 702 V. White 216 Watrous v. Cunningham 552 Watson r. Bissell 554 r. Jackson 430 V. Todd 147 F. Watson, 6, 12, 33, 323, 326, 338, 343 Watt V. Potter 256, 523 Watt's Exrs. r. Sheppard 733 Watts V. Green 604 Waverly r. Darby 457 Way V. Barnard 675, 700, 716 Weathersby v. Sleeper 192 Weaver v. Field 765, 804 V. Lawrence, 14, 33, 321, 370 Webb V. Fox 158, 284 r. Pound 737 Webber v. Davis 226 V. MerriU 618 F. Read 435 F. Shearman 387 F. Underbill 425 Weber f. Henry 163 F. Manne 356 Webster v. Price ..370, 745 F. Van Deventer 118 Wedell F. Abbott 554 Weed r. Hall 140 F. Hinton 366 F. Page 128, 129, 132 Weeks v. Peach 388 FAGB8. Weeks r.Robie 137 Weidel vRoseberry 389 Weidman r. Kohr 554 Weil V. Ryns 98, 648 V. Silvestone 212 Weinberg f. Conover 339, 349 WeinerF.VanRansselaer,338, 702 Weir F. Allen 156 Weizen r. McKinney 641 Welborn v. Shirty 135 Welch F. Durand 499 F. Sackett 93,596 F. Smith 291, 628 WelkerF.Wolverkuehler, 132, 135, 138 Weller f. Ely 221 Welles F. Thornton 106 Wellman f. English 264 Wells F. Abraham 216 F. Bannister 186 F. Griffln 756 F. Hornish 389 F. Johnson 652 F. Lamb 143 F. Noyes 63, 115 Welsh F. Cochran 31 Welton F. Beltezore 532, 615 Wemple f. Stewart 526 Wendell f. Abbott 554 West F. St. John 571 F. Wentworth 513, 522 Westcott F. Bock 682, 700, 701 Westenberger f. Wheat on, 148, 287, 401 Western Pub. Co. v. Botti- neau 323 Western R. R. Co. f. Bayne 306 Western &c. f. Walker 610 Westervelt v. Bell 366 West Mch. Sav. Bank r. How- ard 427, 651 Wetherbee f. Colby 732 F.Green, 202, 205, 206, 488 Wetson F. Fuller 8 870 INDEX OF CASES CITED. PAGES. Weymouth r. C. R. E 205, 494 Whaling r. Sholes 368 Wheadon r. Sugg 387 Wheat V. Catterlin, 602, 603, 719, 721 Wheaton f. ThonipBOii....535, 779 Wheeler v. Allen 37, 48, 392 F. Billings 565 F. Dixon 74 F. McCorristen 54, 404 F. McFarland, 36, 59, 71, 78 F. Train, 14, 47,106, 643, 653, 674 F. Wilkins...362, 635, 685 Wheeler & Wilson Mfg. Co. r. Teetzlaff 57, 259, 266, 560 Wheelock r. Cozzens 6, 12 Whetmore v. Eupe 636 Whipple F. Thayer 62, 154, 249 Whitaker v. Wheeler 153 Whitcomb f. HoHman 461 F. Hungeriord 64 White F. Bascom 69 F. Brooks 214 F. Brown 248, 259 V. Cross 577 F. Demory 259 F. DoUiver 168, 380, 701 F. Gainer 274 F. Graves 633 F. Jones 110, 155, 602 F. Lloyd 406 F. Moseley 543 F. Phelps 91 F. Eoss 465 F. Spettigue 215, 216 F. Storms 207, 519 F. Van Houten, 453, 667, 778 F. Webb, 481, 523, 533, 540 F. White 77, 604 Whiteford f. Burckmeyer 554 F. Goodwin 366 Whitesides r. Collier 639 PAGES. White S. M. Co. f. McBride 137 White &Son v. Woodruff, 552, 584, 629, 655 Whitfield F. Whitfield, 16, 484, 512, 544, 554, 607 Whitman f. Merrill 662 F. Tritle 251 Whitney f. Burnette 83 F. Butterfleld 331 F. Carle 444 F. Jenkinson, 339, 352, 357, 367 F. Ladd 110 F. Lehmar, 453, 725, 756, 780, 808 F. McConnell, 244, 248, 268 F. Slonson 257 Whittemore v. Jones 362, 735 Whittington r. Deering....390, 404 Whitwell F. Wells, 52, 257, 394; 406, 455, 638, 639, 643, 644, 674, 675 Whitworth f. Thomas 420 Wickliffe v. Sanders 12 Wiggin F. Day 139, 572 Wilber f. Flood, 128, 137, 279, 280, 282 Wilbraham r. Snow 79, 481 Wilbur F. Gilmore 693 Wilcoxon V. Annesley 601 Wild F. Holt ....204, 206, 487, 526 Wilde F. Clarkson 785 F. Pasehen 236 Wilderman v. Sandusky 618 Wiler F. Manley 427 Wiley F. Aultman 299 Wilhite F. Williams 288, 314 Wilkerson f. McDougall, 424, 466, 645 Wilkins v. Dingley 334 F. Treynor, 641, 644, 682, 683 Wilkinson r. Ketle 99 F. Stewart 210 INDEX OF CASES CITED. 871 PAGES. Willard r. Bridge.; 522 F. Kimball, 170, 338, 339, 345, 695, 702 V. Eice. 212, 493 Williams r. Archer 458, 522 F. Babbitt 347 F. Beede, 452, 529, 619, 711 F. Bresnahan 531, 559 F. Bunker 339 F. Chapman 633 F. Devine -651 r. Eikenberry, 406, 566, 567, 678, 707 F. Gardner 281 F. Given, 132, 134, 137, 218 F. Hall 657 F. Howard 781 F.Ives 499,510 F. Kessler 413 F. Mathews 445 F. Merie 218,220,250 F. Morgan 35, 38, 427 F. Mostyn 335, 527 T. Phelps, 467, 473, 477, 509 F. Porter 610 F. Smith, 19, 20, 21, 46, 389, 562 F. St. Louis 748, 798 F. Vail, .634, 758, 788, 789, 803, 804 F, Tick 567 F. "Welch 300, 394 F. West, 55, 70, 74, 104, 284, 287, 314, 371, 451, 541, 639 F. Wileox...386, 445, 608 Williamson v. Bryan 688 F. Gottschalk 99 F.N.J. S.R.R. Co., 1.30 r. Ringgold 4, 564 WiUis F. Farley 553 F. Lyman 299 PAGES. Willis F. O'Brien 94 V. Reinhardt 566, 582 Wills V. Barrister 30, 122 V. Noyes 114 Willson V. McQueen, 148, 152, 166 Wilson V. Barker 10, 256 F. Barnes 607 F. Conine 523 F. Fuller, 227, 283, 288, 289, 444, 445, 560, 561 F. Gray, 113, 115, 227, 290, 386, 673 F. Hillhouse 572, 776 F. Maeklin....280, 287, 293 F. Martin 428 F. Mathews 508, 522 F. Means '. 600 F. Nason 102, 209 F. Reed 114 F. Reese 576 F. Royston, 53, 60, 74, 285, 297, 393 F. Rybolt 44, 48 F. Stillwell 736 F. Stripe 152 F. Wheeler 684 F. Williams 313, 366 F. Toung 506 Wincher v. Shrewsbury 198 Winchester r. Craig 486, 487 Windsor v. Boyce 240, 245, 247 Wing F. Bishop 262 Wingate v. Smith, 202, 203, 212, 213, 493 Winnard r. Foster 148, 452 Winser r. Orcutt 733 Winslow r. Leonard 577 F. Merchants' Insur- ance Co 292 F. TJrquhart, 78, 695, 706 Wintrode r. Fluke 553 Wisconsin Ma. F. Co. v. Hobbs 386 Wise V. Withers 337, 338 Wiseman v. Lynn, 683, 718, 719, 790, 801 872 INDEX OF OASES CITED. PAGES. Wiseman f. Wiseman., 553 Wiswall V. Lampaon 157 Witcher v. Watkins 458 Witfleld r. Whitfield 503 Witham r. Witham, 63, 485, 635, 675 Wittick V. Traun 602 Woehler v. Endter 183 Woglam F. Cowperthwait, 24, 26, 27, 321, 373, 381 Wolcott V. Mead, 333, 357, 363, 792 Wolf V. Dorr 292 F. Meyer 603 F. Scofleld 312 F. Stix 768 Wolfe V. Blue 624 F. McClure 763, 765 Wolfley V. Rising 532 Wolford V. Powers 738 Wolgomot F. Bruner 390, 577 Wolpole F. Smith 645 Wolrath f. Campbell 531 Wood F. Braynard, 467,469, 513, 515, 578 F. Cohen, 138, 245, 247, 253 F. Coman, 718,736, 749, 783 V. Dudley 91 F. Fales 210 F. Hyatt 151 F. Jackson 666 r. McDonald 255, 430 F. Morewood 486 r. Orser, 63, 70, 79, 147, 612, 621 F. Page 137 Woodburn r. Chamberlain, 600, 601, 631, 652 F. Cogdal, 506, 512, 519 Woodbury v. Tuttle 709 Woodcroft F. Kynaston 387 Wooden-ware Co. v. U. S 202 Woodruff F. Adams 245 F. Apgar 59 PAGES, Woodruff F.Cook 413 F. King 91, 613, 614 Woods F. Kessler 797 F. Nixon 59 Woodward v. Grand Trunk.... 271 F. Ham 260 F. Woodward 241 Woodworth v. Knowlton 243 Woolridge v. Quinn, 625, 633, 728, 736 Woolston F. Smead 71 Wooster f. Lyons 733 Workman v. Warder..... 422 Worth F. Moore 62 Wortham v. Gurley....55. 225, 497 Wright F. Armstrong 32, 69 F. Bennett, 214, 227, 408, 432 F. Briggs 169, 174 F. Funck 619 F. Guier 193, 200, 202 F. Hoke 758 F. Marvin 347, 755 F. Matthews, 389, 452, 619, 640 F. Quirk 559, 724, 805 F. Richmond 66 F. Williams, 388, 389,391, 451, 453 Wyatt F. Freeman 428, 691 Wyllie F. Wilkes 772 Wyman v. Bowman 660, 664 F. Dorr 106 F. Gould 439 F. Robinson 786 Wynkoop f;. Wynkoop 45 Y. Yale F. Seely 186 Yallop DeGroot Co. f. M. &St. L. R 466 Yandle f. Crane 412, 561 F. Kingsbury .„ 479 Yantes v. Burditt 472 INDEX OF CASES CITED. 873 Yarborough v. Harper. ...166, 441 Yarbrough v. Arnold 553 Yater v. Mullen 189, 513 Yates V. FaB8et.t...l3, 15, 388, 440 r. Joice 184 F. Russell 692 r. Smith 183, 251 V.Yates 697 Yelton V. Slinkard 780 Yorke v. Grenaugh 80 Yott F. The People 346, 379 Youl F. Harbattle 249 Young V. Atwood....348, 501, 626 F. GlasBCOck, 418,560, 565 F. Herdic i89 PAGES. Young F. Kimball 34, 77 V. Lego 600, 635 F. Lloyd 486 F. Miles 209, 214 F. Parsons 604 F. Pickens 424, 781 F. Spencer 527 F. Willett, 316, 457, 496, 497 V. Wise 341 Z. Zachrissan f. Ahman 244, 261 Zachary r. Pace 256 Ziteke f. Goldberg...,497, 498, 635 INDEX. BEFERENCE» ARE TO SECTIONS. A. BECTION. ABATEMENT, when proper as a defense Sl't plea in must contain what 813 plea in good. See Answer 770 ABANDONED, wife may bring the action 155 property 164-5 ABORTIVE SALE, effect of 107 ACT OF GOD, destruction by, as a defense 830 ACTS equivalent to demand 485 ACTION, for value cannot be brought while replevin pending 710 joinder of another with replevin is a misjoinder 585 of replevin must be by real party in interest 425 on bond. See Bond, Action on 1269-81 ACTUAL DAMAGES only recoverable on full proof 950 ADMINISTRATOR, may bring the action 151, 424 liability in replevin 1151 ADJUDICATION, former, as a defense, good 810-11 ADVERSE POSSESSION, its relation to replevin 374-8 AFFIDAVIT 525-603 its history and what it is 525 its importance 526 jurisdiction depends upon 529 always necessary to delivery of property 527 no particular form necessary 582 statutory form but a general g-uide 581 proper form of 584 requisites of 583 must allege ownership or right of possession 533 876 INDEX. BECTIOS. AFFIDAVIT— Continued. must allege — that property not taken for tax, etc 534 right of possession 532 property not taken on execution or attachment... 535 that property not taken in replevin 538 wrongful detention ' 642 must be definite as to person entitled to possession 558 allegations in the alternative not fatal 557 should 8tat« value of the property 539-41 must be signed and sworn to 530 allegations of should be in present tense 531 how venue stated in 564 detective cause of actionand defective statement of agood cause 563 what is a sufficient 553—4 when sufficiency of is a question of law and when of fact... 554 how made when corporation plaintiff 562 may be made by an agent 560 proper form by an agent 561 fatal defects in, what are 568 variance in, fatal 545 the ground stated in for is binding on plaintiff .'. 559 statutory allegations in, not conclusive of the facts 567 description — in, more particular than in trespass or trover 544 may be amended, when 548 one that can be made definite is good .* 547 best possible sufficient 549 where many small articles, a general good 552 by kind and quantity, .when good 550 fractional part as a 551 undivided interest how described 551 copies of written instruments need not be set out in 546 defects in must be objected to before verdict '. 729 dismissal for defects in 1205 objections to should be made by motion 730 what defects in waived by pleading 553 amendment — nunc pro tunc as to name and jurat, when 572 new articles may be added by, when 577 damages may be enlarged by 570 jurisdictional defects in, not cured by 578 total lack of, cannot be cured by 580 new parties cannot be added by 579 new cause of action cannot be added by 575 INDEX. 877 SECTION. AFFIDAYIT-Confmned. Amendment — Continued. part of the property cannot be stricken out hj, when 576 effect of failure to amend 574 should be amended by a new one '. 571 amended may be sworn to by different agent 573 when value stated in governs 541 value stated in not finding on trial 540 when proper evidence of value 996 when not a part of the pleadings 599 takes place of all other pleadings, when 587 nature of plaintiff's interest need not be particularly de- scribed .' 555 special interest must be pleaded 556 declaration by two should show interest of each 558 for exempt property must allege special facts 536—7 in replevin of attached property by attaching officer 592 need not be separate from the complaint 586 another form of action should not be joined with replevin, 585 defendant alone can take advantage of failure to file 528 "he detains" and he "detained," distinction betweep 543 See Complaint, Declabation, Petition. AGENT, see Bailor and Bailee 207-18 may bring, when 108 may replevy in his own name 133-41 may make affidavit in replevin 560 •agency, how stated in affidavit 561 a different one may make amended affidavit 573 where transfers property wrongfully, replevin lies without demand '. 511-12 sale by, without authority ground of, when 208-9 ALIAS WRIT 606 when issued 629 See Writ or Eepi-evin. ALIQUOT PARTS, articles separable into, reploviable 400 part of an, is not repleviable 402 ALLEGATIONS in replevin... 567 See Affidavit. AMENDMENT, see Affidavit 569-80 effect of failure to amend 574 misnomer in writ cured by 628 of writ as to value proper 627 878 INDEX. SECTIOIf. AMENDMENT— CoB*innerf. of description in writ, when proper 619-20 of bond, when allowed 697-8 ANIMALS IMPOUNDED : 348-52 See Distraint. ANSWER .-. 726-82 a waiver of certain defects 553 waives what defects ., 726-7 what is a proper, under the codes 746 need not anticipate title not pleaded 778 contradictory defenses not proper 776 conjunctive and literal denials raise no issue 775 must be — certain to a common intent 748 fuU and explicit 747 should not state the evidence, but facts 749 should claim a return, but not fatal if it do not 782 illustration of — sufficient 771 defective in substance 774 when a general denial, no reply needed 839 what is a good general denial 750 what may be shown under general denial 751-6 all defenses must refer to time suit commenced 764 how far controlled by the court 766 several separate defenses may be pleaded 763 ea«h defendant may plead separate defenses 765 plea in bar is a good 769 plea in abatement proper 770 not guilty proper plea, where 745 plea of property in a third person good 768 effect of plea of property in defendant 767 justification, proper averments of 757-60 burden of proof 758 should allege amount, levy, and validity of writ... 759 of fraud should be specially pleaded 781 proper by officer in case of fraud 762 special property interest must be pleaded 779 in replevin by a mortgagee 772 usury should be specially pleaded 780 death of property must be specially pleaded 778 avowry as 734-5, 737 avowry little used in this country 737 non eepit and non detinet as 738-44 in nature of setoff, when proper 736 setoff or recoupment not a good 791 INDEX. 