no WHS" C.J (Snrupll Slam Btl^aal Cibratii Cornell University Library KF 720.W45 Atreatise on the la«ot replevin, as a^ 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/cu31924018806285 A TREATISE ON THE LAW OF EEPLEVIN, AS ADMINISTERED IN THE COURTS THE UNITED STATES AND ENGLAND. BY H. W. WELLS, COUNSELLOR AtTHw. CHICAGO: CALLAGHAN AND COMPANY. 1880. Entered according to Act of Congress, in the year 1879, By CALLAGHAN & CO., In the Office of the Librarian of Congress, at Washington, D. C. PREFACE. One of the first books treating on a single action at law was Gilbert on Eeplevin, published in 1766. This was fol- lowed by Wilkinson on Eeplevin, in 1825, and by Morris, the last edition of which is still fresh from the press. The two former works, though valuable and exhaustive treatises in their time, have become antiquated. The following pages contain an attempt to state the law of replevin as generally applicable in this country; a task attended with difficulty, in view of the differences in local laws. The author has forborne to insert copies of cases in the notes, which, while it would have swelled the number of pages, would not, as is believed, have been attended with any corresponding advantage. The work contains over five thousand references, and cites over three thousand authorities. H. W. W. Peoeia, October 29, 1879. (iii) TABLE OF CONTENTS. OHAPTEE I. HISTOEIOAL INTEODtrOTIOK. SECHON. Origin of replevin unknown 1. First appearance as a part of the lex soripia 2 Its prior existence apparent 3 The statute of Marlbridge 4 Originally an action to test the legality of a distress 6 Distresses 6 Usually for rent 7 Could not be sold 8 Abuses of the right of distress 9 Kepleviu defined 10 The writ not returnable, but gave the sheriff power to try the case 11 If the defendant claimed to own the property, the sheriff could not proceed 12 Alias and pluries writs and the practice. Pluries always returnable; the reason therefor 13 Cattle driven within a liberty — the writ non omittas .... 14 The writ issued only at "Westminster 15 Delay occasioned thereby 16 Eeplevin by plaint, sheriff authorized to proceed without writ 17 Proceeding in case of resistance 18 In case of no resistance 19 Ancient method of trial . , 20 (V) Vl CONTENTS. SECTIOir. Both parties actors or plaintiff's 21 Avowry and cognizance 22 Justified the taking 23 Eemoval of the case to the court of King's bench 24 The writ of withernam or " other distress " 25 Defects in the statute Marlbridge 26 The statute of "Westminster. The writ of second deliver- ance and the first appearance of the bond 27 Statute Charles II 28 Statute George II 29 Conclusion 30 CHAPTEE II. GENERAL PEINCIPLES. Definition 31 Lies for chattels wrongfully taken and detained 32 Kecovery of the specific goods the primary, and of value or damages the secondary, object of the action 33 It is a mixed action, partly in rem and partly in personam 34 The writ is a writ of right 35 Different forms of proceeding in different States substan- tially the same 36 Peculiarities of the action and privileges to the plaintiff . . 37 Importance of the action 38 The right to present possession the chief question in con- troversy 39 Statutory provisions concerning delivery 40 Formerly would lie only for a distress 41-43 Similarity between this action and trespass, trover and detinue 44 Some characteristics of the action of trover and trespass compared with replevin 45 45 Distinction between trespass, trover and replevin 47-60 "Where one takes forcible possession of his own property he may be liable in trespass, but not in replevin 51 Actual detention of the goods necessary to sustain replevin 52 CONTENTS. Vll BSOTION. Eeplevin in cepit, detinet and detmuet 53 Wrongful talcing 54 The scope of the investigation in this action 55-57 OHAPTEE III. WHEN AND FOE WHAT IT LIES. Eeplevin lies only for chattels 58, 59 Chattels severed from realty 60, 61 Chattels may become part of the realty 62, 63 How far the question as to what is or is not real estate may be litigated in replevin 64-67 Buildings while fixed to land are part of the realty 68 Articles severed from the realty 69-72 Severance from realty does not change title 73 Growing crops 74 Actual severance not necessary to give property tlie char- acter of personality 75, 76 Chattels fixed to the land of another without his consent.77, 78 Title to real estate, when evidence in replevin 79, 80 Holder of colorable title cannot recover chattels severed. . 81 Defendant holding color of title 83 Action cannot be used to litigate title to land . . .' 83 Chattels severed through mistake 84 Chattels severed by a trespasser 85-87 Severed by one claiming to own the land 88 Summary of the rule 89 How far a mortgage on real estate passes title to chattels severed therefrom 90-93 OHAPTEE IV. PLAINTIFF MUST HAVE THE EIGHT TO THE IMMEDIATE AND EXCLUSIVE POSSESSION. Plaintiff must have a right to immediate and exclusive possession 94 Proof of wrongful taking not necessary 95 Vlii CONTENTS. SEOTIOH. The term "property" or "property in the plaintiff" does not mean absolute ownership 96 Eight of possession and ownership may be in different persons 9 * Property of bailee 98 One entitled to possession for a special purpose 99-101 General ownership not necessarily determined in the action 102 Borrower cannot set up a title 103 Carrier cannot show title in third party as a defense to an action by the shipper or consignee 104 The legal title will prevail over the equitable 105 An assignee in bankruptcy 106 Eight to present possession does not depend on former possessions 107, 108 Prior-rightful possession, when sufficient 109-112 Rightful possession evidence of title 113 Conflicting claims by possession 114 The possession must be under a claim of right 115 But need not be under a claim of title. Finder of prop- erty 116, 117 The lien of a finder for reward offered 118 Finder of a note has no right to collect it 119 "Where the title is the issue, good title must be shown. . . 120 The nature of the special property necessary to sustain replevin 121 General owner usually entitled to possession; exceptions. 122 Liens ; . . . .123-125 The same. Taking up of an estray 126 Goods lost at sea 127 Goods in possession of one's servant 128 Contract for purchase of property does not necessarily confer a right of possession 129 An officer levying process has special property, and right to possession 130 Possession of a receiptor to an officer 131 An agent who is responsible to the owner has sufficient possession to sustain replevin 132 CONTENTS. IX BEOTION. Wrongful seizure or sale by an ofScer does not affect owner's right 133 CHAPTER V. POSSESSION BY THE DEFENDANT. Replevin does not lie against one not in possession of the goods. Some exceptions 134, 135 The writ lies only for property in existence 136 Proof that the defendant was about to take possession will not sustain replevin 137 Neglect to deliver; when not a conversion 138, 139 Taking under a license not a conversion 140 A firm may be responsible for the act of one member . . . 141 Taking by an officer; when sufficient to render him liable in this action 142 Possession by an officer not possession of the creditor in the writ 143 Servant not usually liable for holding his master's goods. 144 Where defendant has put the goods out of his possession. 145 Or put it out of the officer's power to execute the writ. . . 146 Fraudulent transfer of goods 147 Clothing worn on the person not subject to the writ 148 Possession after dlstnissal of an action of replevin 149 Defendant acquiring possession with plaintiff's consent. . 150 The action permitted in some States without delivery of the goods 151 CHAPTER VI. JOINT OWNERS. One joint tenant cannot sustain replevin against his co- tenant. . . .' : 152, 153 Replevin does not lie for an undis^ided interest 154 Owners of separate interests cannot join, but joint owners must 155 X CONTENTS. SEOTIOIT. Action by one of two owners does not lie against a stranger for the joint property 156, 157 Landlord reserving a share of the crop cannot sustain replevin until his sliare is set apart 158 Death of one partner, who entitled to the partnership property 159, 160 By agreement of all joint owners the right to possession may be in one 161 The severance of the joint tenancy by agreement 162 Severance by the act of one joint tenant 163 Purchaser of one joint tenant's interest at sheriif 's sale. . 164 Sale by one partner of his interest in goods 165 An officer with process against one member of a firm may seize all the partnership goods 166, 167 CHAPTEK YII. DESCEIPnON, IDENTITY OF THE GOODS. Plaintiff must prove himself the owner of the identical property siaed for 168 The writ must describe the property particularly 169 The property must be capable of delivery 170 Strictness of the rule in regard to description, and the reason for it 171 The same. A description good in trespass or trover not sufficient in replevin 172-174 When the sufficiency of description is a question for the jury 175 Synonymous descriptions. Illustrations of, and when allowable 176 The rule as to certainty of description 177-179 Descriptions which may refer to kind or quantity ISO A quantity described as "about" four hundred tons 181 The proof as to description must correspond with tlie writ 182 Exact quantity need not be given where the particular property is indicated jgg CONTENTS. XI SECTION. Writ of return and verdict may follow declaration as to description 184 When objections to insufficiency of description must be taken 185 Eeplevin does not lie for goods sold, unless tbey are in some way separated from the others or in some way identified 186-189 The same. Selections by purchaser; when sufficient.190, 191 Property acquired by a verbal gift without delivery 192 The general rule applicable in the cases 193 Symbolic delivery 194 Goods distinguished by marks or by separation 195 CHAPTEE VIII. CONTUSION OF GOODS OF DIFFEEENT OWNEES — CHANGE OF FORM. Mixtures or confusion of goods belonging to different owners 196 Willful mixture. All belongs to the innocent party. . 197-201 Changing marks to produce confusion 202 Mixture of grain ; when each owner may take his share.203-207 Where an officer is induced by fraud of a third party to levy on goods not the property of the defendant in the process 208, 209 Change of foi-m, and tlie effect of such change on the rights of the parties 210 Bule of the civil law 211 Goods taken by mistake 212 Change of form does not change the title. Where the goods can be identified, owner may sustain replevin . 213, 214 Goods taken by a thief or trespasser, and enhanced in value by his skill or labor 215 Rule where the goods come to the hand of an innocent purchaser 216 Owner should reclaim his property before its value is greatly enhanced 217 Xll CONTENTS. SEOTION. "Where the taking is wrong, the taker cannot change the title by any change in the property 218 Measure of damages in such cases 219 Change of form by agreement does not affect the rights of the parties 220 Property taken and annexed to real estate or other thing which forms the principal 221 Description to be employed where the property has under- gone a change 222 CHAPTEE IX. CHATTEL MOETGAGE. Piglits of a mortgagee in a chattel mortgage 222a The mortgageor has an interest which may be seized and sold on execution 2225 Eights of the mortgagee against third parties 223 CHAPTEE X. PEOPEETT SEIZED FOE A TAX. Property seized for the payment of a tax not repleviable . 224 Irregularity in using the warrant does not change the rule 225 Nor the fact that no taxes are due from the party whose goods are seized 226 Prohibition extends to goods seized for tax due the United States or an incorporated village 227 The usual form of the prohibition is a requirement in the affidavit 228 The jealousy with which the courts look upon attempts to evade this requirement 229 Questions of double assessment cannot be tried in this action 230 Property seized for the j^a-jraent of a tax due from another person 231, 232 CONTENTS. Xm SEOTIOK. The prohibition of this remedy does not affect the rights of the party to employ any other proper means 233 The action permitted where the plaintiff does not ask delivery of the property 234 The prohibition does not extend to a purchaser at tax sale 235 The bare assertion of the defendant that the goods are seized for tax not sufficient 236 The warrant must be regular on its face, and purport to be issued by competent authority 237 It must appear to be for a tax which by legal possibility may be valid 238 The seizure must be by an officer 239 Where an officer goes out of his bailiwick 240 The prohibition extends to goods seized for payment of a fine 241 Eeplevin against a purchaser 242 CHAPTER XI. GOODS IN THE CUSTODY OF THE LAW. Eeplevin does not lie for goods in the custody of the law 243 Limitation upon this rule 244 Lies for goods wrongfully seized by an officer upon process 245 Of the right of a person to take possession of his goods which have been wrongfully seized by an officer 246 Eeplevin does not lie for goods in the hands of a receiver of court 247 Does not lie at the suit of a defendant in execution against the sheriff 248 Nor the suit of a grantee of such defendant after the spizure 249, 259 Qualifications of the rule 251 Does not lie for liquors seized under an act to prevent the sale of intoxicating beverages 252 But the writ was allowed where the seizure was under an ordinance which had been declared void by a court of competent jurisdiction 253 Xiv CONTENTS. SEOTIOir. Does not lie for cattle legally impounded 254 Lies for powder seized under an ordinance prohibiting its introduction in large quantities into a city 255 Does not lie for property taken on a writ of replevin until after the former case is decided 256 The distinction between a writ of replevin and an execu- tion or attachment 257 Cross replevins not allowed 258, 259 The sheriff charged with the execution of process must obey it at his peril 260, 261 Replevin lies for goods wrongfully sold by sheriff on execution 262 Distinction between replevin for the goods and an action against the officer as a trespasser 263 Writ of replevin. When and how far a protection to the oflBcer serving it 264 Whether the writ authorizes a seizure of the goods from a stranger 265, 266 Writ of return authorizes seizure only from the person named 267 Replevin lies for exempt property wrongfully seized 268 The aid of the statute must be invoked 269 The exemption a personal privilege 270 Damages and costs in such cases 271 Jurisdiction in replevin, where goods have been wrong- fully seized 272, 273 The rule in Freeman v. Howe 274 The doctrine in this case considered 275-282 The power, duty and responsibility of the sheriff in serving the writ of replevin 283 He must see that the writ is in form 284 And that it issue from a court of competent jurisdiction to issue such a writ 285 The writ does not authorize a seizure of goods from the person of the defendant 286 The right of an officer to break and enter a dwelling to take goods 287 Parties bound to know the sheriff. 288 CONTENTS. XV SECTION. Duty of the sheriff to take bond; his liability in respect to the bondsmen 289 Extent of the sheriff's liability 290 JReturn by slieriff of goods wrongfully seized by him. . . . 291 Duty of a sheriff on receiving a writ of replevin 292 Duty of the sheriff with respect to serving articles claimed to be real estate 293 The liability of the officer a personal one 294 The sheriff liable for the acts of his deputies 295 Disputes between deputies of the same sheriff settled by the sheriff. 296 The officer's return 297 As to the service of a writ of replevin 298 Effect of the replevin of property seized on execution . . . 299 Special property created by a levy on goods 300 Justification by an officer 301 The defense by sheriff when goods seized are replevied from him 302, 303 CHAPTEE XII. TAKING BY THEFT, FOKCE OE KRAUD. Taking by theft, trespass or fraiid 304 Thief acquires no title to the stolen goods 305 Sale in market overt passed title 306 Markets overt unknown in this country 307 Keplevin of stolen goods does not depend on the convic- tion of the thief 308 A trespasser acquires no title, and can convey none by any sale 309 Replevin lies for goods obtained by fraud, even from one who innocently purchases 310 Innocent purchaser from a thief may elect to affirm the contract as against the thief 311 Keplevin by the owner for goods sold by a bailee without authority 312 The same. Rights and authority of a bailee 313, 314 XVI CONTENTS. ssorioN. Eeplevin lies against a carrier for goods wrongfully taken and committed to his care, and has no lien for freight on such goods 31o Eeplevin lies where a bailee without authority pledges goods in his care 316 "When agent or bailee with authority sells at a less price than his instructions warrant 317 Fraudulent purchaser takes a title voidable at the election of the defrauded vendee 318 Observations on the rule 319-321 Not material when the fraudulent representations were made 322 Goods paid for with a worthless note, counterfeit money, or stolen goods 323 Replevin against attaching ci-editors in such cases 324 Or against an assignee for the benefit of creditors 325 Does not lie for goods sold to enable the purchaser to violate the law, even though there may have been fraud in the purchase 326 For goods sold to an infant, when he avoids payment.. . . 327 For goods obtained by duress 328 The general rule stated 329 Fraudulent intention of purchaser must exist to avoid a sale 330 Diligence required of one who M'ould rescind a sale by fraud, return or tender of the consideration 331 "What amounts to a return of property, 332 Does not lie against an innocent purchaser from a fraud- ulent purchaser '. 333 The distinction between acquiring goods by theft or tres- pass and fraudulent purchase 334—337 Kule where goods fraudulently purchased are taken in payment of a pre-existing debt 338 Sales of goods upon condition 339 Non-payment for goods sold on credit does not warrant a rescission of the contract 340 Kule where the vendor stipulates to retain title or pos- session imtil payment 341, 342 Waiver of conditions of sale 3J3 CONTENTS. XTll CHAPTEE XIII. THE DEMAND. SECTION. General principles of the law requiring a demand 344 Demand not necessary when the defendant's possession is wrongful, necessary in all cases when it is rightful.34:5-347 Where taking is by a thief or trespasser, from a thief or trespasser 348 Proof of a wrongful taking always suiScient 349 The legal effect of a demand and refusal 350 Where goods are converted no demand necessary. Mean- ing of the term " conversion " as here used 351 What amounts to a conversion 352 There can be no conversion without control over, or inter- ference with, the property , , 353-355 Purchaser at sheriff's sale 356 Possession taken only as an act of charity or to preserve property, not a conversion 357 Borrower cannot set up title in himself 358 Finder of property entitled to a demand 359 The taker np of stray animals 360 Purchaser of property payable in installments, entitled to a demand before forfeiture 361 Unaiithorized interference with the goods of another. . . . 362 Hire of property for a special purpose may not use it for another 363 Innocent receiver of stolen goods may be liable for con- version 364 What is rightful possession 365 Fraudulent purchaser, or attaching creditor of, not enti- tled to demand '. 366 A fraudulent taking always wrongful 367 Necessary where an officer seizes goods from defendant named in his process 368 Contra when he seize goods from another 369 Inn-keeper, or carrier, when entitled to a demand 370 When demand must be made 371 The effect of failure to prove demand 372 2 XVIH CONTENTS. SECTION. Waiver of demand by defendant 373 Claim of ownership by defendant 374 On whom the demand must be made 375 No particular form necessary 376 General rules governing the demand 377, 378 Demand by a father or guardian 379 Eefusal to deliver, the true grounds must be stated 380 The same. What is a sufhcient excuse for non-deliv- ery 381-383 OHAPTEK XIV. THE BOND, No bond required by common law 384 The English statutes 385 The English statutes the basis of the law concerning bond in this country 386 Assignment of the bond to defendant 387 The bond a prerequisite 388 Permission to prosecute as a pauper does not excuse giv- ing bond 389 Wealth of the plaintiff no excuse 390 Delivery cannot be made without bond given 391 The bond must conform to the statute 392 The bond not necessary to the trial 393 Where the sheriff is a party 394 Defendant may give bond and retain the property 395 Bond not necessary where the plaintiff does not ask de- livery 396 Description of the bond 397 Objects and purposes of the bond 398 The return of the bond with the writ 399 Amount of penalty in the bond, how ascertained 400 Sheriff may take the property for purpose of appraise- ment 401 Sheriff not required to prepare bond, duty of the party. 402 To whom payable 4.O3 CONTENTS. XIX BBOTIOS. Though defective as a statutory bond it may be good as a common law obligation 404, 405 By whom it must be executed 406 Bond may be executed by a stranger to the suit 407 How executed . , 408 When it may be amended 409 Defect in the bond, when and how taken advantage of. . . 410 Requisites of the bond 411, 412 The conditions separate and independent of each other. . 413 The conditions to prosecute without delay 414 To prosecute with effect 415 "What is prosecution with effect 416 Prosecution in inferior court when the case is appealed, not sufficient 417 Death of party pending suit 418 The condition to return 419 Offer to return unaccompanied by a tender, not a per- formance 420 This condition requires the return of the identical goods, 421 In as good order as when taken 422 Judgment for a return a breach of the condition 423 The bond does not relate to other claims than the suit in which it is given 424 Actual delivery of the goods on the writ precedes liability on the bond 425 Actual return in as good order a compliance with this condition 426 General principles governing the construction of the bond 427 Eight of action accrues upon a failure to keep any of the conditions 428 Eights of the securities 429-431 Any material alteration in the bond avoids it 432 The same. Securities bound by acts of the principal .... 433 But a settlement does not bind nor discharge them 434 Submission to arbitration does not bind securities 435 Technical defenses to bond not favored 436, 437 The liability of a guardian personal 438 XX CONTENTS. BBOTION. Where the words are ambiguous the intent will govern. . 439 Proceedings on the bond governed by statute 440 Debt a proper form of action 441 Assignment of the breaches 442 Proceedings in the replevin essential to sustain suit on the bond 443 The material facts to be set up 444 When bond is lost from the files 445 Defense to suit on bond 446 When ownership of property is settied in the replevin suit 447 When not so settled, it may be set up in suit on the bond. 448 Defense which should be made in the replevin suit 449 Miscellaneous rules in suit on bond 450 Yariation between bond and affidavit in description, no defense 451 Submission of the replevin suit to arbitration is a defense. 452 Value of the property stated in bond how far binding . . 453 Where the value of a number of articles is stated at one gross sum 454 Effect of the death or destruction ot the property 455 Parties to suit on bond cannot discharge it to the injury of the sheriff 456 Damage on bond how assessed 457-459 Eelease of bond by seizure on another writ pending suit. 460 Limitation to suit on bond 461 Suit on, by sheriff, may be in his individual name 462 CHAPTEE XV. THE WEIT. To whom addressed, and the mandate 463 Must contain summons to the defendant 464 Must describe the particular property 465 Alias writ 466 Writ lies for property in the jurisdiction of the court when it issued 467 CONTENTS. XXI SECTION. The return of the writ 468 At common law plaintiff took the property as his own, and might so dispose of it 469 Property now regarded as in the custody of the law .... 470 Injury to goods while in plaintiff's possession 471 Rights of the plaintiff to property taken on the writ. 472, 473 Delivery on the writ does not confer title 474 Where the action is for a distress 475 The effect of the writ on the rights of the parties pend- ing the suit 476-480 CHAPTER XYI. THE EETUEN. The Return. General principles 481, 482 Plaintiff not liable for, unless so ordered by the court. . . 483 Duty of plaintiff when return is adjudged 484 Return ordered only where return appears just 485 Return may be adjudged to one of several defendants. . . 486 Adjudged only when the defendant claims it 487, 488 Formal prayer for return not essential 489, 490 Judgment for value rendered only where a return would be proper 491 "When a defendant pleads property in a third person . 492, 493 Judgment for return does not settle the question of title. 494 Judgment for return generally follows a verdict for the defendant 495 The rights of the parties at the time the return is asked will govern 496 The same. Illustrations of the rule 497, 498 Never ordered unless it appear that the plaintiff obtains deliverence on the writ 499 Return of the young of animals born after suit began . . 500 "Where defendant avoids trial on the merits 501-504 Liquor sold to enable the vendee to violate the law 505 When the parties are joint tenants ; 506 When the property is lost or destroyed 507 XXll CONTENTS. BEonoir. "When the question of return should be determined 508 Eeturn or delivery in States adopting the code 509 The writ of return must describe the goods 51C CHAPTEK XVIL DAMAGES. By common law damages allowed to plaintiff, not to defendant 511 General rule now is that damages are awarded to the suc- ful party 512 Allowed only as an incident to the proceedings for pos- session 513 May be allowed to both parties 514, 515 Plaintiff cannot dismiss so as to avoid a hearing in the question of damages or return 616 "Where the suit is dismissed for informality 517-519 The rules applicable in actions of torts generally apply in replevin. Distinctions stated 520 Damages to plaintiff 521 Damages to defendant not allowed unless a return of the property is claimed 522-524 The rules for estimating damages 525 Nominal damages 526, 527 Party claiming damages must show the extent of his in- juries by proof 528, 529 Compensation the object of the award 530 How the amount of compensation is ascertained 531 "When the goods have changed in value 532 The rule giving compensation applies only in cases where no malice or willful wrong is charged 533 "When taking was wrongful, damage estimated from the time of taking, otherwise from the time of conver- sion 534 Depreciation in value a proper element of damages 535 The rule not uniform 536 Interest as a measure of damages 537 CONTENTS. XXIU SECTION. How assessed 538 When a part of the goods only are found 539 In suit on bond 540 When the suit is concerning the validity of a sale 541 Where defendant is a stake holder .'. 542 Value of property when allowed on damages 543, 544 When value is regarded as attaching 545 Value at the time of conversion 546, 547 The rule is applicable when the value of tlie property is stable. Rule when the value is changing 548 The highest value after taking and before trial 549-552 . Qualifications of the rule. Suit must be brought within a reasonable time 553, 554 What is the highest market value 555 Further qualifications of the rule 556 Measure of damages in suit for a note or bill 557-559 Value of coin sometimes estimated in currency 560 Damages occasioned by party's own act not allowable ... 561 The place where the value is considered attaching 562 The same. General rule is value where the goods were detained, value in another market may be evidence. . 568 The same. Expense of transportation, etc 564^566 Trespasser cannot recover for his labor in increasing the value of goods 567 Or make a profit out of his wrongful taking 568 Statement of value in the afiidavit usually binds the plain- tiff, but not the defendant 569 Appraisment does not bind either party 670 Special damages must be specially pleaded 571 Loss of, by interruption of business 572, 573 Loss of real or probable profits 574 Party claiming damages must do what he can to avoid loss 575 Expense, counsel fees, etc 576, 577 Expense of taking and moving the property 578 XXIV CONTENTS. CHAPTEK XVIII. DAMAGES, CONTINUED. SEOnOH. Value of the use when proper to be allowed 579 This applies only in replevin 680 The same. Not allowed a pledgee, or an officer of the law 581, 582 Tlie same. Not allowed unless the property is chiefly valuable for its use 583 "Where the successful party has only a limited interest.584-586 The same. As between the owner of a limited interest and an intruder 587-589 Damages against officer for wrongful seizure 590 The same. Against officer acting in good faith 591 The same. Officer acting with malice 592 The same. Where the suit is by the general owner. .... 693 The same. Where the suit is by one without right 594 Damage against officer for losing bond ' 596 The same. For other failure in his duty 596 In suits between different officers 597 Damages between joint owners 598, 599 Effect of the death or destruction of the property . . . 600-601 The same. Death of slaves pending suit does not affect the right to judgment for value 602, 603 Judgment when the property is lost or destroyed 604 Damages only allowed where the defendant is entitled to a return 605 Option of the defendant to pay value or return the goods. When allowed 606 Damages to compel return 607 When and how assessed 608, 609 Value and damages should be separately assessed 610 Recovery cannot be for a greater sum than is claimed. . . 611 Damages for property severed from real estate, value as a chattel 612, 613 The same. Coal dug or timber cut 614 The circumstances under which the severance was made, material to be considered 615 CONTENTS. XXV SEOTIOK, Trees cut on land of another by mistake 616 The general rule stated, applicable to various changes in the property •. 617 Yindictive damages, when allowed 618, 619 The same. The meaning of the terms punative, exem- plary, and vindictive 620-621 The same. Actual malice or gross carelessness must be shown 622 No general rule exists for estimating 623-626 Party who acts in defiance of another's rights, is resjjon- sible for all consequences 627 Yindictive damages against officers of the law 628, 629 Accounts cannot be adjudged in replevin 630 But questions of set off may be investigated in certain cases 631 Illustrations of the rule 632 Set off, to suit on bond 633 OHAPTEE XIX. PARTIES. Parties who may be plaintiff and defendant 634 Owners of distinct interests cannot be joined. Joint owners must be joined 635 Trustees, executors or administrators may be plaintiffs. . . 636 Suit against an executor or administrator 637 A parish or corporation may sustain the action 638 "Whether an assignee of the property in the possession of another can sue 639 Sale of property permitted, notwithstanding adverse pos- session of another 640-642 A father may sue for property of his minor child 643 Servant cannot sue for his master's goods ■. . 644 Eeceiptor of an officer 645 Attaching creditor not liable jointly with the officer 646 Minor cannot sue 647 XXVX CONTENTS. OHAPTEE XX. PLEADING. BEOTIOH. Pleadins: ^^8 Established rules must be followed 649 The affidavit 650 A prerequisite to delivery 651 Must not be entitled 652 Must be drawn to meet the evidence 653 Takes the place of the plaint 654 By whom it may be made. General requisites 655 Meaning of the term owner 656 Defects in; when taken advantage of, and how. 657 The truth or falsity of the affidavit not in issue 658 Statement of value of the property 659 Statement of value in affidavit; how far binding 660 Must state that the property was not taken for any tax, assessment or fine 661 Or upon any execution or attachment, etc 662 Or on any writ of replevin against the plaintiff. 663 Strict compliance with this condition required 664 It must contain a correct description of the property. Amendments 665 The declaration. Several counts joined 666 Eights of parties under a single count 667 Count in trover for goods not delivered 668 Yalue of such goods usually given in damages 669 Form of the declaration ; wrongful detention 670 The same. Must be drawn to meet the proofs 671, 672 The same. Allegation of time and place 673, 674 Averment of wrongful detention essential 675 Evidence of title need not be stated 676 The same. An averment of a right of possession suffi- cient 677, 678 Where the complainant follows the statute 679 Declaration should state value of the goods 680 As to the averment of demanc? 681 Must claim damages 682 CONTENTS. XXVU CHAPTER XXL PLEADING BT DEFENDANT. SECTION. General rules; each defendant may plead separately 683 Separate defenses 684 Plea of title; must show title when the suit began 685 Plea to title or right of possession 686 Plea by an officer 687 Plea of property in defendant Property in a third person , This plea does not amount to an admission of taking.690, 691 The same. Kight of defendant to return under this plea. * 692-695 The traverse 696, 697 Replication 698 Surrender to a third party by order of court 699 CHAPTER XXII. PLEA OF NON CEHT AND NON DETINET. Plea of non cepit or non detinet 700 Admission in the pleadings not evidence as to matters previously put in issue 701 Issues admitted cannot be denied 702 Special statutory rules 703 Office and effect , of a plea of non cepit 704 Form of plea of non cepit 705 Other pleas may be joined with 706 Plea of cepit in alio loco 707 Non detinet is like non cepit 708 Illustrations of the use of this plea 709, 710 Disclaimer of interest in property no defense 711 Plea of justification; the burden is on the party to sustain his plea 712 General rules governing plea of non detinet 713 If the defendant claims the property or damages he must file a plea so stating 714 XXVlll CONTENTS. CHAPTEK XXTII. EEPLEVIN OF A DISTEESS. BEOTIOH The right of distress 715 Origin of the right 716 The right to replevy the distress 717 Eight of distress in this country 718 Distress not a suit at law 719 Eoplevin of a distress 720 Rights of the landlord 721 Sublessor's liability 722 Payment to landlord; who is a joint tenant 723 Eights of the tenant 724 The avowry and cognizance 725 Distinction between an avowry and cognizance 726 The exactness required in these pleas 727, 728 The rent, how payable; must be certain 729 The terms of the lease 730 The usual plea to replevin of a distress 731 Form of avowry or cognizance 732 Pleas to an avowry or cognizance 733 Plea of set off to an avowry 73i Pleas to an avowry ; averments in 735 Plea to cognizance; denying authority of bailiff 736 Plea of " non tenure " or " nothing in arrear " 737 Same rules apply to cognizance 738 Effect of replevin on la idlord's lien 739 CHAPTER XXIV. THE VEEDICT AND JUDGMENT. The verdict 740 Court may correct form, but cannot change the sub- stance 741, 742 The jury must pass on all questions at issue 743 May find for both parties 744 Each party may submit necessary issues to the jury 745 CONTENTS. XXIX SECTION. " Not guilty," what responsive to 746 Statutory exceptions 74T In justice courts 748 Illustrations of the exactness required in the verdict. 749, 750 Finding need not be in express words 751, 752' The verdict may be general if it cover all the issues. .753, 754- Verdict should not amalgamate different issues 755 Separate defendants may have separate verdicts 756- Verdict must be certain 757, 758 Must be consistent 759 Value of property, when must be found 760 Value of separate articles 761 Conditional verdict . . ' 762' Value where the party's interest is limited 763 Verdict for damages, when essential 764, 765 The judgment 766 Should embrace all parties and all issues 767, 768 Must be certain 769 Judgment upon default 770 When property has been delivered, plaintiff cannot have value 771 Judgment for value, or delivery , 772^ Judgment in the alternative for the goods, or their value. 773 Exceptions to this rule 774r Judgment for both parties for different parts of the goods 775- Separate judgment as to separate defendants 776 Order for delivery part of the judgment 777 Defendant is entitled to reasonable time to comply with the judgment for return 778 Effect of payment of judgment for value 779, 780' Judgment of non-suit does not affect title 781 Judgment of dismissal 783 Illustrations of the effect of judgment 783 Judgment for value of limited interest 784 Judgment for value on count in trover 785 When property is lost, judgment for return immaterial. , 786 Judgment for value in such cases 787 XXX CONTENTS. OHAPTEE XXV. MISOELLANBOUS. szcnoii Contesting creditors cannot invoke the aid of the insol- vent laws against each other 788 Nor set up a forfeiture under usury laws 789 Eight to begin and conclude 790 Trial upon the facts existing when the suit began 791 Date of writ not conclusive as to commencement of the suit 792 All matters in dispute should be settled in the replevin suit 793 Defense by bailee 794 Effect of a submission to arbitration 795 Plea in abatement, another suit pending 796 The same. To the affidavit 797 Limitations 798 Amendments 799 Amendment of affidavit 800 Death of party to suit 801 TABLE OF CASES CITED. EEFERENCKS ARE TO PAGES. PAGES. Abbott V. Barry, 3 Brod. & Bing. (6 E. C. L.) 369, 183 Abrams v. Jones, et al., 4 Wis. 806, 165 Acker v. Campbell, 33 Wend. 373, 183, 183, 307, 308 Acker «. Finn, 5 Hill, 393, 320 Acker v. White, 35 Wend. 614, 361, 363, 364, 401 Ackerman n. King, 39 Tex. 391, 254 Ackley v. Finch, 7 Cow. 390, 121 Ackworth v. Kempe, Douglas, 40, 11, 146, 168 Adams v. Adams, 13 Pick. 385, 5, 400 Adams o. Broughton, Andrews, 18, 419 Adams v. Champion, 31 Mich. 333, 416 Adams v. Corriston, 7 Minn. 456, 55, 366, 367 Adams v. Hubbard, 30 Mich. 104, 147, 173 Adams v. Smith, 5 Cow. 380, 193 Adamsfl.Wildes, 107 Mass. 138, 109 Addison v. Overend, 6 Term. R. 357, 706, 90, 418 Aireton v. Davis, 9 Bing. 740, 336 Alden «. Carver, 13 Iowa, 353, 65, 198, 309 PAGES. Aldridge v. Harper, 10 Bing. 118, 341, 351 Alexander v. Burnham, 18 Wis. 199, 164 Alexander v. Southey, 5 Barn. & Aid. 347, 83, 316 Alford «. Bradeen, 1 Nev. 228, 89 Allaire v. Whitney, 1 Hill, 484, 291 Allen v. Agnew, 4 Zab. (N. J.) 448. 393 Allen D. Crary, 10 Wend. 349, 33, 33, 36, 37, 82, 146, 161, 205 Allen v. Darby, 1 Show. 97, 373, 374, 376, 277 Allen V. Dykers, 8 Hill, 598, 303 Allen V. Fox, 51 N. Y. 563, 35, 236 360, 268, 388, 293, 395, 819, 321, 330 Allen V. Judson, 71 N. T. 77, 336, 389, 331 Allen V. Staples, 6 Gray, (Mass.) 491, 138, 143 Allen and Wife v. White, Admr., 16 Ala. 181, 347 Allison r). Chandler, 11 Mich. 542, 293, 294 Allison V. Matthieu, 3 Johns. 235, 183, 184 Allred v. Bray, 41 Mo. 484, 313 Alwood ®.Ruckman,31 111.200, 90, 367 (xxxi) XXXll TABLE OF CASES CITED. PAOBS. Alsayer ■». Close, 10 Mees. & "W. 576, 305 Am. Ex. Co. ■». Parsons, 44 111. 313, 305 Ames V. Miss. Boom Co., 8 Minn. 467, 26, 77, 95, 113, 117 Amory «. Flyn, 10 Johns. 103, 41 Amos V. Sinnott, 4 Scam. 440, 196, 873, 388, 384 Anderson d. Dunn, 19 Ark. 650, 376 Anderson v. Foster, 2 Bailey, (S. C.) 501, 232 Anderson e. Hapler, 34 111. 436, 10, 48, 51, 357 Anderson v. Lane, 33 Ind. 102, 102, 410 Anderson v. O'Laughlin, 1 Blake, (Mont.) 81, 274 Anderson «. Passman, 7 C. & Payne, 193, 8 B. & Aid. 703, 83 Anderson «. Reynolds, 14 S. & R. 439, 400 Anderson v. Talcott, 1 Gilm. 365, 273, 880, 384 Anderson ». Tyson, 6 S. »fe M. (Miss.) 244, 417 Andrew v. Dietrich, 14 Wend. 31, 182 Andrews v. Durant, 18 N. T. 496, 296 Andrews v. Shattuck, 32 Barb. 897, 210, 213 Angell V. Keith, 34 Vt. 371, 32, 81 Angler v. Ash, 6 Fost. (N. H.) 99, 169 Anon. 2 Atk., 337, 20, 35 Anon. Dyer, 141 a. 13 Anon. Dyer, 188 6. 15 Anon. Dyer, 280 6. 6, 383 Anon., 4 Hill, 603, 428 Anon., 4 How. (N. Y. Pr.) 290, 361 Anon., Loftus, 520, 13 Anon., 2 Mod. 199, 12 Anon., 6 Mod. 103, 273 Anon., Popham, 88, 118 Anon., Winch. 26, 8 Anstice v. Holmes, 3 Denio, 244, 270, 855, 380 FAGSS. Appleton V. Barrett, 23 Wis. 568, 60, 406 Appleton B. Barrett, 39 Wis. 321, 312, 214 Applewhite n. Allen, 8 Humph. (Tonn.) 696. 361, 438 Archer v. Hale, 4 Bing. (13 E, C. L.) 464, 426 Archer ». Williams, 2 Car. & K. (61 E. C. L.) 26, 303 Archibald v. Thomas, 3 Cowen, 284, -238 Arendale v. Morgan, 5 Sneed, (Tenn.) 703, 174, 190 Armory v. Delamire, 1 Str. 505, 67, 69 Armstrong o. Burrell, 12 Wend. 303, 222, 325, 253 Armstrong «. Percy, 5 Wend. 535, 312 Arnold v. Allen, 8 Mass. 147, 231, 242, 247 Arter v. The People, etc., 54 111. 338, 231, 344 Arundel v. Trevill, 1 Sid. 81, 41 Arundel v. Trevin, 1 Keble, 279, 437 A&bell V. Tipton, 1 B. Mon. (Ky ) 800, 398 Ash V. Putnam, 1 Hill, 302, 182, 184, 190 Ashby V. West 3, Porter, (Ind.) 170, 382 Ashmun D.Williams, 8 Pick. 402, 43, 49 Atherton v. Fowler, 46 Cal. 333, 295, 396 Atkin «. Barwick, 1 Stra. 165, 184 Atkins V. Moore, 83 111. 240, 832 Atkinson v. Holcomb, 4 Cow. 45, 366 Atlantic, etc., R. R. v. Cleino, 2 Dillon, 175, 130 Auld V. Kimberlin, 7 Kan 601, 355, 361 Aulick B. Adams, 13 B. Mon. 104, 236 Austen v. Howard, 7 Taunt, 327, 228 Austin V. Craven, 4 Taunt. 644, 117 TABLE OF CASES CITED. XXXlll PAGES. Austin's Exrs. «. Jones, 1 Va. (Gilm.) 341, 328, 329 Austin D.Wilson, 4 Cush. (Mass.) 273, 338 Axford V. Perrett, 4 Bing. 586, 232, 245 Ayer «. Bartlett, 9 Pick. 156, 325 Ayers v. Hewett, 19 Me. 281, 181, 188, 197 Azel «. Betz, 2 E. D. Smitli, 188, 87 B. Babb «. Talcott, 47 Mo. 343, 39, 344 Babcock v. Gill, 10 Johns. 287, 116, 118 Babcock v. Trice, 18 111. 420, 344 Bache v. Proctor, Doug. (Eng.) 367, 244 Backenstoss v. Stabler, 33 Pa. St. 251, 295 Bacon v. Cropsey, 3 Seld. 195, 162 Bacon v. Davis, 30 Mich. 157, 21, 41 Badger ■». Phinney, 15 Mass. 359, 21, 27, 34, 186, 211, 385 Badlam v. Tucker, 1 Pick. 284, 139, 225, 232, 234 Baer v. Martin, 2 Carter, (Ind.) 229, 78 Bagnall «. Ableman, 4 Wis. 163, 163 Bailey v. Burton, 8 Wend. 339, 132 Bailey ■». Ellis, 21 Ark. 488. 370 Bailey v. Shaw, 4 Foster, (N. H.) 297, 304 Bailey ■». Troxell, 43 Ind. 433 365 Bain v. Clark, 10 Johns. 424, 397 Baker •». Drake, 53 N. T. 311, 393, 394, 804, 313 Baker v. Drake, 66 N. Y. 518, 301, 304 Baker v. Dubois, 33 Mich. 92, 355, 358, 361 Baker v. Pales, 16 Mass. 147, 23, 41, 385 Baker v. Howell, 6 S. & R. (Pa.) 476, 46, 51 3 PASES. Baker v. Philips, 4 Johns. 190, 17 Baker v. Washington, et al., 5 Stewart & P. (Ala.) 143, 347 Baker «. Wheeler, 8 Wend. 505, 309, 117, 337 Baldwin v. Cash, 7 Watts. & S. (Pa.) 435, 24, 83 Baldwin v. Cole, 6 Mod. 212, 197, 300 Bales «. Scott, 36 Ind. 303, 370, 415 Ballou«. O'Brien, 30 Mich. 304, 180, 197 Balsley v. Hoffman, 13 Pa. St. 603, 233, 334, 339, 350 Baltimore Ins. Co. «. Dalrymple, 35 Md. 269, 298 Bancroft v. Blizzard, 13 Ohio, 30, 209 Banks u. Whetstone, Moore, 394, 99 Barbers. The Bank, 9 Conn. 407, 147 Barbour v. White, 37 111. 164, 350, 413 Barker «. Green, 3 Bing. 317, 336 Barker «. Miller, 6 Johns.. 199, 375 Barker v. Stacy, 35 Miss. 471, 133, 178 Barksdale v. Appleberry, 33 Mo. 389, 22, 289, 339 Barnes «. Bartlett, 15 Pick. 71, 86, 393, 395, 300 Barnes o. Martin, 15 Wis. 340, 139 Barnes v. Tannehill, 7 Blackf. 604, 74, 363, 369 Barnett ». Selling, 70 N. T. 492, 41, 78 Barnett D.Thompson, 37 Ga. 335, 301 Barney v. Douglass, 22 Wis. 464, 320, 334 Barr v. Hughes, 44 Pa. St. 516, 398 Barrett ». Hall, 1 Mason, 447, 411 Barrett «. Scrimshaw, Combe. 477, 59 Barrett v. Turner, 2 Neb. 172, 60, 103, lOfi Barrett D.Warren, 3 Hill, (N. Y.) 348, 34, 35, 182, 200, 385 Barron v. Coblcigh, 11 N. H. 557, 110 XXX iV TABLE OF CASES CITED. PASEB. Barry v. O'Brien, 103 Mass, 521, 59, 374, 287 Barry «. Eogers, 2 Bibb. (Ky.) 314, 88 Barry v. Sinclair, Pliill. (N. C. L.) 7, 325, 227 Bartletts.Briokett, 14 Allen, 62, 295, 348 Bartlett v. Kidder, 14 Gray, (Mass.) 449, 268, 379, 327 Bassett v. Armstrong, 6 Mich. 397, 59 Bateman v. Goodyear, 12 Conn. 575, 294 Bates o. Buchanan, 2 Bush. (Ky.) 117, 290, 297, 411 BatesB. Conkling, lO'Wend.390, 197 Bates V. Nellis, 5 Hill, (N. T.) 651, 393, 894 Bates v. Stanton, 1 Duer, (N. T.) 79, 179 Bates ®. Wilbur, 10 Wis. 415, 123, 414 Battis V. Hamlin, 22 Wis. 669, 148, 169, 335, 322, 326 Bayless v. Lefaivre, 37 Mo. 119, 67, 69, 73, 204, 369 Beach «. Botsford, 1 Doug. (Mich.) 306. 147, 173 Beach v. Derby, 19 111. 617, 98, 122 Beach v. Schmultz, 30 111. 185, 111 Beals «. Guernsey, 8 Johns. 446, 295 Bean«. Hubbard, 4 Cush.(Mass.) 85, 139, 150 Beaumont v. Greathead, (3 M. G. & &.) 52, E. C. L. 494, 391 Beazley «. Mitchell, 9 Ala. 780, 66, 174 Beebe «. De Baun, 3 Eng. (Ark.) 510, 32 Beech v. Fulton Bank, 7 Cow. (N. Y.) 485, 848 Beecher v. Derby Bridge Co., 24 Conn. 491, 815 Beemis o. Wylie, 19 Wis, 318, 404, 414 Beers v. St. John, 16 Conn. 323, 43 PAGES. Beers v. Wuerpul, 24 Aik. 272, 138, 145 Becker v. Dupree, 75 111. 167, 340 Beckwith v. Philleo, 15 Wis. 223, 60, 66, 414 Belcher v. Van Duzen, 37 111. 381, 87 Belden v. Laing, 8 Mich. 500, 65, 145, 434, 426 Belkin ®. Hill, 53 Mo. 493, 26 Belknap v. Wendell, 1 Post. (E. H.) 175, 424 Bell V. Bartlett, 7 N. H. 178, 23, 144, 386 Bell e. Bell, 20 Geo. 250, 398 Bell V. Cunningham, 3 Peters, 69, 393 Bell ». Farrar, 41 111. 400, 103 Bell V. Hogan, 1 Stewart, (Ala.) 536, 88 Bell v. Monahan, Dudley, (S. C.) 38, 66 Bell v. Pharr, 7 Ala. 807, 329 Bell ®. Thomas, 8 Ala. 527, 227 Belt V. Worthington, 8 Gill, & J. (Md.) 247, 235, 288, 248, 354 Beemus e. Beekman, 8 Wend. 667, 270, 290, 884, 403, 405, 406 Benjamin v. Stremple, 13 111. 466, 322 Benje v. Creagh's Admr., 21 Ala. 151, 23, 30 Bennett «. Allen, 80 Vt. 684, 26, 231 Bennett «. Berry, 8 Blackf. 1, 15 Bennett v. Ives, 30 Conn. 339, 82 Bennett v. Lockwood, 30 Wend. 323, 313, 315, 341 Bent V. Bent, 44 Vt. 638, 80, 201 Bergesch «. Keevil, 19 Mo. 127, 64, 361, 428 Berghofif v. Heckwolf, 26 Mo. 511, 332, 233, 267, 370, 286 Bern ». Mattaire, Cases T. H. 219, 97 Bernal v. Hovious, 17 Cal. 543, 93 Berrien «. Westervelt, 12 Wend. 194, 856, 358 TABLE OF OASES CITED. XXXV fao:e9. Berry v. Dwinel, 44 Me. 267, 309 Berry v. Hoflfner, 56 Me. 171 268 Berry v. Vantries, 12 S. & R. 89, 295 Berthold v. Fox, 13 Minn. 501, 292, 299, 329 Bethea v. McLennon, 1 Ired. (N. C.) 523, 32, 329 Bethlehem Borough v. Perse- verance Fire Co., 81 Pa. St. 445, 28 Bettis V. Taylor, 8 Port. (Ala.) 564, 339 Betts V. Lee, 5 Johns. 348, 117, 118, 119 Beveridge s. Welch, 7 Wis. 465, 324, 343 Beyer v. Fenstermacher, 2 Whart. (Pa.) 95, 399 Bigelow V. Comegys, 5 Ohio St. 256, 242 Bigelow V. Doolittle, 36 Wis. 115, 295 Bilbo V. Henderson, 21 Iowa, 56, 134, 129, 133 Bills V. Kinson, 1 Fost. (21 N. H.) 448, 139, 143 Bills «. Vose, 7 Fost. (N. H.) 213, 424 Binsted ■». Buck, W. Blacks, 1117, 204 Birchard v. Booth, 4 Wis. 67, 338 Biscoe V. McElween, 43 Miss. 556, 337 Bissel V. Drake, 19 Johns. 66, 41, 101 Bissell v. Hopkins, 4 Cow. 53, 295 Black V. Winterstein, 6 Neb. 325, 293 Blacket «. Cressop, 1 Lutw. 688, 234 Blackie v. Cooney, 8 Nev. 41, 296 Blackwell v. Acton, 38 Ind. 425, 315, 316, 414 Blackwell v. Hunt, Noy, 107, 11 Blanche v. Bradford, 38 Pa. St. 344, 398 Blaney v. Bearce, 2 Me. 132, 37 Bliss V. Badger 36 Vt. 338 39 PASES. Bli^s V. Whitney, 9 Allen, 114, 45 Bloomer v. Juhel, 8 Wend. 448, 401 Blot V. Boiceau, 3 Comst. 78, 802 Bloxam v. Hubbard, 5 East. 407, 207 Blystone v. Burgett, 10 Ind 28, 123, 178 Bodley v. Reynolds, 8 Q. B. 779, 311 Bofil V. Russ, 3 Stobh. (S. C.) 98, 23 Bogan V. Stoutenburgh, 7 Ohio, part 2, 133 203 Bogard v. Jones, 9 Humph. (Tenn.) 738 36, 67, 68 Bogert V. Burkhalter, 3 Barb. 525, 313 Bogert V. Phelps, 14 Wis. 88, 163 Boies V. Witherell, 7 Me. 162, 378 Boise ®. Knox, 10 Met. 40, 66, 197 Bolander v. Gentry, 36 Cal. 105, 65, 146, 381 Boley V. Griswold, 20 Wall. 486, 279, 415, 421 Bond V. Mitchell, 8 Barb. 304, 365, 367 Bond V. Padelford, 13 Mass. 394, 69, 369 Bond V. Ward, 7 Mass. 123, 197, 209 Bonesteel «. Orvis, 22 Wis. 522, 292, 295, 313, 321 Bonner v. Coleman, 3 B. Mon. 464, 370, 286, 290 Bonsall v. Comly, 44 Pa. St. 443, 151 Boody V. Keating, 4 Gr. (Me.) 164, 175 Booth ». Ableman, 16 Wis. 460, 81, 156, 374 Booth V. Ableman, 18 Wis. 495, 156 Booth V. Ableman, 30 Wis. 31, 602, 156, 284, 296, 331, 323, 413 Borron «. Landes, 1 Duvall, (Ky.) 299, 297 Bosley v. Farquar, 2 Blackf. 66, 166 Bosseker v. Cramer, 18 Ind. 44, 405 Bostick V. Brittain, 25 Ark. 483, 87 Boston & W. R. R. ■». Dana, 1 Gray, 83, 175 XXXVl TABLE OF CASES CITED. PASES. BosTvell ®. Green, 1 Dutch (35 N. J. L.) 390, 38 Boughton 0. Bruce, 20 Wend. 284, 197, 209 Bourk V. Riggs, 38 111. 320, 269, 270, 273, 384, 405 Bowen ®. Fanner, 40 Barb. 383, 61, 206 Bowen v. Hutchlngs, 18 Conn. 550, 35, 81 Bowen v. Schuler, 41 111. 193, 183, 184 Bower v. Higbee, 9 Mo. 359, 46, 48 Bower».Tallnian,5 W.&S. (Pa.) 556, 24, 40, 84, 167, 331, 333, 419 Bowmaker v. Moore, 1 Exch. R. 355, 351, 426 Bowman v Eaton, 24 Barb. 528, 210 Bowser v. Scott, 8 Blackf. 86, 393 Boyd V. McAdams, 16 111. 146, 373 BoyeT V. Fowler, 1 Wash. Terr. 119, 237 Boynton v. Page, 13 Wend. 425, 91, 405 Brackenbury v. Pell, 12 East. 585, 233 Brackett v. Bullard, 12 Met. 309, 128 Bradley o. Gamelle, 7 Minn. 381, 77,88 Bradley v. Holloway, 38 Mo. 150, 146 Bradley v. Michael, 1 Cart. (Ind.) 551, 59, 66, 105 Bradshaw ». Warner, 54 Ind. 58, 193 Bradyll v. Ball, 1 Bro. Ch. C. 428, 260, 364 Branch v. Branch, 5 Pla. 447, 267 Branch v. Branch, 6 Fla. 315, 328, 331, 358, 347, 857 Branch v. Wiseman, 51 lad. 1, 60, 93, 171, 368, 371 Brannin v. Johnson, 19 Me. 861, 294, 813, 843 Branscombe ■». Scarbrough, 6 Adol. & E. (N. 8.) 13, 389 Bratton v. Clawson, 2 Strobh. (8. C.) 478. 55 FAOBS, Brearley v. Cox, 4 Zab. (34 N. J.) 387, 45 Brent v. Hagner, 5 Cranch. C. C. 71, 42 Brewer v. Fleming, 51 Pa. St. 102, 53 Brewer v. Strong's Exrs., 10 Ala. 961, 348 Brewster «. Baker, 16 Barb. 613, 85 Brice v. Elliot, 8 Legal News, 332, 136 Bridges v. Hawkesworth, (31 L. J. Q. B. 75) 7 E. L. & E. 434, 70 Bridges v. Layman, 31 Ind. 384, 171, 356, 360 Briggs v. Dorr, 19 Johns. 95, 404 Briggs V. Gleason, 39 Vt. 78, 31, 283 Briggs v. Large, 30 Pa St. 287, 392 Bringhurst v. Pollard, 6 Porter, (Ind.) 452, 135, 129 Bristol 1). Burt, 7 Johns. 254, 113, 200 Bristol V. Wilsmore, 1 Barn. & Cress. 