879 SECTION. ANSWER-CoDtimwd. matter of inducement not traversable 761 plea of payment or over-payment not good 773 to suit on bond must be complete 1372-3 to suit on bond held not good, when 1374 See Pleadings, Defenses. APPEAL : 1236-49 after, cannot dismiss for defects 1202 must be taken by real party in interest 1237 value for the purpose of 1246 bond in, not liable for failure to return 1393 when return awarded on 1248 where the result is a nonsuit return should be awarded.... 1203 waives certain defects „ 1244 judgment held in abeyance by. 1247 defense cannot be changed on 1245 does not open judgment in appellant's favor 1249 See Ehrob. APPEARANCE waives detects 726-7 APPRAISAL in replevin, object of 675 APPRAISEMENT, how far evidence of value 997 sheriff liable for an under 687-^ ARBITRATION, unqualified, a dismissal of replevin action 1214 ARCHIVES of a public office cannot be replevied 75 ARREST, when not proper under writ of replevin 631 ARTIFICIAL WORDS not to govern in declaration 597 ASSESSMENT, property taken for, cannot be replevied 52 See T.vx. ASSIGNEE, of landlord may replevy share of crop 34 of a property right may bring replevin 428 must give notice and demand 461 ASSIGNEE FOR BENEFIT OF CREDITORS, rights of, in replevin 290-8 is not a purchaser for value 290 represents the assignor 291 in bankruptcy represents the creditors 291 need not allege his official character 292 rights of, depend upon compliance with the statute 293 does not take title to growing crop on homestead 294 suit by, subject to the same defenses as any other plaintiff 298 may replevy property taken by the assignor 295 /VSSIGNMENT, effect on contract of sale 282 880 INDEX. SECTIOH. ASSIGNMENT— Coniinuec?. assignee oJ note can replevy the mortgaged property 186 oJ judgment in replevin may sue on bond 1300 ATTACHMENT, cannot be leved on property held in replevin 708 property legally held under, not liable to replevin 52 writ of, must be lawfully executed or replevin will lie 314 plaintiff in, cannot replevin from the oflScer 310 property held in, may be replevied when 300 property under, may be replevied by any third party 309 replevin of attached property may be brought in any court, 330 writ of, how far evidence 1007 as a defense in replevin 804-6 levy of, merely suspended by replevin ; 720 lien of, will be protected in replevin 963 See Execution, Custody of Law. ATTORNEYS' FEES, should be a-llowed as damages when 920-1, 976 when recoverable on bond 1358 AUCTIONEER may maintain replevin, when - 104, 133 AVOWRY, definition, pleas 731-733 pleas to 734 in case of reply necessary ,. 838 the usual plea to the replevin of a distress 735 B. BAILEE, recovery by, is bar to action by principal 210 may replevy from a stranger to the title 210 entitled to full value against strangers 969 may replevy ._ , 133, 423 rights of a naked 166 is protected if he surrender to the true owner 217 may defend against the owner 211 may replevy from owner 211 rule of damages against owner 970 cannot set up titie adverse to the owner 471 cannot dispute b.ailor's title 217 may defend against owner, when 211 if he pledge goods without authority, owner may replevy, 213 it he violate the terms of the bailment, replevin lies by owner 212 where he exceeds his authority, replevin lies 512 interest may be levied on, and bailor cannot replevy 215 INDEX, 881 SECTION. BAILOE, must tender amount of lion 218 if the whole interest be levied on, real owner may replevy, 216 owner may replevy when terms of bailment are violated. ..212— 14 BAILOR AND BAILEE 106, 207-18 one dealing with an agent or bailee must learn the extent of his authority 207 See Agent. BAND, rights of members of, a&to instruments 114 BANKRUPTCY, assignee in, when protected from replevin 319 assignee in, may replevy 319 effect on contract of sale 281 does not release sureties on bond 1334 BAR, plea in, good 769 See Answer. BARTERED PROPERTY, when repleviable 417-18 BILL OF LADING, holder of, may replevy the property described in 103 BIRDS may be replevied 70 BOARDS built into a house not repleviable 382 BONA FIDE HOLDER, demand must be made of 467, 472 BOND, its importance and conditions.... 665—703 a good, necessary to valid service 693 must be given in replevin 52 neither poverty nor wealth excuses from giving 666-7 in replevin indispensable 675 object of requiring 676 for benefit of plaintiff and officer both .' 676^ its conditions and history at common law 669' requisites of a statutory 670-2 exact form or name not important 692 statutory, may be required by court 677 amount of, in England 7 amount, how fixed 687-8 must be prepared by plaintiff 641 should run to defendant 685 uncertain in amount invalid 699 when invalid 699 not void for mere technical defects 696 may be good though not conforming to the statute 673 mere informalitj' in, not fatal 682 need not be under seal when 683 its several conditions are separate and distinct 671 56 882 INDEX. SECTION. BOJ^D—Continned. ' time allowed in which to execute 684 sheriff should hold property to allow time to give 640 what is proper execution 681-4 executed by surety alone sufficient 682 objections to sufficiency of, how made .' 695 when sufficiency of must be excepted to 694 can bo amended 697-8 court may permit new one to' be given, when 680 practice where bond is given before writ issues 691 takes place of security for costs, when 700 in replevin sheriff responsible for a good 638 if good when talsen, sheriff not liable 689 sheriff the sole judge of sufficiency 678-9 sheriff liable for not taking proper bond .^ 686 lost by officer, damages for 639 money deposited in lieu of, may be gamisheed 719 effect on title 702 plaintiff does not acquire new title by giving 703 liable for loss or destruction of property 723-5 in replevin under special act must conform to act 674 redelivery— waives certain defenses 701 rule of damages in'suit on 1357 validity and construction of 1282-93 should be construed liberally 1282-3 must be delivered to be valid 1285 delivery of the property sufflcienj; consideration for, 1284 may be valid though not signed 1286 may be good though not conforming to statute... 1287 not dated, dates from delivery 1288 mistake in body as to name not fatal 1290 disability of one surety does not release the others 1293 taken under repealed law, void when 1289 change in plaintiffs does not affect 1331 illustrations of void bonds 1292 breach of 1250-68 what is a 1250 action for only accrues on termination of replevin action 1264 failure in the suit is a 1260 cannot occur after the successful termination of the suit 1322-3 ordinarily obligation refers to final termination.. 1263 obligors may limit their liability to first trial 1262 condition to prosecute with effect, defeat is a 1253—4 INDEX. 883 SECTION. BOND— Continued. Breach oi— Continued. condition to prosecute without delay, how broken 1251 what is an unusual delay " 1252 failure to enter in court is a 1257-8 nonsuit is a 1256 dismissal is a 1255 failure to pay money judgment is a 1268 failure to pay costs is a 1268 condition to return, the most common 1265 a demand for a return not necessary to 1260 judgment of return conclusive as to 1267 death of party to suit is not a 1261 abatement of suit by removal of court is not a 1259 liabilities of sureties. how courts regard sureties on 1308 release to principal will discharge surety 1310 See Sureties. liability of— principals and sureties on 1307-37 principal on 1307 recitals of, cannot be contradicted "1330 liability on — not lessened by change of defendants 1332 not changed without consent of obligee : 1319 sureties bound by a confession of judgment 1315 sureties not bound by a fraudulent judgment 1316 action on — how brought 1269-81 debt the proper form of 1269 what facts must be alleged 1270-1 one cause well stated sufficient 1274—6 copies of pleadings in replevin not necessary to.... 1272 barred by time same as any other action 1299 plaintiff must occupy consistent position 1387 allegations as to return 1276 malice need not be alleged 1378 defect apparent in face of bond reached by demurrer 1280 variance between bond and petition, effect of 1281 allegations by one having a limited interest 1277 how suit brought on lost bond 1306 where executed in wrong name 1279 proper evidence in an 1385-6 how brought in particular cases 1302 parties to suit on 1294-1306 who are proper 1294 884 INDEX. SECTIOS. 'BONB—ContiBved. Parties to suit on — Continued. the real party injured the proper plaintiff 1297 stranger to replevin action cannot be a 1298 a substituted plaintiff may be a 1301 ■ assignee of judgment may sue on 1300 all parties interested may join in suit on 1303-4 joint obligors should join in suit on 1304 by usee in name of sheriff, who are 1296 in suit by officer for use, etc 1295 defenses to 13G0-94 what are proper, generally 13C0-1 alteration in, is a good 1362 plaintiff's posBession is ^ good 1392 satisfaction, no judgment, and release all good.... 1375 plea must answer all material allegations 1372-3 where replevin not tried onmeritsgreaterlatitude allowed in 1369-71 effect of return after suit brought as a 1391 return to be must be full and complete 1388-9 setoff allowed, when 1383 property in a stranger not a good 1365 that property cannot be returned, not a 1377 property eloigned or died how far a 1376 title acquired since replevin action, not a 1390 obligors cannot go back of judgment in roplevin.. 1366 defects in replevin proceeding are not 1367-8 cannot contradict the judgment in replevin 1363-4 mustnotcontradictgroundof recovery in replevin 1387 answer held not good in special cases... 1374 measure of recovery on 1338-59 as to costs and attorneys' fees 1358 nominal damages only allowed when 1355 in case of distress 1351 between mortgagor and mortgagee 1354 in case of attached property 1348-9 in case of partners 1353 by one having special interest only 1352 in case property not moved 1347 loss to business not recoverable on 1340 where part of the goods returned injured— rule 1350 where value not found, actual value allowed 1346 where suit dismissed, is compensation only 1356 interest on the value found in replevin allowed, when 1345 value found in replevin suit, an item in 1344 INDEX. 885 SECTION. BOl^D— Continued. Measure of recovery on — Continued. damages, how determined 1349 not limited by jurisdiction of court, when 1342 proper limit oJ damages recoverable 1343 interest on the penalty of the bond allowed, when, 1359 vindictive or punitive damages not allowed 1341 should be compensation only 1338—9 in mitigation of damages on — what may be shown 1378—94 what not allowed 1384 illustration 1380 stranger to title entitled to no favor 1379 defenses to, part payment in another action is pro tanto, 1381—2 See Writ, Sekviob of. BUILDINGS, when personal property 1041 when repleviable 363-5 are prima facie real estate and not repleviable 364 attached to land by a trespasser, when repleviable 381 may become personal property by agreement 365 See House. C. CARIITER— COMMON, freight may be replevied from, when 515-6 to replevy from, proper charges should be tendered 516 CARRIER'S IJEN, depends on possession 159-61 replevin will not lie without tender of amount of, when.... 521 CEPIT IN ALIO LOCO, plea of 741 See NoN Cepit. CHANGE IlSf FORM OR VALUE. of property, rule as to damages 389, 909 See Goods Changed in Fobm. CHATTELS, severed from realty, repleviable 382 actual severance, when not necessary 385 may be so attached to realty as to bo not repleviable 382 illegally severed may be replevied at once 384 severed by mistake repleviable by true owner 386 See Crops, House, Fixtures. CHECK, a, may be replevied 76 CHOSE IN ACTION may be replevied 81 886 INDEX. BECTION. CHURCH or other society may replevy 423 CIVIL LAW, rule of, as to property changed in form 389 CLAIMANT, should intervene when 301 one of two cannot replevy crop raised by the other 377 See Owner. CO-DEFENDANTS, who may be 441 COFFIN not subject to replevin 71 COGNIZANCE, definition, picas 732-3 COLLECTOR. See Tax. COLORABLE TITLE, rights of holder by, in replevin 387 COMITY OF STATES 320 See Sister States. COMMISSION GOODS, not a conditional sale 254 COMPLAINT 525-603 and affidavit need not be separate 586 may be used as an affidavit 588-9 in replevin, what is a good 590—1, 593 See Affidavit, Declaration, Petition. CONDITIONAL SALE 106 seller may replevy on a, when 112 when demand necessary in case of 502 CONFUSION OF GOODS 399-409 general rule 399 how action brought in cases of 204r-5 the person not at fault may replevy the whole 205 loss, if any, must fall on the guilty party 403 occasioned by willful act, all right to common mass is lost, 405 one who willfully does, can only replevy that not mixed... 407 rights of owner against a stranger 409 confusion by agreement creates tenancy in common 408 by consent, both havecommon interesit in mass 405 as to articles which can be identified, no mixture. 400 part of mass may be replevied, when 400-2 separable into aliquot parts, repleviable 400 part of pound, bushel, or bale not repleviable 402 CONSIGNEE, may bring the action 153 may replevy freight from a common carrier 51.5 CONSIGNOR may replevy his property 254' CONSOLIDATION of two actions of replevin not allowed, when, 1224 CONSTABLE. See Shbbipp and Officer. CONSTRUCTIVE POSSESSION, what is, to support replevin 438 CONTEMPT OF COURT, to replevy goods in custody of law, old rule 299 is a, to disturb possession of property replevied 718 INDEX. 887 BEOTIOH. CONTEMPT OF COJJUT-Continued. deiendant secreting or driving away property not in, when 657 not a, to replevy to test legality of levy, modern rule 300 CONTRACT, cannot be enforced by replevin 289 reRcission of. See Vendoe and Venbee. obtained by fraud conveys no title 264 CONTRIBUTION between sureties on bond proper 1330 CONVERSION, by defendant will excuse demand 459 in case of a demand not necessary 474 should be shown when 994 CORONER. writ directed to, when sheriff a party 614 See Sheriff and Officer.. CORPORATE RECORDS may be replevied 69 CORPORATION, how affidavit in replevin made by 562 CORPSE not subject to replevin 71 COSTS, effected by demand 468 security for, when covered by bond in replevin 700 judgment allowed to successful party ...., 1156 within the discretion of the court 846 of court and for retaking, recoverable on the bond 1358 failure to pay is a breach of bond 1268 COUNTER-CLAIM. See Setoff. COUNTY WARRANT may bo replevied 81 COURT, may permit new bond to be given, when.; 680 should require statutory bond 677 should allow bond to be amended 697-8 cannot interfere with discretion of officer 678 when may compel defendant to surrender property 656 how far may control answer of defendant 766 COURT RECORDS AND SEAL may be replevied 75 CREDITORS may join as plaintiffs 138 CROPS, can be replevied 73 general rule with regard to 359 property severed from realty, repleviable when 354 trees, grass, and houses, etc., are real or personal prop- erty according to circumstances 353 ■when growing, are personal property— Instruction 1042 on leased land cannot be replevied by landlord 33 and plants reserved in deed of land are subject to replevin 385 888 INDEX. BEpTION. CROTS— Continued. grass and trees when severed may be replevied 37u how effected where title to the land is in litigation 361 a growing, pass with sale of realty 356 purchaser of land may replevy 357 severed from sold land,repleviable by vendee, not by ven- dor '. 379 rule different where nothing paid for the land 380 are covered by mortgage on land 357 purchaser at judicial sale of land cannot replevy crop be- fore confirmation 358 mortgagee cannot replevy crop severed before he took possession 360 not repleviable by one of two adverse claimants of the land 377 cannot be replevied by disseizor 381 attached to lanJi by a trespasser, pass with it ■ 383 CROSS-REPLEVINS, recaption 1218—35 defined, illustration 1226 not allowed, why 1225 another action pending is a good defense 1222 former replevin good in bar of second suit 1223 distinction between replevin and other writs 1218 issues tried in one action not triable in another 1221 property held by special writ not repleviable 1219 claimant cannot replevy, when defeated in trial of right of property 1220 not allowed by grantees of first parties 1227 See Second Replevins. CUSTODIA LEGIS, property replevied is in 704—725 money deposited in lieu of bond, not in 719 CUSTODY OF LAW. See Goods in Custody or Law. CUSTODY OF PROPERTY, when taken in replevin 704-25 at common law 704 status under the codes 705 property taken in replevin is in custody of law 706 is under the control of the court 707 while suit pending, cannot be interfered with 708 cannot be interfered with by another court 709 of sister state courts, respected 717 interfering with, is contempt, when 718 surety on bond cannot control 725 sheriff liable for, before bond given 711 INDEX. 889 ^r-^-. SECTION. CUSTODY OF PROPERTY-ContiBued. plaintiff has a right to, while suit pending- 712 plaintiff responsiblo for loss of goods 724 plaintiff resijonsible tor injaries to goods 723 redelivery bond entitles defendant to 714-15 D. DAMAGE FEASANT. See Distraint. DAMAGES 844-976 a distinction between, and value 850 rule of, in emancipation of slaves 871 a difficult subject 844 history and general remarks 845 given in England '. 7 measure of 17 for conversion, cannot be recovered by replevin 56 cannot be recovered in an independent action 847 independent suit for, barred by replevin 1170 must be confined to the wrongful taking or detention 848 should be assessed by the jury 859 cannot exceed that claimed by plaintiff 861 may be given in excess of limited jurisdiction, when 1095 judgment for j 1148-9 when a primary object in replevin 24 replevin is a suit for, where property not taken 664 may be enlarged by amendment 570 may be given notwithstanding dismissal 1198-9 rule of, where successful party is repossessed 87G should be placed high to compel a return 904 defendant not entitled to, unless he claim a return 851 above compensatory, largely in discretion of jury 929—30 may be allowed to both parties 846 only nominal, allowed where defendant had no title 1355 rule of, where the successful party has right to elect 858 may be cut down by court, when 1088 between vendor and vendee. See Vendor 899 for malicious bringing of replevin are recoverable 1394 for failure to return are recoverable from replevin, not from appeal bond 1393 as affected by demand 951 always given against an intruder 966 actual only allowed on proof 950 nominal are incident to success 949 full indemnity the object of all rules on 943 more than nominal must be proved 950, 1087 890 INDEX. J)AMA.GES-Co7itmmd. special, must be specially pleaded 603 epocial, must be specially proved 98i verdict should find amount of 1074—5 in conclusion, author's suggestions 976 summary, rules of 975 cannot be given for detention, use, and value too 961 in case of a mortgagee 953-6 rule of, between mortgagor and mortgagee ; 185 measure of, between joint owners 905 in case of an ofiicer — in favor of an officer, is face of his writ 957 in favor of officer, is the value of his writs 959 if officers' writs are for too much, he can only re- cover the true amount 960 as against an intruder, officerentitled to full value, 065 against an officer seizing under a writ... 967 seldom more than actual allowed against an officer, 933 measure of, where officer has lost bond 639 where right founded on special ownership — special owner allowed full, against a stranger 968 rule in case of bailor, trustee, special owner, etc.. .969-71 in suit for note or evidence oi debt 900 in case of keepsakes, souvenirs, utc 903 measure of, in case of stocks, is value on day of trial 901 rule as to, where only part of the property is recovered... 952 prospective profits not allowed 972-3 probable profits sometimes allowed 974 where value changeable — rule as to value where fluctuating 939-40 value of gold coin, when fluctuating, how fixed 948 rule where market is distant 946 how highest market value determined 942 value should be fixed where unlawfully taken 944 rule in trover a guide as to value 945 rule of value where value not stable 941 value should be fixed as of what time generally.... 937 value at time of taking, with interest and costs, the proper rule 910 value when fixed as of time of trial— Rule 938 increased value may be shown by amendment 911 where value increased in good failh, rule 913 where value changed by wrongdoer — rule of, where value iucreased by wrongdoer 912 increased value not recoverable by a wrongdoer... 947 not favored to a willful trespasser 908 INDEX. 891 DAMAGES-CoTjfinneA '™"°''' where value changed by wrongdoer — Continued. general rule, whove proiierty changed in form 909 for proporty severed from real estate OOrt where property severed and increased in value lu ■ good faith 907 party claiming in net not be guilty of contributory negligence , 931 wrongdoer cannot make a profit 932 rule same as in trespass 923 Then vindictive given — more than compensatory must be pleaded and proved 927 actual malice must be shown to get more than compensatory 928 what are punitive, exemplary, and vindictive....... 92G punitive, exemplary, or vindictive may be given... 924 Interest as a measure of 877 interestnotalwaysthepropormoasureof damages 886 rule as to interest same as in trover 881 interest and profits both cannot be allowed 885 interest is not special 882 interest not allowed where property returned 883 interest discretionary with the jury 884 where property not taken is value with interest.... 880-1 ordinarily interest should be allowed as 879 interest not allowed as priqr to time value fixed... 878 Talue of use as a measure of 887-8 usable value a proper element of damages 891 what should be considered in estimating 890 excessive must not be allowed for use 889 party claiming use must show right to use it 897 one not entitled to use the property can not re- cover for use 895 for value and use both not given 894 for use not recoverable in a separate action 89.3 for use need not be specially claimed '. 892 interest not proper where there is a usable value... 887 interest may be allowed on usable Value 898 costs and expenses incurred in — expenses of taking and removing proper as 92;! expenses, counsel fees, etc., an element in, when 920 money spent in thepursuit of propertynot proper 921 time spent in attending the suit, etc., not allowed as .'. 920-1 money paid to procure a bond not proper as 922 892 INDEX. SECTION. DAMAGES— Continued. rule whore property decreaBed in value 902 depreciation by loss of time an element in 915 depreciation in value an element of 914—15 where holder neglects the property he is liable in.. 916 loss from interruption of business an element of... 919 deterioration in hands of holder an element in 918 expenses for doctoring and care by the holder an element in 917 in favor of defendant — rule whore defendant prevail 856-7 where defendant keeps the property 870 damages for defendant where here-acquiresposses- sion 860 for defendant where plaintiff has had possession... 865 special damages when allowed in favor of defend- ant 935 in favor of plaintiff — measure of plaintiff'swhere he cannot give bond... 864 for plaintiff where he has had possession 863 general rule where plaintiff prevails 853 how affected by plaintiff's interest 854 if plaintiff prevail but property has not been de- livered 855 rule where plaintiff prevails but defendant has property 852 mitigation of damages— what proper in 849 possession during suit may be shown in 875 where property lost or destroyed 872 death or destruction of the property, effect of on. .867-72 death of the property may be shown in 831 not lessened by delivery of propei-ty to a receiver 873 that property has been transferred is proper in.... 874 how assessed on a nonsuit. See Dismissal 860 may be reduced by set-off , 795 measure in suit on bond. See Bond, measure of recovery on 1338-59 what may be shown in mitigation of on bond 1378—94 in suit on bond by one having special interest 1352 death— or destruction, effect on damages R67— 72 of a party, effect of tiOO-2 of party to, effect on bond 1261 DECEDENT, demand, how made in case of 484 INDEX. 893 SECTION. DECLARATION ; 523-603 what it should contain 593-7 must follow affidavit 595 See Affidavit, Complaint, Petition. DEED, may be replevied 79 DEFENDANT rule oi damages if he prevail 856-7 must claim a return to get damages 851 damages 865-6 in execution may replevy exempt property 332 separate may have separate judgments 1143 separate entitled to separate verdicts 1081 right of not extinguished by flndiug the property 58 when changed by substitution 444 possession, manner of, does not waive demand, when 513 bound by reasons given when demand made 475 proper. iSeePAHTiES 423-46 replevin will lie against whom 58 must have actual or constructive possession 431-3 must have had control over the thing 134 replevin will not lie against an officer who has turned the property over 62 levy without possession no ground for replevin against... 