514, 182, 184, 190 Britt V. Aylett, 6 Eng. (Ark.) 475, 66 Brizseei). Maybee, 31Wend.l44, 392, 296, 308, 314, 337, 341 Broadwater «. Darne, 10 Mo. 277, 24, 68, 385 Brockway «. Burnap, 12 Barb. 347, 33. 83, 368 Brockway v. Burnap, 16 Barb. 309, 36, 88, 368 Brockway v. Burnap, 8 How. Pi-. 188, 77 Brockway v. Kinney, 2 Johns. 310, 407 Bronson & Mitchell, In re., IS Johns. 460, 356 Brooke v. Berry, 1 Gill. (Md.) 158, 33, 24 Brookover ®. Esterly, 13 Kan. 149, 131 Broom v. Fox, 2 Teates, (Pa.) 530, 367 TABLE OF CASES CITED. XXX VU PAGES. Brown v. Allen, 35 Iowa, 306, 339 Brown «. Bement, 8 Johns. 96, 121, 132 Brown ». Bissett, 1 Zab. (31 N. J.) 46, 163, 396 Brown v. Bissett, 1 Zab. (21 N. J. L.) 267, 146, 380 Brown v. Caldwell, 10 S. & R. (Pa.) 114, 43, 46, 51, 54 Brown v. Campsall, 6 Har. & J. (Md.) 491, 177 Brown v. Chickapee Falls Co., 16 Conn. 87, 66 Brown «. Compton, 8 Term R. 231, 434, 161 Brown v. Cook, 9 Johns. 361, 197 Brown v. Crockett, 33 Me. 537, 75 Brown v. Cummings, 7 Allen, 507, 313 Brown v. Davis, 9 N. H. 76, 169 Brown v. Emerson, 18 Mo. 103, 292 Brown v. Holmes, 13 Kan. 483, 98, 198, 209, 367 Brown v. Jarvis, 1 Mees. & W. 704, 167 Brown v. Johnson, 45 Cal. 76, 379, 330, 421 Brown v. Parker, 5 Blackf. 391, 232, 233, 338 Brown ii. Sax, 7 Cow. 95, 95, 116, 118 Brown v. Smith, 1 N. H. 36, 34, 73, 384, 355, 404, 417 Brown «. Stanford, 33 Ark. 76, 270, 276 Brown v. Wallis, 115 Mass 156, 41, 45 Brown v. Webster, 4 N. H. 500, 273, 378 Browne v. Powell, 4 Bing. 330, 393 Brownell v. Carnley, 3 Duer, (N. Y.) 9, 73 Brownell v. Manchester, 1 Pick. 332, 34, 69, 139, 351, 369 Browning «. Bancroft, 8 Met. 378, 183 Browning v. Hanford, 5 Denio, 586, 76, 166, 169 PAGES. Bruce u. Learned, 4 Mass. 614, 294, 338 Bruce v. Westervelt, 3 E D. Smith, 440, 39, 62 Bruen v. Ogden, 6 Halst. (F. J.) 370, 23, 29, 160 Brundage v. Camp, 21 111. 330, 189, 190 Bruner v. Dyball, 42 111. 34, 197, 200, 259, 261, 401 Brush «. Fowler, 36 111. 59, 150 Brusley b. Hamilton, 15 Pick. 40, 64 Bryan i). Smith, 33 Ala. 534, 66 Buchenau ». Homey, 13 111. 336, 188 Buck V. Colbath, 7 Minn. 310, 154 Buck V. Colbath, 3 Wall. (U. S.) 334, 146. 158, 160, 169, 309 Buck v. Lewis, 9 Minn, 314, 344, 249 Buckley v. Buckley, 9 Nev. 373, 21, 98, 111, 138, 259 Buckley ■». Buckley, 12 Nev. 423, 23, 41, 79, 277, 284, 413 Buckmaster v. Beames, 4 Gilm. (111.) 443, 349 Buell ». Ball, 30 Iowa, 383, 125, 134 Buell V. Schaale, 39 Iowa, 393, 136 Buffington v. Gerrish, 15 Mass. 156, 185, 307 Bugle 11. Myers, 59 Ind. 73, 333 Bull 1). Griswold, 19 111. 631, 48, 119, 309, 336 BuUis V. Montgomery, 50 N. T. 353, 149 Burbanki). Crooker, 7 Gray, 158, 193 Burdett v. Hunt, 35 Me. 419, 98 Burdick v. McVanner, 2 Denio, 171, 33, 123 Burhans v. Tibbits, 7 How. Pr. R. 31, 74, 403 Burkle v. Luce, (1 Comst.) 1 N. Y. 163. 239, 334, 337, 355, 361, 263, 439 Burkle v. Luce, 6 Hill, 558, 334, 259, 260, 261, 401, 429 xxxvm TABLE OF CASES CITED. Burket v. Boude, 3 Dana, 209, 391 Bums V. Cooper, 31 Pa. St. 426, 90 Burns v. Bobbins, 1 Code K. (N. T.) 62, 164 Burr V. Daugherty, 31 Ark. 559, 24, 32, 96, 197 Burrage «. Melson, 48 Miss. 237, 312, 364 Burrall v. Vanderbilt, 1 Bos. 637, 241 Burrows v. Stoddard, 3 Conn. 160, 76 Burt V. Dutcher, 34 N. T. 493, 301 Burton ®. Brasliear, 3 A. K. Marsh. (Ky.) 276, 78, 83 Burton v. Curyea, 40 111. 320, 181, 189, 190 Burton v. Hough, 6 Mod. 334, 61 Burton v. Tannehill, 6 Blackf. 470, 60 Burton v. Wilkinson, 18 Vt. 186, 164 Bush B. Lyon, 9 Cow. (N. T.) 52, 66, 72 Busick V. Bumm, 3 Iowa, 63, 355 Bussey v. Page, 14 Me. 132, 55 Bussing V. Rice, 2 Gush. 48, 197, 207, 208 Buster v. Newkirk, 20 Johns. 75, 41 Butcher •». Green, Doug. (Eng.) 652, 285 Butcher «. Porter, 1 Salk. 93, 272, 273, 384 Butcher v. Porter, 1 Show, 400, 234, 272 Butler «. Collins, 12 Cal. 457, 182, 313 Butler V. Mehrling, 15 111. 488, 313 Butler D. Miller, 1 Comst. 496, 121 Butler V. Wigge, 1 Saund. 65, 244 Butterfleld «. Hemsley, 12 Gray, 226, 230 Butters v. Haughwout, 42 111. 18, 189, 190, 212 Butts ». Collins, 13 Wend. 139, 75 Byrd v. O'Hanlin, 1 Mill, (S. C. Const.) 401, 25 PAGES. Cable v. Dakin, 30 Wend. 173, 337 Cady J). Eggleston, 11 Mass. 283, 223, 244 Cahoon v. Bank of TJtica, 3 Seld. (N. Y.) 486, 418 Caldwell «. Arnold, 8 Minn. 265, 146, 156, 165, 167 Caldwell v. Bartlett, 3 Duer, 341, 183, 191 Caldwell «. Bruggerman, 4 Minn. 370, 411, 416 Caldwell o. Cleadon, 8 Har. (Del.) 420, 897 Caldwell «. Cowan, 9 Terger, (Tenn.) 263, 62 Caldwell «. Fenwick, 3 Dana, (Ky.) 338, 79, 96, 338, 329 Caldwell v. Gans, 1 Blake, (Mont.) 570, 237, 354 Caldwell «. West, 1 Zab. (21 N. J.) 411, 29, 219, 255, 295, 359 Camp V. Root, 18 Johns. 23, 426 Campbell v. Head, 13 111. 122, 139, 360, 362 Campbell v. Jones, 38 Cal. 507, 370, 410 Campbell «.Quin] an, 8 Scam. 288, 388 Campbell v. Williams, 39 Iowa, 646, 60, 65, 141 Campbell v. Woodworth, 26 Barb. 648, 313 Cannon «. Folsom, 2 Iowa, 101, 303 Cannon v. Kinney, 3 Scam. 9, 66 Cardinal ». Smith, Deady C. C. 197, 133 Carey v. Bright, 58 Pa. St. 70, 838 Carlisle v. Burley, 8 Gr. (Me.) 250, 347 Carlisle B.Weston, 1 Met. (Mass.) 26, 33 Carlton v. Davis, 8 Allen, (Mass,) 94, ^ 95, 413 Carothers v. Tan Hagan, 2 G. Greene, (Iowa,) 481, 409, 418 Carpenter v. Hale, 8 Gray, (Mass.) 157, 350 TABLE OF OASES OITED. XXXIX PASES. Carpenter v. Stevens, 13 Wend. 589, 253. 380, 328, 433 Carrel o. Early, 4 Bibb. 365, 350, 828, 329, 425 Carrico «. Taylor, 8 Dana, (Ky.) 88, 335 Carroll v. Harris, 19 Ark. 337, 384 Carroll u Pathkiller, 3 Port. (Ala.) 379, 36, 819 Carruth r>. Grassie, 11 Gray, 311, 99 Carson b. Applegarth, 6 Nev. 187, 409, 411 Carswell v. Ware, 30 Geo. 367, 106 Carter v. Streator, 4 Jones, (N. C. L.) 62, 305 Carter v. Willard, 19 Pick. 1, 107 Cartland «. Morrison, 83 Me. 190, 350 Carty v. Fenstemaker, 14 Ohio St. 457, 123 Cary v. Hewitt, 36 Mich. 338, 31, 259, 424 ■Cary v. Hotailing, 1 Hill, 311, 183 Case V. Pettee, 5 Gray, 27, 231 CashB. Quenicliett,5 Heisk.737, 229 Cass V. N. T. & N. H. R. R., 1 E. D. Bmith, 522, 315, 349, 350 Cassell V. Western, etc., Co., 13 Iowa, 47, 59, 865, 434 Cate V. Cate, 44 N. H. 311, 143 Catterlin b. Mitchell, 37 Ind. 398, 855 Chadwick v. Badger, 9 N, H. 450, 231 Chadwick «. Miller, 6 Iowa, 84, 25, 26, 274 Chaffee v. Sangston, 10 Watts, 265, 283 Chambers «. Hunt, 18 N. J. L. 339, 89, 346, 872, 376, 880 Chambers v. Hunt, 2 Zab. (23 N. J.) 553, 88, 376, 379, 880 Chambers v. Waters, 7 Cal. 390, 339, 370 Champion «. Vincent, 20 Tex. 811, 391, 394 Chandler o. Allison, 10 Mich. 461, 314, 343 PAGES. Chandler v. Edson, 9 Johns. 863, 117 Chandler v. Lincoln, 52 111. 74, 93, 371, 380, 384, 386 Chapman v. Andrews, 3 Wend. 340, 31 Chapman v. Kirby, 49 111. 211, 813 Charleston v. Price, 1 McCord, (S. C.) 299, 35 Chase v. Allen, 5 Allen, 599, 374 Chatterton «. Saul, 16 111. 149, 41, 43 Chenyworth v. Daily, 7 Porter, (Ind.) 384, 309 Chicago & Alton R. R. v. Dalby, 19 111. 353, 348 Chicago Dock Co. «. Foster, 48 111. 507, 191 Chicago & N. W. Ry. Co. ■». Pea^ cock, 48 111. 353, 348 Chicago & S. W. Ry. Co. v. N. W. Packet Co., 38 Iowa, 377, 370 Chickering v. Raymond, 15 111. 363, 41 Child i>. Child, 13 Wis. 17, 28, 33, 61, 273, 321, 404 Childs V. Hart, 7 Barb. 870, 364, 366, 367 Chiles V. Drake, 2 Met. (Ky.) 146, 339 Chinn ». McCoy, 19 111. 604, 249 Chinn v. Russell, 3 Blackf. (Ind.) 172, 23, 29, 82, 60, 139, 147, 209 Chissom v. Hawkins, 11 Ind. 816, 79, 90, 96 Chissom v. Lamcool, 9 Ind. 530, 415 Christian County v. Overholt, 18 111. 223, 341 Church V. De Wolf, 3 Root, (Coon.) 383, 418 Cirencester, The Abbot of, v. Thomas, Y. B. 30 E. I. 18, 15 City of Bath ». Miller, 58 Me. 308, 267, 269 City of Chicago v. Martin, 49 111. 241, 293 City of Ft. Dodge v. Moore, 37 Iowa, 388, 98 xl TABLE OF CASES CITED. Claflin «. Thayer, 13 Gray, 459, 229, 230 Claggett ®. Richards, 45 N. H. 360, 227, 228 Clark «. Adair, 3 Har. (Del.) 116, 274 Clark ®. Bales, 15 Ark. 452, 418 Clark V. Conn. Riv. R. R., 6 Gray, 363, 231 Clark ». Griffith, 24 N. Y., 595, 92. 105 Clark «. Heck, 17 Ind. (Har.) 281, 60, 408 aark V. Keith, 9 Ohio, 72, 12, 285, 407, 417 Clark «. Lewis, 35 111. 417, 136, 197 Clark ■». Norton, 6 Minn. 412, 75, 147, 231, 335, 239, 268 Clark V. Pinney, 7 Cow. 681, 321 Clark V. Reyburn, 1 Kan. 281, 56 Clark V. Skinner, 20 John. (N. T.) 465, 23, 27, 30, 66, 139, 351 Clark «. Warner, 32 Iowa, 219, 418 Clark V. West, 23 Mich. 242, 65, 145, 424 Clarke d. Bell, 2 Litt. (Ky.) 164, 230 Clarke v. Shee, 1 Cowp. R. 197, 99 Clary «. Rolland, 24 Cal. 147, 337, 338, 415 Clap V. Guild, 8 Mass. 153, 223, 251, 252, 311 Clapp V. Shepard, 2 Metcalf, 127, 41, 349 Clapp D. Walters, 2 Tex. 130, 319 Clay V. Caperton, 1 T. B. Men. 10, 173 Cleaves v. Herbert, 61 111. 126, 61, 121, 365 Clement v. Wright, 40 Pa. St. 351, 50 Clements v. Flight, 16 Ex. 43, 83 Clements v. Glass, 33 Geo. 395, 319 Clinton v. King, 3 How. Pr. Rep. 55, 164 Cloud V. Moorman, 18 Ind. 40, 104 Coan V. Bowles, Carth. 132, 12 Coan V. Bowles, 1 Show. 165, 396 FASBS. Cobb «. Curts, 4 Litt. Rep. 235, 238 Cobb V. Dows, 10 N. Y. 335, 189 Cobb V. Megrath, 36 Geo. 635, 60, 65, 66 Coburn v. Harvy, 18 Wis. 147, 393 Cochran D.Winburn, 13 Tex. 143, 331 Cocks V. Nash, 9 Bing. 341, 250 Coddington «. Bay, 30 Johns. 637, 191 Coe V. Peacock, 14 Ohio St. 187, 335 Coffin V. Field, 7 Cash. 355, 32 Coffin V. Gephart, 18 Iowa, 356, 78 Coffin ®. Knott, 3 Greene, (Iowa.) 582, 32 Coghill V. Boring, 15 Cal. 213, 183, 187, 188, 350 Coghill V. Hartford, 3 Gray, 545, 193 Coit V. Waples, 1 Minn. 134, 370, 364, 367, 384, 403 Cole V. Conolly, 16 Ala. 371, 23, 168, 323, 381 Cole V. Tucker, 6 Tex. 266, 337 Colgrave v. Dias Santos, 2 B. & C. 76, 313 Colman v. Wade, 2 Seld. (N. Y.) 44, 241, 251 Coles V. Hulme, 8 B. & 0. (15 E. C. L.) 568, 244 CollamerB. Page, 85 Vt. 387, 26, 278, 387, 413 Collins V. Evans, 15 Pick. 63, 63, 275, 376 Collins ». Hough, 36 Mo. 149, 35, 339, 376, 386 Collman v. Collins, 3 Hall, (N. Y.) 569, 180 CoUomb V. Taylor, 9 Humph. (Tenn.) 689, 36 Colt V. Eves, 12 Conn. 243, 163, 167 Colton V. Mott, 15 Wend. 619, 88 Colwell V. Brower, 75 111. 516, 113 Colwill V. Reeve, 3 Campb. 575, 109 Commercial Bank, BufEalo, v. Kortright, 33 Wend. 348; 30 Wend. 91, 303, 343 Commonwealth ». Kennard, 8 Pick. 133, 150 TABLE OF OASES CITED. xli PAGES. Commonwealth v. Morse, 14 Mass. 217, 353 Commonwealth v. Rees, 3 Whart. 134, 331 Conrad v. Pacific Ins. Co., 6 Pet. (U. S.) 363, 394 Congregational Society v. Flem- ing, 11 Iowa, 533, 45 Connah v. Hale, 38 Wend. 463, 197, 315 Conner v. Comstock, 17 Ind. 90, .196,307,270, 376 Conner ». Henderson, 15 Mass. 320, 188 Conner v. Palmer, 13 Met. 303, 143 Constantine v. Foster, 57 111. 36, 372, 377, 380 Conyers v. Ennis, 2 Mason, 336, 187 Cook«. Ellis, 6 Hill, 466, 338 Cook V. Howard, 13 Johns. 376, 67 Cook V. Lothrop, 18 Me. 360, 336, 237 Cook v. Staats, 18 Barb. 407, 356 Cooley V. Davis, 34 Iowa, 128, 23, 138 Coombs «. Gordon, 59 Me. Ill, 147 Cooper D. Brown, 7 Dana, (Ky.) 333, 333, 335, 370 Cooper V. Newman, 45 N. H. 339, 207 Cooper v. Peck, 22 Ala. 406, 235 Cope V. Romeyne, 4 McLean, U. S. C. C.) 384, .55 Copland v. Bosquet, 4 Wash. (U. 8. C. C.) 588, 193 Copeland v. Majors, 9 Kan. 104, 415 Coply «. Rose, 3 Comst. 115, 36 Corbett v. Lewis, 58 Pa. St. 333, 91, 346 Corbitt ®. Heisey, 15 Iowa, 296, 28, 68, 875, 879 Core's Case, Dyer, 23 6, 41, 99 Cornell v. Cook, 7 Cow. (N. T.) 810, 169 Cortelyou v. Lansing, 3 Caine's Ca., 200, 301 Cory V. Silcox, 6 Ind. 39 291 PAGES. Coryton v. Lithebye, 3 Saund. 113, 88 Cotter B. Doty, 5 Ohio, 393, 144 Cotton V. Marsh, 3 Wis. 221, 168 Cotton V. Watkins, 6 Wis. 639, 121, 138 County of Christian e. Overh'blt, 18 111. 333, 314 Courtis V. Cane, 33 Vt. 233, 174, 176, 197, 199, 205, 207 Coverlee v. Warner, 19 Ohio, 39, 36 Covin V. Hill, 4 Denio, 323, 178, 189 Cowden b. Pease, 10 Wend. 384, 236 Cowdin V. Stanton, 13 Wend. 130, 335, 336 Cox «. Grace, 5 Eng. (Ark.) 86, 855, 856, 858, 362 Cox V. Hardin, 4 East. 211, 63 Cox i>. Morrow, 14 Ark. 603, 84, 88 Craft V. Franks, 34 Iowa, 504, 257, 358 Cranz ». Kroger, 33 111. 74, 313 Cravath i>. Plympton, 13 Mass. 454, 847 Crawford ®. Morris, 5 Gratt. 90, 418 Creamer v. Ford, 1 Heisk. (Tenn.) 307, 36, 333, 348 Creel v. Kirkham, 47 111. 344, 38 Creighton v. Newton, 5 Neb. 100, 384 Crenshaw e. Moore, 10 Geo. 384, 66 Cresson v. Stout, 17 Johns. 116, 41, 46, 51, 67 Crist V. Parks, 19 Tex. 334, 857, 438 Crites v. Littleton, 38 Iowa, 305, 345 Crittenden ». Lingle, 14 Ohio St. 183, 147 Crocker ». Mann, 3 Mo. 472, 33, 59, 392 Crockett v. Grain, 38 N. H. 542, 98 Crofoot «. Bennett, 3 Comst. (N. Y.)358, 103 Cromwell v. Owings, 7 Har. & J. (Md.) 55, 139 Cronly v. Brown, 12 Wend. 371, 869 Crosby!). Baker, 6 Allen, (Mass.) 395, 150 xlii TABLE OF CASES CITED. V PASES. Crosby b. Leng, 13 East. 409. 175 Crosse v. Bilson, 2 Ld. Raym. 1016, 376, 377 Crosse v. Bilson, 6 Mod. 103, 277, 284, 396 Cullum v. Bevans, 6 Har. & J. (Md.) 469, 23, 29, 90, 876 Cully V. Spearman, 2 H. Bla. 386, - 395 Cumberland Coal & Iron Co. v. Tilghman, 13 Md. 74, 23 Cummings «. Gann, 53 Pa. St. 484, 71, 204, 222, 229 Cummings ». Mac Gill, 3 Mur- phy, (N. 0.) 357, 23 Cummings ■». Stewart, 43 Cal. 380, 349, 416 Cummings «. Tindall, 4 Stew- art & P. (Ala.) 357, 347 Cummings v. Vorce, 3 Hill, 382, 32, 37, 197, 199, 209, 356 Currier ®. Ford, 36 111, 488, 424 Curtis V. Groat, 6 Johns. 168, 116, 117, 118 Curtis v. Jones, 3 Denio, (N. Y.) 590, 73, 400 Cushenden v. Harman, 3 Tyler, (Vt.) 481, 335, 348 Gushing v. Longfellow, 36 Me. 306, 398, 807, 808, 336 Cutler V. Rathbone, 1 Hill, 204, 356, 427 D. Daggett v. Robins, 3 Blackf. 415, 14, 19, 23, 29, 32, 88, 273, 430 Dahler v. Steele, 1 Blake, (Mont.) 206, 374 Dailey «. Dismal Swamp, 3 Ired. (N. C.) 232, 833 Dalgleish v. Grandy, Cam. & N. (N. C.) 23, 391 Dame v. Baldwin, 8 Mass. 518, 175 Dame v. Dame, 48 N. H. 87, 31, 60 Dame «. Fales, 8 N. H. 70, 161 Damon o. Bryant, 2 Pick. 411, 173 PAGES, Damron ■o. Roach, 4 Humph. (Tenn.) 184, 311 Dana v. Bryant, 1 Gilm. 104, 404 Dana «. Fiedler, 3 Kern, (N. T.) 40, 296, 309 Daniels s. Ball, 11 Wend. 59 note, 67 Daniels v. Brown, 34 N. H. 454, 87,90 Daniels v. Patterson, 3 Comst. 47, 233, 255 Daniels v. Pond, 31 Pick. 867, 48 Dannels v. Fitch, 8 Pa. St. 495, 186 Darling v. Tegler, 80 Mich. 54, 309 Dart «. Horn, 30 111. 313, 363, 409, 431 Darter v. Brown, 48 Ind. 895, 375 Daumiel v. Gorham, 6 Cal. 43, 209 Davenport ®. Ledger, 80 111. 574, 318, 337 David «. Bradley, 79 111. 316, 331 Davidson v. Gunsolly, 1 Mich. 888, 323 Davidson «. Waldron, 81 111. 120, 65, 68, 158 Davies v. Richardson's Exrs., 1 Bay, (S. C.) 102, 398 Davis ®. Crow, 7 Blackf. 129, 348, 316 Davis 0. Basley, 13 111. 193, 51, 95, 116 Davis v. Harding, 3 Allen, 303, 335, 338, 248, 375 Davis V. Loftin, 6 Tex. 489, 67, 69 Davis v. Oswell, 7 C. & P. 804, 31,3, 314 Davis ». Taylor, 41 111. 405, 43 Davison v. Gill, 1 East. 64, 161 Dawson v. Cropp, 1 Man. G. & S. 961, 894 Dawson «. Wetherbee, 3 Allen, 461, 374, 375, 379, 387 Day B. Woodworth, 13 How. 368, 316 Dayton «. Fry, 39 111. 535, 75, 173 Deacon v. Powers, 57 Ind. 489, 89, 351 TABLE OF OASES OITED. xliii PAQES. Dearborn v. Kelley, 3 Allen, 426, 233. 330 Deardorff e. Ulmer, 84 Ind. 853, 233, 234, 226, 359 Dearmon v. Blackburn, 1 Sneed. (Tenn.) 390, 141, 145 Decker «. Anderson, 39 Barb. 347, 243, 248 Decker v. Judson, 16 N. Y. 439, 244, 349 Decker v. Livingston, 15 Johns. 479, 88, 894, 395, 397 De Forrest*. Luts, 16 Johns. 123, 364 Delancey «. Holcomb, 36 Iowa, 94, 197 Delaware R R. v. Prettj'-man, 7 Int. Rev. Rec. 101, 136 Demick v. Chapman, 11 Johns. 182, 67 De Mott V. Hagerman, 8 Cow. 219, 51, 88 Dennis v. Barber, 6 S. & R. (Pa.) 420, 393 Dennis v. Crittenden, (8 Hand.) 42 N. T. 542, 859 Denny v. Reynolds, 24 Ind. 248, 248 Derby -o. Gallup, 5 Minn. 119, 295 Deshon v. Bigelow, 8 Gray, (Mass.) 159, 189, 193 Detroit Daily Post Co. ■». Mc Ar- thur, 16 Mich. 447, 339, 840 Devendorf v. Wert, 42 Barb. 227, 291 Dewey v. Bowman, 8 Cal. 145, 122 Dewint v. Wiltsie, 9 Wend. 826, 312, 313 De Witt V. Morris, 13 Wend. 495, 101, 162, 257, 293 Deyo V. Jennison, 10 Allen, 410, 139 Dezell «. Odell, 8 Hill, 215, 75, 76, 170, 171 Dias V. Freeman, 5 T. R. 104, 195, 333, 246 Dibble v. Morris, 26 Conn. 416, 315 Dickinson v. Boyle, 17 Pick. 78, 313 Dickinson v. Lovell, 85 N. H. 9, 880 Dickinson v. Noland, 3 Eng. (Ai-k.) 35, 377, 387, 863 PAGES. Dickson v. Mathers, Hempst. C. C. 65, 28, 60 Dillenback v. Jerome, 7 Cow. 294, 852, 869 Dillingham v. Smith, 30 Me. 870, 109. 883 Dillon v. Wright, 4 J. J. Marsh, (Ky.) 354, 171 Dilworth v. McKelvy, 80 Mo. 149, 833, 336 Dimond v. Downing, 2 Wis. 498, 78, 388 Ditson o. Randall, 33 Me. 202, 190 Dix «. Van Wyck, 2 Hill, (N. T.) 522, 39, 172 Dixon B. Hancock, 4 Cush. 96, 65, 103 Dixon ». Niccolls, 89 111. 872, 90 Dixon «. Thatcher, 14 Ark. 141, 62, 66, 68, 87, 374 Doak V. The Exrs. of Snapp, 1 Cold. (Tenn.) 180, 309 Dodd V. McCraw, 8 Ark. 88, 76 Dodge V. Brown, 22 Mich. 446, 95, 109 Doe V. Martyr, 4 Bos. & Pull. 832, 177 Dole V. Kennedy, 38 111. 383, 383, 405 Dominick «. Backer, 8 Barb. 17, 163 Donaldson «. Johnson, 2 Chand. (Wis.) 160, 403, 410 Donohoe «. McAleer, 37 Mo. 313, 360 Doogan o. Tyson, 6 Gill. & J. (Md.) 458, 335, 233, 338, 250 Dooley «. Crist, 35 111. 551, 43 Dorsey v. Gassaway, 2 Har. & J. (Md.) 402, 286, 292, 819, 338 Dorsey «. Manlove, 14 Cal. 558, 293, 337, 343 Doty V. Gorham, 5 Pick. 487, 48 Doty V. Hawkins, 6 N. H. 347, 207 Douch V. Rahner, 61 Ind. 64, 150 Douglass V. Douglass, 31 Wall. 98, 336 Douglass V. Gardner, 63 Me. 462, 81. 328 xliv TABLE OF CASES CITED. PAGES. Douglass V. Garrett, 5 Wis. 85, 370, 290, 384, 385 Douglass V. Kraft, 9 Cal. 563, 301, 309 Douty B. Bird, 60 Pa. St. 48, 343 Dow V. Battle, 13 111. 373, 413 Dow B. Sudbury, 5 Met. 73, 133 Dowell V. Richardson, 10 Ind. 573, 96, 139, 404, 410 Dows V. Bignall, Laylor's Suplt. (Hill & Denlo,) 407, 41, 99 Dows ®. Greene, 33 Barb. 490, 68 Dows V. Rush, 38 Barb. 157, 393 Dozier «. Joyce, 8 Porter, (Ala.) 303, 373, 378, 379 Drake B.Wakefield, 11 How. Pr. Rep. 107, 83 Drane «. Hilzheim, 13 S. & M. (Miss.) 337, 411, 417 Draper v. Ellis, 13 Iowa, 316, 367 Draycot v. Piot, Cro. Eliz. 818, 99 Driscoll «. Place, 44 Vt. 353, 161 Drummond v. Hopper, 4 Har. (Del.) 337, 33, 178 Dubois V. Glaub, 53 Pa. St. 338, 309, 343 Dubois o.Harcourt, 30 Wend. 41, 66 Dubois V. Kelley, 10 Barb. 496, 43 Dudley v. Hawley, 40 Barb. 397, 177 Dudley v. Ross, 37 Wis. 679, 80, 133, 138 DuflFy V. Merrill, 9 Ired. (N. C.) 46, 23 Dufresne v. Hutchinson, 8 Taunt. 117, 181 Dugan v. England, Harper, (S. 0.) 314, 333 Dunbar ». Bittle, 7 Wis. 143, 403 Duncan v. Spear, 11 Wend. 54, 67, 373, 378, 379 Dunham ». Troy Union R. R. Co., 3 Keyes, 543, 83 Dunham v. Wyckoif, 8 Wend. 380, 83, 59, 141, 368 Dunkin v. McKee, 33 Ind. 447, 75 Dunlap v. Hunting, 3 Denio, 643, 75 PAQES Durell V. Haley, 1 Paige, 493, / 191, 192 Durfee v. Jones, 11 E. I. 588, 70 Durst V. Burton, 47 N. Y. 167, 303, 309 Dwight V. Brewster, 1 Pick. 50, 301 Dwight «. Enos, 5 Seld. (N. Y.) 470, 415, 418 D'Wolf v. Harris, 4 Mason C. C. 515, 88, 89, 90, 349, 358, 384 Dyer v. Pearson, (3 B. & C.) 10 B. 0. L. 38, 177 Dynes v. Hoover, 20 How. (U. S.) 65. 161 E. Eakin v. Eakin, 63 lU. 160, 86, 87, 88 Earl V. Camp, 16 Wend. 553, 75, 147, 151, 163 Earl ffl. Tupper, 45 Vt. 275, 815, 316 Easly v. Boyd, 12 Ala, 684, 348 East Boston Co. v. Persons, 2 Hill, 136, 437 East India Co. ®. Hensley, 1 Esp. 112 179 Easton v. Worthington, 5 S. & R. (Pa.) 130. 373, 397, 415 Eaton ®. Caldwell, 3 Minn. 134, 403 Eaton V. Monroe, 53, Me. 63, 193 Eaton ®. Southby, Willes, 131, 24, 30, 40 Eddy V. Beal, 34 Ind. 159, 857, 358, 363, 428 Eddy 1). Davis, 35 Vt. 347, 41 Edelen v. Thompson, 3 Har. & G. (Md.) 33 373, 404, 411 Edgerly v. Emerson, 3 Post. (33 N. H.) 555, 97 Edmonds v. Groves, 3 Mees. & W. 643, 383, 386 Edmunds v. Leavitt, 27 N. H. 198, 381 Edwards v. McCurdy, 13 111. 496. 377 TABLE OF OASES CITED. xlv 7AGES. Eggleston «. " Mundy, 4 Mich. 295, 76, 123 Eisendratli v. Knauer, 64 111. 396, 66, 71, 72 Ela V. Shepard, 33 N. H. 377, 163 EldredB. Bennett, 83 Pa. St. 183, 346 Eldred v. Tlie Oconto Co., 30 Wis. 206; 38 Wis. 133, 38, 113, 199, 364, 408 Eldridge v. Adams, 54 Barb. 417, 25, 80, 303, 203 Elliott V. Black, 45 Mo. 372, 45, 167, 238 Elliott V. Powell, 10 Watts. (Pa.) 453, 51, 53 Elliott v. Whitmore, 5 Mich. 533, 150 Ellis V. Culver, 1 Har. (Del.) 76, 86, 409 Ellis' Admr. v. Culver, 3 Har. (Del.) 139, 23 Ellis V. Lersner, 48 Barb, 539, 36, 79, 83 Ellsworth V. Henshall, 4 Gt. Greene, (Iowa,) 417, 100 Ely V. Ehle, 3 Comst. (N. Y.) 506, 33, 85, 60, 205, 270, 868, 885 Emerson «. Bleakley, 3 Abb. Dec. 23 430 Emmons «. Dowe, 2 Wis. 833, 66, 388, 406 English V. Dalbrow, 1 Miles, (Pa.) 160, 2i), 87, 81 Eric Savings Bank v. Eoop, 48 N. T. 293, 85 Erlinger v. The People, 36 111. 458, 383 Eslava v. Dillihunt, 46 Ala. 698, 411, 415, 416 Esson V. Tarbell, 9 Cush. 407, 78 Etter V. Edwards, 4 Watts. (Pa.) 63. 204, 284 Evans v. Brander, 3 H. Bla. 547, 5, 12, 17, 164 Evans v. King, 7 Mo. 411, 237, 255, 364 Evans «. Parker, 20 Wend. 622, 169 PAGES. Eveleth i>. Blossom, 54 Me. 447, 83 Everett v. Coffin, 6 Wend. 603, 73, 306 Everit v. Walworth Co. Bank, 13 Wis. 419, 410, 411 Ewing V. Blount, 20 Ala. 694, 389 Ewing V. Vanarsdall, 1 Serg. & E. (Pa.) 370, 397 Bx parte Chamberlain, 1 Scho. & Lef. 330 note, . 7 Ex parte Johnson, 7 Cow. 424, 348 Ex parte Wadde Thompson, 15 Am. L. Reg. 535, 341 Ex parte Wright, 6 Cow. 399, 436 F. Fagen v. Davison, 2 Duer. 153, 313 Paget V. Brayton, 2 Har. & J. (Md.) 350 284, 367, 870, 413 Fahnestock v. Gilham, 77 111. 637, 48, 45, 235, 338 Fairbanks v. Phelps, 33 Pick. 535, 59, 65 Fairbanks. Witter, 18 Wis. 387, 316 Pairman v. Fluck, 5 Watts. (Pa.) 516, 343, 399 Fallon V. Manning, 85 Mo. 371, 286, 322, 336 Fant «. Wilson, 3 Mon. (Ky.) 343, 328, 248 Farley «. Lincoln, 51 N. H. 577, 185, 189, 192, 194, 207 Farmers' Loan & Trust Co. ■». Com. Bank, 15 Wis. 434, 411, 416 Farnham v. Moor, 21 Me. 508, 835, 326 Farrar v. ChauflEetete, 5 Denio, 537, 206 Farrington v. Payne, 15 Johns. 433, 197 Farrow «. Drear, 3 Duvall, (Ky.) 361, 347 Farwell v. Fox, 18 Mich. 169, 95, 96, 97 Farwell v. Warren, 51 111. 467, 338 xlvi TABLE OF OASES CITED. PASES. Faulkner «. Brown, 13 "Wend. 63, 332 Faulkner r>. Meyers, 6 Neb. 415, 407 Fawcett v. Osborn, 33 111. 411, 176 Fay c. Parker, 53 N. H. Rep. 343, 338 Fayette Ins. Co. o. Rogers, 30 Barb. 491, 348 Feagin ®. Pearson, 43 Ala. 333, 329 Fearn v. Fllica, 7 M. & G. 513, 383 Federhen v. Smith, 3 Allen, (Mass.) 119, 366, 435 Fenn ®. Harrison, 3 D. & E. 754, 179 Fenner «. Klrkman, 26 Ala. 650 210 Ferguson ». Moore, 3 Wash. (Va.) 54, 393 Fergusons. Thomas, 36 Me. 499, 133 Fernald v. Chase, 37 Me. 389, 197, 201 Fernald v. Linscott, 6 Me. 234, 55, 56 Ferrell v. Humphrey, 12 Ohio, 113, 386 Fettyplace «. Dutch, 18 Pick. 388, 107 Fidler b. Delavan, 20 Wend. 57, 366 Fidler«).McKinley, 31111. 308, 293 Field V. Post, 9 Vroom, (N. J.) 346, 298 Fifth National Bank, Chicago, ■». Bayley, 115 Mass. 229, 107 Finehout «. Crain, 4 Hill, 587, 257, 378 Finley v. Quirk, 9 Minn. 194, 370 First National Bank d. Crocker, 111 Mass. 163, 106 First National Bank «. Crow- ley, 24 Mich. 492, 104, 326 Firth u. Purvis, 5 T. Rep. 337, 432, 893 Fisher ». Whoollery, 25 Pa. St. 197, 24, 289 Fister b. Beall, 1 Har. & J. (Md.) 31, 430 Fitch B. Dunn, 3 Blackf. (Ind.) 142, 75, 171 Fitch v. Newberry, 1 Doug. (Mich.) 1, 180, 209 PA8SS. Fitzer «. McCannan, 14 Wis. 63, 410, 411 Fltzhugh v. Wiman, 9 N. T. 559, 415, 418 Fleet V. Lockwood, 17 Conn. 233, 274, 278, 287 Fletcher v. Wilkins. 6 East. 283, 34 Florrance v. Goodin, 5 B. Mon. (Ky.) 111. 337 Florence Sewing Machine Co. V. Warford, 1 Sweeney, (N.T.) 433, 174 Fobes B. Shattuck, 22 Barb. 568, 93, 111, 113 Fonda «. Van Home, 15 Wend. 631, 35, 81, 305 Pontleroy o. Aylmer, 1 Ld. Raym. 339, 365 Ford V. Caldwell, 3 Riley, (S. 0.) 277; 3 Hill, and new ed. 3 Hill, *348, 83 Ford v. Ford, 3 Wis. 399, 74,371,403,404, 405 Fordham v. Akers, 33 L. J. Q. B. 67, 14 Forsyth ». Wells, 41 Pa. St. 391, 118, 334 Fort V. Saunder, 5 Heisk. (Tenn.) 487, 307 Fort Dodge v. Moore, 87 Iowa, 388, 98 Forth V. Pursley, 83 111. 152, 59, 63 Forty V. Imber, 6 East. 334, 397 Poshay «. Ferguson, 5 Hill, (N. Y.) 154, 185, 197, 208 Poss V. Stewart, 14 Me. 313, 139, 151 Foster ». Chamberlain, 41 Ala. 158, 429 Poster-». Pettibone, 30 Barb. 350, 144, 148 Foster ®. Tucker, 3 Green, (Me.) 458, 175 Fouldes D. Willoughby, 8 M. & W. 540, 203 Fowler ». Down, 1 Bos. & Pull. 44, 65, 68 Fowler s. Hawkins, 17 Ind. 311, 90 TABLE OF OASES CITED. xlvii PAOES. Fowler «. Hoffman, 31 Mich. 315, 368, 431 Fowler «. Stonum, 6 Tex. 60, 36 Fox V. Hanbury, Cowp. 445, 87 Fox V. Prlckett, 5 Vroom, (34 K. J.) 13, 38, 363 Foy V. Reddick, 31 Ind. 414, 43, 49 Frallck v. Presley, 39 Ala. 457, 319 Franciscus «. Relgart, 4 Watts. 98, 397 Fraser v. Davie, 5 Rich. (S. C.) Law, 59, 397 Fraser v. Little, 13 Mich. 195, 340 Frazier«. Fredericks, 4Zab. (34 N. J.) 163, 34, 385, 397, 398 Frazier v. Laughlin, 1 Gilm. 347, 353, 403 Freas «. Lake, 3 Col. 480, 407, 408 Freeborn v. Norcross, 49 Cal. 318, 396 Freeman v. Bluet, 13 Mod. 395, 8 Freeman v. Carpenter, 10 Vt. 433, 99 Freeman v. Davis, 7 Mass. 300, 333 Freeman ■». Howe, 34 How. (U. S.) 450, 153, 154, 158, 160, 374 Frei v. Vogel, 40 Mo. 149, 239, 333 Freshwater v. Nichols, 7 Jones, (N. 0.) 351, 67 Frey v. Drahos, 7 Neb. 194, 384, 394, 323 Frey «. Leeper, 3 Dall. (Pa.) 131, 259, 360, 361 Frierson v. Frierson, 31 Ala. 549, 88 Frinks. Flanagan, 1 Gilm. (111.) 