63 what is possession by an officer 62 officer after levy of process is a proper 436-7 a receiptor is a proper 59 must have possession or the action will not lie 61 one who never has had possession cannot be made a 132 must have actual or constructive possession 64-5 exceptions where property wrongfully transfei-red 66 the one actually detaining is the proper 431-2 when an assignee of property a proper 434-5 when judgment plaintiff may be made 440 the person in actual possession is the proper 443 who may be joined as 441 one of two wrongdoers may be sole 442 when court may compel a, to surrender property 656 does not have to assist officer in service of the writ 655 liable for secreting or driving away property, when 657 one who pays takes the title 1175 a, giving bond entitled to custody of property 714-5 change of, does not release bond 1332 DEFENSES 783-836 generally 783 must relate to the commencement of the action 796 courts should strive to do justice between the parties 794 894 INDEX. SECTIon DEFENSES— Continued what are waived or lost by failure to plead 828 what, waived by giving a redelivery bond 701 good faith does not make wrongful taking right 464 examples of 825 that the property is not identical is a 822 title in a third person is a good 784-7 title in a defendant is a good 821 judgment in trover for the conversion is a 820 joint tenancy is a good 237 title acquired from plaintiff is a ;.. 819 possession under a tax warrant is a 818 title by possession alone may be a good 817 possession alone is a good, against a wrongdoer 84 special right of possession is a good 815 former judgment as a, how pleaded 811 former judgment to be, must be on same issue 812 for judgment to be, must be final 810 pendency of another action is a defense 809 trial of right of property, how far a 808 justification under a writ as a 803—7 destruction by act of God as a 830 a foreclosure in chancery is a 836 when plea in aba tement proper as a 814 plea in abatement must contain what 813 death of a party as a 800-2 estoppel is a good 799 remedy by intervention not exclusive 790 rule as to, where claimants have to intervene 789 what are proper, in case of a distress 827 lien in a third party not a good 816 failure of plaintiff's title after suit brought is not a 798 cannot be changed after suit brought 797 improper, examples of 829 purchase at public sale not a good 834 a taking by a soldier when not a 832 a garnishment is not a, when 833 Bet-oft against the damages proper 795 death of the property a mitigation of damages 831 an unsatisfied prior mortgage no 193 part payment not a, to replevy by mortgagee 183 usury a proper, to replevin by mortgagee 793 prior mortgage not a gdod 783 right of homestead not a good, against the mortgagee... 835 to suit on bond. See Bond, Defenses to 1360-94 based upon special law, how pleaded 826 INDEX. 89 5 BEOTIOK. DEFENSES— Continuec/. fraud as a 823-4 See Answick. DEFINITION of replevin 2 DEMAND, generally '...447-524 instructions as to 1043-6 See Tender to Discharge Lien. necessary when, rule 447 object of, to establish a conversion, etc 452 must be made before action brought 467 by whom made 452 effect of, on costs 468 effect of, on damages 051 may be waived 467 failure to make a, may be waived 451 is waived by plea of title in defendant 448 is not waived by general denial 467 is waived by claim of Ownership by defendant 510 and refusal do not make a conversion 449 should be made before suit brought 476 after suit brought, not good 477-8 effect of a conditional refusal to deliver on 474 refusal to deliver must be by one in possession 481 no particular form of, necessary 483 sufficiency of 510 a written, mu.st be specific 483 in violation of injunction is bad 487 on whom made 481 on agent of limited authority not good 467 of person in charge sufficient 484 must be inado by a "stranger" 170 if proved, failu're to allege is cured 482 acts and notice equivalent to 485 how made in case of a decedent 484 of indices or badges of ownership, when sufficient 486 necessity of a, not affected by manner of possession, when, 513 the time of, when value should be fixed 937 what acts of dominion by defendant will excuse a 459 excused b.y acts of conversion by defendant 459 title of record no excuse for 400 must be made by an assignee 461 necessary by mortgagee 198 must be made by mortgagee before action lies t.. 172 must be made by a mortgagee 488-90 mortgagor entitled to from mortgagee 491 5^96 INDEX. SECPION TiEUA^B— Continued. mortgagor must make, to replevy back 493 not necessary for property taken under illegal mortgage, 494 must be made where defendant has lawful possession 462 must be made where original taking is not wrongful 458 when defendants' title acquired in good faith, demand necessary 454 must be made of bona fide holder 467 is necessary from a borrower 471 is necessary for lost goods 471 necessary where possession is in good faith 472 necessary where defendant has a right for a time 480 necessary of purchaser at judicial sale or officer 496 when necessary of a sheriff 497—9 necessary in case of exempt property, when 500 necessary for exempt property after saJe 501 by purchaser, necessary before replevin of purchase 508 when necessary for property partly paid for 502 by vendor, when necessary 258 necessary between vendee and vendor 505-7 not necessary — where vendee guilty of fraud 503 but if third party in possession, demand necessary 504 against a wrongdoer 457, 469 where trespass committed in the taking 463 where A's property taken for B's debt 466 where wrongful taking and detention relied on 453 where defendant's title acquired by fraud 454 where wrongful detention is ground of action 455 by trustee, when 492 for stolen goods 455 in cases of fraud 456 for goods obtained by fraud 465 vphere both parties claim title 450 where it would be unavailing 474 where there is a refusal to deliver in advance 474 where taken under void contract 495 where agent exceeds his authority 511 DENIAL, GENERAL 750-6 evidence under a 1001-3 does not waive demand ; 468 See Answer. DERELICT PROPERTY 164 DERIVATION of the word replevin 2 INDEX. 897 SECTION. DESCRIPTION, in replevin affidavit, particular 547-54 more particular required than in trespass or trover 544 in writ siiould follow affidavit 617-18 in verdict must be certain 1066—7 insufficiency of, waived by answer 727 See AiTiDAviT. DETENTION, what is wrongful 288 DETINUE, supposed a bailment 18 differs from replevin 18 DISMISSAL, cannot be made to detriment of plaintiff 1193—9 if court have jurisdiction, cannot be by one party 1210 slight grounds not sufficient for 1211 effect of judgment for 1217 may be stipulated for 1215 right to may be lost if not acted on 1212 proper where defendant still has the property 1197 court cannot compel plaintiff to prosecute 1201 damages may be given notwithstanding a 1198 affirmative relief not given without notice to plaintiff 1200 a return should be ordered on a 1118-20 where writ quashed, damage should be given 1199 title to property not settled by 1205 for want of jurisdiction, return not ordered 1209 can not appeal and move to dismiss too 1202 a judgment of, may be reviewed on error 1242 agreement to arbitrate may be a 1214 by plaintiff is a breach of his bond 1255 rule of recovery on bond, in case of a 1356 See Nonsuit. DISSEIZIN 381 See Chops, Trees, Houses. DISTANT MARKET, guide as to value 946 DISTRAINOR, if he lose possession cannot retake by replevin 350 impounded animals not subject to replevin 351 special remedy to tedt distraint must be followed 352 DISTRAINT, impounded animals not repleviable if proceeding regular 348-9 DISTRESS, history ; 37-47 chief use to collect rent 39 could not be sold at first 40 could be sold later under statute of 2 W. and M 41 57 898 INDEX. 8X0TIOV. mSTICEBS-Continued. theory out of which distress grew 42 must be an actual demise 43 rent must be past due 44 would lie for any kind of rent 45 could be made on or oH the land 47 what triable in the action 48 proper venue in 49 after tender of amount due tenant may replevy 50 little used in United States 43-46 replevin of a, avowry the usual plea — 735 defenses proper in 827 measure of recovery on bond in case of 1351 DURESS, mortgage given under will not support replevin 200 DWELLING HOUSE may be replevied 69 E. EFFECT OF JUDGMENT 1157-78 See Judgment, Effect of. ENHANCED VALUE of goods taken 390 See Goods Changed in Form. EQUITABLE RIGHT, to possession alone will not support replevin 60 EQUITABLE TITLE alone not good 100 EQUITIES should be considered in replevin 1148 EQUITY, suit in, not barred by former replevin 1167 ERROR 1236^9 general principles 1236 proceedings in must be by real party in interest 1237 joint parties should join in prosecuting 1238 may be taken from judgment of dismissal 1242 presumption is in favorof trial court 1243 right to prosecute may be waived 1241 illustrations of practice in 1240 See Appeal. ESTOPPEL, when available 147 when effective 125 may be shown under general denial 753 a defense in replevin, when „ 799 judgment in replevin, when an 1163 ETYMOLOGY of the word replevin 2 EVIDENCE 977-1023 should not be pleaded 749 nature and scope of, generally 977 INDEX. 899 — __ SIOTIOK. EVIDENCE— CoiJiinned'. must be confined to issues made by pleadings 978 confined to status at commencement of suit 979 of matters after the commencement of the suit, when 1012 when, of right of possession at former time proper 98 governed by issues made 980 facts admitted need not be proved.. 981 of negative averments not necessary 534-5, 982 conversion should be shown, when 994 of all matter necessary, admitted 983 of possession at commencement of the suit, necessary 989 plaintifl must show that defendant had possession 433 what is proper, of possession 990 of possession, what is 991 of ownership, is of right to possession 1018 possession is, of ownership 1017 peaceful possession is, of title 84 naked proof of possession alone not suflicient 87 of title without right of possession not good 128 of possession will at least compel defendant to show his right to the property 136 identity of the property should be shown 992 necessary where the contest is one of title 1006 how far title to real estate may be shown 1023 of title of land in replevin when proper 376 illustrations of proper, in particular cases 1019-20 as to place of detention, need not be definite 1016 of res gestse admissible 984-7 declaration of party in possession when admissible 987 declarations of plaintiH are not, when 553 declarations of third persons, when admissible 985 in case of rescission of contract by a vendor, rule of 278 how far statement of a vendor is 988 matter, too remote to be 1021 what may be given under general denial 751-6 what is a variance in 993 variance in from affidavit fatal 545 of value, what proper 998-1000 what proper under a general denial 1001-3 value not usually in issue 995 what proper, of value 923, 996-7 proof of demand not necessary when 467 of demand, time when it should be made..™ 479 failure to prove demand, effect of 479 proper under non detinet 1004 proper in case of exempt property ,. 1022 900 INDBX. EVIDENCE— Coniinaed. proper where fraud is the issue 1014—15 under plea of property in defendant 1005 writ of attachment is proper for what purpose 1007 of official character of officer when necessary 1008 in case of title under a writ 1009—11 rule of, in title based on an execution 1013 rule of, in replevin by mortgagee 176 mortgage alone not sufficient evidence of title 206 proper in suit on bond 13H5— 6 instruction as to burden of proof 1036 EXCESSIVE CHARGES. See Cakriee. EXCHANGED PROPERTY may be replevied, when 393,417-18 EXCHANGE OF PROPERTY, note taken for should be tendered back 517 EXECUTION, property legally held by, not subject to replevin 52 void on its face or from court of no jurisdiction, no pro- tection 312 writ must be lawfully executed or replevin will lie 314 a stranger to the writ may replevy 54 property held under an, may be replevied, when 300 an, cannot be levied on property taken in replevin 708 See Custody. levy of an as a defense in replevin 806-7 lien of an, merely suspended by replevin 720 measure of damages in replevin against an 958 title based on, rule as to evidence 1013 See Attachment. EXECUTION DEFENDANT, may not replevy 137 an, can replevy, when 332 EXECUTION OF BOND 681-4 See Bond. EXECUTION PLAINTIFF, not a proper party to replevin suit 437 an, who directs officer liable in replevin, when 440 EXECUTOR may replevy „. 424 EXEMPLARY DAMAGES , 924 meaning of the term 926 must be pleaded and proved 927 not allowed in absence of malice 928 ■ largely in discretion of jury 929-30 See Punitive, Vindictive, and Damages. EXEMPT PROPERTY, may be replevied 306-8 INDEX. 901 EECTIOH. EXEMPT PEOPERTY-Con)iiz2Qed'. repleviable when ; 332 what notice and demand necessary in 500 averments in, replevin of 536-7 evidence in case ot 1022 a purchaser of, at an execution sale entitled to demand... 501 EXPENSES, when allowed in damages 920 of taking and removing the property, proper damage 923 in searching for property part of the damage 918 EXPENSES ADVANCED, when not recoverable in replevin 524 EXPRESS COMPANY. See Gabbier. F. FENCE placed on land of another by mistake may be replevied... 