35, 357, 358, 438 Frisbee v. Langworthy, 11 Wis. 375, 133, 173 Frost V. Mott, 34 N. Y. 353, 151, 379 Frothingham v. McKusick, 11 Shep. (Me.)403 55, 57 Fryatt v. The Sullivan Co., 5 Hill, (N. T.) 117, 43, 49, 18i Fuller 0. Chamberlain, 11 Met. (Mass.) 508, 418 Fuller B. Paige, 36 111. 358, 109 Fuller V. Tabor, 39 Me. 519, 49, 301 Fullerton v. Miller, 33 Md. 5, 331, 338 PAODS. Fulton V. Heaton, 1 Barb. (N. Y.) 553, 163 Fultz V. Wyckoff, 35 Ind. 331, 343 Funk V. Israel, 5 Iowa, 438, 188, 143, 418 Furniss «. Hone, 8 Wend. 347, 187 G. Gaff V. Harding, 48 111. 148, 79 Gallagher*. Bishop, 15 Wis. 376, 33, 81, 146, 369 Gallarati ». Orser, 4 Bosw. (N. Y.) 94, 415 Galusha «. Butterfleld, 3 Scam. 337, 384 Galvin b. Bacon, 11 Me. 38, 178, 179, 189, 307 Gaines v. Harvin, 19 Ala. 491, 83 Gaines v. Tibbs, 6 Dana, (Ky.) 143, 373, 373, 396 Gano V. Hart, Hardin, (Ky.) 397, 395 Gardner v. Boothe, 31 Ala. 186, 197 Gardner v. Campbell, 15 Johns. 401, 30, 139, 141, 147 Gardner v. Dutch, 9 Mass. 437, 91, 114 Gardner v. Heartt, 3 Denio, 333, 56 Gardner v. Humphrey, 10 Johns. 53, 366 Gardner v. Lane, 9 Allen, (Mass.) 493, 100, 433 Garlin v. Strickland, 37 Me. 443, 338 Garrett «. Wood, 3 Kan. 331, 399, 320, 339, 414 Garth v. Howard, 5 Cai\ & P. 346, 88, 84 Gartside v. Nixon, 43 Mo. 188, 67 Garvin v. Paul, 47 N. H. 158, 93 Gay V. Morgan, 4 Bush. (Ky.) 606, " 344 Gear v. Bullendick, 34 111. 74, 43 Gentry «. Bargis, 6 Blackf. 261, 171, 173, 377, 380 Gerber v. Monie, 56 Barb. 653, 33, 378, 379 xlviii TABLE OF CASES CITED. PAGES. German Ins. Co. ■». Grim. 33 Ind. 349, 251 Gibbons v. Dillingham, 5 Eng. (Ark.) 9, 48 GibbsD. Bartlett, 3 W. & S. (Pa.) 39, 333,384,336,351,275,311,338 Gibbs V. Bull, 18 Johns. 435, 319, 236 Gibbs !). Chase, 10 Mass. 135, 33, 305 Gibbs v. Jones, 46 111. 319, 176, 197 Gibson «. Ireson, 43 E. C. L. 631, 394 Gibson i). Jenny, 15 Mass. 205, 139, 151 Gibson v. Mozier, 9 Mo. 258, 383 Gibson v. Stevens, 8 How. (U. S.) 384, 107 Gibson v. Stevens, 7 N. H. 353, 93 Gilbert ». Kennedy, 33 Mich. 117, 393 Gilbert v. Moody, 17 "Wend. 354, 145 Gilchrist v. Moore, 7 Clark, (Iowa,) 9, 197, 306 Giles V. Elsworth, 10 Md. 333, 394 Gillerson v. Mansur, 45 Me. 35, 48 Gillet B. Fairchild, 4 Denio, 81, 349 Gillett V. Treganza, 6 "Wis. 343, 60 Gillham «. Kerone, 45 Mo. 487, 39 Gillies V. "Wofford, 26 Tex. 76, 393, 370 Gilman v. Hill, 36 N. H. 311, 111 Gilman D.Williams et al., 7 Wis. 329, 156 Gilmore v. Newton, 9 Allen, 171, 197, 200, 301, 307 Gilmore v. Wilbur, 12 Pick. 120, 88 Gilson V. Wood, 20 111. 37, 399 Gimble v. Ackley, 13 Iowa, 27, 32, 146, 209, 360 Gimson v. WoodfuU, 2 C. & P. 41, 176 Ginaca v. Atwood, 8 Cal. 446, 380, 333 Gisbourne o. Hurst, 1 Salk. 349, 394 Glann v. Tounglove, 37 Barb. 480, 331, 415 Glascock V. Nave, 15 Har. (Ind.) 457, 173 Globe Works v. Wright, 106 Mass. 307, 361, 346 Glover v. Chase, 27 Vt. 533, 25, 36 Glover a. Hunnewell, 6 Pick. 233, 88 Godfrey v. BuUin, Yelv. 180, 396 Goff 1). Kilts, 15 Wend. 550, 41 Goflf e. O'Conner, 16 111.431, 43, 55 Golder ®. Ogden, 15 Pa. St. 538, 75, 104 Goldsmith v. Bryant, 36 Wis. 34, 313 Golightly ». Reynolds, Lofft. 88, 119 Goll V. Hinton, 8 Abb. Pr. 120, 93 Goodheart a. Bowen, 2 Bradw. 578, ^ 139, 363, 369 Goodman v. Aylin, Telv. 148, 396 Goodman v. Church, 30 Vt. 187, 327 Goodman v. Floyd, 3 Humph. (Tenn.) 58, 331 Goodrich v. Fritz, 4 Ark. 535, 138, 172 Goodrich v. Jones, 3 Hill, 143, 45 Goodtitle i>. Bailey, 3 Cowp. 597, 338 Gordon ■». Harper, 7 Durnf. & East. 6, 10, 59, 63 Gordon t). Hostetter, 37 N.Y. 99, 97, 175 Gordon ■». Jenney, 16 Mass. 465, 109, 168, 242, 260, 365, 394 Gordon v. Williamson, 30 N. J. L. 77, 325, 297 Gore V. Jenness, 19 Me. 53, 55, 56, 57 Gorton v. Falkner, 4 Durnf. & E. 565, 84, 394 Gotloflf V. Henry, 14 111. 384, 373,375,377,380,410 Grace ■». Mitchell, 31 Wis. 533, 33, 34, 36, 78, 80, 162 Graff V. Shannon, 7 Iowa, 508, 41 Graham v. Roder, 5 Tex. 141, 337 Grant «. Booth, 21 How. Pr. Rep. 354, 164 Graves «. Shoefelt, 60 111. 462, 231, 342 Graves «. Sittig, 5 Wis. 219, 333, 384, 386, 396, 306, 334 TABLE OF CASES CITED. xlix PAGES. Graves v. Ticknor, 6 N. H. 537, 313 Gray v. Griffith, 10 Watts. (Pa.) 431, 38 Gray®.Holdship,17S.&E.413, 55 Gray b. Jones, 1 Head. (Tenn.) 542, 810 Gray v. Nations, 1 Aik. 557, 34, 33, 386, 385 Gray v. Parker, 38 Mo. 160, 67, 95, 116, 119 Gray v. Eawson, 11 111. 537, 393 Gray v. St. John, 35 III. 333, 183, 183 Greaner v. Mullen, 15 Pa. St. 300, 186 Great Western Ry. Co. v. Mc- Comas, 33 111. 185, 64, 74 Greely c. Currier, 39 Me. 516, 331, 338, 378 Green v. Barker, 14 Conn. 431, 384 Green v. Dingley, 34 Me. 131, 384 Green v. Dunn, 4 Comb. 315, 314 Green v. Holden, 85 Vt. 315, 141 Green «. Humphrey, 50 Pa. St. 313, 184 Green v. Patchin, 18 Wend. 393, 436 Green v. Walker, 37 Me. 35, 344 Greenfield Bank v. Leavitt, 17 Pick. 1, 398, 300 Green wade v. Fisher, 5 B. Mon. 167, 35 Greer v. Powell, 1 Bush, (Ky.) 489, 398 Gregory ■». McDowell, 8 Wend. 485, 309 Grier v. Cowan, Addis, (Pa.) 347, 897 Griffith V. Bogardus, 14 Cal. 410, 99 Griffith V. Fowler, 18 Vt. 390, 175 Griffith B. Smith, 33 Wis. 646, 148, 169 Grinnell v. Phillips, 1 Mass. 580, 168 Griswold v. Boley, 1 Blake, (Mon.) 545, 197 Groat V. Gile, 51 N. T. 431, 101, 108 Gould V. Barnard, 3 Mass. 199, 377, 387 Gould V. Scannell, 13 Cal. 430, 370, 373, 386, 390 4. PAOES. Gould V. Warner, 3 Wend. 54, 231,333,336,345,349,353 Goulet V. Asseler, 33 IST. Y. 325, 331 Guard v. Bradley, 7 Ind. 600, 351 Guild V. Rogers, 8 Barb. 503, 393 Gulett V. Lamberton, 1 Eng. (Ark.) 109, 41,43 Guthrie «. Jones, 108 Mass. 191, 45 Gwillim v. Holbrook, 1 Bos. & Pul. 410, 384 H. Hackett v. Bonnell, 16 Wis. 471, 419 Haff «. Spicer, 3 N. T. Term. R. 190, 357 Hagan v. Deuell, 24 Ark. 216, 138, 144, 145 Hagan v. Lucas, 10 Pet (U. S.) 400, 287, 255, 262, 268 Hagan v. Providence & W. R. R. Co., 3 R. I. 88, 340 Haggard v. Wallea, 6 Neb. 271, 78 Haggerty«.Wilber,16Johns.287, 168 Haight V. Turner, 3 Johns. 871, 356 Haile v. Hill, 13 Mo. 613, 328, 329 Hall V. Amos, 5 T. B. Mon. (Ky.) 89, 893 Hall D. Dean, Cro. Eliz. 841, 99 Hall V. Gilmore,40 Me 578, 182, 188 Hall V. Henline, 9 Ind. 256, 376 Hall V. Jenness, 6 Kan. 356, 415 Hall «. Naylor, 18 N. T. 588, 183 Hall V Robinson, 3 Comst. (3 N. Y.) 398, 80, 199, 20;i, 207, 350. Hall V. Smith, 10 Iowa, 45, 331, 333, 367, 286, 333, 415 Hall V. Tuttle, 2 Wend. 475, 66, 138, 140, 141, 14S Hall V. White, 3 Car. & P. 186, 218, 316 Hall V. White, 106 Mass. 599, 77, 369 Halleck v. Mixer, 16 Cal. 574, 48, 51, 53, 54, 847, 369 Hallenbrake «. Fish, 8 Wend, 547, 59 1 TABLE OF OASES CITED. PAGES. Hallett V. Byrt, Carth. 380, 148, 157 Hallett V. Fowler, 8 Allen, 93, 68, 274 Hallett V. Fowler, 10 Allen 36, 374 Hallett V. Mountstephen, 3 Dow. & Ry. 343, 321, 334, 241 Halterline v. Rice, 62 Barb. 593, 103 Hambly v. Trott, 1 Cowp. 371, 347, 439 Hamer v. Hathaway, 33 Cal. 117, 395, 296, 301, 307, 309 Hamilton v. Mitchell, 6 Blackf. 131, 60 Hamilton ■». Singer Manuf. Co., 54 111. 370, 304 Hamilton «. Stewart, 59 111. 330, 44, 167 Hammonds. Baton, 15 Gray, 186, 229 Hannauer v. Bartels, 2 Col. 514, 819, 321, 350 Handley . Sprowle, 32 Me. 322, 86,87 Hare v. Stegall, 60 111. 380, 393 Harington «. Macmorris, 5 Taunt. 338, 383, 386 PAQEB. Harker v. Dement, 9 Gill. (Md.) 7, 379 Harlan v. Harlan, 15 Pa. St. 507, 23, 33, 43, 47, 53, 65 Harman v. Fishar, 1 Cowp. 117, 187 Harman v. Goodrich, 1 Greene, (Iowa,) 13, 280 Harriman v. Wilkins, 30 Me. 93, 333, 334, 226 Harris v. Hillman, 36 Ala. 380, 83, 310 Harris ■». Newman, 5 How. (Miss.) 654, 117 Harris v. Smith, 3 S. & R. (Pa.) 30, 69, 190, 193, 351, 369 Harrison «. Barnby, 5 Term. R. 246, 395, 398 Harrison v. M'Intosh, 1 Johns. 380, 66, 90, 190, 270, 376, 381, 397 Harrison v. Wardle, 5 Barn. & Adolp. 146, 232 Harrison B.Wilkin, 69 N.r. 413, 341 Harrod v. Hill, 2 Dana, (Ky.) 165, 235 Hart V. Fitzgerald, 2 Mass. 509, 22, 23, 87, 88, 95 Hart V. Ten Eyck, 3 John. Ch. R. 63, 109 Hart V. Vinsant, 6 Heisk. (Tenn.) 616, 51 Hartford n. Jones, 1 Ld. Raym. 393, 204 Hartford v. Jones, 3 Salk. 651, 97 Hartgraves v. Duval, 1 Eng. (Ark.) 506, 377, 287 Harvy «. Stokes, Willes, 6, 245 Harwood v. Smethurst, 5 Dutch. (39 N. J.) 195, 23, 39, 37, 60, 373, 380 Haskill V. Andros, 4 Vt. 609, 139, 151 Hatch V. Dwight, 17 Mass. 389, 56 Hatch e. Fowler, 38 Mich. 205, 65, 68, 69, 71, 82, 386 Hatch ». Hart, 2 Mich. 289. 316 Hathaway v. St. John. 20 Conn. 343; 81 TABLE OF OASES CITED. PAQES. Haverstick b. Fergus, 71 111. 105, 74 Hawes v. Smith, 3 Fairfield, (Me.) 429, 238 Hawkins t>. Eckles, 3 Bos. & Pul. 359, 396 Hawkins v. Hoffman, 6 Hill, 586, 80, 203, 210 Hawkins ■». Johnson, 3 Blacki. 46, 870 Hawley v. Bates, 19 Wend. 633, 229 Hawley -o. Warner, 13 Iowa, 43, 348, 415 Hay ffl. Hayes, 56 III. 343, 163 Hayden v. Anderson, 17 Iowa, 158, 425 Haydon v. Haydon, 1 Salk. 393, 93 Hays V. Bouthalier, 1 Mo. 345, 358 Haythorn ■». Rushforth, 4 Har. (19 N. J.) 160, 38, 59, 305 Hayward v. Seaward, 1 Moore & Scott, 459, 78 Hazzard ». Benton, 4 Har. (Del.) 63, 171, 172 Heagle v. Wheeland, 64 111. 433, 125, 130, 133, 136 Healdi). Gary, 11 Com. B. 993, 301 Heard v. James, 49 Miss, 336, 32, 95, 117, 119, 339, 342 Heath c. West, 8 Foster, (N. H) 101, 66 Heaton c. Findlay, 13 Pa. St. 304, 46, 47 Heeron «. Beckwith, 1 Wis. 17, 38, 378, 375, 404, 406; 414 Heinmuller v. Gray, 44 How. Pr. R. 360, 430 Hellings i). Wright, 14 Pa. St, 373, 54, 396, 439 Helser v. Pott, 3 Barr. (Pa.) 179, 397 Hemenway v. Bassett, 13 Gray, 378, 55 Hemstead v. Colburn, 5 Cranch. C. C. 655, 384 Hench v. Metzer, 6 S. & R. 373, 429 Hendricks v. Decker, 35 Bai;b. 398, 74, 298, 368 FAGEB. Hendrickson ». Kingsbury, 31 Iowa, 379, 337 Henry v. Fine, 23 Ark. 417, 197 Hensley v. Brodie, 16 Arlt. 511, 49 Herbert d. Waters, 1 Salk. 305, 332 Herdic v. Young, 55 Pa. St. 176, 33, 29, 65, 119, 284, 336, 338 Herron ». Hughes, 35 Cal. 555, 79, 179, 203, 363, 364 Hershey v. Fry, 1 Iowa, 593, 124 Hershler v. Reynolds, 33 Iowa, 152, 245 Hewitson ii. Hunt, 8 Rich. (S, C.)106, 25 Hewlett V. Owens, 50 Cal. 474, 87 Hewson «. Saffin, 7 Ohio, Part II. 333, 408, 411 Heyland v. Badger, 35 Cal. 404, 33, 64, 131, 133 Hickey d. Hinsdale, 13 Mich. 100, 31, 38, 36, 41, 81, 424 Hicks v. Britt, 31 Ark. 433, 147, 197 Hicks V. Flint, 31 Ark. 463, 60 Hicks ». Hankin, 4 Esp. 114, 179 Hicks V. Stull, 11 B. Mon. (Ky.) 53, 323 High «. Wilson, 2 Johns. 45, 375 Hiles «. McFarlane, 4 Chand. (Wis.) 89, . 258 Hilger v. Ed wards, 5 Nevada, 84, 59 Hill v. Bloomer, 1 Finney, (Wis.) 453, 377, 387 Hill ». Covell, 1 Comst. 533, 80, 300, 303 Hill ». Fellows, 35 Ark. 11, 416 Hill D. Freeman, 3 Cush. 357, 65, 183, 193 Hill D.Miller, 5 S.&R. (Pa.) 355, 39 Hill V. Robinson, 16 Aik. 90, 66, 87, 97 Hill V. Stocking, 6 Hill, 277, 398 Hills V. Parker, 111 Mass. 508, 140 Hills V. Passage, 21 Wis. 294, 436 Hilson -o. Blain, 3 Bailey, (S. C.) 168, 393 Hinchman «. Patterson, H. R. R. Co., 17 N. J. Eq. 75, 88 lii TABLE OF CASES CITED. PAGES. Hinckley v. West, 4 Gilm. 136, 403 Hlndle v. Blades, 5 Taunt. 325, 230 Hines v. Allen, 55 Me. 114, 141, 145 Hines v. Ament, 43 Mo. 298, 49 Hinman v. Borden, 10 Wend. 367, 166, 326 Hiscox B. Greenwood, 4 Esp. 174, 117 Hisler v. Carr, 34 Cal. 645, 31, 308 Hitcliman v. Walton, 4 Mees. & W. 409, 56 Hoadley v. Watson, 45 Vt. 289, 315, 316, 838 Hoag e. Breman, 3 Mich. 160, 419 Hoare «. Parker, 3 T. R. 376, 199 Hobbs ». Myres, 1 B. Mon. (Ky.) 241, 387 Hocker v. Strieker, 1 Dall. 225, 245, 170 Hodgeden v. Hubbard, 18 Vt. 504, 36 Hodgkins ®. Dennett, 55 Me. 559, 106 Hudson V. Warner, 60 Ind. 214, 193, 355 HoeflFner «. Stratton, 57 Me. 360, 272 Hoefheiner v. Campbell, 1 Luc. (10 Mod.) 157, 164 Hoeser v. Kraeka, 39 Tex. 450, 331, 411, 416 Hoffman v. Carow, 30 Wend. 21, 174, 177 Hoffman «. Carow, 22 Wend. 285, 174, 175, 177, 205 Hoffman v. Noble, 6 Met. (Mass ) 68, 191, 207 Hohenthal v. Watson, 28 Mo. 360, 280, 284, 289, 331 Holbrook v. Hyde, 1 Vt. 286, 110 Holbrook v. Wight, 24 Wend. 169, 31, 73, 201, 213, 216 Holcomb V. Davis, 56 111. 413, 204 Holiday v. Hicks, Cro. Eliz. 661, 99 Holley V. Mix, 3 Wend. 350, 418 Holliday v. Camsell, 1 Durnf. & E. 658, 346 FAOKS. Holliday v. Lewis, 15 Mo. 403, 69,70 Hollingsworth ». Dow, 19 Pick. 228, 72 Hollis V. Brandon, 1 Bos. & Pull. 36, 356 Hollis V. Smith, 10 East. 293, 347 Holmark v. Molin, 5 Cold. (Tenn.) 482, 193 Holmes i>. Bell, 3 Gush. 333, 123 Holmes v. Nuncaster, 13 Johns. 395, 375 Holmes v. Wood, 6 Mass. 1, 384 Holton V. Binns, 40 Miss. 491, 87, 88 Holten ®. Lewis, 1 McCord, (S. C.) 13, 372 Homan v. Laboo, 1 Neb. 304, 196, 212 Hooker v. Hammill, 7 Neb. 331, 389, 294 Hooser «. Hays, 10 B. Mon. (Ky.) 72, 53 Hoover «. Rhoads, 6 Iowa, 505, 357 Hope v. Lawrence, 50 Barb. 258, 85 Hopewell v. Price, 3 Har. & 6. (Md.) 275, 283 Hopkins v. Adams, 5 Abb. Pr. R. 351, 429 Hopkins v. Adams, 6 Duer, 685, 439 Hopkins v. Burney, 3 Fla. 42, 290, 384, 385 Hopkins v. Drake, 44 Miss. 619, 140 Hopkins v. Hopkins, 10 Johns. 369, 30 Hopkins v. Ladd, 35 111. 178, 345 Hopkins «. Shrole, 1 Bos. & • Pull. 383. > 272 Hopkins «. Thompson, 3 Porter, (Ala.) 433, 350 Home V. Lewin, 1 Ld. Raym. 639, 393 Home V. Lewin, 3 Salk. 583, 393 Horton v. Vowel, 4 Heisk. (Tenn.) 622, 223 Horwood «. Smith, 3 T. R. 751, 176 Hoskins v. Robins, 3 Saund. 320, .note 1, 333 TABLE OF OASES OITED. liii PAGES. Hosmer v. Clarke, 2 Gr. (Me.) 308, 198, 213 Hotclikiss V. Ashley, 44 Vt. 195, 39, 404, 407, 409 Hotchkiss v. Hunt, 49 Me. 313, 107, 178, 193 Hotchkiss v. Jones, 4 Porter, (Ind.) 260, 22, 293 Hotchkiss V. McVickar, 13 Johns. 408, 66 Houghton V. Peck, 8 Pa. St. 43, 813 Houghton V. Ware, 118 Mass. 49, 238, 230 Howard ®. Black, 49 Vt. 9, 395 Howard v. Dill, 7 Geo. 52, 393 Howe i). Freeman, 14 Gray, (Mass.) 566, 154 Howe V. Handley, 28 Me. 241, 228, 251, 311 Howe V. Shaw, 56 Me. 391, 78, 81 Howland v. Fuller, 8 Minn. 50, 152 Howland v. Woodruff, 60 N. Y. 74, 178 Hoy 0. Rogers, 4 Mon. (Ky.) 235, 238 Hoyt V. Thompson, 1 Selden, (N. T.) 830, 349 Hoyt B. Van Alstyne, 15 Barb. 568, 378, 379 Hubloun's Case, Skinner, 65, 59 Hudler ». Golden, 36 N. T. 446, 135, 136, 133 Hudson V. Maze, 3 Scam. 578, 197, 199, 307 Huebschman d. McHenry, 29 Wis. 655, 42, 49, 50 Huff «. Gilbert, 4 Blackf. 19, 406 Huggeford v. Ford, 11 Peck, 228, 395, 310, 833 Hume B. Gillespie, 3 T. B. Mon. (Ky.) 181, 60 Hume V. Tufts, 6 Blackf. 186, 66 Humfrey v. Misdale, Comb. 11, 383 Humphrey v. Taggart, 38 111. 238, 332, 333, 345 Humphries t>. Johnson, 20 Ind. 190, • 338 PAOES. Hungerford v. Redford, 29 Wis. 345, 51, 117, 336 Hunn v. Hough, 5 Heisk. 708, 170 Hunt ». Bennett, 4 G. Gr. (Iowa,) 513, 269, 380, 408, 408 Hunt ». Bullock, 23 111. 825, 123 Hunt e. Chambers, 21 N. J. (1 Zab.) 620, 27, 34, 59, 61, 67, 87, 89, 272, 375, 378, 880, 384 Hunt ®. Kane, 40 Barb. 688, 82 Hunt v. Pratt, 7 R. I. 388, 139 Hunt ». Robinson, 11 Cal. 262, 23, 237, 255, 260, 263,381 Hunt V. Rousmanier, 8 Watts, 174, 347 Hunt «. Strew, 33 Mich. 85, 62, 65 Hunter «. Hudson Riv., etc., 20 Barb. 493, 181, 368 Hunter «. Hunter, 19 Barb. 631, 106 Hunter . Ray, 10 How. Pr. Rep. 313, 369 Kesler ii. Haynes, 6 Wend. (N. Y.) 547, 333, 324 Keyes v. McNulty, 14 Iowa, 484, 245 Keyser v. Harbeck, 3 Duer. (N. T.) 373, 182, 190 Kidder «. Kidder, 83 Pa. St. 268, 106 Kier v. Peterson, 41 Pa. St. 857, 47 Kilby ■». Wilson, Ry. & Moody N. P. 178-181, 183, 184, 190 Killey ®. Scannel, 12 Cal. 73, 309 Killian v. Carrol, 13 Ired. (N. C.) 431, 64, 71 Kimball ». Adams, 3 N. H. 183, 393 Kimball D. Cunningham, 4 Mass. 503, 188 Kimball v. Lohmas, 31 Cal. 154, 53,54 Kimball v. Thompson, 4 Cush. (Mass.) 441, 88, 279 Kimball v. True, 34 Me. 84, 326, 369 ivi TABLE OF CASES CITED. PAGES. Kimberly e. Patchin, 19 N. Y. 330, 114 Kimmel v. Eint, 3 "Watts, (Pa.) 431, 333, 339, 367 Kinaston v. Moor, Cro. Car. 89, 97 Klndy v. Green, 33 Mich. 310, 88 King «. Blackmore, 73 Pa. St. 347, 5 King V. Chase, 15 N. H. 9, 168 King 1). Cole, 6 Term. R. 398, 640, 356 King V. Orser, 4 Duer. (N. Y.) 431, 148, 168, 334 King V. Orser, 5 Duer. 501, 153 King V. Ramsay, 13 111. 619, 349, 371, 373 Kingsbury v. Buchanan, 11 Iowa, 387, 59, 383 Kingsbury's Exrs. ». Lane's Exrs., 31 Mo. 115, 31, 36, 37, 439 Klngsford v. Merry, 34 E. L. & Eq. 607, 191 Kinney v. Crocker, 18 Wis. 74, 154, 160 Kinney «. Mallory, 3 Ala. 636, 339 Kinsey v. Leggett, 71 N. Y. 387, 180, 193 Kipp V. "Wiles, 3 Sandf. 585, 398 Kirby v. Miller, 4 Coldw. (Tenn.) 3, 59 Kirk V. Nowell, 1 Term. R. 361, 383 Kirkham v. Hargraves, 1 Selw. (N. P.) 435, 301 Kitchell v. Vanadar, 1 Blackf. (Ind.) 356, 178 Knapp V. Colburn,4 "Wend. 616, 30, 330, 836 Knapp «. Smith, 37 N. Y. 377, 36 Kneas v. Fitler, 3 S. & R. 363, 163 Knowles ®. Lord, 4 "Whart. (Pa.) 500, 169, 373 Knowlton v. Culver, 1 Chand. (Wis.) 314, 41 Knowlton v. Culver, 3 Pin. (Wis.) 86, 41 Kortright v. Com. Bank, 30 Wend. 91, 303 FAQXB, Kranert v. Simon, 65 111. 344, 189 Krause v. Cutting, 38 Wis. 655, 408 Krause v. Cutting, 33 Wis. 687, 408 Kreger v. Osborn, 7 Blackf. (Ind.) 74, 36 Kunkle v. State, 33 Ind. 330, 189 Laborde «. Rumpa, 1 McCord, (S. C.) 15, 397 Lacy V. Weaver, 49 Ind. 373, 89, 90 Ladd i>. Billings, 15 Mass. 15, 93 Ladd ®. North, 3 Mass. 514, 75,81,352 Ladd V. Prentice, 14 Conn. 109, 333, 335, 368 La Fontaine v. Green, 17 Cal. 394, 66 Lahley v. Brady, 1 Daly, (N. Y.) 443, 430 Lamb ». Day, 8 Vt. 407, 288 Lambden v. Conoway, 5 Har. (Del.) 1, 337, 281 Lambert «. McFarland, 3 Nev. 58, 411 Lammers «. Meyer, 59 111. 214, 103, 171 Lance v. Cowan, 1 Dana, (Ky.) 195, 174 Lander v. Ware, 1 Strobh. (S. C.) 15, 337, 398 Landers v. George, 40 Ind. 160, 373, 380 Landers v. George, 49 Ind. 309, 396 Landt v. Hilts, 19 Barb. 388, 163 Lane «. Foulk, Comb. 338, 384 Langdoc ». Parkinson, 3 Bradw. (111.) 136, 235, 333, 817 Langdon v. Buel, 9 Wend. 80, 121 Langdon v. Paul, 33 Vt. 305, 48, 51, 56 La Place v. Aupoix, 1 Johns. Ca. 407, 312, 213 Larkin v. Robbins, 2 Wend. 505, 426 TABLE OB' OASES CITED. Ivii Latham v. Blakeley, 70 N. C. 368, 55 Lathrop v. Blake, 3 Fost (N. H.) 46, 170 Lathrop c. Cook, 2 Shep. (Me.) 414, 23, 36, 79 Lauman v. Des Moines C, 29 Iowa, 810, 133 Lavcrty «. Snethan, Cent. Law J. April 1877, 330, 181 Lavigne v. Russ, 86 Miss. 826, 396 Lawrence v. Burnham, 4 Nev. 361, 93 Lawrence v. Coates, 7 Ohio St. 194, 98 Lawrence v. The State, 1 Humph. (Tenn.) 327, 70 Lawson v. Lay, 34 Ala. 184, 26, 83, 197 Lay D. Lawson, 23 Ala. 377, 339 Layman v. Hendrix, 1 Ala. 213, 418 Lazard «. Wheeler, 22 Cal. 140, 23, 349, 350 Leadhetter v. Kendall, Hempst. (IT. S. C. O.) 802, 161 Lear v. Montross, 50 111. 507, 150 Learned v. Bryant, 13 Mass. 224, 79, 426 Leavitt v. Metcali, 2 Vt. 343, 139, 151 Lecky b. McDermott, 8 8. &. R. (Pa.) 500, 178 Ledley v. Hays, 1 Cal. 160, 209 Lee B. Gould, 47 Pa. St. 398, 205 Lee 11. Portwood, 41 Miss. 109, 177, 184, 189 Legal News, April 7, 1877, 237, 180 Lehman v. Kellerman, 65 Pa. St. 489, 54 Leighton v. Brown, 98 Mass. 515, 241, 253, 311 Leighton ®. Harwood, 111 Mass. 67, 140 Leonard v. Stacy, 6 Mod. 140, 7 Leonard v. Tidd, 3 Met. 6, 206 Leonard v. Whitney, 109 Mass. 265, 253, 323, 323 Le Roy ®. East Sag. R. R., 18 Mich. 333, 124, 125, 133, 134, 147, 197 Leroy v. McConnell, 8 Kan. 373, 367 Lester v. East, 49 Ind. 588, 75, 103, 106 Lester v. McDowell, 18 Pa. St, 91, 59, 105 Leven ®. Smith, 1 Denio, 571, 193 Levi V. Darling, 38 Ind. 497, 171 Lewis V. Blair, 1 N. H. 69, 169 Lewis V. Brackenridge, 1 Blackf. 112, 358 Lewis «. Buck, 7 Minn. 104, 155, 371 Lewis V. Lewis, Minor, (1 Ala.) 95, 407 Lewis V. Masters, 8 Blackf. 344, 197, 199, 207 Lill v. Stookey, 72 111. 495, 267, 280, 413 Lill, etc., V. Russell, 32 Wis. 178, 313 Lillard v. Whitaker, 3 Bibb, (Ky.) 93, 398 Lindley v. Kelley, 42 Ind. 294, • 89 Lindley s. Miller, 67 111. 244, 285, 343, 393, 395, 398, 400 Lindon v. Hooper, 1 Cowper, 414, 28, 313 Lindsay v. Armfleld, 3 Hawks, (N. C.) 548, 166 Lindsey v. Perry, 1 Ala. (n. s.) 203, 41, 78, 79, 96 Link V. Clemmens, 7 Blackf. 479, 239 Linsley v. Bushnell, 15 Conn. 325, 315 Lisher ». Pierson, 11 Wend. 58, 28 Litchman v. Potter, 116 Mass. 871, 100 Litterel v. St. John, 4 Blackf. 326, 197 Little V. Smith, 4 Scam. 400, 383 Livingston «. Bishop, 1 Johns. 290, 419 Livingston v. Superior Ct., 10 Wend. 545, . 228 Iviii TABLE OF CASES CITED. PAGES. Livor V. Orser, 5 Duer, (N. Y.) 501, 131, 334 Lloyd V. Brewster, 4 Paige, 537, 183, 191 Lloyd ■». Goodwin, 13 S. & M. (Miss.) 333, 59, 331 Lcjbdell «. Stowell, 51 N. Y. 70, 303 Lockwood V. Bull, 1 Cow. 333, 75, 170, 300, 301 Lockwood v. Perry, 9 Met. (Mass.) 440, 337, 255, 260, 363, 264, 420, 429 Loeschman v. Machin, 2 Stark, 311, 133, 179, 203 Logan V. Houlditch, 1 Esp. N. P. 0. 32, 314 Loker v. Damon, 17 Pick. 384, 313, 314 Long V. Cockrell, 55 Mo. 93, 336 Long •». Spruill, 7 Jones, (N. C.) 96, 103 Loomis V. Foster, 1 Mich. 165, 383 Loomis 1). Tyler, 4 Day, (Conn.) 141, 34 Loomis V. Youle, 1 Minn. 175, 355, 366, 876, 424 Loop «. Williams, 47 Vt. 407, 383, 388, 405 Lord «. Bicknell, 35 Me. 53, 230 Lougee v. Colton, 9 Dana, (Ky.) 133, 386 Louisville & Portland Canal Co. V. Holborn, 2 Blackf. 267, 146, 147 Loveday -o. Mitchell, Comyns, 347, 59, 380 Lovejoy v. Bright, 8 Blackf. 306, 329, 355 Lovejoy ■». Jones, 10 Poster, (N. H.) 164, 178, 179 Lovett 1). Burkhardt, 44 Pa. St. 173, 145, 359, 261, 364 Low V. Martin, 18 111. 286, 95, 109, 113 Lowdon V. Goodrick, Peake N. P. 46, 313 PAGES. Lowe V. Brigham, 3 Allen, (Mass.) 439, 369, 374 Lowe ■». Lowry, 4 Ohio, 78, 413 Lowremorei). Berry, 19 Ala. 130, 379 Lowry v. Hall, 3 W. & S. (Pa.) 139, 34, 26, 59, 144, 145, 175, 259 Ludden «. Leavitt, 9 Mass. 104, 65, 351, 352, 369 Lull V. Matthews, 19 Vt. 333, 56, 57 Lunt «. Brown, 13 Me. 336, 66 Lupin ». Marie, 6 "Wend. 77, 193 Lupton «!. White, 15 Ves. 433, 109, 111 Lutes «. Alpaugh, 33 N. J. L. 165, 413 Luther «. Arnold, 7 Rich. (S. C. L.) 397, 231 Lutz 1). Yount, Phill. (N. C. L.) 367, 313 Lyle V. Barker, 5 Binn. 457, 323, 335, 326 Lynch v. Welsh, 3 Pa. St. 394, 117 Lynd ®. Picket, 7 Minn. 184, 150 M. Machette ■». Wanless, 1 Col. 335, 404, 405, 410 Machette v. Wanless, 3 Col. 169, 319, 321 Mack V. Parkes, 8 Gray, (Mass.) 517, , 84 Mackinley v. M'Gregor, 3 Whart. 368, 33, 183, 187, 374, 377 Macklot V. City of Davenport, 17 Iowa, 379, 134, 133 Madigan v. McCarthy, 108 Mass. 876, 43 Magee v. Siggersoa, 4 Blackf. 70, 357 Magill e. Casey, 1 Day, (Conn.) 18, 342 Magruder «. Marshall, 1 Blackf. 833, 343, 347 Maids V. Watson, 13 Mo. 544, 413 Malcom v. Loveridge, 13 Barb. 373, 183, 188, 190 TABLE OF CASES CITED. lix PASES. Mallam ®. Ajden, 10 Bing. 299, 394 Mallory «. Willis, 4 Comst. 77, 117 Maloney «. Griffin, 15 Ind. 213, 144, 145 Mann v. Grove, 4 Heisk. (Tenn.) 403, 291 Mann v. Perkins, 4 Blackf. 271, 375 Manning v. Albee, 11 Allen, (Mass.) 520, 184, 188 Manning . Lyon, 18 Tenn. (10 Yerg.) 473, 36 Neflf V. Thompson, 8 Barb. 313, 33, 37, 38, 66, 178, 205 Neiler ». Kelley, 69 Pa. St. 403, 97 Neis «. Gillen, 27 Ark. 184, 289, 830 Nellis V. Bradley, 1 Sandf. 560, 188 Nelson v. Iverson, 17 Ala. 219, 203 Nelson v. Mclntyre, 1 Brad. (111.) 603, 60 Nesbitt V. St. Paul Lumber Co., 21 Minn. 491, 176, 309 Newell V. Hayden, 8 Iowa, 140, 150, 151 Newell «. Newell, 34 Miss. 385, 33, 38, 213, 855, 357, 364 Newkirk v. Dalton, 17 111. 413, 175 Newman ». Bean, 21 N. H. 93, 93 Newman v. Bennett, 23 111. 427, 313, 315, 351 Newman v. Jenne, 47 Me. 520, 32, 197, 206 Newman v. Newman, 4 Maul. & Selw. 70, 233 Newman v. Tymeson, 13 Wis. 173, 123 Newton «. Gardner, 34 Wis. 383, 91, 346 Ixiv TABLE OF OASES CITED. FAOES. N. Y. Guarantee Co. v. Plynn, 65 Barb. 365, 295 Niagara Elev. Co. v. McNa- mara, 2 Hun. 416, 126, 325 Niagara Elev. Co. v. McNa- mara, 50 N. T. 653, 325 Nibblet v. Smith, 4 Durnf. & E. 266, 504, 41 Nicholas v. Chapman, 2 H. Bla. 254, 204 Nicholas Ins. Co. ■». Alexander, 10 Humph. (Tenn.) 377, 289 Nichols V. Cowles, 3 Cow. 345, 856 Nichols V. Dewey, 4 Allen, (Mass.) 386, 48 Nichols V. Dusenbury, 2 Comst. (N. T.) 283, 398, 399 Nichols V. Michael, 23 N. T. 264, 79, 83, 84, 181, 187, 188 Nichols V. Nichols, 10 Wend. 630, 362, 366, 369 Nichols V. Pinner, 18 N. Y. 295, 181, 187, 188 Nickerson d. Chatterton, 7 Cal. 568, 23, 237, 240, 246, 276, 415, 418 Nioolson v. Hancock, 4 Hen. & M. (Va.) 491, 35 Nightingale «. Scannell, 18 Cal. 315, 325, 342 Nisbet V. Patton, 4 Rawle, 119, 213 Noble V. Adams, 7 Taunt. 59, 183 Noble V. Epperly, 6 Port. (Ind.) 414, 60, 87, 267, 271, 876, 378, 380, 383, 405 Noe 0. Gibson, 7 Paige, 513, 140 Nolty «..The State, 17 Wis. 668, 101 North V. Turner, 9 S. & R. 244, 349 Northampton Paper Mills «. Ames, 8 Met. 1, 56 Northrup v. McGill, 27 Mich. 338, 335 Norton v. The People, 8 Cow. 137, 170, 171, 352, 369 Nowlen v. Colt, 6 Hill, 461, 112 Noxon v. Hill, 2 Allen, (Mass.) 215, 324, 335, 342 FASSB. Noyes v. Haverhill, 11 Cush. 338, ^ 180 Nunan v. San Francisco, 38 Cal. 689, 364 Nunn o. Goodlett, 5 Eng. (Ark.) 89, 222, 225, 238, 330, 344, 246 Oaks V Wyatt, 10 Ohio, 34i 386 O'Brien v. Haynes, 61 111. 494, 258 O'Brien v. Hi! burn, 23 Tex. 616, 379 O'Brien v. Palmer, 49 111. 73. 403 O'Connell v. Jacobs, 115 Mass. 21, 210, 217 O'Connor o. Blake, 29 Cal. 313, 276, 381 O'Connor v. Union Line, 31 111. 230, 171, 172, 374 Odell V. Hole, 25 111. 304, 353, 294, 320 O'Donnell «. Segar, 25 Mich. 867, 151 Offutt V. Plagg, 10 N. H. 46, 123, 178 Ogden V. Stock, 34 111. 522, 47 O'Grady v. Keyes, 1 Allen, (Mass.) 284, 322, 334, 242 Ohio & Miss. R. R. Co. v. Kerr, 49 111. 458, 189 O'Keefe v. Kellogg, 15 111. 347, 349, 403, 404, 417 Oleson 0. Merrill, 30 Wis. 463, 37, 197, 199, 356, 370 Oliver o. Townsend, 16 Iowa, 430, 248 Olmsted v. Hotailing, 1 Hill, 317, 183, 183 Ombony v. Jones, 21 Barb. 520, 42 O'Neal v. Wade, 3 Porter, (Ind.) 410, 249, 333 O'Neill V. Henderson, 15 Ark. 285, 208 Onstatt V. Ream, 30 Ind. 259, 96 O'Reilly e. Good, 42 Barb. 521, 126, 129 TABLE OF CASES CITED. Ixv PAGES. Ormand v. Brierly, Cai-th. 519, 234 Ormsbee «. Davis, 18 Conn. 555, 254 Ormsby v. Vermont Copper Co., 56 N. Y. (i23, 295, 298 Orner v. HoUman, 4 Whart. (Pa.) 45, 141 Orr V. Bank United States, 1 Ham. (Ohio,) 37, 348 Osgood V. Green, 10 Fost. (N. H.) 210, 23, 399 Osgood V. McConnell, 32 111. 74, 403 Osterhout v. Eoberts, 8 Cow. (N. T.) 43, 419 Otis V. Sill, 8 Barb. 102, 85, 88, 96 Otis V. Williams, 70 N. T. 208, 149 Otter V. Williams, 21 111. 118, 298, 341, 343 Only V. Dickinson, 5 Coldw. (Tenn.) 486, 414, 418 Ousley V. Hardin, 23 111. 403, 340 Overfleld v. Builitt, 1 Mo. 749, 32 Oviatt V. Pond, 29 Conn. 479, 295, 313 Owen V. Boyle, 22 Me. 47, 36, 392 Owen D. Gooch, 2 Esp. 567, 82 Owen v. Nail, 6 T. R. 339, 702, 223 Owings v. Owings, 1 Har. & G. (Md.) 484, 88 Oxley V. Cowperthwaite, 1 Dall. 349, 219 P. Pace 0. Pierce, 49 Mo. 393, 32 Pacific Ins. Co. v. Conard. 1 Baldwin, (C. C.) 138, 294, 296, 315, 340 Packard «. Getman, 4 Wend. 613, 59, 201 Page v. Crosby, 34 Pick. 211, 214, 216 Page v. Fowler, 28 Cal. 605, 52 Page V. Fowler, 39 Cal. 412, 53, 54, 303 Paget's Case, 5 Coke's Rep. 76 b. 48 Paige V. Smith, 99 Mass. 395, 140 PA.&BS. Pain V. Whittaker, Ry. & Moody, 99, 61 Palm v. Ohio & Miss. R. R. Co., 18 111. 217, 314 Palmer v. Corwith, 3 Chaud, (Wis.) 297, 129 Pangburn «. Patridge, 7 Johns. 140, 23, 30, 67, 384 Pardee v. Robertson, 6 Hill, 550, 169 Parham v. Riley, 4 Cold. (Tenn.) 5, 24, 66, 174, 286 Park «. McDaniels, 37 Vt. 594, 311, 315, 365 Parker v. Browning, 8 Paige, 388, 140 Parker v. Garrison, 61 111. 250, 89, 112 Parker v. Hall, 55 Me. 363, 333, 230 Parker ». Mellor, Carth. 398, 277 Parker v. Mellor, 1 Ld. Raym. 217, 377 Parker «. Patrick, 5 D. & E. 103, 175. 191 Parker v. Simonds, 8 Met. 305, 236, 243, 351, 268, 311 Parker «. Storts, 15 Ohio St. 351, 54 Parks V. Barkham, 1 Mich. 95, 361, 428 Parlin ®. Austin, 3 Col. 337, 389 Parmalee •». Loomis, 24 Mich. 243, 31, 419 Parsley v. Huston, 3 Blackf. 348, 371, 373, 880 Parsons v. Boyd, 30 A.la. 112, 66, 88 Parsons v. Dickinson, 11 Pick. 353, 350 Parsons o. Harper, 16 Gratt. (Va.) 64, 315 Parsons v. Martin, 11 Gray. (Mass.) Ill, 298 Parsons v. Webb, 8 Green, (Me.) 38, 179, 197 Parsons v. Williams, 9 Conn. 236, 234 Partridge v. Swazey, 46 Me. 414, 197 Ixvi TABLE OF CASES CITED. PAGES. Patchen v. Wilson, 4 Hill, 57, 347 Patchin v. Pierce, 13 Wend. 61, 121 Patterson «. Fowler, 23 Ark. 396, 68 Patterson «. United States, 3 Wheat. 231, 403, 405 Pattison ®. Adams, 7 Hill, (N. Y.) 136, 22, 59, 365, 367 Patton V. Hamner, 28 Ala. 618, 378 Paul V. Luttrell, 1 Col. 817, 23, 24, 37, 78, 199, 202, 368, 367, 385 Payne «. Bruton, 5 Eng. (10 Ark.) 53, 186, 856, 859 Payne «. Drewe, 4 East. 528, 166 Pearce v. Humpltreys, 14 S. & R. 33, 319 Pearce ». Twichell, 41 Miss. 844, 289, 847, 418 Pearson v. Graham, 5 Ad. & El- lis, 899, 206 Pearsons v. Eaton, 18 Mich. 80, 418 Peck V. Brewer, 48 111. 54, 843 Peck V. Jenness, 7 How. (U. S.) 612, 274 Peck V. Wilson, 22 111. 205, 235, 345, 249 Peirce v. Hill, 9 Porter, (Ala.) 151, 23, 34, 36, 143, 161 Pemhle «. Clifford, 3 McCord, (8. C; 31, 386 Pemble v. Cliflford, 8 McCord, (S. C.) 34, 236 Penfield v. Rich, 1 Wend. 380, 346 Penny v. Little, 3 Scam. (111.) 301, 391 Pennybecker v. McDougal, 46 Cal. 661, 54 Pennybecker v. McDougal, 48 Cal. 160, 42, 49, 333 Penrose v. Green, 1 Mo. 774, 413 People V. Albany Com. Pleas, 7 Wend. 485, 124, 126, 129 People V. Brown, 6 Cow. 41, 168 People V. Core, 85 111. 248, , 165, 226, 859 People V. McGarren, 17 Wend. 460, 70 People ex rel., etc., o. N.Y. Com. Pleas, 3 Wend. 644, "" 277 FASEB. People V. Niagara C. P., 4 Wend. 217, 290, 385 People V. Supervisors of Che- nango, 11 N. Y. 563, 132 People «. Tioga C. P., 1 Wend. 291, 356 People V. Tripp, 15 Mich. 518, 415, 416 Perigo, etc., v. Grimes, 2 Col. 651, 426 Perkins v. Barnes, 3 Nev. 557, 200, 212 Perkins v. Rudolph, 36 111. 806, 426 Perkins «. Smith, 4 Blackf. 399, 856, 358, 861, 362 ' Perkins v. Thornburgh, 10 Cal. 189, 150 Parley v. Balch, 28 Pick. 283, 188 Parley o. Poster, 9 Mass. 113, 59, 65, 69, 168 Perreau v. Bevan, 5 B. & C. 284, 230, 231, 233, 245, 826 Perry v. Lewis, 49 Miss. 443, 413 Perry v. Richardson, 9 Gray, 216, 141 Persley v. Powers, 83 111. 135, 201 Persse v. Watrous, 80 Conn. 139, 13, 237, 231, 333, 234, 236, 255 Peterson v. Haight, 3 Whart. (Pa.) 150, 343 Petre «.Duke, Lutw. 860, 88, 297, 363 Petrie v. Fisher, 43 111. 442, 225 Pettengill v. Merrill, 47 Me. 109, 108 Pettingill v. Rideout, 6 N. H. 454, ~ 175 Pettit V. Addington, Peake, 62, 812 Pettygrove v. Hoyt, 11 Me, 66, 27, 331, 239, 332 Peyton v. Robertson, 9 Wheat. 537, 22 Phelan v. Bonham, 4 Eng. (Ark.) 389, , 73 Phelps J). Owens, 11 'Cal. 33, 343 Phenix «. Clark, 3 Mich. 327, 291, 293, 845, 356, 360, 428 Philips V. Harriss, 8 J. J. Mai'sh. (Ky.) 124, 21, 33, 138, 146, 274 TABLE OF CASES CITED. Ixvii PASES. Phillip V. Pierce, 3 Maul. & Sel. 183, 333 Phillips V. Hall, 8 Wend. 610, 33, 75, 205 Phillips D. Monges, 4 Whart. 325, 843 Pliilpott «. Dobbinson, 6 Bing. 104, . 397 Phipps V. Boyd, 54 Pa. St. 343, 397 Pickard v. Low, 15 Me. 48, 138 PickeDS V. Oliver, 39 Ala. 538, 290, 369 Pickering v. Busk, 15 East. 38, 179 Pickering v. Pickering, UN. H. 141, 88 Pickett c. Bridges, 10 Humph. (Tenn.) 171, 411, 416, 417 Pierce ». Benjamin, 14 Pick. 356, 2.98 Pierce v. Stevens, 30 Me. 184, 59, 66 Pierce v. Van Dyke, 6 Hill, 618, 37, 197, 199, 313, 370, 388, 356 Pigat's Case, 11 Co. Rep. 27, 233 Pike V. Gandall, 9 Wend. 149, 396 Pilkington a. Trigg, 38 Mo. 95, 100 Pilsbury v. Webb, 33 Barb. 213, 178, 197 Pinkerton «. Railroad, 43 N. H. 424, 303 Piper V. Martin, 8 Barr. (Pa.) 306, 46 Pirani v. Barden, Pike, (5 Ark.) 81, 38, 197, 308, 223, 224, 355 Pirkins v. Rudolph, 36 111. 306, 241, 351 Pitt V. Owens, 9 Wis. 153, 193 Plainfield v. Batchelder, 44 Vt. 9, 383, 405 Plant v. Crane, 7 Port. (Ind.) 486, 268 Piatt V. Brown, 30 Conn. 336, 315 Piatt V. Hibbard, 7 Cow. 497, 73 Plunkett V. Moore, 4 Har. (Del.) 379, 336 Poinsett v. Taylor, 6 Cal. 78, 168 Polite V. Jefferson, 5 Har. (Del.) 388, 170 FAQSS. Pomeroy «. Crocker, 4 Chand. (Wis.) 174, 413 Pomeroy s. Trimper, 8 Allen, 398, 75, 98, 336, 359 Pool V. Loomis, 5 Ark. 110, 169, 331, 358 Poole V. Adkinson, 1 Dana, 110, 178, 198, 313 Poor V. Woodburn, 35 Vt. 234, 183, 185, 188, 385, 355, 404, 417 Pope V. Tillman, 7 Taunt. 643, 95, 97 Porter -o. Miller, 7 Tex. 468, 26, 33, 353 Porter «. Willet, 14 Abb. Pr. Rep. 319, 26, 286 Portland Bank v. Stubbs, 6 Mass. 433, 88 Pothonier v. Dawson, Holt N. P. 888, 313 Pott ». Oldwine, 7 Watts, 173, 135 Potter v. Hall, 3 Pick. 368, 9 Potter V. James, 7 R. I. 313, 338 Potter •». Merchants' Bank, 38 N. Y. 641, 304 Potter ». North, 1 Wm. Saund. 347, 88, 377, 363 Powell 0. Bradlee, 9 Gill. & J. (Md.) 230, 138, 145, 184, 187, 189, 190, 194 Powell V. Hinsdale, 5 Mass. 343, 270, 285, 404, 417 Powell V. Smith, 3 Watts, 136, 51 Powers V. Bassford, 19 How. Pr. 309, 83, 310 Powers v. Plorance, 7 La. Ann. 534, 393 Poyen v. McNeill, 10 Met. 391, 438 Pozzoni V. Henderson, 2 E. D. Smith, 146, 153, 334 Prater v. Prazier, ll^Ark. 349, 59, 368 Pratt V. Donovan, 10 Wis. 878, 345, 415, 416 Pratt D. Parkman, 34 Pick. 43, 106 Pratt V. Tucker, 67 111. 346, 370, 404 Preface 8 Vol. Coke's Reports, xvii. 3 Ixviii TABLE OF CASES CITED, Prentice v. Ladd, 13 Conn. 331, 86 Presgrave v. Saunders, 3 Ld. Raym. 984, 374, 387, 377 Presgrave «. Saunders, 1 Salk. 5, 379 Presgrove v. Saunders, .6 Mod. 81, 377 Presley v. Powers, 83 111. 135, 60, 301 Pribble v. Kent, 10 Ind. 335, 178 Price V. Helyer, 4 Bing. 597, 33 Price v. Talley's Admr., 18 Ala. 21, 88 Prime v. Cobb, 63 Me. 303, 207 Pringle v. Phillips, 1 Sandf. 293, 380 Pringle v. Phillips, 5 Sandf. (N. Y.) 157, 196. 198, 199, 207 Printems v. Helfried, 1 Nott & McC. (S. C.) 187, 395 Prior V. White, 12 111. 261, 121 Prosser s. Woodward, 31 Wend. 305, 370, 373, 365, 367, 368, 873, 376, 380 PufendorflF Law of Nature, Bk. 4, Ch. 7, § 10, 115 Pugh V. Calloway, 10 Ohio St. 488, 398 Pulis V. Bearing, 7 Wis. 331, 26 Pullen V. Keneinger, 11 Int. Rev. Rec. 197, 126, 137 Purple V. Purple, 5 Pick. 226, 337, 243 Purves V. Moltz, 5 Rob. (N. Y.) 653, 176, 198, 210 Putnam v. Cushlng, 10 trray, (Mass.) 334, 117, 133 Putnam v. Parker, 55 Me. 335, 90 Putnam ». Wise, 1 Hill, 235, 346 Putnam B. Wyley, 8 Johns. 432, 66 Pyle ®. Pennock, 3 Watts & Serg. 390, 46 Q- Quincy v. Hall, 1 Pick. 357, 373, 274, 375, 395 Quinn «. Wallace, 6 Whart. (Pa.) 453, 394 R. PAGES. Raiford v. Hyde, 36 Geo. 93, 188 Ralston v. Black, 15 Iowa, 47, 33, 146, 168, 205 Ralston v. Hughes, 13 111. 469, 54 Ramsay ■». Bancroft, 3 Mo. 151, 66 Ramsdell v. Buswell, 54 Me. 546, 24, 33, 36, 81, 83, 149 Ramsey v. Waters, 1 Mo. 406, 407 Rand v. Nesmith, 61 Me. Ill, 299 Randall v. Cook, 17 Wend. 55, 132 Ranney v. Thomas, 45 Mo. Ill, 267, 286, 287 Rapalje v. Emory, 2 Dall. (Pa.) 51, 99 Rapp V. Vogle, 45 Mo. 534, 93 Rathbun v. Ranney, 14 Mich. 383, 15, 268 Read v. Markle, 3 Johns. 533, 427 Reade v. Hawks, Hob. 16, 138 Rector «. Chevalier, 1 Mo. 345, 31, 439 Redman v. Hendricks, 1 Sandf. ■ (N. Y.) 33, 59, 131, 131 Reece v. Hoyt, 4 Port. (Ind.) 169, 92 Reed v. Reed, 13 Iowa, 5, 378 Reed v. Spaulding, 43 N. H. 114, 106 Reese v. Harris, 27 Ala. 301, 59, 64, 66, 95, 379 Reese ®. Jared, 15 Ind. 143, 42, 336 Reese v. Mitchell, 41 111. 365, 121 Reeside «. Tischer, 3 Har. & G. (Md.) 320, 138 Reeve v. Mitchell, 15 111. 297, 426 Reeves o. Reeves, 33 Mo. 28, 243,244 Regina «. West, 1 Dearsley, 402, 70 Reinheimer v. Hemingway, 35 Pa. St. 433, 88, 90, 93 Reist B. Heilbrenner, 11 Serg. & R. (Pa.) 131, 39, 429 Remington v. Cady, 10 Conn. 44, 93 Rex V. Jones, 1 Str. 704, 356 Rex «. Lewis, 2 T. R. 617, 224 TABLE OF CASES CITED. Ixix FAGES. Reynolds v. Lounsbury, 6 Hill, 534, 363, 364, 366 Reynolds v. McCormick, 62 111. 413, 87, 337, 380 Reynolds «. Bailee, 3 B. Mon. (Ky.) 18, 151 Reynolds «. Shuler, 5 Cow. 338, 33,45 Rhines v. Phelps, 3 Gilm. (111.) 455, 144 Rhoads v. Woods, 41 Barb. 471, 75, 331, 333, 333 Rhodes v. Bunts, 31 Wend. 19, 408 Riccards ». Cornforth, 5 Mod. 366, 13 Rich V. Baker, 3 Denio, 79, 33 Rich V. Penfield, 1 Wend. 380, 346 Rich V. Ryder, 105 Mass. 306, 73, 91, 330, 347 Richardson o. Adkins, 6 Blackf. 141, 406 Richardson v. Reed, 4 Gray, (Mass.) 441, 36, 78, 81, 369, 290, 353 Richai'dson v. Smith, 39 Cal. 539, 171, 380 Richardson v. Vice, 4 Blackf. 13, 393 Richardson v. York, 3 Shep. (Me.) 315, 46, 48 Ricker v. Kelly, 1 Gr. (Me.) 117, 43 Ricketts v. Dorrel, 55 Ind. 470, 40, 43, 118, 119, 166 Rickner v. Dixon, 3 G. Greene, (Iowa,) 591, 272 Riddle v. Driver, 12 Ala. 590, 117 Riddle v. Parke, 13 Ind. 89, 886 Riddle «. Weldon, 5 Whart. 9, 393 Ridge V. Wilson, 1 Blackf. (Ind.) 409, 391, 394 Riford v. Montgomery, 7 Vt. 411, 176, 307 Rigg V. Wilton, 18 111. 15, 383 Riglitmyer v. Raymond, 13 Wend. 51, 117, 118 Riley v. Boston Water Power Co., 11 Cush. 11, 176, 197, 199, 207 PASES. Ring V. Billings, 51 111. 475, 48 Ringo V. Field, 1 Eng. (6 Ark.) 48, 384 Ripley «. Davis, 15 Mich. 75, 395, 398 Ripley v. Dolbier, 18 Me. 883, 302 Rives V. Wilborne, 6 Ala. 45, 166, 263, 364 Roach V. Binder, 1 Col. 333, 197 Roach ■». Moulton, 1 Chand. (Wis.) 187, 336, 359 Robbins v. Packard, 31 Vt. 570, 304 Robbins' Admr. v. Walker, 3 Texas, 130, 819 Roberts ». Mason, 10 Ohio St. 377, 316 Roberts «. Randel, 3 Sandf. (N. Y.) 707, 77, 83 Roberts v. Tennell, 4 Litt. (Ky.) 386, 399 Roberts i). The Dauphin Bank, 19 Pa. St. 71, 40, 55, 166 Roberts v. Wyatt, 2 Taunt. 368, 61, 73, 347 Robertson v. Davidson, 14 Minn. 554, 336 Robertson v. Jones, 71 111. 405, 118, 884 Robinson a. Atlantic & Gt. W. Ry., 66 Pa. St. 160, 140 Robinson «. Baker, 5 Cush. (Mass.) 137, 180, 309 Robinson «. Barrows, 48 Me. 186, 395, 398 Robinson v. Calloway, 4 Ark. 94, 68, 354, 367, 874, 380 Robinson «. Camplin, 9 Iowa, 91, 61 Robinson v. Hofman, 4 Bing. 563, 394 Robinson v. Mansfield, 13 Pick. 139, 35, 305 Robinson «. Richards, 45 Ala. 354, 33, 34 Rockwell V. Saunders, 19 Barb. 473, 110, 414 Rodesbaugh v. Cady, 1 West. L. M. 599, 248 Ixx TABLE OF CASES CITED. FAQE3. Rogers «. Arnold, 13 Wend. 30, 31, 30, 60, 87, 370, 355, 373, 380, 384, 388 Rogers v. Huie, 3 Cal. 571, 177, 301, 305 Roland d. Gundy, 5 Ohio, 203, 178 Romain v. Van Allen, 36 (N. Y.) 309, 301 Roman «. Stratton, 3 Bibb. (Ky.) 199, 328, 238, 247 Ronge ®. Dawson, 9 Wis. 346, 38, 404 Roof V. Stafford, 7 Cow. (N. T.) 179, 35 Root V. Bonnema, 33 Wis. 539, 109, 197 Root v. Frencli, 13 Wend. 570, 189, 191 Root V. Woodruff, 6 Hill, (N. T.) 418, 95, 869, 370 Ropes V. Lane, 9 Allen, (Mass.) 503, 75, 103, 106, 110 Rose «. Cash, 58 Ind. 378, 38, 347 Rose V. Gallup, 33 Conn. 338, 110, 292 Rose T. Groves, 5 M. & G. 613, 313 Rose ®. Hart, 12 111. 378, 404 Rose V. Pearson, 41 Ala. 687, 329 Rose v. Tolly, 15 Wis. 443, 60, 66, 413, 418 Ross 11. Cassidy, 37, 87 How. Pr. 416, 83 Ross V. Johnson, 5 Burr, 3835, 201 Rotan V. Fletcher, 15 Johns. 308, 379 Rotch V. Hawes, 13 Pick. 136, 178 Rowan «. St. Bank, 45 Vt. 160, 399 Rowan v. Teague, 24 Ind. 304, 408 Rowark v. Lee, 14 Ark. 426, 414 Rowe V. Sharp, 51 Pa. St. 36, 193 Rowell V. Klein, 44 Ind. 390, 33, 48 Rowland v. Mann, 6 Ired. (N. C.) 38, 417 Rowley D. Bigelow, 13 Pick. 307, 182, 191 Rowleys. Gibbs, 14 Johns. 385, 394 Ruch V. Morris, 28 Pa. St. 345, 97, 103 PASES, Rucker ». Donovan, 13 Kan. 251, 62,368 Russell V. Allen, B Kern. (N. T.) 173, 86, 89, 328 Russell V. Butterfleld, 31 Wend. 300, 431 Russell «. Minor, 33 Wend. (N. T.) 659, Sg' Russell «. Richards, 10 Me. (1 Fair.) 429, 49 Russell V. Smith, 14 Kan. 366, 289, 324, 343 Ryan v. Brant, 42 111. 78, 188 Ryan v. Clanton, 3 Strob. (S. C.) 411, 133 Ryder «. Hathaway, 21 Pick. 398, 95, 111, 113, 114, UT S. Saffell «. Wash, 4 B. Mon. (Ky.) 92, 152, 269, 324 Sager «. Blain, 5 Hand. (44 N. Y.) 445, 41, 59, 66, 99, 419 St. John V. O'Connell, 7 Porter, (Ala.) 466, 215 St. L., Alton & C. R. R. v. Cas- tello, 28 Mo. 379, 95, 119 St. Louis, A & 0. R. R. Co. v. Dalby, 19 111. 353, 848 St. Martin v. Desnoyer, 1 Minn. 41, 25 Salkold B. Skelton, Cro. Jac. 519, 268, 273, 374, 287, 377 Salter v. Sample, 71 111. 430, 46, 47 Saltus V. Everett, 20 Wend. 267, 174, 189, 344 Sammons v. Newman, 27 Ind. 508, 348, 251 Samuel v. Agnew, 80 111. 553, 147, 153 Sanborn v. Baker, 1 Allen, 536, 311 Sanborn v. Colman, 6 N. H. 14, 178, 179 Sanborn «. Leavitt, 43 N. H. 473, 144, 145 TABLE OF OASES OITED. Ixxi PAHES. Sandeford v. Hess, 1 Head. (Tenn.) 679, 173 Sanders v. Reed, 13 N. H. 558, 48, 51, 55 Sanders v. Young, 31 Miss. Ill, 93 Sanderson v. Lace, 1 Chand. (Wis.) 231, 367 Sands v. Pfeifer, 10 Cal. 358, 48, 51 Sanl'ord Manuf. Co. v. Wiffgin, 14 N. H. 441, 31, 173, 384 Sanger v. Kinkade, 16 III. 44, 370 Sapsford v. Fletcher, 4 Term R. 51^, 400 Sargent «. Courrier, 66 111. 245, 89,90 Sargent ®. Gile, 8 N, H. 335, 178, 179 Sargent v. Metcalf, 5 Gray, 306, 193 Sargent v. Strum, 23 Cal. 359, 181, 189, 191, 203, 208 Sarjeant v. Blunt, 16 Johns, 74, 178, 179, 181 Savacool v. Boughton, 5 Wend. 170, 126 Savage «. Gunter, 32 Ala. 467, 267, 375 Savage «. Perkins, 11 How. Pr. R. 17, 78, 83, 300, 385 Savercool v. Farwell, 17 Mich. 308, 309 Savile «. Roberts, 1 Ld. Raym. 374, 384 Sawtelle v. Rollins, 23 Me. 196, 31, 65, 67, 351 SaWyer^.Baldwin, llPick. 492, 41 Sawyer v. Huflf, 25 Me. 464, 79, 384, 385, 386 Sawyer v. Merrill, 6 Pick. 478, 197 Saxton V. Williams, 15 Wis. 393, 121 Sayers ■». Holmes, 3 Coldw. (Tenn.) 359, 333, 409, 417 Sayward v. Warren, 37 Me. 453, 81 Schaflfer «. Faldwesch, 16 Mo. 337, 359 Schermerhorn v. Van Volken- burgh, 11 Johns. 529, 67, 376, 379 PAGES. Schimmelpennich ■». Bayard, 1 P§t. 264, 178 Schofleld V. Ferrers, 46 Pa. St. 438, 276, 311, 312, 338, 365 School Dist. V. Bragdon, 28 N. H. 507, 351 School Dist. No. 5 v. Lord, 44 Me. 874, 66 School Dist. V. Shoemaker, 5 Neb. 36, ■ 284 Schrader «. Wolflin, 31 Ind. 238, 131, 235 Schulenberg v. Campbell, 14 Mo. 491, 38, 51 Schulenberg i). Harriman, 31 Wall. (U. 8.) 44, 48, 114, 176, 376 Schwartz v. Skinner, 47 Cal. 5, 87,89 Scott V. Elliott, Phill. (N. C. L.) 104, 69 Scott V. Elliott, 63 N. C. 315, 31, 33, 41, 288, 395 Scott V. Fuller, 3 Pa. 55, 397 Scott ®. Hughes, 9 B. Mon. (Ky.) 104, 328, 376 Scott ». King, 13 Ind. 308, 104 Scott V. Rogers, 81 N. Y. 676, 181, 303 Scrngham v. Carter, 13 Wend. 131, 93 Scudder v. Worster, 11 Cush. 573, 101, 103, 114 Seabury v. Ross, 69 111. 533, 292 Seaman v. Luce, 33 Barb. 340, 151, 322, 333, 414, 416 Sears v. Win gate, 3 Allen, 103, 344 Seaver v. Dingley, 4 Gr. (Me.) 306, 83, 182, 183, 181, 197, 312 Seaver v. Lincoln, 31 Pick. 267, 425 Seavy v. Dearborn, 19 N. H. 351, 111 Seay v. Bacon, 4 Sneed. (Tenn.) 99, 377 Seeman v. Feeney, 19 Minn. 79, 340 Seibert v. M'Heury, 6 Watts, 801, 59, 110, 878, 380 Selden v. Cashman, 20 Cal. 57, 818, 889, 840, 343 Ixxii TABLE OF OASES CITED, PiGBS. Seldner v. Smith, 40 Md. 60S, 28, 254, 273, 313, 323, 375, 419 Seldon v. Hickock, 2 Term. R. (N. Y.) 166, 91 Sellar v. Clelland, 2 Col. 532, 308 Semanye's Case, 5 Coke, 91, 163 Sewell's Falls Bridge «. Fisk, 23 N. H. 171, 314 Seymour v. Billings, 12 Wend. 286, 12, 370, 284, 285, 355, 363, 378, 384, 385 Shaddon v. Knott, 3 Swan, (Tenn.) 357, 22, 141 Shannon v. Shannon, 1 Sch. & Lef. (Irish,) 334. 7, 32, 29, 31 Sharp V. Gray, 5 B. Mon. (Ky.) 4, 419 Sharp V. Parks, 48 111. 511, 174 Sharp V. Whittenhall, 8 Hill, 576, 24, 32, 60 Shaver ». White, 6 Munford, (Va.) 110, 93 Shaw V. Becket, 7 Cush, 443, 183 Shaw V. Coster, 8 Paige, (N. T.) 339, 148 Shaw V. Hoffman, 31 Mich. 155, 864 Shaw i>. Levy, 17 S. & E. (Pa.) 99, 141, 145 Shaw v. Tobias, 3 Comst. (N.Y.) 188, 236, 242, 244, 247, 248, 249 Shearick v. Huber, 6 Binn. (Pa.) 2, 22, 23, 65, 76, 138, 172 Shelden v. Robinson, 7 N. H. 157, 213 Sheldon «. Van Buskirk, 3 Comst. (N. Y.) 473, 129 Shell ®. Haywood, 16 Pa. St. 533, 46 Shelton v. Berry, 19 Tex. 154, 357, 428 Shepardc.Butterfleld, 41 111. 76, 832 Shepherd ». Johnson, 2 East. 211, 395, 398, 331 Sherry i>. Poresman, 6 Blackf. 56, 248, 249, 350 Shipman v. Clark, 4 Denio, 446, 144, 146, 148 Shoemaker ». Simpson, 16 Kan. 43, 198 PASEB. Shomo v. Caldwell, 21 Ala. 448, 67, 68, 368 Shorey ®. Hussey, 33 Me. 579, 168 Short c. Barker, 22 Ind, 148, 175 Shufeldt v. Pease, 16 Wis. 659, 189 Shumway «. Rutter, 8 Pick. 443 209 Shuter v. Page, 11 Johns. 196, 373, 376, 385 Silsbury v. McCoon, 3 Comst. 879, 118, 337 Silsbury v. McCoon, 4 Denio, 332, 119, 148 Silsbury v. McCoon, 6 Hill, (N: Y.)425, 119,337 Simcoke v. Frederick, 1 Ind. 54, 68, 256, 396, 428 Simmonds ■». Swift, 5 B. & C. 857, 103 Simmons v. Brown, 5 R. 1. 299, 342 Simmons v. Jenkins, 76 111. 479, 110, 122, 386, 387 Simmons v. Lettystone, 4 Exch. 443, ' 201 Simmons o. Lyons, 3 Jones & Spencer, (N. Y.) 554, 366 Simonds v. Parker, 1 Met. 508, 230,243 Simpson v. M'Parland, 18 Pick. 427, 270,274,276,277, 373, 384, 385, 395 Simpson v. Perry, 9 Geo. 508, 409, 418 Simpson v. Wrenn, 50 111. 222, 64, 203, 312 Sims V. Boynton, 32 Ala. 354, 379 Sims V. Glazener, 14 Ala. 695, 109 Sims ». Reed, 13 B. Mon. (Ky.) 51, 139, 150 Single V. Barnard. 29 Wis. 463, 407,412 Single V. Schneider, 34 Wis. 299, 336 Single V. Schneider, 30 Wis. 570, 117 Sippora v. Basset, 1 Sid. 225, 312 Six Carpenters' Case, 8 Coke R. 146, 893 Six Carpenters' Case, 1 Smith's Lead. Cases, 63, 393 TABLE OF CASES CITED. Ixxiii FAQE8. Sketoe v. Ellis, 14 111. 75, 893 Skidmore v. Taylor, 29 Cal. 619, 41, 99 Skinner v. Chicago, etc., R. R., 12 Iowa, 191, 63 Skinner e. Stouse, 4 Mo. 93, 60, 66, 85, 205 Skipp V. Harwood, 2 Swanst. 586, 93 Slack V. Brown. 13 Wend. 390, 311 Slayton v. Russell, 30 Geo. 137, 23 Sleeper v. Osgood, 50 IST. H. 331, 366 Slocum«. Mayberry, 3 Wheat. 2, 156, 157 Sluyter v. Williams, 1 Sweeny, (lir.T.)215, 197 Small V. Hutchins, 19 Me. 255, 79, 81 Smith V. Archer, 53 111. 241, 202 Smith «. Aurand, 10 S. & R. (Pa.) 93, 369, 274, 398 Smith 0. Barse, 2 Hill. 387, 426 Smith V. Benson, 1 Hill, (N. T.) 176, 43 Smith V. Clark, 4 Durnf. & E. 476, 351 Smith V. Colson, 10 Johns. 91, 393, 397 Smith V. Coolbaugh, 19 Wis. 106, 415 Smith V. Crockett, Minor, (Ala.) 277, 35 Smith D. Dennie, 6 Pick. 262, 183, 193 Smith V. Doty, 24 111. 163, 188 Smith «. Emerson, 15 Ind. 355, 358, 363, 387 Smith V. Field, 5 Term R. 211, 403, 187 Smith V. Fyler, 3 Hill, (N. Y.) 648, 393, 397 Smith V. Goodwin, 2 Me. 173, 55, 56 Smith V. Graves, 25 Ark. 458, 67, 68, 177, 368 Smith e. Griffith, 3 Hill, 333, 303, 309 Smith D. Houston, 35 Ark. 183, 34, 391, 406 PAess. Smith v. Howard, 33 Ark. 303, 229, 438 Smith V. Huntington, 3 N. H. 76, 33 Smith V. Lisher, 33 Ind. 500, 248 Smith V. Lydlok, 42 Mo. 209, 67 Smith V. Lynes, 1 Seld. (N. T.) 41, 191, 193 Smith V. McFall, 18 Wend. 521, 165, 231, 232, 333, 239 Smith V. McGregor, 10 Ohio St. 461, 260, 265, 268, 375 Smith V. McLean, 34 Iowa, 333, 38, 98 123, 197, 212, 257, 867 Smith V. Montgomery, 5 Iowa, 370, 22, 146, 355, 369 Smith V. Moore, 11 N. H. 55, 55 Smith V. Morrill, 56 Me. 566, 109 Smith V. Orser, 43 Barb. 187, 66, 81 Smith v. Phelps, 7 Wis. 211, 404 Smith V. Plomer, 15 East. 607, 59, 62 Smith V. Pries, 21 111. 656, 235, 236 Smith e. Roby, 6 Heisk. (Tenn.) 546, 240, 244 Smith V. Sanborn, 6 Gray, 184, 95 Smith B. Sherman, 4 Cush. (Mass.) 408, 313 Smith V. Sherwood, 3 Tex. 460, 313 Smith V. Snyder, 15 Wend. 824, 145, 370, 286, 290, 384, 385 Smith V. Trawl, 1 Root, (Conn.) 165, 333 Smith V. Welch, 10 Wis. 91, 197 Smith V. Whiting, 97 Mass. 816, 223, 235, 237 Smith ». Whiting, 100 Mass. 123, 391 Smith «. Williamson, 1 Har. & J. (Md.) 147, 28, 64, 215, 351, 375 Smith V. Winston, 10 Mo. 399, 172, 286 Smith V. Wood, 31 Md. 393, 347, 853, 404 Smith V. Young, 1 Campb. 440, 213 Snedeker v. Quick, 6 Halst. (N. J.) 179, 95, 257, 369 Snelgar v. Hewston, Cro. Jac. 611, 369 Ixxiv TABLE OF CASES CITED, PAS£8. Snow «. Como, Str. Rep. 507, 386 Snow V. Roy, 23 "Wend. 603, 84, 258, 378 Snyder v. Vaux, 2 Rawle, (Pa.) 423, 33, 41, 48, 51, 95, 116, 119 Soames v. "Watts, 1 C. & Payne, 400, 207 Solomons •». Dawes, 1 Esp. 83, 214, 215 Somes v. Brewer, 2 Pick. 184, 191 Sopris ®. Lilley, 2 Col. 496, 231, 333, 385, 239, 253, 333 Sopris V. Truax, 1 Col. 89, 197 Southall V. Garner, 3 Leigh. (Ya.) 372, 354 Southcote V Bennett, Cro. Eliz. 815,. 83 Southern Planli Road Co. ■». Hixon, 5 Ind. 165, 41 Southwick «. Smith, 29 Me. 229, 66 Sparks v. Heritage, 45 Ind. 66, 371 Speer v. Skinner, 35 111. 283, 224, 259, 261, 264, 401 Spencer «. Blackman, 9 "Wend. 167, 206 Spencer v. Dickerson, 15 Ind. 368, 230 Spencer «. M'Gowen, 13 Wend. 356, 36, 139, 148, 398 Spicer v. Waters, 65 Barb. 337, 398 Spoor V. Holland, 8 Wend. 445, 337 Sprague v. Birchard, 1 Wis. 457, 163 Sprague «. Clark, 41 Vt. 6, 23, 33, 36, 60, 68, 358, 365 Sprague v. Kneeland, 13 Wend. 161, 405 Spraights v. Hawley, 39 N. T. 441, 177, 205 Spring ». Bourland, 6 Eng. (Ark.) 658, 139, 144 Sproule «. Ford, 3 Litt. (Ky.) 26, 298 Squires v. Smith, 10 B. Mon. (Ky.) 33, 79, 139, 200 Stacy V. Parnham, 3 How. Pr. Rep. 26, 356 FAGXS, Stanchfield v. Palmer, 4 G. Green, (Iowa,) 33, 95, 196, 197, 199, 206, 307 Stanley v. Gaylord, 1 Cush. 536, 33, 69, 177, 197, 207, 369 Stansfeld v. Hellawell, 11 E. L. & Eq. 559, 238 Stanton v. Hodges, 6 Vt. 64, 168 Stapleford v. White, 1 Houst. (Del.) 338, 59, 197 Starky v. Kelly, 50 N. T. 676, 800 State 0. Barrels of Liquors, 47 N. H. 369, 143 State V. Boisliniere, 40 Mo. 556, 323 State V. Jennings, 14 Ohio St. 73, 149, 167, 20i State v. McCann, 19 Mo. 349, 70 State «. Smith, 1 N. H. 846, 168 State V. Stephens, 14 Ark. 364, 333, 233, 237 State of California «. Wells, Fargo & Co., 15 Cal. 336, 191 State V. Williams, 5 Wis. 308, 164 Stearns v. Raymond, 36 Wis. 74, 114 Stedman v. Bates, 1 Ld. Raym. 64, 395, 398 Steele «. Thompson, 3 Penn. 8i, 397 Stephens «. Prazier, % B. Mon. (Ky.) 350, 171 Stephens v. Santee, 49 N. T. 35, 103 Stephens ®. Scott, 13 Ind. 515, 409, 410 Stephenson v. Hart, 4 Bing. 476, 18S Stephenson «. Little, 10 Mich. 433, 111 Stevens v. Eno, 10 Barb. 95, 74, 102 Stevens ». Cunningham, 3 Allen, (Mass.) 491, 180 Stevens v. McClure, 56 Ind. 384, 293 Stevens v. Osman, 1 Mich. 92, 95, 96, 97, 369 Stevens «. Tuite, 104 Mass. 328, 24, 253, 259, 360. 384, 389, 395 Stevenson «. Miller, 2 Litt. R. (Ky.) 307, 228 Stevenson v. Smith, 38 Cal. 101, 312, 371 TABLE OF OASES CITED. Ixxv Stevison v. Eai-nest, 80 111. 513, 233, 346, 869 Stewart «. Drake, 46 N. T. 449, 301 Stewart v. Wells, 6 Barb. 79, 38, 146 Stickney v. Smith, 5 Minn. 486, 366, 368 Stiles V. Griffith, 3 Teates, (Pa.) 82, 125, 133 Stillman v. Squire, 1 Denio, 327, 167, 168, 197, 199, 356 Stimpson ». Reynolds, 14, Barb. 506, 144. 148, 149 Stimson o. Farnham, 1 Moak's (English,) 60, 327 Stockwell v. Byrne, 22 Ind. 6, 238, 248 Stockwell V. Phelps, 34 N. Y. 363, 32, 54 Stockwell v. Veitch, 15 Abb. Pr. 412, 130 Stoddard «. Gilman, 22 Vt. 568, 125, 134 Stoltz V. The People, 4 Scam. (111.) 168, 407 Stone «. Bird, 16 Kan. 488, 139 Storm ». Livingston, 6 Johns. 44, 83, 210, 218, 216 Story «. O'Dea, 23 Ind. 326, 235 Story v. Robinson, 6 Term R. 73, 139, 84 Stoughton B. Rappalo, 3 S. & R. (Pa.) 559, 22, 33, 65 Stow «. Tarwood, 14 111. 424, 343 Stowell ■». Lincoln. 