373 FENCE RAILS AND STAKES not repleviable by owner, when... 388 FI. FA., levy under, as a defense in replevin 807 FINDER, of property has a lien for reward 163 may replevy from a stranger 164 FINDING 1049-85 construed liberally 1050 construed same as verdicts 1053 may be partly for defendant and partly for plaintiff 1082 See Verdict. FINE, property taken for not repleviable 52, 534 FIRE COMPANIES, rights of members 114 FIXTURES, part of the realty 367-8 severed from the realty are personal property 369 may be removed by owner while in possession 366 FIXTURES, TRADE, cannot be replevied 370 character of may be determined by replevin 371 FOAL, unborn, rule as to replevin of 397-8 FORMA PAUPERIS, replevin cannot be prosecuted in..-. 666 FORMER REPLEVIN as a bar 1163 FORM OP AFPIDAVIT, rules as to 581-4 FORMS OF THE ACTION of replevin 46 FRAUD 410-22 distinction between and theft 416 statute of, will not support replevin 118 in sale, aground of replevin 262 owner may replevy goods obtained by, wherever found... 413 in use of process of court, replevin lies 414 902 INDEX. RECTIOH. 'FRAVV)— Continued. trade or barter obtained by, replevin lies 418 possession obtained by, replevin lies 419 demand not necessary for goods obtained by 456, 465 a party to the, cannot replevy 421 judgment obtained by, will be set aside..., 1094 silence is not, concealment of facts may be 268-72 payment in counterfeit money is 269 may be shown under general denial 752 should be specially pleaded 781 burden of proof is on pleader 1015 as a defense in replevin 823-4 in case of, much latitude allowed in proof 1014 property passed to innocent purchaser cannot be re- plevied 415 See Theft, Vendor. FRAUDULENT EEPRESENTATIONS avoid the sale 413 See Vbndob and Vendee. FREEMAN 7. HOWE, rule in, discussed 324-6 G. GARNISHMENT not a defense, when 833 GIFT, title by, not good 119 GOLD COIN, value when fixed 948 GOODS, seized under void law repleviable 313 illegally seized repleviable in any court having jurisdic- tion 326 liquors, when repleviable 313, 316 powder condemned may be repleviable 315 exempt property may be replevied 306-8 seized by revenue collector not repleviable 318 taken under special proceeding not repleviable 317 held by special order of court not repleviable 323 held by United States marshal repleviable, when 324-6 rule where commingled 399-409 See Confusion of Goods. changed in form — or enhanced in value 389-398 fieeSHiSBUKY V. McCoon 909 rule under civil law 389 modern rule 390 right of plaintiff not affected by change in, made by agreement 394 may be replevied by owner 390 INDEX. 903 .EOTION. GOODS— Coatinued. Changed in iorm— Continued. owner should mo ve to reclaim his property at once, 395 should be described as they exist when action com- menced 391 when identity is lost replevin will not lie 393 value increased by innocent purchaser not replev- iable, when 396 natural increase of live animals, rule as to 397-8 acquired by theft or fraud 410-22 See Theft, Fraud. wrongdoer could receive nothing forhislabor by civil law, 389 GOODS IN CUSTODY OF THE LAW 299-332 subject to replevin 299 contempt of court to replevj' 299 mere irregularities in proceeding not ground of replevin, 305 may be replevied where process of seizure is void 312 GOVERNMENT may replevy its property 404 GRAIN, repleviable by aliquot parts from mass 400 GRASS cut from the freehold may be replevied 375 ne 301 remedy by, may be made exclusive 322 INTRUDER, no rights against an officer 965 is liable for damages, though defendant not the owner.... 966 INVOLUNTARY DEPOSIT may be replevied 165 IRRELEVANT MATTER may be stricken out of petition 566 ISSUE is right of possession when writ issued 98 J. JOINT DEFENDANTS, who may be 441 JOINT OWNERS ; 219-43. of crop, one cannot replevy from the other 225 one, cannot replevy property incapable of division 239 one entitled to exclusive possession may replevy 233-5 measure of damages in action between 905 one may mortgage his interest and replevin will not lie... 243 should join in replevin 227, 429-430 See Pabtnebs, Tenants in Common. JOINT OWNERSHIP, what is , 220 JOINT TENANCY is a matter of defense 237 JOINT TENANT, one cannot replevy from the other 219, 230-1 can replevy his interest from co-tenant who has con- verted it 236 levy by an officer on interest of 'one, not ground for re- plevin by the other 232 one, can sell and deliver his interest and replevin will not lie by the other 242 JUDGMENT, generally 1086-1156 must follow verdict 1086—7 may be modified as to damages 1088 form of, maybe changed, when 1089 may be amended where clerk has made a mistake 1091 906 INDEX. SECTION. JUDGMENT— Continned. error iu entering, how corrected 1092 corrected nunc pro tunc 1090 power of court over 1094 proper entry of may be compelled 1093 confined to the issues in replevin 1096 should adjust all matters of difference 1148 cannot exceed amount claimed by pleadings 1097 must be certain and definite 1098 description in must be certain 1099 ■which can be made certain by reference to pleading good, 1100 must speak on all the issues involved 1101 must speak as to all the parties 1102 a, is supported by one good count 1103 ■when an alternative, is necessary 1104—7 alternative not necessary where property not taken 1107 right to alternative may be waived by successful party. ..1108— 9 how right to alternative waived 1109 for delivery alone sufficient, when 1110 for return necessary, when 1111 Insolvency does not change right to a return 1113 may be for a return of part only of the property 1121 of return — a matter of right 1112 only rendered against one in possession 1114—15 allowed where property fraudulently transferred... 1116 awarded where plaintiff fails in the action 1117 should follow a nonsuit 1118 is the final order in replevin 1120 for part and damages for part proper 1121 should fix a time in which return is to be made 1122 notnecessary where successful party in possession.. 1123— 4 not necessary where property not taken 1125 not awarded to a disclaimer 1127 not awarded to one who pleads property in a stranger 1128 not awarded where property not in existence 1129-30 for young of animals born pendente lite 1132 right of property must beshown to entitleone to areturn 1126 effect of failure to order a return 1133 of return, proper in favor of an officer 1137—9 effect on, of destruction of the property 1131 proper in case of a limited interest 1136 of i-eturn allowed where value of special interestnot known 1141 for value only proper where a return ordered 1134 greater than value of goods given when 1140 INDEX. 907 BEOTIOK. JUDGMENT— CoDJSinoeff. an ciboolute money, erroneous 1147 joint, when proper .' 1142—3 cannot be against one not a party 1144 what, proper in certain cases 1145 proper, against administrator - 1151 against substituted defendant 1152 against intervener 1153 against the sureties when proper 1155 for costs when and what is a proper 1156 for damages proper 1149 what, proper in replevin of mortgaged goods 195 for value proper where writ quashed '. 1199 on non cepit and son detinet 1146 stipulation for, will be enforced 1150 effect of 1157-78 generally 1157-8 in non cepit and non detinet 1160-1 how far conclusive 1162 as a bar or estoppel 1163-4 as conclusive in another action 1165-6 how far binding in other forms of action 1166 is a bar to suit for damages 1170 not a bar to suit in equity 1167 none on title unless strictly in issue 1168 is binding on the parties and their privies 1169 is conclusive in federal and sister state courts 1 171 payment of a money judgment vests title 1174 payment on the title in dispute 1174—5 is to settle right to possession 1159 in replevin, a merger of what 1164 force and effect of 1178 defendant cannot replevy 332 purchaser of land at sale may replevy crops 357-8 in replevin, how enforced 1176 how satisfied 1177 return of property under a. See Eetuen 1179-91 of return is conclusive 1267 of return, effect of 1216 of dismissal, effect of 1217 a failure to pay a, is a breach of bond 1268 by confession is binding on bondsmen 1315 delay in enforcing the, may not release sureties 1333 in replevin, effect of, in suit on bond 1363 is held in abeyance by an appeal 1247 See Vbbdict. 908 INDEX. SECTIOH. JUDICIAL SALE, when it will support replevin 123 JURAT may be added by amendment 572 JURISDICTION in replevin depends upon affidavit 529 of courts over judgment entry 1094 of inferior courts, limits on '. 1095 conflict of,i)etween courts 709 iS'ee Custody. JURISDICTIONAL DEFECTS not cured by amendment 57S JUSTIFICATION, under a writ as a defense 803-7 under writ, proper averments of 757 burden of proof 758 K, KEEPSAKES, rule of damages in replevin of 903 li. LABORER, who has a lien may replevy from the owner 157 LABORERS lien protected from replevin by owner 158 LAND. See Real Estate. LANDLORD'S right to replevy for rent 28-36 cannot bring replevin to enforce a lien 11& right to fixtures, rule , 367 can replevy property illegally severed by tenant 384 lien must be discharged before replevin by mortgagee 522 LAND UNOCCUPIED, owner may replevy trees cut on 388 LEASE may be replevied 76 LEGAL FICTIONS not allowed in replevin 22 LEGISLATURE may bar the right by replevin 322 LESSOR cannot replevy during the time of the lease 51 LICENSE to cut trees, how far good defense to replevin by owner, 122 LICENSOR may replevy where terms of license violated 380 LIEN, a lien holder may replevy 54, 157, 164 without possession, not good 121 the extent and validity of, are questions for the jury 62 statutory, not acquired unless law complied with fully .... 470 wrongdoer does not acquire 469' voluntary payment of, not recoverable in replevin 936 recoverable in damages 953—4 officer's protected where replevin tried before the attach- ment 963 of salvor protected 1115 for advances good 104 INDEX. 909 LIEN— Continued. should be alleged specially in answer in replevin 779' of distrainor 350-1 must be discharged before replevin will lie 201 must bft discharged before replevin lies, when 521—4 amount of must be tendered before replevin 218 tender to discharge. Instruction 1048 of bailee must be discharged before bailor can replevy 218 replevin will not lie against one having a 51 LIENHOLDER may intervene when 444 LIENOR must have had possession 159 LIFE INSURANCE POLICY may be replevied 74 LIMITATIONS, STATUTE OF, applies to replevin bond 1299 LIVE ANIMALS, rule as to increase of 397-8 LIVERY STABLE KEEPER may replevy to enforce lien 157 LIQUORS, seized may be replevied to test law 313 seized in condemnation proceedings cannot be replevied.. 316 LOGS, cut from sold land repleviable by vendee not by vendor... 379 where nothing paid for the land owner may replevy 380 LOST BOND, how sued on 1306 replevin, damages for 639 LOST GOODS, demand necessary for 471 replevied, plaintiff liable for '724 LOST PROPERTY, rule as to 163-5 effect on damages where destroyed or 872 M. MALICIOUS bringing of replevin, damages for « 1394 MANDAMUS allowed to compel proper entry of judgment 1093, 1208 MARKETS OVERT, unknown to our law 420 purchase in, not a defense , 834 MARKET VALUE, what is highest 942 MARRIED WOMAN. may bring the action 154, 426 may replevy from husband 155 See Wife. MARSHAL. See U. S. Marshal and Officbb. MASS, part of property, in, may be replevied, when 400-2 MEKGER, judgment in replevin is a 1164 910 INDEX BBCTIOn. MINORITY of one signer to bond does not release others 1293 MISNOMER, in writ, how cured 628 in bond, how sued 1279 MIXTURE of goods 204-5, 399-409 See Commingled Peopebty, Confusion of Goods. MONEY, not subject to replevin 72 MORTGAGE, history, Mosaic law 171 distinction between, and pledge 184 an agreement to mortgage will not support replevin 198 equitable mortgage will not support replevin 199 distinction between, on crop planted and on one to be planted 203 right of an assignee of the mortgagor 178 good in one state will sustain replevin in another 190 rights of officer levying on mortgaged property 193 the eHect of a levy is to create an equitable lien 194 effect of levy the same as default in payment 198 given under duress will not support replevin 200 after condition broken and demand, replevin lies 173 whpre illegal demand not necessary 494 . rule of damages in action founded on 185 proper judgment in replevin of mortgaged goods 195 part payment by mortgagor does not defeat replevin 183 alone when not sufHcient proof of title 206 lien of, and tender to discharge — Instructions 1048 rule in case of commingled property 204—5 on land, covers crop not severed 357 MORTGAGEE, of land not entitled to crop severed before he took posses- sion 360 that he has been summoned as garnishee, no ground for replevin against 196 may replevy from an officer, when 193—4 must make demand from an officer 488 cannot replevy from officer attaching, when 196—7 may bring against widow of mortgagor 175 damages in action against an officer 953-6 right to replevin by, depends upon statute 172 partial breach, no ground for replevin 177 effect of breach after suit commenced 176 may replevy — entitled to replevy, when 187-91 even after he has sold 188 after he has had possession 389 INDEX. 