11 Gray, 434, 291 Stowell n. Otis, 71 N. T. 36, 378, 379 Stowell B. Pike, 2 Green. (Me.) 387, 56 Strang d. Whitehead, 12 Wend. 64, 312, 316 Strasburger v. Barber, 88 Md. 103, 340 Stratton v. Allen, 7 Minn. 502, 197 Straus V. Ross, 25 Ind. 300, 106 Btreeter v. Streeter, 43 111. 155, 343, 844, 400 FAOES. Strong -B. Daniel, 5 Ind. 348, 242 Strong «. Keene, 13 Irish L. R. 13, 291 Studdert v. Hassell, 6 Humph. (Tenn.) 137, 267, 420 Sudbury v. Stearns, 21 Pick. 148, 41, 348 Suggett's Admr. «. Cason, 26 Mo. 231, 103, 104 Sullivan i). Stephenson, 63 111. 290, 143 Summers ®. Parker, Taylor's N. C. Term Rep. 147, 245 Summons ». Austin, 36 Mo. 307, 61, 67, 69 Sunbolf V. Alford, 3 Mees & W. 248, 73, 84, 163 Supervisors, etc. v. Manny, 56 111. 160, 132 Susquehanna v. Finney, 58 Pa. St. 200. 101 Sutcliffe V. Dohrman, 18 Ohio, 181, 325, 327 SutTO 0. Hoile, 2 Neb. 186, 103, 194 Suydam v, Jenkins, 3 Sandf. (N. Y.) 614, 289, 295, 309, 329, 341, 342 Swain «. Roys, 4 Wis. 150, 292, 409 Swann •». Shemwell, 2 Har. & G. (Md.) 283, 15, 257 Sweetzer v. Mead, 5 Mich. 107, 418 Swift V. Barnes, 16 Pick. 194, 300, 308, 310, 811 Swift v. Crocker, 21 Pick. 241, 425 T. Tabor «. Hutson, 6 Ind. 322, 338 Talbot V. De Forest, 3 G. Gr. (Iowa,) 586, 133, 141 Talmadge v. Scudder, 38 Pa. St. 517, 303 Tamplin ». Addy, 8 Cow. 339. 188 Tannahill v. Tuttle, 3 Mich. 110, 132 Tardy v. Howard, 12 Ind. 404, 411 Tarpey v. Shillenberger, 10 Cal. 390, 238 Ixxvi TAOSLE OF OASES CITED. FAOIIS. Tarpy v. Shepherd, 30 Cal. 181, 306 Tatnm v. Sharpless, 6 Phil. (Pa.) 18,, 70 Taylor v. Carryl, 20 Howard, (U. S.) 584, 153, 374 Tayloi' V. Hathaway, 39 Ark. 597, 403 Taylor v. Ketchum, 35 How. Pr. (]Sr. Y.) 389, 306 Taylor u. Ketchum, 5 Eobt. (N. Y.) 507, 306 Taylor v. Moore, 3 Har. (Del.) 6, 397 Taylor «. Morgan, 3 Watts, (Pa.) 333, 392, 337 Taylor v. Riddle, 35 111. 567, 101, 361, 369 Taylor », Seymour, 6 Cal. 513, 209 Taylor v. Trask, 7 Cow. 349, 36 Taylor v. "Welbey, 36 Wis. 43, 36 Taylor b. Wells, 1 Mod. 46, 97 Taylor v. Wells. 2 Saund. 74 6, 281 Teall V. VanWyck, 10 Barb. 377, 343 Tell ■». Beyer, 38 N. Y. 161, 89 ■ Templeman's Case, 10 Mod. 25, 62 Terry v. Allls, 16 Wis. 478, 305 Terry b. Allis, 30 Wis. 33, 305 Terwillinger ■». Wheeler, 35 Barb. 620, 168 Thatcher v. Harlan, 3 Houst. (Del.) 194, 315 Thayer ». Hutchinson, 13 Vt. 504, 369, 375 Thayer v. Turner, 8 Met. 550, 185, 188 The Brig Sarah, etc., 3 Sumner, (U. S. C. C.) 206, 350 The Ordinary®. Smith, 3 Gr. (14 N. J. L.) 478, 333 The People «. Schuyler, 4 Comst. 173, 168 The Six Carpenters' Case, Smithe's Lead. Cases, vol. 1st, 62, 168 Thimblethorp's Case, Bulst. pt, 3, 310, 34 Thomas v. Abbot, Y. B. 30, 31 E. I. p. 18, 8, 15 PAG^S. Thomas v. Crofut, 14 N. Y. 474, 53 Thomas v. Spoflford, 46 Me. 408, 331, 336, 251, 311 Thomas ®. Wilson, 6 . Blackf. (Ind.) 303, 250 Thome e. Colton, 27 Iowa, 425, 111 Thompson v. Blanchard, 4 N. Y. 303, ' 85 Thompson v. Button, 14 Johns. 84, 59, 141, 403 Thompson JE!x parte, 15 Am. Law Beg. 533, 147, 148 Thompson v. Lacy, 8 Barn. & Aid. 383, 73 Thompson v. Mashiter, 1 Bing. 383, 394 Thompson v. Shirley, 1 Esp. N. P 0. 31, 196, 318 Thompson v. Sweetser, 43 Ind. 313, 376, 377 Thompson v. Trail, 6 B. & C. 36, 215 Thorp ». Burling, 11 Johns. 285, 206 Thorp V. Starr, 17 111. 199, 426 Thurber ». Eichmond, 46 Vt. 395, 278, 28( Thurston v. Blanchard, 23 Pick. 18, 183, 188, 197, 207 Tibbal v. Cahoon, 10 Watts. 233, 27 Tice v. Norton, 4 Wend. 663, 397 Tifft V. Tifft, 4 Denio, 175, 351 Tifft B. Verden, 11 S. & M. (Miss.) 158, 27 Timp «. Dockham, 82 Wis. 148, 80, 274 883, 388, 405 Tison's Admr. v. Bowden, 8 Pla. 69, 66, 139, 368 Titcomb. ■». Wood, 38 Me. 561, 177, 183, 184 Titus ®. Mabee, 25 111. 357, 122 Toles ». Cole, 11 111. 563, 253 Tome V. Dubois, 6 Wall. (TJ. S.) 548, 350 Tomlin v. Fisher, 37 Mich. 525. 27 Tomlinson v. Collins, 20 Conn. 365, - 66 Tompkins o. Haile, 3 Wend. 406, 69 Tousey v. Bishop, 23 Iowa, 187, 243 TABLE OF CASES CITED. Ixxvii PAGES. Town n. Evans, 1 Eng. (Ark) 260, 33, 37 Town V. Wilson, 8 Ark. 464, 355, 356, 359, 436 Towns V. Boarman, 33 Miss. 186, 392 Towns «. Wilcox, 13 Wend. 503, 436 Townsend v. Bargy, 57 N. Y. 665, 331 Tracy v. Swartwout, 10 Peters, 81, 393 Trapnall o. Hattler, 1 Eng. (Ark.) 18, 30, 183, 190, 208 Travers v. Inslee, 19 Mich. 100, 21, 37, 130 Treadwell c. Brown, 43 N. H. 390, 93 Trevilian v. Pyne, 1 Salk. 107, 401 Trieber v. Knabe, 13 Md. 149, 393 Trimble «. State, 4 Blackf. 435, 351 Tripp V. Howe, 45 Vt. 523, 224, 330, 358 Tripp v. Lei and, 43 Vt. 487, 83 Tripp v. Riley, 15 Barb. 333. 93, 111, 113 Trotter ®. Taylor, 5 Blackf. 431, 370, 384 Troy & Lansing R. R. Co. v. Kane, 73 N. Y. 614, 125 Trudo V. Anderson, 10 Mich. 357, 178, 180, 197, 207 Truitt V. Revill, 4 Har. (Del.) 71, 38, 171 Trulock v. Rigsby, Yelv. 185, 396 Tuck «. Moses, 54 Me. 115, 337 Tuck t. Moses, 58 Me. 461, 234, 338, 330, 350. 251, 369, 310 Tuley n. Mauzey, 4 B. Mon. (Ky.) 5, 373 Tulley t. Harloe, 35 Cal. 303, 370 Tullis v. Orthwein, 5 Minn. 377, 151 Tully v. Fairly, 51 Ind. 311, 193 Tummons s. Ogle, 37 B. L. & Eq. 15, 333 Turner B. Better, 58 111.364, 805,344 Turner t. Turner, 3 Brod. & & Bing. 107, 233, 333 Turrill e. Crawley, 13 Ad. & El. 197 73 Tuthill v. Wheeler, 6 Barb. 363, 60 Tuttle V. Cook, 15 Wend. 374, 168 Tuttle v. Cooper, 10 Pick. 381, 2o0 Tuttle v. Robinson, 78 111. 383, 309 Twells ®. Coldville, Willes, 375, 334 Twinam ». Swart, 4 Lans. 263, 151, 395, 319, 320 Tyler v. Freeman, 3 Cush. 361, 76 Tyler «. Strang, 31 Barb. 198, 103 Tyus V. Rust, 34 Geo. 383, 63, 72 TJ. Underbill v. Reinor, 2 Hill. (N. Y.) 319, 147 Underwood v. White, 45 111. 437, 271, 272, 384, 408 Union Lumber Co. v. Tronson, 36 Wis. 136, 169 United States ». Brown, Gilpin, C. C. 155, 333 United States «. Buchanan, 8 How. 83, 83 Updike -B. Henry, 14 111. 378, 75, 103 Usry B. Rainwater, 40 Geo. 338, 91 V. Vaiden d. Bell, 3 Randolph, (Va.) 448, 35, 33 Vail V. Lewis, 4 Johns. 450, 161 Valentine b. Jackson, 9 Wend. 303. 397 Van Buskirk v. Purinton, 3 Hall, (N. Y.) 560, 180 Van Cleef v. Fleet, 15 Johns. 147, 183 Vandenburgh v. Van Valken- burgh, 8 Barb. 317, 365, 366, 367 Vanderbilt v. Richmond Co., 3 Comst. 479, 168 Vanderburgh d. Bassett, 4 Minn. 343, 33 Ixxviii TABLE OF CASES CITED. Vanderslice n. Newton, 4 Oomst. (N. y.) 130, 313 Van Duynei). Coope, 1 Hill, (N. Y.) 557, 243, 348 Van Namee «. Bradley, 69 111. 299, 67, 171, 273, 374, 376, 879,884 Van Neste b. Conover, 30 Barb. 547, 88 Van Pelt v. McGraw, 4 Comst. (]Sr.T.)110, 55,56 Van Valkenburgh «. Thayer, 57 Barb. 196, 203 Van Winkle «. Udall, 1 Hill, 559, 166 Vaughn «. Norris, Ca. t. H. 137, 333, 284 Vausse «. Kussel, 3 McCord, (S. C.) 339. 40, 43, 51 Vennum v. Thompson, 88 111. 143, 98 Ventress o. Smith, 10 Pet. 161, 175 Vernon «. Wyman, 1 H. Bla. 34, 374 Vickeryi). Sherburne, 30 Me. 35, 884 V. & M. R. R. Co. v. Ragsdale, 46 Miss. 458, 365 Vocht ■!). Reed, 70 111. 491, 134, 131 Vogle «. Badcock, 1 Abb. Pr. (N. T.) 176, 367 Vogle Jftre, 7Blatchf. 19, 140 VoUum D. Simpson, 2 Bos. & Pull. 868, 385 Voorhees e. Earl, 3 Hill. 388, 188 Voorhis ®. Freeman, 3 Watts. & Serg, 116, 46 Vose B. Hart, 13 111. 378, 370, 373, 384 Vose ®. Stickney, 8 Minn. 75, 309 Vroom ». Exrs. of Smith, 3 Gr. (14 N. J. L.) 478, 233 W. Waddy Thompson, Em parte, 15 Am. Law Reg. 522, 147, 148 Wade V. Mason, 12 Gray, (Mass.) 885, 59, 66 Wakeman v. Lindsay, 19 L. J. Q, B. 166, 418 PAGES. Walbridge v. Shaw, 7 Cush. 560, 335, 278, 378, 420 Walcot V. Pomeroy, 3 Pick. 131, 65 Waldman «. Broder, 10 Cal. 879, 93, 367, 373, 375 Walker v. Fenner, 30 Ala. 193, 83, 203 Walker v. Fenner, 38 Ala. 367 87, 88 Walker ®. Hampton, 8 Ala. 413, 168 Walker ii. Hunter, 5 Cranch 0. Ct. 462, 409 Walkers. Smith, 1 Wash. C. C. 153, 338 Wallace v. Brown, 17 Ark. 449, 38, 66, 73 Wallace v. Brown, 5 Foster, (N. H.) 316. 418 Wallace «. Clark, 7 Blackf. 398, 348, 354, 373, 419 Wallace v. Hilliard, 7 Wis. 637, 403, 404, 411 Wallis V. Savil, Lutw. 16, 378 Wallis «. Savill, 3 Lutw. 493, 394 Walls «. Johnson, 16 Ind. 874, 253, 296 Walpole V. Smith, 4 Blackf. (Ind.) 304, 33. 60, 75, 197, 373, 375, 377, 883, 388, 405 Walsh V. Adams, 3 Denio, 135, 93 Waltman v. Allison, 10 Pa. St. 465, 396 Waples V. Adkins, Admr. of Mc- llvaine, 5 Har. (Del.) 381, 230 Ward V. ^yre, 3 Bulst. 323, 109 Ward «. Henry, 19 Wis. 76, 156 Ward V. Macauley, 4 Term Rep. 360 and 488, 33 Ward V. Masterson, 10 Kan. 77, 370, 407, 411, 415 Wardi). Smith, 8 Ired. (N.C.) 296, 101 Ward V. Taylor, 1 Pa. St. 238, 76 Ward V. Woodburn, 37 Barb. 846, 83 Wardrobe v. Calif. Stage Co., 7 Cal. 118, 340 Ware v. Percival, 61 Me. 391, 132 Warner v. Aughenbaugh, 15 S. & R. (Pa.) 9, 97, 103 TABLE OF CASES CITED. Ixxix PAGES. "Warner v. Caulk, 3 Whart. (Pa.) 193, 343 "Warner v. Cushman, 81 111. 383, 113 "Warner v. Hunt, 80 "Wis. 300, 66, 331, 406, 435 "Warner v. Matthews, 18 111. 83, 33, 63, 347, 349, 373, 294, 384, 419 "Warner ®. Sauk Co. Bank, 30 "Wis. 493, 99 "Warren v. Cole, 15 Mich. 365, 316, 337, 339 "Warren v. Leland, 9 Mass. 365, 66, 353, 869 "Washington Ice Co. ■». "Webster, 63 Me, 341, 268, 391, 399, 303, 811, 316, 333 "Waterbury D. "Westervelt, 5 Seld. (N. Y.) 598, 335 Waterman & "Wife v. Matteson, 1 Ames, (4 R. I.) 539, 56, 78 "Waterman v. Robinson, 5 Mass. 303, 33, 59, 65 Watkins «. Baird, 6 Mass. 506, 186 "Watkins v. Page, 3 "Wis. 92, 138, 145, 148, 359 "Watsons. McGtuire, 33 How. Pr. R. 87, 78 "Watson V. Todd, 5 Mass. 371, 139 "Watson V. Watson, 9 Conn. 140, 35,88,170 Watson V. Watson, 10 Conn. 75, 35 Watt s. Potter, 3 Mason, (C. Ct.) 77, 314, 315 Watts n. Green, 30 Ind. 98, 411 Waugh V. Bussel, 5 Taunt. 707, 344 Way V. Barnard, 36 Vt. 866, 85, 335, 368 Weathersby v. Sleeper, 43 Miss. 733, 49, 233 Weaver v. Darby, 43 Barb. 411, 831 Weaver ». Field, 1 Blackf. 835, 243 Weaver v. Lawrence, 1 Dall, (Pa.) 156, 6, 8, 15, 33, 36, 37 Webb V. Fox, 7 Term R. 393, 334, 65, 865 Webber -o. Davis, 44 Me. 147, 349, 350 PAGES. Webber v. Shearman, 6 Hill, (N. Y.) 20, 399, 401 Webber v. Underbill, 19 Wend. 447, 429 Weber v. Henry, 16 Mich. 399, 156 Weed V. Hinton, 7 Hill, 157, 164 Weed V. Page, 7 Wis. 508, 183, 188 Weeks ii. Peach, 1 Ld. Raym. 679, 396 Weeks v. Peach, 1 Salk. 179, 396 Weidel v. Roseberry, 13 S. & R. 178, 898 Weil V. Silverstone, 6 Bush. (Ky.) 698, 111 Weinberg v. Conover, 4 Wis. 808, 148, 169 Weizen v. McKinney, 3 Wis. 388, 418 Welch V. Durand, 36 Conn. 183, 315 Welch ■». Sackett, 13 Wis. 343, 133 Welch V. Smith, 45 Cal. 230, 95, 257 Weld V. Hadley, 1 N. H. 295, 369 Welker -v. Wolverkuehler, 49 Mo. 85, 182, 187 Wells V. Abraham, L. R. 7 Q. B. 554, 175 Wells V. Banister, 4 Mass. 514, 48 Wells V. Hornish, 8 Pen. & W. (Pa.) 30, 897 Wells V. Johnson, 16 Barb. 375, 270 Wells B. Lane, 15 Wend. 99, 426 Wells ». McClenning, 23 111. 409, 388 Wemple v. Stewart, 22 Barb. 154, 309 West V. Wentworth, 3 Cow. (N. Y.) 82, 803, 343 Westcott V. Bock, 2 Col. 335, 419 Westenberger v. Wheaton, 8 Kan. 169, 861 Wetherbee v. Green, 23 Mich. 311, 117, 118 Wetherell v. Spencer, 3 Mich. 138, 87 Weymouth v. C. & N. W. Ry. Co,, 17 Wis. 550, 117 Whaling «. Shales, 30 Wend. 678, 333, 339, 428 Wheadon v. Sugg, Cro. Jac. 373, 396 Ixxx TABLE OP CASES CITED. PAGES. Wheat v. Catterlin, 23 Ind. 85, 408, 410, 428 Wheeler«.McCorri9ten,24X11.42, 171 "Wheeler v. M'Farland, 10 Wend. 318, 30, 32, 37, 38, 60, 67 Wheeler v. Train, 8 Pick. 255, 60, 62 Wheeler v. Train, 4 Pick, 168, 24, 269, 274, 276 Wheeler v. Wilkins, 19 Mich. 78, 224, 416 Wheelock v. Cozzens, 6 How. (Miss) 379. 35,33 Whisler v. Roberts, 19 111. 274, 857 Whitaker v. Freeman, 1 Dev. (N. C.) 271, 383 Whitaker o. Wheeler, 44 111. 440, 152, 324 Whitcomb v. Hungerford, 42 Barb. 177, 74 White V. Brown, 5 Lans. (N. T.) 78, 197 White V. Demary, 3 N. H. 546, 213 White V. Dolliver,118 Mass. 400, 261, 263, 346 White ®. Gainer, 2 Bing. 23, 215 White V. Jones, 38 111. 159, 93, 141, 407 White V. Lloyd, 8 Blackf 390, 373, 375 White V. Moseley, 8 Pick. 356, 313 White v. Phelps, 12 N. H. 383. 122 White V. Ross, 5 Stewart & P. (Ala.) 123, 329 White -D. Spettigue, 1 Car. & Ker. 673, 174 White V. Spettigue, 13 M. & W. 608, 176 White V. Suttle, 1 Swan. (Tenn.) 168, 312 White V. Van Ilouten, 51 Mo. 577, 331 Wliite V. Webb. 15 Conn. 305, 323 White V. Wilks, 5 Taunt. 176, 103 Whitehouse v. Atkinson, 3 C. & P. (14 E. C. L.) 344, 399, 310, 334 Whitfield D. Whitfield, 40 Miss. 353, 24, 32, 385, 398, 809, 337, 411, 416 PAGES. Whitney v. Burnette, 3 Wis. 631, 7a Whitney v. Butterfleld, 13 Cal. 335, 166 Whitney v. Jenkinson, 8 Wis. 407, 147, 331, 222, 223 Whitney c. Ladd, 10 Vt. 165, 93 Whitney v. Lehmar, 26 Ind. 503, 832 Whitney v. McConnell, 29 Mich. 13, 197 Whitney v. Slauson, 30 Barb. 376, 80, 303, 310, 212 Whitney v. Warner, 2 Cow. 499, 356 Whilington ». Dearing, 8 J. J. Marsh, (Ky.) 684, 171 Whitwell V. Wells, 24 Pick. 25, 65, 74, 79, 310, 369, 275, 278, 294, 830, 373, 380, 385 WickliflFe v. Sanders, 6 T. B. Mon. (Ky.) 296, 31, 36 Wiggin V. Day, 9 Gray, (Mass.) 97, 192 Wilbraham v. Snow, 2 Saund. 47, 72 Wilbur V. Flood, 16 Mich. 40, 187, 356 Wilbur V. Gilmore, 31 Pick. 250, 430 Wilcoxon «. Annesley, 33 Ind. 285, 404 Wild V. Holt, 9 Mees. & W. 672, 117, 118, 334 Wilderman v. Sandusky, 15 111. 59, 409 Wildman «. North, 2 Lev. 93, 377 Wilkerson v. McDougal, 48 Ala. 517, 273, 330, 378 Wilkins v. Treynor, 14 Iowa, 891, 267, 387, 418 Willard v. Bridge, 4 Barb. 361, 302 Willard v. Kimball, 10 Allen, (Mass.) 311, 144, 148, 149 Willard v. Rice, 11 Met. 493, HI Williams.*. Archer, 5 M. G. & S. (57 E. C. L.) 318, 385, 389, 802 Williams «. Beede, 15 N. H. 483, 385, 378, m Williams v. Crum, 27 Ala. 468, 292 TABLE OF OASES CITED. Ixxxi PAGES. Williams v. Given, 6 Gratt. (Va.) 268, 182, 190 Williams ®. Ives, 35 Conn. 568, 315, 343 Williams «. Merle, 11 Wend. 80, 176, 177, 189, 206, 207 Williams ■». Mostyn, 4 Mees. & W. 145, 291, 336 Williams v. Phelps, 16 Wis. 80, 384, 288, 395, 306, 319 Williams v. Smith, 7 Ind. 559, 89, 90 Williams «. Smith, 10 S. & E. (Pa.) 202, 398 Williams v. Vail, 9 Mich. 162, 348, 415 Williams v. Welph, 5 Wend. 390, 366, 367 Williams v. West, 3 Ohio St. 83, 23,' 61, 63, 66, 375, 384, 321, 358, 361, 365 Williamson v. Gordon, 20 N. J. L. 77, 297 Wills V. Barrister, 36 Vt. 330, 193 Wills ». Noyes, 12 Pick. 334, 86 Wilson V. Barker, 4 B. & Adol. (34 E. C. L.) 614, 34, 305 Wilson V. Puller, 9 Kan. 177, 363, 867 Wilson V. Gray, 8 Watts, (Pa.) 35. 89, 96, 381, 378 Wilson V. Macklin, 7 Neb. 50, 361 Wilson 1). Mathews, 34 Barb. 295, 301, 302, 342 Wilson V. McQueen, 1 Head, rrenu.) 16, 141, 150 Wilson V. Middleton, 2 Cal. 54, 338 Wilson ■». Nason, 4 Bosw. (N. Y.) 155, 111, 178 Wilson V. Reed, 3 Johns. 175, 86, 347 Wilson 1). Royston, 3 Ark. 315, 63, 66. 73, 368, 384 Wilson V. Stripe, 4 Greene, (Iowa,) 551, 33, 146, 150 Wilson V. Young; 31 Wis. 574, 339 Winchester s. Craig, 33 Mich. 305, 335, 336, 339 PAGES. Windsor v. Boyce, 1 Houst. (Del.) 605, 197, 198 Wingate v. Smith, 20 Me. 387, 111, 115, 130, 366 Winnard v. Foster, Lutw. 374, 383 Winslow V. Leonard, 34 Pa. St. 14, 106 Winslow B. Merch. Ins. Co., 4 Met. 306, 98 Wise 1). Withers, 3 Cranch, (U. S.) 331, 161 Wiseman v. Lynn, 39 Ind. 350, 248, 351, 367 Wiswall ■V. Sampson, 14 How. 53, 140 Witham «. Witham, 57 Me. 447, 379, 337 Witter V. Fisher, 37 Iowa, 9, 413 Wittick V, Traun, 27 Ala. 563, 407 Woglam «. Cowperthwaite, 3 Dall. (Pa.) 68, 5, 15, 359, 264, 391, 401 Wolcott e. Mead, 13 Met. (Mass.) 516, 333, 336, 237, 231, 242, 348 Wolf V. Meyer, 13 Ohio St. 433, 408 Wolfe V. Dorr, 34 Me. 104, 98 Wolfe ». McClure, 79 111. 564, 238, 239, 243 Wolgamot V. Bruner, 4 Har. & M. (Md.) 70, 89, 400 Wood e. Braynard, 9 Pick. 823, 393, 295, 800 Wood V. Cohen, 6 Ind. 455, 199, 307 Wood V. Davis, 1 Mod. 390, 97 Wood V. Dudley, 8 Vt. 430, 123 Wood V. Hyatt, 4 Johns. 313, 189 Wood V. Morewood, (43 E. C. L.) 3 Adolph & E. 440, 384 Wood V. Orser, 25 N. Y. (11 Smith,) 348, 63, 73, 81, 410 Woodburn v. Chamberlin, 17 Barb. 446, 370, 404, 418 Woodburn «. Cogdal, 39 Mo. 333, 393, 296 Woodcroft V. Kynaston, 9 Mod. 805, 13, 14 Woodgate v. Knatohbull, 3 D. & East. 148, 168 Ixxxii TABLE OF CASES CITED. PAOES. Woodruff V. Cook, 35 Barb. 505, 106, 313, 370 Woodruff V. Taylor, 20 Vt. 65, 147 Woods V. Nixon, Addis. (Pa.) 131, 33 Woodward v. Railway Co., 46 N. H. 535, 38 Woodward v. Woodwind, 14 111. ■ 466, 198 Woolbridge v. Conner, 49 Me. 353, 36 Wooldridge v. Quinn, 49 Mo. 435, 345 Wright V. Armstrong, Breese, 130, 60 Wright V. Bennett, 3 Barb. 451, 33 Wright V. Briggs, 2 Hill, 77, 133 Wright, Ex parte, 6 Cow. 399, 426 Wright V. Guier, 9 Watts, 172, 53 Wright v. Mathews, 2 Blackf. 187, 370, 285, 397, 404, 417 Wright V. Quirk, 105 Mass. 44, 236, 253, 311 Wright e. Williams, 3 Wend. 633, 384, 286, 396 Wright «. Williams, 5 Cow. 338, 398 Wyllie V. Wilkes, Doug. (Eng ) 501, 253 Wymau v. Dorr, 8 Gr. (Me.) 183, 62,66 Y. Tale «. Seely, 15 Vt. 231, 43 Yandle v. Crane, 13 Kan. 344, 363 Yantis v. Burditt, 3 Dana, (Ky.) 254, 315 Yarborough v. Harper, 35 Miss. 113, 140 Yater o. Mullen, 24 Ind. 377, 47, 300 Yates V. Fassett, 5 Denio, 31, 13, 23, 34, 36, 38, 383, 388, 396 Yates V. Joyce, 11 Johns. 136, 56 Yates v. Russell, 17 Johns. 461, 436 Yates ®. St. John, 12 Wend. 74, 75 Year Books of Edward, 1, 30 Year Book, 30, 31, E. 1. 376, 2 Year Book, 30, 31, E. I. p. 18, 15 Year Book, 30, 31, E. I. p. 31, 18 Year Book, 6, E. IV. 11, 99 Year Book, 7, H. IV. 14, 99 Year Book, 6, H. VII. 9, 33 Year Book, 26, H. VIII. 6, 37, 99 York V. Davis, 11 N. H. 341, 32 Yorke v. Grenaugh, 3 Ld. Raym. 806, 180 Youl «. Harbottle, Peake, 49, 201 Young «. Atwood, 5 Hun. (N. Y.) 234, 316, 319 Young 1). Herdic, 55 Pa. St. 173, 53, 119 Young V. Kimball, 33 Pa. St. 193, 73 Young v. Lloyd, 65 Pa. St. 199, 336 Young 11. Mason, 3 Gilm. 55, 240 Young V. Miles, 30 Wis. 615, 114 Young V. Miles, 23 Wis. 643, 114 Young V. Parsons, 3 Met. (Ky.) 499, 411 Young D. Spencer, 10 B. & C. (21 E. C. L.) 145, 291 Young fl. Willet, 8 Bosw. (N. Y.) 486, 289, 294, 313, 371 Young v. Wise, 7 Wis. 128, 163 Z. Zachary 11. Pace, 4 Eng. (Ark.) 313, 315 Zaclirisson v. Ahman, 3 Sandf. (N. Y.) 68, IM THE LAW OF REPLEVIN. THE LAW OF REPLEVIN. CHAPTER I. HISTORICAL INTRODUCTION. Section. Origin of replevin unknown . First appearance as part of the lex scripta Its prior existence apparent The Statute of Marlbridge Originally an action to test the legality of a distress Distress .... Usually for rent Distress could not be sold Abuses of the right of distress Replevin defined rhe writ not returnable, but gave the sheriff power to try the case 11 [f the defendant claimed to own the property, the sheriff could not proceed .... Alias and pluries writs and the practice — pluries always re-' turnable — the reason therefor Cattle driven within a liberty — the writ non omittas The writ issued only at West- minster 15 13 13 14 Section. Delay in issuing the writ occa^ sioned thereby Replevin by plaint. Sheriff au- thorized to proceed without writ Proceeding in case of resistance In case of no resistance . Ancient method of trial . Both parties actors or plaintiffs Avowry and cognizance . These justified the taking . Removal of the case to the court of King's Bench . The writ of withernam, or "other distress" 35 Defects in the Statute of Marl- bridge 36 The statute of Westminster. The writ of second deliverance and the first appearance of the bond 37 Statute Charles II. . . . 38 Statute George II. . . . 39 Conclusion . . . .30 16 17 18 19 20 31 23 28 34 § 1. Origin of replevin unknown. Eeplevin was among the earliest remedies given by the common law. Its origin ante- dates its written history an unknown period, and, like the ori- (t) 2 HISrOEICAL INTEODUOTION. gin of the common law, of which it forms part, it can only be said to come from an age in which all our laws existed. simplj in tradition. Glanvil, tlie earliest writer on the laws of England, gives the writ as it was in his time, and as it must have existed before. Blackstone speaks of the action as "an institution which the Mirror ascribes to Glanvil."i The passage referred to by the learned author does not wholly justify the statement. 2 It would seem probable that Glanvil was the author of some regulation which afterward took form in the statute of Marlbridge; but the statute was not enacted until nearly eighty years after his death. Judges of that period were arbitrary in the exercise of their power, but Glanvil makes no claim to having originated this action; he simply wrote of the laws as they then existed. ^ The writ was certainly one of the earliest, and may have been in exist- ence before the chancery was known.* § 2. Its first appearance as part of the lex scripta. It makes its first appearance as a part of the lex scripta in the statute ' 3 Blackstone, 146. ^ The full text of the Mirror referred to by Blackstone is as follows: "If any be wrongfully distrained, ye are to distinguish whether it be by those who have the power to distrain, or by others ; and if by others, then lieth an appeal of robbery, whereof Hailiic gave a notable judgment; and if by those who may distrain, then they ought to deliver the distress by gage and pledges. And if the distrainer and the plaintiff of the distress lead it away, then the connisance thereof doth belong to the King's Court, and so there is a remedy by a writ of replegari facias. Nevertheless, for the releasing of such distress, and for the hastening of the right, Rudolph de Glanvil ordained that sheriffs and hundredors should take securities to pursue the plaints, and should deliver the distresses, and should hear and determine the plaints of tortious distresses, saving to the king the suit as to leading," etc. Mirror of the Justices, Ch. 2, § 36. ^ He says, in his preface : " The laws of England, though not written, may, without impropriety, be termed laws. * » * There are some well established rules which, as they more frequently arise in court, it ap- pears to me not to be presumptuous to put into writing." * See preface to 8th Vol. Coke's Reports, p. 17. Herteford, a learned ser- geant in the time of Edward I., mentions several writs which he thinks were invented before the chancery was known. Year Book, 30, 31, Edward I., 276. The chancery was an office for issuing writs long before it ac- quired jurisdiction as a court. Lives of the Chancellors, Vol. 1, p. 3, et seq.; Story's Eq. Jurisp., Vol. 1, Ch. 2. THE OEIGIN OF THE STATUTE OF MAELBEIDGE. 3 of Marlbridge, 52 Henry III., A. D. 12G7. The twenty-first chapter of this statute is on the subject of replevin, while other chapters relate to the subject of distress, which, as will appear, was closely allied to replevin in the ancient law.^ § 3. Its prior existence apparent. From this statute it clearly appears that prior to its enactment the action was in general and frequent use; that it had grown into a well defined proceeding, with established forms, rules and precedents too strongly fixed to be disregarded or avoided. It may also be inferred from the statute that the defects and inadequacies in prior laws were of such magnitude, and the inconveniences resulting therefrom were so general as to demand an act of Parliament for their correction at a time when acts of Parlia- ment, especially such as might operate in favor of the tenant and against the lord, were of rare occurrence.^ § 4. The origin of the statute of Marlbridge. The contests which arose between the king and the nobles, called the wars of the barons, and which came to a close in the reign of Henry III., rendered England a scene of the greatest turbulence. In tliis conflict the people, alternately courted by both parties, became more and more sensible of their rights and their impor- tance, and out of these influences the statutes of Marlbridge, among others, came to be enacted.* § 6. Originally it was an action to recover chattels wrong- fully taken or wrongfully detained. By the ancient law re- plevin was an action to recover chattels wrongfully taken or wrongfully detained. " The substance of this plea," says Brit- ton, "consists of two things, to-wit: the taking and the de- - Replevin was treated of under the title of distress, by all the old authors. Britton, Vol. 1, Ch. 28; Fleta Mirror, Ch. 2, § 36; Gilbert, in his work on Replevin, and many other writers. ^ Post, % 9, note. ' DeLolme, on the Constitution of England, p. 155. This statute, (so called from Marlborough, in Wiltshire, where King Henry III. held a Parliament in November, 1267,) has ever been regarded as one of the charters of Eng- lish liberties. Chapter 5 contains a re-afflrmance of the first great charter of Henry III. ; and the name Magna Charta, which it has ever since retained, was first given to it in this chapter. Thompson's Essay on Magna Charta, p. 381. No official record of this statute is known to exist. It is one of the ancient statutes. See preface to Statutes at Large. 4 HISTORICAL INTEODUCTION. taining, * * * and because he who wrongfully detains does a greater injury than he who wrongfully takes, the prin- cipal burden of the answer shall fall on the detainers."^ There is nothing in the writ, even in its earliest form, which would necessarily confine it to the recovery of distresses ;2 but by the common law the action was, without doubt, prac- tically limited to the recovery of distresses wrongfully taken and detained.