911 tEOTIOK. UOIiTGAG^E— Continued. _ May replevy— CoDiinned. after condition broken 189 from one interfering with his rights 191 threat to interfere is no ground for 192 of land may replevy house removed 362 must first discharge lien for keeping of stock 201 of tenant must pay landlord's lien for rent to replevy 522 may follow to another state 190, 209 right of replevin between different mortgagees 202 demand must be made by a 174 must demand to replevy before default 198 should make demand on mortgagor, when 491 proper judgment in case of replevin by 195 may recover total injury to property where malice 956 can usually only recover the amount of his claim 955 fraud is a good answer to replevin by a 772 MORTGAGEE AND MORTGAGOR, measure of recovery on bond in suit between 1354 MORTGAGOR, cannot replevy from mortgagee generally 179 but if not in default, can replevy from mortgagee 180 interest of a, may be levied on 194 to replevy back, must make demand 493 N. NEGATIVE AVERMENTS, need not be proved under general de- nial 754,982 NEGLIGENCE, party guilty of contributory, not entitled to damages 931 NOMINAL DAMAGES, an incident of success in replevin 949 how affected by demand 951 only, can be given in absence of actual damage 950 NON CEPIT, cannot be pleaded for bon detinet 744 verdict under 1071 result in case of success on 949 NON CEPIT AND NON DETINET, little used, now 738 plea of, admits what 739—40 issue raised 'by nov detinet 743 special matter cannot be shown under 742 proper judgment on 1146 Terdict on 1051 effect of judgment in 1160-1 ■912 INDEX. SECTION. NON COMPOS MENTIS may replevy, how 427 NON DETINET, evidence under 1004 NON EST PACTUM, a good defense to suit on bond 1285 l^ON OMITTAS, writ of 605 NONSUIT. See Dismissal 1192-1217 at common law, did not bar another suit 1192 on a, judgment cannot be greater than interest shown.... 1207 judgment of return should be rendered on a 1206 on a judgment of, court may be compelled to enter proper judgment 1208 damages on a 860 is a breach of the bond 1256 NON TENURE, proper plea in an avowry 734 NOTE, of hand may be replevied 69 measure of damages in replevin of 900 NOT GUILTY, proper plea to replevin. See Answer 745 NOTICE, what, is equivalent to demand 485 what necessary before replevin of exempt property 500 ■NUNC PEO TUNC, amendment when allowed 572 correction of judgment 1090 O. OFFICER, as custodian may replevy oflHcial papers or books 423 possession after levy will support replevin by 110 may replevy from another officer or from a receiptor 168 what is a proper answer by an, in replevin 762 See SHEKipr. OFFICIAL character may be shown under a general denial 756 OFF-SET, how far allowed in replevin 515 may be pleaded against the damages 795 See Set-Off. OTHER THAN DEFENDANT, defined 169 OVER-PAYMENT, not good as an answer in replevin 773 See Answer. "OWNER, may retake his goods peaceably at any time 304 may replevy from purchaser at sheriff's sale, when 301-2 may replevy against a stranger , 162 should move- to reclaim hJs property promptly 395 of laud can replevy property severed from, when 378 may replevy property illegally severed 384 See Claimant. INDEX. 913 SECTION. OWNERSHIP, defined as a right of possession merely 533 alone will not support replevin 91 P. PARISH, a, may replevy its property 423 PARISH RECORDS may be replevied 78 PARTIES, to replevin action, who arc proper 423-46 an execution or attachment defendant not a proper 437 new cannot be added by amendment, when 579 one partner cannot replevy from another 69 vendee and not vendor of land should replevy crop severed 379 proper, to suit on bond 1294-130G See Bond, parties to suit on. See Plaintiff, Defendant. PARTNER 219-43 cannot replevy from copartner 219 one may replevy from officer seizing the whole for debt of the other 222 may join with co-partner to replevy from officer, when.... 223 one, entitled to exclusive possession may replevy from co-partner 224 purchaser from one, cannot replevy from the other 226 measure of recovery on bond in replevin between 1353 See Joint Owners, Tenants in Common. PARTNERSHIP, what is a 220 accounts cannot be settled by replevin 224 PAUPER cannot prosecute replevin without bond 666 PAYMENT as a plea 773 PERSON, articles cannot be taken from the, by replevin 649 PERSONAL PROPERTY, may become part of the realty 382 attached to land by a trespasser passes with it 383 attached to land without consent may be replevied 372 See Goods, Houses, Thbes, Fixtukbs, Chops. PETITION = 525-603 what it should contain 593 proper allegations of 598-600 may claim property held by different titles .565 redundant or irrelevant matter may be stricken out of ... 566 plaintiff bound by allegations therein 601 must be construed as a whole 602 See Affidavit, Complaint, Declaration, Plaintiff, 58 914 INDEX. SECTION. PLAINTIFF, proper „ 423—46 generally, any one may be 423 must have an interest in the property to be a 132 right of, must be clear at commencement of action 257 must recover on strength of his own title 99 examples of who may be 423-4 married woman may be 426 noji compos, may be by next friend 427 school district may be 137 state or United States may be 140 one having right to use property a proper 142 one who has lost possession wrongfully a proper 145 one having a special right to possession may be a 144 an assignee of a right to replevy may be a 428 interest of a, need not be particularly alleged 555 joint owners must join as 429-30 several creditors of one debtor may join as 138 cannot take inconsistent positions 559 may replevy property held by different titles in one action 565 must stand or fall on title alleged in petition 601 in replevin not protected by the writ from damage caused by 646 entitled to custody of the property while suit pending 712 responsible for injury to goods while in his possesion 723 in replevin should not sell the property pending the suit.. 721-2 in replevin must show title against the world 784 cannot dismiss replevin action 1193-9 measure of damages in favor of 863-4 rulu of damages if he succeed 852-5 a substituted, may sue on the bond 1301 change of, does not release bond 1331 See Parties. PLEADING, plaintiff cannot take inconsistent positions.; 559 special damages must be specially pleaded 603 damages for use need not be specially pleaded 892 ■waives prior defects 726-7 may be amended to show change in value 911 may be amended even after judgment 1239 See Affidavit, Answer, Reply. pleas: See Answer. PLEDGE, distinction between, and mortgage 184 PLEDGEE, may bring the action 152 not entitled to value of use as damages 895 INDEX. 915 f SECTION FIjEDGEE— Continued. but may have value of use against a wrongdoer 896 See Bailoe and BaUjEE. PLURIES WRIT 606 when issued in some states: 629 See Writ. POSSESSION, when good title 136 only prima facie title 131 alone good ground for replevin, when 84-5 right to, alone sufficient to support replevin' 134 is prima facie ownership 1017 alone good against a trespasser 93 is a question for the jury 62 right to, must continue to close of suit 97 . right of at former time not in issue 98 what is, by officer 62 is necessary to sustain a lien 159 acquired in good faith demand necessary before replevin.. 472 POSSESSOR of a stray may replevy 109 POUND-MASTER, may replevy stock illegally removed from pound 157 POWDER, condemnod, may be replevied to test law 315 PRACTICE in replevin in England 7 PRETIUM AFFECTIONIS, rule of damages in case of 903 PRIVIES bound by judgment in replevin 1169 PROFITS, prospective, not an element of damage 972-4" probable, when allowed ' 974 PROOF, all facts forming part of the res gestie admissible 25 See Evidence. PROPERTY, in custody of the law 299-332 changed in form 390 See Goods Changed in Fobm. commingled 399-409 See Commingled Goods. custody of pending suit 704-25 See Custody. exchanged for stolen or bartered, rule as to 417-18 cannot be taken from person by replevin 83 See Goods. PUBLIC PILES not the subject of replevin, except by custodian, 75 PUNITIVE DAMAGES 924 meaning' of the term 92C yi6 INDEX. BSCTIOTT PUNITIVE DAMAGES-ConiinueA largely in the discretion of the jury 929-30 See Damages. Exemplahv, Vindictive. PURCHASER AT SHERIFF'S SALE may replevy his purchase, 509 a, of personal property must tender bid and demand 508 a, when not protected 256 a, at sheriff's sale, not protected from replevin by owner.. 303 a, of one partner's interest can replevy from a stranger... 228 Q. QUESTIONS ARISING, in preparing to commence an action in replevin (Part I.), 1-524 in the prosecution and defense of an action in replevin (Part 11.) .' 525-1249 in the prosecution and defense of an action on the replevin bond (Part III.) 1250-1394 R. RAILROAD. See Carbieb. REAL ESTATE, unoccupied, owner may replevy trees cut on; '. 388 owner of may replevy house removed from 362 when articles may be severed from by sheriff 6.50 damage in case of property severed from 906—7 the title to cannot be determined in replevin 56, 83 how far title to involved in replevin 375—6 how far title to considered 1023 what are fixtures 366-71 REAL PROPERTY, things which may be either, or personal 353-88 iSee Crops. RECAPTION 1218-35 when allowed 1231 See Cboss-Replevins, Second Replevins. KECEIPTOR, of sheriff may replevy from one interfering with his right, 423 of property may maintain the action 166—7 RECEIVER, duties and rights of, in replevin 319-21 RECOUPMENT not allowed in replevin 791 REDELIVERY BOND 1357 giving of, waives what defenses , 701 waives defects in affidavit 728 docs not affect title 715 entitles defendant to custody of the property 714^15 vhere given, rule of damages 852 See Bond. INDEX. 917 SECTION. REDUNDANT MATTER, may be stricken out of petition 560 REFUSAL, to deliver on demand, effect of 474 to comply -with demand is a proper — Date to fix value 937 REINSTATEMENT, of dismissed action only made on strong grounds 1204 See Dismissal and Nonsuit. RELEASE a good defense to suit on bond 137^5 REMOVAL, replevin action may be removed to Federal court.... 331 REPLEVIN, historical , 1 one of the earliest writs known 1 its origin lost in antiquity 1 first appearance as part of the Lex Scripta in 1267 1 wafideveloped in the struggle between thecommon people and the barons 1 ' action may be transformed into equitable or other action, 1 may be used to try title as well as right of possession 1 is the most important form of action known to our law, 1 derivation and definition , 2 etymology 2 is a writ of justice 3 is a mode of redress for the loss of goods 4 both parties are actors 4 practice in, in England 7 the old forms not known here 8 but are still recognized, though not in name 9 in the cepit, issue 8, 10 in the detinet 8 in the detinue 8 may be extended or limited by statute 11 the gist of the action t 12 is not an extraordinary remedy like attachment 13 it is not in derogation of the common law 13 the action cannot bo enjoined 14 law governing, should be construed liberally 15 strictly a law action 16 right of action must exist when suit commenced 16 an after-acquired interest will not support 96 distinction between trespass, trover, and replevin 17 similarity of trespass, trover, and replevin ■ 18 the proper remedy to recover chattels 19 its importance 20 its development 20 its peculiarities 20 is a mixed action 21 918 INDEX. SECTION. REPLEVIN— Continued. how far an action in rem 21 and how far in personam 21 governed by same rules as trover, when; 21 founded on a, tortious taldng and detention 22- objects two — primary 23 secondary 24 scope of the investigation in replevin 25 cannot be turned into an action to quiet title 26 scope of the action ; 26, 27 is strictly a possessory action 27, 64 as between landlord and tenant 28-35 does not lie against one not in possession 63-4 will lie against whom 58 does not take the place of trover, detinue, or case 67 when the proper form of action 68 merely suspends prior levy of an execution 720 courts should give the action such flexibility as to do full justice to both parties 794 cannot be prosecuted without bond 666-7 effect of, on property 704 rule of, between different officers 964 how far title to land involved in 374-8 action may be removed to Federal court 331 where brought , .'.. 327 may bo brought in any court of competent jurisdiction... 329 property illegally seized, repleviable in any court 326-7 removal of the property does no'o affect jurisdiction 328 from United States marshal 324-6 property held in, cannot be seized on other process 708 right to, may be barred by legislature ^ ;. 322 who may maintain 132-70 one entitled to possession may follow the property to a foreign state and replevy 190 may be brought by state or United States 404 right not limited to the general owner 134 distinction between "stranger" and general owner 95 by partner, joint owner, or tenant in common 219-43 See Partner, Joint Owner, and Tenant in Common. by agent, bailor, and bailee 207-18 See Agent. rule between mortgagor and mortgagee 171-97 See Mortgagor, etc. by mortgagee of unplanted crops, when allowed 203 mortgagee may bring after sale, when 188 INDEX. 919 SECTION. REPLEVIN— Continned. an agreement to mortgage no ground ior replevin 199 between vendor and vendee 244-89 See Vendor. fraud by vendee ground of replevin 262 what property may be replevied 69-83 what may be replevied 299-332 See Goods in Custody of Law. only lies for property in esse 82 property cannot be taken from the person 83 property must be capable of actual seizure 83 can only be brought for certain specific articles 73 right to, not effected by change in form 392 commingled property when replevied 204, 399-409 See Goods. exempt property ma.y be 332 See Exempt Property. property seized for tax cannot be 333—47 See Tax. will lie where tax is void 338 of impounded animals 348-52 See Distraint and Impounded Animals. rule as to increase of livo animals 397-8 lifS for chattels severed from the freehold 56 will not lie for property legally held under process 52 will not lie where plaiutiff has a conditional right only.... 55 lies for property in hands of a receiptor 50 pai'ties in, who are proper 423-4(; See Parties. action of must be brought by real party, in interest 425 right to bring the action may be assigned 423 lies against one having legal title unless he disclaims , 434 against an oiHcer, when allowed 193-4 does not lie against an oflScer holding under special law.. 158 'will not lie against one not in possession 192 will not lie where defendant never has been in possession. 132 may be brought by other than real party in interest, when 187 who cannot maintain replevin 146-9 when it lies generally 51—68 at common law there must have been an unlawful taking, 51 always lies where there is an illegal taking ; 52 now may be used whenever one claims property in posses- sion of another 530 will lie where trover would lie 54 what circumstances will support the action 58 920 INDEX. BECTIOK. REPLEVIN— Continue^?. will not lie, when 52 will not lie where the result is to deprive a part owner of possession , 240 what title will support the action 26, 84-131 equitable title alone will not support 60 REPLY 837-43 seldom necessary in replevin,. 837 necessary in case of an avowry 838 not necessary to a general denial 839 answer of property in a third person does not need a 840-1 requisites and sufficiency of... 843 RES ADJDDICATA 305 issues tried in a replevin action are 1221 RESCISSION OF CONTRACT, rule in 418 See Vendob and Vendee. RES GESTjE 984-7 RESTITUTION 1111-33 See Return, Judgment. RETORNO HABENDO 1179 RETURN, to writ, how and when made 658-9 to writ part of the record 660 may be amended to truly state the fact 663 cannot be impeached by sheriff 662 conclusive between parties 661 when writ of replevin should be returned by officer 616 of property, rules governing 1111-33 judgment for, necessary when 1111 judgment of, proper in favor of an officer 1137—40 of property under judgment of, what is a good 1179-91 ordered or not, in discretion of court 1181 of property should be made by the officer taking same.... 1180 what constitutes, of the property 1184-5 order of, duty of party in possession to make at once 1182 should be to the same custody whence taken 1183 what is a proper tender of ■ 1184 what is a proper, in case of attached property 1185 of property levied on, should be to the officer 1186 where property has been changed for other 1187 successful party may wait until a return is tendered 1188 an actual, will alone satisfy the judgment 1189 tender of a, must be kept good 1190 effect of a, is to satisfy the judgment for 1191 not necessary to demand a, before suit on bond.. 1266 effect of a judgment for 1216 INDEX. 921 KETXjmi— Continued. under order of a court, a good defense to suit on bond 1388-9 effect of a, after suit brought on bond 1391 REVENUE 333-47 collector, property seized by not subject to replevin 318 See Tax. REWARD ior lost goods is a lieu that will support the action 163-4 RIGHT OF PROPERTY, trial of 808 trial of is not a replevin 445 where, is limited by time, rule as to demand 480 See Tbiai/ op Right of Pkopbrty. RIPARIAN OWNER, rights of 165 SALE, by sample a conditional, can be rescinded 252 induced by fraud, void 262 when rescinded, note should be tendered back 517- of property replevied by plaintiff, effect of on title 721-2 a judicial, of realty passes crop 356 See Vendor and Vendee. SALVOR'S LIEN protected 1115 SATISFACTION good defense to suit on bond 1375 SCHOOL DISTRICT may replevy its house 137 SCRIP, may be replevied 80 SEAL not ordinarily necessary to bond 683 SECOND REPLEVINS 1218-35 defined 1228 not a, unless parties are identical 1232-4 may be brought where first is discontinued 1229 nonsuit in the first action not a bar to 1230 judgment in first action for damages only not a bar to... 1235 jSee Cboss-Replevins, Recaption SECDRITT COMPANY, money paid to for bond, not proper damages 922 SERVANT, when he may replevy '. 423 when not a proper plaintiff 150 SERVICE of the writ 632-64 See Wkit. SET-OFF, over payment not recoverable 773 does not justify a tort 792 not allowed 791 in case of a chattel mortgage 793 922 INDEX. BECTION. SET-OFF— Continued. when proper in replevin 736 may be pleaded against the damages 795 allowed in suit on bond 1383 SHERIFF, duty under writ of replevin 632 should seize the property first 633 authority of, under the writ of replevin 632—64 See Writ, Service op. should take bond; is liable for failure to do so 638 liable for loss of replevin bond taken by him 639 sole judge of sufiBciency of bond in the first instance 678-9 liable for not taking proper bond 686 liable for custody of property before bond given 711 where parties agree on a keeper is not responsible for property after delivery to the keeper 690 may levy on a mortgagor's interest 194 when liable to replevin by mortgagee 193-4 entitled to demand from a mortgagee 488, 490 damages against in case of mortgaged property 953-8 yrhen entitled to demand 497, 499 may levy on a bailee's interest 215 in taking under process only protected from replevin, when 300 not protected unless he act strictly within his writ 466 mere irregularities by, no ground of replevin from him.... 305 is a proper party defendant after levy of process 436-7 whereheisdefendant in replevin hecannot dismiss action, 439 when his valuation is evidence against him 962 right of possession limited 635 what is constructive possession by a 636 where a party, writ directed to coroner 614 where replevin tried before the attachment suits his lien will be protected by the court 963 cannot take property from United States marshal 964 may replevy goods seized by him 423 a receiptor cannot set up title against sheriff 217 taking under a writ, measure of damages against 967 seldom liable for more than actual damage 933 when entitled to a return 1137-40 takes no right by levy where defendant guilty of fraud.... 503 can only recover the amount justly due on writs 960 wrongfully dispossessed, damage, valueotwritandinterest 959 as against an intruder entitled to full value 965 not entitled to value of use as damages 895 but may have value of use against a wrongdoer 896 should take and deliver property when a return ordered.. 11 80 INDEX. 923 flGCTION* SHERIFF— Con^iD ued. liable on bond for judgment in replevin, when 1172 suit by usee of bond in name of 1296 suit on bond by for use, etc 1295 SKiNATURE may be added by amendment, to affidavit 572 SILSBDKY r. McCOON, rule iu, wliun property changed in form § 909, pp. 488-493 SISTER STATES, proceedings in, respected 717 officers of, will be respected ..:• 320 SOUVENIRS, rule of damages in replevin of 903 SPECIAL LEGACIES, not repleviable by administrator 151 SPECIAL OWNER. See Bailor and Bailee. SPECIAL OWNERSHIP, measure of damages in case of 971 SPECIAL PROPERTY RIGHT, will support replevin 86, 101, 102, 132, 133 when not sufficient 115 SPECDLATIYE DAMAGES, not allowed in absence of malice 927-8 See Exemplary, Vindictive. STATE may replevy 423 STATEMENT OF ACCOUNTS may be replevied 09 STATUS OF PROPERTY taken in replevin 705 See Custody. STATUTE OF FRAUDS will not support replevin 118 STATUTORY REPLEVIN to be construed liberally ; 1 STIPULATION as to damages will be enforced by the court 1150 STOCK ,0F CORPORATION, may be replevied 77 measure of damages in replevin of 901 STOLEN GOODS 410-22 See Theft, Fraud. STOPPAGE IN TRANSITU, when allowed 255 See Carrier. STRANGER, rights of, in replevin 95 defined 170 1 a, cannot maintain 148 a, to the execution or attachment may replevy , 301 to first replevin may replevy 1233-4 property may be taken from a, by replevin 652 to the title, liable for full value, when 968-9 title in a, when a defense 785-7 STRAY ANIMALS, when taker up has a lien 470 SUBROGATION, sureties on bond are entitled to 1336 SUBSTITUTED DEFENDANTS 444-6 924 INDEX. SECTION. SUBSTITUTED DEPENDANTS— Cofl^izmed. proper judgment against 1152 See Defendants. SUBSTITUTED PBOPERTY, when it may be replevied 393 property substituted by agreement is repleviable 394 SUBSTITUTION OP SURETY on bond as plaintiff, when 1154 SUNDAY, replevin writ cannot be served on 651 verdict may be returned on 1079 SURETY ON BOND in replevin 682 how regarded by courts 1308 liability not greater than principals : 1309 released by discharge of principal 1310 must be a judgment against their principal 1311 waiver of a judgment against principal, a release 1312 cannot contradict judgment against principal 1313 bound by the judgment in replevin 1314 not bound by fraudulent judgment 1316 judgment entered against in replevin action, when 1317 obligation of, not enlarged by courts 1318 liability not changed without consent 1319 liability determined by law in force at time they signed.... 1320 only covers ordinary result in legal proceeding 1321 not liable for prior matters not included in judgment 1326 not bound by subsequent loss of property 1322-3 released by a legal disposition of the property 1324 extent of their liability 1325 effect of compromise with a part 1327 bound by the final result, not by first trial 1328 not released — on frivolous pretext 1329 by change in plaintiff 1331 by change of defendants 1332 by some delay in enforcing judgment 1333 by discharge in bankruptcy of principal 1334 who pay the judgment entitled to the property 1337 who voluntarily pays cannot recover from principal 1335 cannot control the custody of the property 725 cannot contradict recitals of bond 1330 will be allowed to prosecute suit, when 1154 cannot replevy the same property 126 contribution and subrogation by 1336 on stay bond cannot replevy 146 See Bond. SWAMP LAND, owner may replevy trees cut thereon 388 SYMBOLICAL DELIVERY, sufficient to support replevin 113 INDEX. 925 T. SEOTIOM. TAKER UP OF A STRAY, may replevy 102 TAX, property seized for, cannot be replevied 333-47 property taken for, cannot be replevied 52, 534 errors in assessment not ground for replevin 334 illegality of, no ground fat- replevin 336 excessive, double, or erroneous, not ground of replevin ... 337 legality of the corporation taxing not triable in replevin. 346 timber on land sold for tax«s cannot be replevied 355 where A's goods taken on warrant for B's tax, A may re- plevy 340 a purchaser at tax sale not thus protected 341-2 warrant, possession under, a good defense to replevin 818 wan-ant must be regular on its face and issued by author- ity or it is no protection 335 warrant must be executed by authorized ofHcer 346 officer seizing for, outside of his jurisdiction, replevin will lie 345 replevin lies where, is void 338 replevin will not lie if part is valid, though part invalid, 339 owner may tender the legal tax and bring replevin 344 payment after seizure, no ground of replevin 343 replevin the only remedy prohibited, ofHcer liable in dam- ages for illegal seizure 347 TEMPORARY RIGHT to possession will support replevin Ill TENANCY IN COMMON, may be created by mixture of goods.... 408 TENANT, right to replevy from landlord 28-50 cannot replevy from a co-tenant 117 TENANTS IN COMMON 219-43 one cannot replevy from another 219 what constitutes 220 when, cannot replevy 31 cannot replevy from officer, when 229 See Paetnebs and Joint Ownebs. TENDER, when amount of lien must be tendered by owner 159 of amount of a lien ends the action by a lienor 160 back should be made of note taken in payment, when 517 when not necessary to be made to a common carrier 515-1 6 of proper amount to carrier necessary, when 51 6 a, must be unconditional 518 a refusal to accept a, must also be unconditional 519 of amount of lien — Instructions on 1048 926 INDEX. SEOTIOIf. TENDER TO DISCHARGE LIEX 514-24 must be before suit brought 514 See Demand. THEFT 410-22 distinction between, and fraud 416 owner may replevy stolen goods wherever found 410 property traded for that stolen when repleviable 417 See Fraud. THIEF, stolen goods need not be demanded of a 455, 463 ratification of purchase from, not inferred by lapse of time 412 innocent purchaser from a, may replevy back 411 purchaser from a, cannot replevy from the true owner 422 TIMBER. SeeCKOP. TITLE, to real property cannot be quieted by replevin 83 to real estate how far involved 375-6 to real estate cannot be tried in replevin 69 required to support replevin the same as in trover 89 prima, facie title is better than possession alone 92 paramount, not necessary, when 93 right to possession indispensable 94 naked possession alone good, when '.. 