* § 6. Distresses. Distress was the taking of a personal chattel out of the possession of an alleged wrong-doer, by the person claiming to be injured, into his own custody to compel satisfaction for the wrong complained of.* This taking doubt- less originated in the rough exercise of pure force, for which the will of the taker was the sole warrant. The written history of the law is not explicit on this subject, but enough remains to justify the belief that before the law had attained vigor enough to enforce its mandates, or compel that respect which is yielded to superior power, rude men employed their own individual force, and indemnified themselves for any real or supposed injury or default of another, by seizing from their adversary enough of his movables to satisfy or compensate them for their supposed loss.^ The possession of sufficient force being the only pre-requisite to the seizure, of course such a taking would be stoutly resisted by any person who deemed himself able to make his resistance successful, or a ■Britton, translated by Nichols, Vol. 1, Chap. XXVIII.; F. N. B. 68, and following. ^ The writ given by Glanvil is almost identical with the later writ. See § 11, note. Wilks. on Eep. 3. Two things fall in these plaints of taking and detaining, whereof there are four degrees : 1st. When the taking is justifiable for lawful, etc., and the detaining also, as for a debt due, or a debt recovered. 2d. Where both are wrongful, such as are disavowaUe both in taking and detaining. 3d. Where the taking is lawful, as ia damage feasant and the taking tortious as against sufficient gages and pledges tendered. Mirror of Justices Ch. 3, § 36. ^ See post Chap. 3. * 3 Blackstone, 6; Gilbert on Distresses, 4; Anon Dyer, 380; Bradby on Distresses, p. 1, and following » Distresses are called Kevenges in Stat. Marlbridge, 58; H. III. Chap. 1 aEd 3, A. D. 1367. DISTRESS FOK EENT — COTJLD NOT BE SOLD. 5 recaption, or ample reprisals would be made at the earliest moment the party was prepared to do so.^ Serious contests, long and bitter feuds and bloodshed were the common results. In process of time, as society began to grow stronger, and the public safety to forbid such contests, custom and law began to have force; the taking, though still permitted, was hedged in by certain rules ; resistance or recaption was forbidden unless, as was grimly said, the taking was wrongful ; the thing taken came to be regarded in the light of a pledge or security, to be returned when satisfaction was made; and replevin grew and became a legal proceeding by which a person might recover his property wrongfully taken or wrongfully detained from him by distress.^ §. 7. Usually for rent. The injury for which distress was most usually permitted was the non-payment of rent or dues by a tenant to his lord. 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, (usually cattle,) and detain them as a pledge or security to compel payment or performance. ^ The thing taken, as well as the process by which it was taken, was called a distress.* § 8. Could not be sold. Prior to the statute, 2 W. & M. Ch. 5, a distress, unless for dues to the King, could not be sold, and so was no payment or satisfaction to the distrainor; it could be held as a pledge or security only. The distrainor might impound the cattle in pound overt to be fed by the owner, and at the owner's risk in case they died,^ and so pain or distress him until he should perform the service, or dis- ■ This afterwards came to be called iremamanu, "writs of hand." His- torical Law Tracts published by Miller, (London, 1745,) 389. 2 Mathews v. Carey, 3 Mod. 187; Anou Dyer, 280; 3 Blackstone, 6, et seq. 145, et seq; Tear Books passim. 3 8 Blackstone, 145, et seq.; F. IT. B. 68; Evans r>. Brander, 3 H. Bla. 547. * 8 Blackstone, 6. Distresses were usually the cattle of the debtor. The term cattle included horses, down to quite a late period — Macauley's Hist. Vol. 1, p. 394 — and originally was synonymous with chattel. ' Gilbert on Distresses, 4; Anon Dyer, 280 6; 3 Blackstone, 14r-145, etseg.; Woglam V. Cowperthwaite, 3 Dall. 68; King v. Blackmore, 73 Pa. St. 847. In this country it is the duty of the party impounding cattle to feed them. Adams v. Adams, 18 Pick. 385. 6 HISTOEICAL IHTEODUOTION. charge his cattle by payment of the sum for which they were distrained. § 9. Abuses of the right of distress. Gross abuses grew out of the exercise of this right of distress. In the wars of the barons each was anxious to appear at the head of the largest body of vassals. Distresses were frequently made to compel the tenant to perform military service not due, or to perform service which he was not bound to perform under his tenure. "When neighboring lords were seeking to enlarge their domains, the tenants were frequently 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 the reign of Henry III. laws were enacted regulating distress and enlarging and simplifying the remedies for illegal dis- tresses, 1 and it was from one of these acts, that is the twenty- first chapter of the Statute of Marlbridge, that the action of replevin received its principal impetus. § 10. Keplevin defined. To replevy, as its name {replegiare — to take back the pledge,) indicates, is when the person dis- trained upon applies to the proper oiEcer, and has his distress retiTrned to him upon giving security to tiy the right of taking or distraining in an action at law.^ The writ did not contain a summons to the defendant, and was not returnable to any superior court, but commanded the sheriff to see justice done between the parties. The sheriff, by the writ, was authorized to act as the judge. In this the writ differed from ordinary writs, in which the sheriff acted in his ministerial capacity.' § 11. The writ was not returnable, but gave the sheriff power to try the ease. Prior to the enactment of the Statute of Marlbridge the proceeding was commenced by writ issuing ' Statute de Districtione Scacoarii, 51, Henry III. 1366 ; Statute Mai'l. 52, Henry III. 0. 1, A. D. 1367; Eeeves' Hist. Vol. 3, p. 66; Gilbert on Dis- tresses, 3 ; 3 Blackstone, 14-146. * 3 Blackstone Com. 13 ; Co. Litt. 145 6. Vetitum namium (forbidden • pledge,) as it was anciently called, was when the bailiff of the lord dis. trained and the lord forbiddeth the sheriff to deliver the distress when the sheriff cometh to deliver it. 3 Inst. 140 ; Gilbert on R. 79. Spelm. Law Gloss. » Fitz N. B. 86 ; 8 Blackstone, 146, 147 ; Weaver «. Lawrence, 1 Dall. 156. IF DEFENDANT CLAIMED, SHEEIFF COULD NOT PROCEED. 7 out of chancery. 1 It was a judicial writ; so called because it gave the sheriff power to hear and determine the matter complained of.^ § 12. If the defendant claimed to own tlie property, the sheriff could not proceed. If the defendant claimed to own the property, the sheriff could proceed no further with the replevin. The writ was framed to try the question of caption or detention only, and not the title to the property; but the plaintiff might sue in an appeal of felony, and if he was suc- cessful he got his goods, and the taker was regarded as a robber, and was hanged. ^ Subsequently, when the property was so claimed by the defendant, the writ de proprietate probanda was sued out to settle the question of ownership, and that was first determined. For the defendant to claim that he owned the goods, on the trial of the suit, was unheard ot in early cases.* ' The form of the writ was as follows : " The King, etc., to the Sheriff, etc.: " We command you, that justly, and without delay, you cause to be re- plevied the cattle of B., which D. took and unjustly detains, as it is said, and afterwards thereupon cause him justly to be removed, that we may hear no more clamour thereupon for want of justice," etc. " Pledges — " Fitz N. B., 68 D. The writ given by Glanvil is substantially the same. Glanvil, Beam's Trans. 394 * Gilbert, Blackstone, and other writers, speak of svich writs as vicontiel — ^not being returnable, but commanding the sheriff vice comite, to see justice done. Such writs were common in the early history of the law. Gilbert on Eeplevin, 59; 3 Blackstone, 338. The Natura Bremum contains many such writs. Fitz N. B. passim; Glanvil, Book 13, Ch. 13 ; Crabb's Hist. Eng. Law, 116. 3 Britton, Vol. 1, Ch. 38; Mirror, Ch. 3, § 36, cited ante, § 1, note 1 ; Bx parte Chamberlain, 1 Scho. & Lef. 330, note. This appeal was made as follows: John, who is here, appeals Peter, whois there, that, whereas, the same John, on such a day, and had a horse 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. 1, p. 115. * Gilbert on Replevin, 98; 3 Blackstone Com. 148; Shannon v. Shannon, 1 Scho. & Lef. 337; Leonard v. Stacy, 6 Mod. 140. If the sheriff took the property after a claim of ownership by the defendant, he was a trespasser ab initio. " In replevin, the defendant said he had property in the beasts 8 HISTOKICAL INTBODUOTION. § 13. Alias and pluries writs, and the practice. Pluries always returnable. The reason therefor. If the sheriff failed to serve the first writ, the plaintiff was entitled to an alias, and then to a pluries. In practice, however, it became usual for the plaintiff to take all three, the writ, the alias and the pluries at one time, i And he might deliver all these writs to the sheriff;^ or he might deliver the alias or pluries only, as he saw fit.* The original, as has been said, and the alias were not returnable, but the pluries always contained the clause vel causam nobis certifices^ etc., or certify tons the reason why, etc. This writ was always returnable, the sheriff being therein commanded to certify the reason why he could not, or would not, execute the command of the former writs. The reason, as stated by Gilbert, being,' the sheriff, having twice failed in his duty, (in not returning the original and alias,) was not further to be trusted with judicial power, and as he is answer- able to the court how he has obeyed the command of the writ, the court must have it, to see whether he has done Ms duty or not; If he had failed, he was fined for disobedience.^ If, however, the sheriff had had no other writ than the plvi- ries delivered to him, he might make return of that fact, and so excuse himself, for supposed neglect of duty.^ § 14. Cattle driven within a liberty — the writ non omittas. If the sheriff" 's return to the writ showed that the cattle were driven within some liberty, and that the bailiff of the liberty made no answer to his demand for them, the plaintiff might have an alias or pluries non omittas. This authorized the dbseque hoc; that the property was in the plaintiff, and prayed judgment, and it was found for the plaintiff. Sergeant Harvey moved in arrest of judgment, for in no book was found such a traverse as this; Hurroisr, Jus- tice, said this was never seen by him, and tliey all agreed that judgment shall be for the plaintiff." Anon Winch, 26 ; Weaver v. Lawrence, 1 Dall. 156. ■ F. N. B. 68 E. ; Gilbert on Replevin, 75. = F. N. B. 68 E. 2 Gilbert on Replevin, 75; Anon Dyer, 189a; F. N. B. 68; Thomas, of Matyshale, v. The Abbot of Cirencester, Year Book, 30, E. 1, 18. See this case post, § 35, note. * Gilbert on Replevin, 77 ; F. N. B. 68 ; Freeman v. Bluet, 12 Mod. 395. ' Gilbert on Repleviu, 76, et seq. WETT ISSUED ONLY AT WESTMINSTEK. 9 sheriff to enter the liberty or franchise and deliver the plaintiff's beasts.^ The clause which sometimes appears in our writs of the present day, "and this you are not to omit, under the penalty of the law," though now nothing more than a rather sonorous form, was once a special and highly essential part of the writ,^ without which it would have been useless.^ § 15. The writ issued only at Westminster. The writ of replevin, like all other original writs, could only issue out of chancery at "Westminster, the King's chancellor being the only ojfficer in the kingdom who could issue such writs, and West- minster was the only chancery office or place whence they could issue.* § 16. Delay in the issuing of the writ occasioned thereby. Westminster was several days' journey from the extremities of the kingdom. A journey from London to New Castle by land probably occupied as much time then as a journey from New York to San Francisco would now. Something like it occurred in the early history of Illinois, when a court at Kaskaskia sent its writs to Milwaukee. The delay which this occasioned was a serious hardship to the tenant, who was compelled to feed his beasts until a writ could be obtained without having the use of them. It was, moreover, a great detriment to the husbandry of the realm, and in those days agriculture was the sole support of the nation. ^ § 17. Replevin by " plaint," sheriff authorized to proceed ■ Gilbert on Replevin, 69, et seq. See post, § 33, note. F. N. B. 68. ^ Gilbert's History and Practice of the Court of Common Pleasj 36, et seq. See post, % 23 note. : Reeve's Hist. Cli. 10, p. 93, (Finlason's Ed.) •* 3 Blackstone, 50 lb. 373; History and Practice of the Court of Com- mon pleas, 15, et seq. The mode of commencing a civil suit in the reign of Henry III., as well as in earlier and subsequent times, was by the pur- chase of a writ. Writs, when issued, were sent by the hands of messen- gers who traveled through the kingdom and delivered them to the sherifiEs of the counties to be served on defendants. Horwood in his preface to the Year Book, 30, 31, E. I. p. 36. Macaulay's History of England, Vol. 1, p. 347, contains a description of the roads and difficulties of travel four hundred years later. In 1700 York was a week distant from London. Lives of the Engineers, p. 23. ' History of England; Potter «. Hall, 8 Pick. 368. 10 HISTOKIOAL INTRODUCTION. without writ. To remedy this the Statute of Marlbridge was enacted. This statute, as before remarked, was one of the most important in English history, and without doubt the Chapter on Eeplevin had as marked, lasting and beneficial effect on the laws of Great Britain as any other chapter ever enacted. This chapter (Oh. 21,) gave the sheriff power, upon complaint made to him, without any writ or process from any superior, to deliver to the plaintiff his cattle; or, if they were taken within any liberty, the sheriff might at once enter the liberty to make replevin. In other words, this chapter operated like a general continuing writ of replevin available for all persons in all cases, or it saved the necessity for any writ, and by virtue of its provisions the sheriff, upon complaint made to him, might, upon his own authority, either by word, (for frequently the sheriff of those days could not write,) or by precept to his bailiff, replevy the plaintiff's goods. 1 After the adoption of this statute proceedings by writ gradually fell into disuse, and has long since become obsolete in England. Its use was continued in Ireland some years later. §18. Proceeding in ease of resistance. Proceedings under this statute were called " Proceedings by Plaint." The sheriff, upon plaint, (i. e. complaint,) made to him^ went in person, or sent one of his bailiffs, to the place where the cattle were ' Ch. 31, Statute Marl. 53 Henry III. A. D. 1267, is as follows: "It is provided, also, that if the beasts of any man be taken and wi'ongfully with- holden the sheriff, after complaint made to him thereof, may deliver them without let or gainsaying of him that took the beasts, if thoy were taken out of liberties ; and if the beasts were taken within any liberties, and the bailiff of the liberty will not deliver them, then the sheriflf, for default of those bailiffs, shall cause them to be delivered." These liberties were estates, baronys, towns or monasteries, etc., in which the lord claimed jurisdiction to the exclusion of the King's ordinary writ, the right proceeding frequently from a grant from the King, or immemorial custom. Gilbert's Hist. Com. Pleas, p. 25 ; Macaulay's Hist. Eng. (Library Ed.) Vol. 1, p. 338. See, also, Ch. 16 and 22 to 35 Fortunes of Nigle, for Scott's highly dramatic account of the immunities of Whitefriars, the most famous of the many liberties of the kingdom. » The affidavit of modern practice is the " plaint '' of ancient practice. Anderson v. Hapler, 34 111. 436. AHaENT METHOD OF TRIAL. 11 detained and demanded sight of them.i If this were denied he might raise the hue and cry; or in case of resistance apprehend the offender and put him in jail.^ If the distress had been driven into a castle or other stronghold the sheriff, after de- mand, might break it open to enable him to deliver them.* The common law privilege which was accorded to a man's house or castle would protect himself or familj' from arrest, or his goods from seizure on a civil process, but could not protect or privilege him to keep the goods of another person unjustly taken so as to prevent service of the replevin.* The practice of driving distresses into strongholds was so frequent in the wars of the barons, and the poorer men suffered so much, that the Statute of West. 1. Oh. 17 was enacted expressly giving the sheriff power, after demand made, to break into a house, castle, or other stronghold, to make replevin of goods. This statute further to deter lords from refusing to deliver dis- tresses to the sheriff on replevin, provided that the house or castle so used should be razed and destroyed. This, however, could not be done without the King's writ after a fair trial. § 19. In ease of no resistance. If no opposition was made to the sheriff he would immediately, on sight of the beasts, deliver them to the plaintiff and then give the parties a day in which to appear in the county court and try the matter.' § 20. Ancient method of trial. The manner of trying the case anciently was for the plaintiff to have his suitors, i. e. witnesses, ready to prove he had offered the lord a pledge, or security, under the impression that that was suflScient, and that the lord had no right to seize or distrain pledges when ' Reeve's Hist. Vol. 3, g. 48. It is probable that the sheriflF never served such process in person, but that he always sent one of his deputies. Ack- worth s. Kempe Douglass, 40; Blackwell b. Hunt, Noy, 107. Perhaps the sheriff executed the writ in person, and sent his bailiff when the suit was begun by plaint. Gilbert on Replevin, 67. The statute, 1 and 3 P. & M. Ch. 13, § 3, required the sheriffs to have at least four bailiffs in each county for the sole purpose of making replevin. 2 Reeve's Hist. Vol. 3, p. 48; Britton, Vol. 1, p. 137. • This is the statute law in several of the States to-day. ^ Gilbert on Replevin, p. 70. » Reeve's Hist. Vol. 3, p. 48. 12 HISTOEIOAL nSTEODUCTION. snflScient pledges had been tendered him.^ The form of the writ and declaration in many States ,to this day contains the words, "Wherefore, he took," etc., and unjustly detains the same " against the sureties and pledges" etc. This is a frag- ment of the old common law practice which still clings to this action, though the reason for it is sometimes forgotten. It tells us of the law of replevin as it was practiced more than six hundred years ago.^ § 21. Both parties actors or plaintiffs. Both parties were called " actors," a term borrowed from the civil law, signifying plaintiif.3 The defendant became an actor by avowing the taking and seeking a return of the goods. The plaintiff, or complainant, might show the taking and detention to he wrongful, and the defendant, or avowant, while he could not deny the taking or detention against the sheriff's return, might show that it was rightful, and demand a return of the goods. Replevin was one of the favorites of the law. In ordinary actions the defendant might have essoin, that is, he might send his servant with an excuse and have delay; but an unjust taking and detention of the defendant's goods against gage and pledge was regarded in an unfavorable light. It was against the peace, and but little removed from robbery. The ' Reeve's Hist. Vol. 2, p. 46 ; Gilbert on Replevin, pp. 40, 59, 69. When both parties appear in court the plaintiff shall set forth his plaint that, ■whereas, he had his beasts, to-wit: two oxen, two horses or two cows, or such chattels, according to the nature of the distress, on such a day, in such a year of our reign, in such a certain place, there came such an one, (the detainer,) and took the same beasts there found, or caused them to be taken by such an one, and drove them a-way from the same place to another place; and then came the plaintiff and demanded to have his cattle quietly and could not have them, and afterwards tendered security for the sake of peace, and offered pledges to appear in his court, or elsewhere, to stand to justice if he had any demand to make against him, and yet he wrongfully, against gage and pledge, detained them until the same beasts were deliv- ered by the sheriff. Britton. Vol. 1, p. 139. 2 Evans v. Brander, 2 H. Bla. 547. 3 Statute Westm. 2, Oh. 2, § 2; Ooan ». Bowles, Carth. 122; Anon, 3 Mod. 199, case 118 ; Yates ». Fassett, 5 Denio, 31 ; Persse v. Watrous, 30 Conn. 146. Each party may recover judgment against the other for different parts of the property and for damages and costs. Clark «. Keith, 9 Ohio, 73; Seymour ij. Billings, 13 Wend. 286. 18 taker must, therefore, state his reason at the day appointed by the sheriflF.i § 22. Avowry and cognizance. "When the defendant avowed the taking in his own right, as for rent in arrear, setting up the right in his defense, it was called an avowry, and he was called an avowant. When the defendant admitted the taking, but set up the right of another under whose authority he acted, it was called making cognizance, and he was called the cognizor.2 § 23. Justified the taking. The different claims which the avowant might set up as his excuse or justification for taking the goods were numerous. He might avow for rent in arrear, or for damage feasant, or justify the taking under judgment of the lord's court. These and other excuses or justifications the plaintiff could deny, and the question so presented was tried. If the plaintiff was successful in his suit, he was en- titled to retain the goods replevied, and to have damages for the -svrongful taking and the loss which it occasioned him. If however, the plaintiff failed to sustain his suit, he was in mercy, and might be, and anciently was, fined for his false clamor, and the defendant avowant was entitled to a return of the distress, and by the statute, (21 Henry VIII., Chap. 19,) to damages. 3 § 24. Eemoval to the court of King's bench. Either party might remove the case from before the county court (Sheriff's court) to the court of common pleas, or King's bench; the plaintiff, without showing cause, as the suit was his own ; the defendant, upon reasonable cause.* But the removal was allowed for slight cause, and the truth of the cause alleged was > Reeve's Hist. Vol. 3, pp. 48, 49; Gilbert on Replevin, 77, 78; Britton, Vol. 1, p. 137. This, perhaps, simply means that the defendant might have a continuance upon showing cause in ordinary cases, but not in replevin. Grlanvil devotes some space to the law of essoins. Glanvil, B. 1, Ch. S3, et seq.; Beam's Trans. 2 Statue 31, Henry VIII. Ch. 19. 5 Anon, Dyer, 141a; Riccards v. Comforth, 5 Mod. 366 ; Woodcroft v. Kynaston, 9 Mod. 305; Gilbert on Replevin, 63; Britton, Vol. 1, p. 140. * Gilbert on Replevin, 103; 3 Blackstone's Com. 149; Statute Westm. 3^ 13, Edward I., Ch. 3, A. D. 1385; Woodcroft o. Kynaston, 9 Mod. 305; Anon Loftus, 530; F. N. B. 69, 70. 14 HISTOKICAL INTBODUCTION. not inquired into.^ Or, if in the course of the proceeding, it appeared that the right of freehold came in question, it must of necessity be removed, as the sheriff could not try it in his county court. 2 So it became usual to carry up all cases from the sheriff to the courts of "Westminster Hall, in the first instance. The usual mode to oust the sheriff of jurisdiction was for the plaintiff to take the alias and pluries, with the original writ, and deliver only the pluries to the sheriff to be served, which, as we have seen, was always returnable.* The sheriff thereupon returned the writ at once to the superior court. If the pro- ceeding were commenced by writ, the removal was effected by the writ of pone, as it was called, from the words of the writ pone ad pefitionem, etc., coram justicia/ris nostris. " Put on the petition, etc., before our justices," etc. If the proceeding had been begun by plaint, the removal was effected by a writ of recordari, which was a writ to the sheriff commanding him to make a record of the proceeding before him, and return the record so made before the King's justices at Westminster.* This record gave the justices authority to act, while, in ease the proceeding was by writ, the King's writ put before them gave them sufficient authority to proceed. § 25. Tlie writ of withernam. If the defendant had eloigned the distress, driven it out of the county, or had concealed it, then, upon the sheriff's return showing that fact, the plaintiff was entitled to a capias in withernam, a writ deriving its name ' Gilbert on Replevin, 105. Originally the law seems to have been other, ■wise. F. N. B. 119, K. ' This does not imply that a freehold was or could be the subject of re- plevin ; but the tenant or plaintiff in replevin -would sometimes deny that he held his lands of the avowant, and so require him to prove it, and in this way the title of the lord came in question. Statute Westm. 