60 without right of possession, not good 128, 130 possession alone good against a wrongdoer 80 a qualified, when good 99 in members of voluntary organization sufficient 114 where plaintiff has conveyed away his title he is estopped 1 25 under a writ may be shown, when 755, 757 based on judicial sale, when sufficient 123 based on license, when sufficient 122 by symbolical delivery sufficient 113 the better will prevail in replevin 88 equitable alone will not support replevin CO, 100 from a trespasser confers no right 161 based on statute of frauds will not support 118 based on immoral contract will not support 149 by gift not good 119 based on promise by infant not sufficient 120 based on unexecuted contract not good 124 does not pass until terms of sale are fulfilled and vendor may replevy 249 reserved, seller may replevy 106, 112 to half interest not sufficient 127 in a third party when available as a defense 785-7 INDEX. 927 SECTION. TlTLFj-Contrnued. not affected by bond in replevin., 702-3 pending suit, effect of redelivery bond 715 not affected unless strictly in issue 1168 is vested in defeated party by payment of money judgment 1174 TITLE DEED may be replevied 70, 79 TORT, cannot be justified by a set-off 792 where, committed in taking property, no demand neces- sa.ry 463 TRADE FIXTURES. See Fixtures. TREASURE TROVE 164 TREES, . may be real or personal property 353 while standing are realty, but not when severed 375 severed by mistake repleviable by true owner 386 severed by adverse claimant not repleviable 374 See Ceops. TRESPASS, differs from replevin in what 17 similarity to replevin 18 rule of damages in, a guide in replevin 925 officer not liable for, in serving writ in replevin 644 action in, not barred by replevin action 1166 TRESPASSER, changing value of goods taken . 390 See Goods Changed in Form. willful, not entitled to damages 908 TRIAL OF RIGHT OF PROPERTY 808 defeated claimant cannot replevy 1220 cannot be turned into replevin 445 See Right of Property. TROVER, differs from replevin _. 17 supposes a casual loss and finding 18 similarity to replevin .' 18 rules in, applicable in replevin 21 rule in, a guide as to value in replevin 945 will not lie against offifer in replevin 645 barred by a former judgment in replevin 1166 TRUSTEE, may maintain the action 169 a, may replevy 424 a, after default need not demand 492 not perBonally liable in replevin 1173 See Bailor and Bailee:. 928 INDEX. u. SECTION. UNCONSTITUTIONAL LAW, property taken under repleviable 313 UNDERVALUATION, sheriff responsible for 687-8 UNDIVIDED INTEREST, cannot be replevied 238 in property separable into aliquot partsmay bereplevied, 238 UNEXECUTED CONTRACT will not support replevin 124 UNITED STATES may replevy its property 404 UNITED STATES COURT or officer cannot seize property re- plevied in state court 709 UNITED STATES MARSHAL, replevin from 324 not protected where he proceeds illegally 325 property cannot be taken from by state court 934 cannot levy on property replevied in state court 708 USE, of the property allowed in damages 858 cannot be recovered for in addition to value 961 USABLE VALUE, as a measure of damages 887-98 See Damages. rule discussed in Romberg v. Hughes 887 USURIOUS AGREEMENT, demand not necessary to repudiate 495 USURY, when a good defense 793 as a (iftfense should be specially pleaded 780 V. VALUE, cannot be sued for while replevin is pending 710 rule in trover as to, a guide in replevin 945 always proper to show the, in replevin 998 verdict should find the, of each item 1062-3 error in, unimportant if property can be returned 1135 judgment for, only proper where return ordered 1134 full, allowed aga nit a stranger to the title 968—9 depreciation in, a proper element of damages 914-18 where fixed at the place where unlawfully taken 944 where no market, distant market a guide to the 946 what is highest market 942 how and when shown 995—1000 fluctuating gold coin, how fixed 948 as of what time fixed in replevin (generally) 937 when assesaed at time of trial 938 INDEX. BECTIOK. YATAIE— Continued. rule where — property increased in, after the taking 912-13 it is fluctuating 939-40 not stable 941 VARIANCE, between allegations and proof, fatal 61 between affidavit and proof, fatal 545 effect of a, when fatal 574 effect of a, between bond and petition in suit on bond...... 1281 VENDEE, cannot enforce contract by replevin 289 can sell his interest and replevin will not lie 287 right to rescind must be exercised promptly 275 must demand of third party rightfully in possession, even in cases of fraud 504 possession lawful, demand must be made 505—7 in case of fraud by, no demand necessary 503 of land may replevy crops severed 379 VENDOR, may replevy property sold, when , 244-5 where sale is fraudulent, may replevy 245 rule where, reserves title in himself 246 where title is reserved, may replevy from an assignee 247 must make demand, when 25S need not tender back partial payments first 248 must return partial payments before he can rescind sale.. 258 need not return part payments when impossible 260 must first return notes received in payment 257 offer to return void note not necessary 257 must at least offer to return before verdict 261 may replevy from United States marshal 249 may replevy before terms of sale fully complied with... 249 can rescind sale before actual delivery and replevin 255 who reserves title until full payment may replevy from an innocent purchaser 256 who reserves title in himself need not demand or payback 259 cannot replevy if sale be unconditional and no fraud 250 cannot replevy wliere he has waived conditions 251 can replevy from an administrator of the vendee 252 may restrict use to certain limits and replevy if condition violated 253 may replevy exchanged property, when 393 when statement of a, is evidence 988 evidence in cases of rescission by 278 59 d,"-^ 930 INDEX. BEOTIOir. YEIUDOB.— Continued. what circumstances justify a i-escission 267 failure of vendee may 274 sale to infant may be rescinded 270 nonpayment alone not ground of rescission 271 payment stopped by garnishment not ground 273 fraudulent vendee takes title or not at ^election of vendor, 265 deceived or defrauded, may rfeplevy 262—6 time when false representations made not material 266 honest silence as to insolvency no ground of rescission.... 272 defrauded vendor must rescind at once and return consid- eration received 279 may replevy part and sue for value of part of goods sold 280 cannot prove claim under bankrupt law, and replevy too 281 may claim under assignment law and replevy tdo 282 may replevy goods levied on for debts of vendee 285—6 may replevy from assignee of fraudulent purchaser 296 can replevy from an assignee under a state law 290—1 replevin will not lie by, where possession is given by con- sent 276 what is wrongful detention 288 cannot replevy from a purchaser at execution sale 283 cannot replevy from purchaser of vendee, when 284 what acts constitute a return and rescission 277 noteinpaymentshould betendered backtorescind 517 effect of rescission by 278 effect on third persons of a rescission by 279 VENDOR AND VENDEE 244-89 measure of damages in replevin between 899 VENUE, where laid in replevin 564 VERDICT 1049-85 when may be directed by court 1026 should respond to all the issues 1049, 1057-8 must speak as to unlawful detention 1049 must settle status of all the property 1056 should find value of property 1061 value of each item should be found if possible 1063 must be certain as to description 1066—7 must always be certain 1070 must find,value of a partial interest ,. 1072—3 should assess the datra^e 1074 construed liberally with reference to pleadings 1050—1 in non detinet and non cepit 1051 bad under BOB cepit 1071 language of, construed to uphold, if possible 1052 mere informalities in, not fatal 1054 INDEX. 931 „„ SECTION. VERDICT— CTontiiiDed. may be corrected in form by court 1055 surplusage in, may be rejected 1055 a general, sufficient, when 1059 effect of a general finding 1060 court cannot fix value in, where omitted by jury 1062 when value may be found in gross 1064 defendant can not beinjured by failure to find value, when 1005 indefinite description in, fntal 1067 illustrations of those upheld 1068 illustrations of those held bad 1069 court may compel finding as to damage„ i.i 1075 may support judgment of return but not for value, when, 1076 proper, where defense is fraud 1077 general forms of 1078 may be returned on Sunday 1079 may be returned on a holiday 1080 separate defendants entitled to separate 1081 may be partly for defendant and partly for plaintiff 1082 special, may be required of the jury by either party 1083 distinct issues must not be united in one 1084 must be consistent with itself 1085 See Finding. VINDICTIVE DAMAGES 924 meaning of term 926 largely in the discretion of the jury 929-30 in case of insult or malice 920-1 See Damages. seldom given against an officer 933 not allowed in suit ou bond 1341 See Exemplary, Punitive, and Damages. VOLUNTARY ORGANIZATIONS, rights of 114 VOLUNTARY PAYMENT, not recoverable back in replevin 936 by surety on bond cannot be recovered from principal 1335 VOLUNTARY SURRENDER of property waives lien 159. VOUCHERS may be replevied ; 70 W. WARRANT tor money may be replevied 81 WHO MAY MAINTAIN REPLEVIN 182-70 WHO MAY REPLEVY, real party in interest the proper plaintiff 186-89 one not entitled to possession cannot 52 an assignee of note may, for mortgaged property 186 932 INDEX. SECTION. WHO MAY B.EPL'EVY— Continued. a receiptor of goods may 57 See Plaintiff. WIFE, can replevy, when...: , 426 may replevy her own property 154—5 See Maebied Woman. WILD ANIMALS may be replevied 70 WITHERNAM, writ of 609 WUIT, of non omittas 605 aliae and ;)7uries, use and when issued 606, 629 of withernam, origin and use of 609 WEIT OF REPLEVIN, a common law writ, but now a matter of statute 1 how issued and executed in England 7 its history and use 604-31 originally not returnable 604 old form of 604 only issued at Westminster 607 origin of present writ and proceedings 608 its issue a ministerial act 611 must be issued by authority 612 should be addressed as other writs.. 613 directed to coroner where sheriff a party 614 what it should contain 615 when returnable 616 should follow description in affidavit 617-18 description in, when sutflcient 619 description in, may be amended when 620 total lack of description is fatal 621 need not state alleged value of property 622 practice where bond is filed before it issues 623 Bhould run against the party in actual possession 624 is under control of plaintiff 625 taking out of, is commencement of the action 625 date of, not conclusive of the fact 626 may be amended as to value 627 misnomer in, how cured 628 new service under void writ not allowed 630 ■when part of property taken cannot arrest 031 does not protect the plaintiff 646 service of 665-703 See Bond. duty of sheriff under 632 should be served on the property iirst 633 INDEX. 933 BECTIOir. WRIT OF REPLEVIN— Contmued. Service of — Continued. service on property means actual seizure 634 afailure to serve defendant is cured by appearance, 637 where served on person alone proceeds as suit for damages 664 eheriff liable if he fail to take a good bond 638 if sheriff lose bond he is liable 639 property should be held to allow bond to be given 640 sheriff must use his best judgment in serving 642 sheriff must see that writ is regular on its face 643 sheriff is protected from trespass in service of 644 sheriff may break and enter to serve when 647 sheriff with, should make his authority known 648 sheriff cannot take property from the person 649 sheriff may sever articles attached to real estate.. 650 sheriff may take property from stranger to writ.. 652 property described in should be taken wherever • found ■. 652 sheriff should use a sound discretion in serving.... 654 cannot be executed on Sunday 651 defendant not bound "to assist officer in 655 valid service cannot be made unless a good bond is given 693 powerof court to compel defendant tosurrender property 656 defendant liable for hindering officer in service of 657 return to — should be made to court by sheriff in writing 658 is part of the record 660 is conclusive between the parties 661 cannot be impeached by the sheriff 662 maybe amended to state the facts 663 is evidence of defendant's possession 990 WRITTEN INSTRUMENTS,copiesneednotbesetout inaffldavit 546 WRONGDOER, not entitled to demand 467 several need not be joined as defendants 442 adding to value of goods, cannot keep added value 390 See Goocp Changed in Fohm. cannot recoverwhathe has added to the property 947 Y. YGIIN'G OF ANIMALS, rule as to replevin of 397-8 KF 720 C65 Author Vol. Cobbey, Joseph Elliot Title Copy A practical treatise onthe ±a> 01 repxevin Date Borrower's Name s