2, Ch. 8, § 1. Coke's Eeports contain many cases in replevin which present Uiis question in some form. Fordham b. Akers, S3 L. J. Q. B. 67, holds tliat county courts may proceed even when title to land is involved, if the defendant does not remove the case. " Ante, § 13; Moore «. Watts, 1 Ld. Raym. 613; Woodcroft n. Kynaston, 9 Mod. 305. «F. N. B. 69, 70; Statute Westm. 2, 13, Edward L, Ch. 3, A. D. 1285. The writ is usually called the re, fa. lo., an abbreviation of the words recorda/ri facias loquplam. Daggett «. Robins, 2 Blackf. 417. THE WEIT OF WITHERNAM. 15 from two Saxon words, weder, other, naaum, distress, ^ upon which he might have a second or indemnifying distress, the writ being a command to the sheriff to take other cattle or other goods of the distrainor and deliver them to the plaintiff, in lieu of his own, wrongfully withholden from him. So, when the defendant had judgment for a return of a distress which had been replevied from him, and the plaintiff had eloigned or concealed the goods, the defendant was entitled to the writ of withernam. This was a kind of reprisal or pun- ishment for wrongfully withholding the distress. It was a relic of the lex talionis which prevailed at a much earlier period.^ Goods taken by this process were not repleviable until the original distress was forthcoming. ^ = F. N. B. 73 F.; Moor B. "Watts, 2 Salk, 581; Gilbert on Replevin, 79 ; Anon Dyer, 188J. The last case found In whicli this writ is recognized in this country is Bennett •». Berry, 8 Blackf. 1. See, also, "Woglam v. Cowper- thwaite, 3 Ball. (Pa.) 68 ; Weaver v. Lawrence, 1 Dall. 167 ; Swann v. Shem- well, 2 Ear. & G. (Md.) 283; M'Colgan «. Huston, 2 Nott & M. (S. C.) 444. A proceeding similar in ita effect, though not in form, has found a place in Michigan. Rathbun ». Ranney, 14 Mich. 387. ' "Let the judgment be this: That he loose the like member as he has destroyed of the plaintiff." Britton, Vol. 1, p. 122. Substantially the same as Exodus, Ch. 21, ver. 24. The writ of withernam was not a part of the proceeding in the replevin, but was a kind of punishment. If the defendant came in and pleaded non cepit, it would stay the withernam, as he is not con- eluded by the return elongavit. Swann «. Shemwell, 2 Har. & G. (Md.) 283. - 1 venture to transcribe into this note a case from the Year Book, 30, 31, Edward I., p. 18, not only as a specimen of the ancient style of law report- ing, but as illustrating many points in the text. This is one of the first cases, reports of which are accessible. There are a number of cases, some eight or ten years earlier, but none which so vividly illumine the points under discussion. This report also possesses value as showing the highly advanced state of pleading at that early day, and the technical exactness with which the law was administered. It may be remarked, en passant, that the amount of litigation in those days, as shown in these early reports, is a matter of astonishment. In one volume, containing about the same number of pages as an ordinary volume of law reports of to-day, may be found twenty-six cases of replevin alone. Report of the case of Tlis Abbot of Cirencester «. Thomas, of Matysliale. Tear Booh, 30, 31. Edward I., p. 18, A. D. 1303. [The names of the Judges are in small capitals, and counsel in italics.] The Abbot of Cirencester distrained on one Thomas, of Matyshale, in the town of Cirencester. Thomas came into court and [a line in the MS. 16 HISTORICAL INTEODUCTION. § 26. Defects in the statute of Marlbridge. The Statute of Marlbridge and proceeding by plaint was a vast improvement on the earlier proceeding by writ. Yet certain imperfections in the practical operation of the law remained, occasioning great inconveniences and sometimes injustice. In this, as in other actions at law, and as is the law to this day, a non-suit suffered by the plaintiff did not debar him from again bring, ing suit on the same cause of action, or prevent the plaintiff in replevin from suing out another replevin for the same property. Advantage of this rule of law was sometimes taken by lawyers of the olden time, who, not unlike their profes- sional brethren of to-day, thought more of a substantial vic- tory for their clients than of abstract questions touching the dignity of the law, and who rather prided themselves on an observance of the technical rules of the law, especially where these rules were found highly advantageous to the case in which they were engaged. It, therefore, frequently happened that when the case was called for trial and tlie plaintiff saw his opponent with his witnesses ready to proceed, he would here has been entirely erased,] commenced suing the Abbott. The bailiff of the sheriff came, and wished to liberate Thomas' beasts, and could not, because Cirencester is of the King's ancient demesne, and not guildable to the county court, etc. Wherefore, the county court awarded a distress on the Abbot. Afterwards Thomas brought replevin, etc., and sought delivery. * * * Wherefore, he sued out the replevin " sicut alias vel causa/m nobis significetis" and to this writ the sheriff returned that he had commanded the bailiffs of the liberty of the Abbot of Cirencester [and] that they should [would] do nothing. Wherefore, the " omit not by reason of the franchise " was sued out, etc., and the sheriff, by virture of this writ, entered the fran- chise and made deliverance and attached the Abbot, etc., and then the Ab- bot caused the proceedings to be removed Into hanc by pone, and the case ran thus: "That the said Abbot asserts that he took the said beasts in a portion of the appurtenances of his manor of Cirencester, which is of the ancient demesne of the crown of England, for customary, etc., to him due. Thomas and the Abbot came into court. Asseby — Counted, etc. Eerie — Cirencester, where the seizure was made, is of the ancient demesne, etc., where no writ runs, etc., except, etc., and this Thomas is tenant in ancient demesne, etc., and we do not understand that in this court, or elsewhere, at common law, he ought to be answered. Asseby — The proceedings were removed here at his own suit, etc., and the plea is attached to this court, etc., and we pray judgment, etc. Warr — The place where the seizure was made is holden of the Abbott, etc., and is of the ancient demesnes, etc., and THE STATDTE OF WESTMINSTEK. 17 suffer himself to be non-suited and a return of the property adjudged against him, and would then at once replevy the same goods again, and again suffer a non-suit, and again replevy, and so on in infinitum, to the intolerable vexation of the lord. It was also a common occurrence for the tenant, pending the suit in replevin, to sell the cattle and become insolvent. The pledges or securities which the plaintiff gave, and which originally were required to be be substantial secu- rities, were only to answer his amercement to the King pro falso Glamor, and these soon degenerated into bare form; John Doe and Richard Koe, imaginary persons, being the only security required, so that the lord took nothing by his judg- ment.^ § 27. The statute of Westminster and the writ of second deliverance. To remedy these evils the Statute of West- minster, 2, Ch. 2, was enacted in the thirteenth year of Edward he is tenant in ancient demesne, etc., and this he cannot deny, etc. ; and we pray judgment, etc. Bekefobd — He tells you that out of the ancient dediesnes you ought not to be answered on this writ, nor any other, except where you are distrained for services which 3'ou do not owe. As for that, theie is a certain writ in regular form., etc. Asseby — You formerly sued for a return of the chattels, in this court, on the plea, etc., and so this court is seized, etc., and we pray judgment, etc. Warr — That was by your non- suit, etc. ; for at first you did not come into court ; wherefore, we were able to challenge this proceeding, etc. Bebepobd's reply to his statement — That you are of the King's ancient demesnes within which, etc., the seizure was made, etc. Asseby — We cannot deny that Cirencester w^here the seizure was made, is of the ancient demesnes, etc. ; but we tell you that we hold the tenements where the seizure was made, of the Abbott, by the services of XXVlII d ; by the year, in lieu of all services. Warr — How do you prove it f Asseby — Beady Warr — Since you have admitted that Cirencester is of the ancient demesnes, etc., and that you are tenant, etc., and do not show that these tenements have been enfranchised, etc., we pray judgment, etc. Bbrbfobd, (to Asseby,) — Have you any deed to evidence what you have alleged, etc. ? .4sseJy — Ready, etc. Bebepord — Since, etc., (as above, in the reply,) the court adjudges that the Abbot goes quit, without day, and that you, etc., by your writ, but are in mercy, etc. Warr — We p'^ay the return. Bebepobd — You shall not have it from us ; but when yon get to the inn do to your arch villian what you please, etc. ' 3 Inst. p. 9; 3 Blackstone, 274, 387; Baker v. Philips, 4 Johns. 100. "Pledgii"i'D the old books signified securities. Evans ». Brander, 3 H. Bla. 547. 2 18 HISTOEICAL INTEODUCTION. I., A. D. 1285.1 The statute also provided 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." Here is tlie first appearance among our laws of the bond or security for the return of the goods to the defend- ant in replevin, and is substantially the same as we have it at the distance of nearly six hundred years. The Statute of 11 George II., Oh. 19, §§ 22, 23, being only explanatory, and in aid of the provisions of the Statute of Westminster and the Statute Westminster also provided against replevins in infini- - By tlie recent publication of old manuscript reports of a case in the time of Edwai'd I., it appears tliat Hengham was the author of this statute. Horwood's preface to his translation of Tear Book, 30, 31, E. I. p. 31. The chapter cited it as follows : I. Forasmuch as lords of fees distraining their tenants for services and customs due unto them, are many times grieved because their tenants do replevy the distress by writ, or without writ, and when the lords at the complaint of their tenant do come by attachment into the county, or unto another court having power to hold pleas of replevin, and do avow the taking good and lawful by reason that the tenants disavow to hold aught, nor do claim to hold anything of him (which took the distress and avowed it,) he that distrained is amerced and the tenants go quit, to whom punishment cannot be assigned for such disavowing by record of the county, or of other courts having no record. II. It is provided and ordained from henceforth, that where such lords cannot obtain justice in counties, and such manner of courts against their tenants, as soon as they shall be attached at the suit of their tenants, a writ shall be granted to them to remove the plea before the justices, before whom, and none other, where justice may be ministered unto such lords, and the cause shall be put in the writ, because such a man distrained in his fee for services and customs to him due. Neither is this act prejudicial to the law commonly used, which did not permit that any pleas should be moved be- fore justices at the suit of the defendant. For though it appear at the first show that the tenant is plaintiff and the lord defendant, nevertheless, hav- ing respect to that, that the lord hath distrained, and sueth for services and customs being behind, he appeareth indeed to be rather actor or plaintiff than defendant. And to the intent the justices may know upon what fresh seizin the lords may avow the distress reasonable upon their tenants. From henceforth it is agreed and enacted, that a reasonable distress may be avowed upon the seizin of any ancestor or predecessor since the time that a writ of novel disseizure hath run. And because it chanceth some- times that the tenant, after he hath replevied his beasts, doth sell or alien them, whereby return cannot be made unto the lord that distrained if it be adjudged. THE STATUTE OF WKSTMINSTEE. 19 t/um by awarding tlie avowant a return of the cattle after a non-suit of the plaintiff, to hold irreplevible except by a writ issuing upon the records of the justices before whom the suit in replevin was tried. The writ of retomo, in such cases, after the order for return, contained a clause as follows: "And that you do not again deliver them upon complaint of (the plaintiff,) without our writ, which should expressly men- tion the aforesaid judgment." The goods returned by virtue of this writ were not again subject to replevin at the suit III. It is provided that sheriffs or bailiffs from henceforth shall not only receive of the plaintiffs pledges for the pursuing of the suit, before they make deliverance of the distress, but also for the return of the beasts if return be awarded. And if any take pledges otherwise he shall answer for the price of the beasts, and the lord that distrained shall have his recovery by writ ; that he shall restore unto him so many beasts or cattle. And if the bailiff be not able to restore, his superior shall restore. And forasmuch as it happeneth sometime that after the return of the beasts is awarded unto the distrainor, and the party so distrained, after the beasts be returned, doth replevy them again, and when he seeth the distrainor ap- pearmg in the court ready to answer him does make default, whereby a return of the beasts ought to be awarded again unto the distrainor, and so the beasts be replevied twice or thrice, and infinitely, and the judgments given in the King's courts take no effect in this case, whereupon no remedy hath been yet provided ; in this case, such process shall be awarded, that as soon as the return of the beasts shall be awarded to the distrainor the sher- iff shall be commanded by a judicial writ to make return of the beasts unto the distrainor, in which writ it shall be expressed that the sheriff shall not deliver them without writ making mention of the judgment given by the justices, which cannot be without a writ issuing out of the rolls of the said justices before whom the matter was moved. Therefore, when he cometh unto the justice and desireth replevin of the beasts, he shall have a judicial writ that the sheriff taking surety for the suit, and also of the beasts, or cattle, to be returned, or the price of them (if return be awarded,) shall deliver unto him the beasts or cattle before returned, and the dis- trainor shall be attached to come a certain day before the justices afore whom the plea was moved in the presence of the parties. And if he that replevied make default again, or for another cause, return of the distress be awarded ; being now twice replevied, the distress shall remain irreplev- iable. But if a distress be taken of new, and for a new cause, the process aforesaid shall be obsei-ved in the same new distress to the avowant, and were irrepleviable, except by a writ mentioning the former judgment, which was called a writ of second deliverance. This statute is local to Great Britain and does not apply in this country. Daggett v. Robins, 2 Blackf. 417. 20 HISTOEIOAL INTEODUOTION. of the same party, except upon a writ of second deliverance which recited the former judgment, and this writ only issued upon cause shown, and not as a matter of course. ^ § 28. Statute Charles II. The Statute of Charles II., Ch, 7, A. D. 1665, provided that when the plaintiff in replevin was noji-suited, or judgment be given against him, a writ of inquiry should issue to ascertain how much rent was in arrear to the distrainor and also the value of the distress, and he was entitled to judgment for the sum due as rent, or to so much as the value of the distress, with execution therefor, with a right to distrain again for the amount unpaid and in arrear. § 29. Statute George II. The Statute 11 George II., Oh. 19, § 23, provided that all officers granting replevins should, in any replevy of a distress, take a bond from the plaintiff with two responsible securities, and in double the value of the goods, conditioned for the prosecution of the suit and return of the goods in case return be awarded, and provided that the sheriff might endorse the bond to the avowant, or person making cognizance, who might sue on it in his own name, and that the court by rule should give such relief as was agreeable to justice. § 30. Conclusion. This brings the history of the action down to a comparatively modern time. In this sketch of the history of the law of replevin, as it was formerly practiced, the author has been compelled to omit all details, as well as many matters of general import; he has endeavored to state only sufficient to give an idea of the origin of the action, and to indicate some of the principal steps by which it has grown from a half civilized contest, in which outrage was a promi- nent ingredient, in cases when the sole question was the right to a distress, into a ready instrument for the settlement of almost all disputes concerning the ownership and possession of personal property, ' The writ of replevia was a writ of right, and issued of course. Tlie writ of second delivery was a writ of grace, or favor. Anon, 2 Atk. 237. DEFINITION. 21 CHAPTEE II. GENERAL PRINCIPLES. Definition .... Replevin lies for chattels wrong, fully talsen and detained Recovery of specific goods tlie primai'y, and value or dam- ages the secondary, object It is a mixed action, partly in rem and parly in personam The writ is a writ of right Form of proceeding in difi'er- ent States substantially the same .... Peculiarities of the action ; priv. ileges to the plaintiff Importance of the action . The right to present possession the question at issue Statutory provisions concerning delivery .... Formerly, would lie or.ly for a distress The same .... The same .... Section. 31 32 38 34 35 36 37 38 89 40 41 43 43 Section. Similarity of replevin to tres- pass, trover and detinue . 44 Characteristics, compared with those of trover and trespass . 45 The same 46 Distinctions between this action and trespass and trover . . 47 The same 48 The same 49 The same 50 "Where one takes forcible pos- session of his own property, he is not liable in replevin . 51 Actual detention of the goods necessary to sustain the ac- tion 52 Replevin in cepit, detinet and detinuet 58 Wrongful taking . . .54 The scope of the investigation . 55 The same 56 The same 67 • § 31. Definition. Replevin is an action at law for tlie re- covery of specific personal chattels^ wrongfully taken and - Eogers«. Arnold, 13 Wend. 34; Hickey b. Hinsdale, 13 Mich. 100 ; Men- delsohn v. Smith, 37 Mich. 3 ; Travers ». Inslee, 19 Mich. 101 ; Bacon v. Davis, 30 Mich. 157; Badger v. Phinney, 15 Mass. 363; Philips v. Harriss, 3J. J. Marsh. (Ky.) 133; Buckley ». Buckley, 9 Nev. 379; McPerrin «. Perry, 1 Sneed, (Tenn.) 314; Scott ®. Elliott, 63 N. C. 315; Barksdale o. Appleberry, 23 Mo. 390. " The only effective remedy for the recovery of personal chattels.'' Kingsbury's Exrs. v. Lane's Exrs., 21 Mo. 115. " The object of the writ is to re-deliver or restore goods to the possession of the 22 GENEEAL PEINaPLES. detained, or wrongfully detained, with damages which the wrongful taking or detention has occasioned. ^ person who has the general or special property." Lathrop b. Cook, 14 Me. 415. To same eifect, Yates d. Fassett, 5 Denio, 31 ; Pangburn v. Patridge, 7 John. 140; Harwood v. Bmethurst, 5 Dutch. (39 N". J. L.) 197. "The ap. propriate remedy, in all cases where the plaintiflf seeks to try title to per- sonal property and recover possession." McKinzie «. Bait. & Ohio R. R, 28 Md. 161. " The proper remedy in all cases where the plaintiff has a right to the immediate and exclusive possession of chattels which he wishes to recover." Cullum «. Bevans, 6 Har. & J. (Md.) 469 ; Brooke v. Berry, 1 Gill. (Md.) 153; Pattison v. Adams, 7 Hill, 136; Johnson «. Carnley, 6 Seld. (S. T.) 570; Ilsley v. Stubbs,5 Mass. 380; Badger v. Phinny, 15 Mass. 368; Baker v. Fales, 16 Mass. 147 ; Shannon v. Shannon, 1 Sch. & Lef . (Irish,) 818; Peirce v. Hill, 9 Port. (Ala.) 151; Shaddon v. Knott, 3 Swan, (Tenn.) 358; Bobinson ■». Richards, 45 Ala. 354; Town ■». Evans, 1 English, (6 Ark.) 360; Paul ii. Luttrell, 1 Colorado, 317. " The action has been liberally ex- tended, and now embraces every case of personal property which is in the possession of one person and is claimed by another." Snyder v. Vaux, 3 Eawle, 433. See, also, Keite v. Boyd, 16 S. & R. (Pa.) 300; Spragues. Clark, 41 Vt. 6 ; Stoughton v. Rappalo, 3 S. & R. (Pa.) 559 ; York v. Davis, 11 N. H. 341 ; Harlan v. Harlan, 15 Pa. St. 513 ; Mackinley v. McGregor, 3 Whart. (Pa.) 369 ; Woods v. Nixon, Addis, (Pa.) 134. " Lies at the in- stance of a party where property has been improperly seized by an officer on legal process." Gimble v. Ackley, 13 Iowa, 37; Wilson v. Stripe, 4 G. Greene, 551 ; Cooley v. Davis, 34 Iowa, 139 ; Smith v. Montgomery, 5 Iowa, 870; Chinn v. Russell, 3 Blackf. (Ind.) 176; Marchman v. Todd, 15 6a. 25; Miller v. Bryan, 3 Iowa, 58 ; Shearick v. Huber, 6 Binn. (Pa.) 3. ' Herdic v. Young, 55 Pa. St., 176; Mitchell v. Burch, 36 Ind. 535; New- ell V. Newell, 84 Miss. 385; Hotchkiss v. Jones, 4 Porter, (Ind.) 360; Hart o. Fitzgerald, 3 Mass. 510; Scott «. Elliott, 63 N. 0. 315; Kendal o. Fitts, 3 Poster, (N. H.) 1; Cumberland Coal & Iron Co. •». Tilghman, 13Md.74; Messer «. Baily, 11 Foster, (31 N. H.) 9; McKean v. Cutler, 48 N. H. 371; Bell 1). Bartlett, 7 N. H. 178; Peyton v. Robertson, 9 Wheat. 537 ; Morgans. Reynolds, 1 Blake, (Montana,) 164. The action is not for the recovery of damages or value, except as an incident to the action for the specific thing; but it is not strictly confined to the recovery of the thing, nor is judgment for the property essential. Damages may sometimes be given in lieu of the property; otherwise, upon the death or destruction of the property, pend- ing the suit, the action would fail. Barksdale v. Appleberry, 33 Mo. 390; Mackinley v. McGregor, 3 Whart. 370. And, again, if one hire a horse for a year, and pending the time the horse be taken by one without right, the lessee may bring replevin; but if the property be not delivered on the writ, and after the year expires, and before judgment, the taker surrenders it to the owner, the lessee may recover damages for the detention, but not necessarily judgment for the property or its value. Cole v. Conolly, 16 Ala. 371. EECOVEEY OF SPECIFIC GOODS. 23 § 32. Replevin lies for chattels wrongfully detained. It lies for all goods and chattels wrongfully taken or detained, and may be brought whenever one person claims chattel property in the possession of another, whether his property in the goods be absolute or qualified, provided he has the right of posses- sion at the time the suit is besun.^ § 33. Recovery of specific goods the primary object, and of value or damages, the secondary. The primary object of the action is to recover the specific chattels which have been wrongfully taken or detained. ^ Though judgment for dama- ges usually follows a judgment for the property as a matter of course, the contest is about the specific thing; the recovery of the thing, and not the damages, is the primary object. ^ The secondary object is to recover a sum of money which shall be equivalent to the value of the property sued for, in case the property itself is not delivered to the plaintiff upon the writ; compensation for the injury which the plaintiff has sustained by the wrongful detention of his goods is also recoverable, as in cases when the goods themselves are recovered.* It may 'Harlan a Harlan, 15 Pa. St. 507; Lazard v. Wheeler, 32 Cal. 140 Weaver b. Lawrence, 1 Dall. (Pa.) 156; Clark «. Skinner, 30 Johns. 467 Shearick v. Huber, 6 Blnn. 3 ; Stoughton v. Rappallo, 3 S. & R. (Pa.) 562 Williams «. West, 3^ Ohio St. 83. The action was formerly limited to cases of wrongful aistress, but has long since outgrown its original limits, and now lies in all cases ef unlawful taking and detention of goods. Osgood V. Green, 10 Fost. (N. H.) 310; Daggett v. Robins, 2 Blackf. (Ind.) 415; Sprague v. Clark, 41 Vt. 6; Chinn v. Russell, 3 Blackf. (Ind.) 173; Meany v. Head, 1 Mason C. C. 319. See Bofll v. Russ, 3 Strobh. (S. C.) 98. " It lies for goods unlawfully detained, though there may have been no tortious taking." Marston v. Baldwin, 17 Mass. 609 ; Peirce v. Hill, 9 Port. (Ala.) 151 ; Paul v. Luttrell, 1 Colorado, 317. Ooiitra, Cummings v. MacGill, 3 Murphey, (N. C.) 359 ; Dickson v. Mathers, Hempst. C. C. 65 ; Duffy v. Murrill, 9 Ired. (N. C.) 46. " The gist of the action is the wrongful detention." Benje v. Creagh's Admrs., 21 Ala. 151. When goods are wrongfully detained upon a warrant which has been quashed or set aside by the court, replevin lies by the owner. Slayton v. Russell, 30 Ga. 137. « Herdic «. Young, 55 Pa. St. 176. ' Hunt V. Robinson, 11 Cal. 377 ; Nickerson «. Chatterton, 7 Cal. 568 ; Buckley d. Buckley, 13 Nevada, 426. - Ellis, Admr. of Pritchard, ». Culver, 3 Harr. (Del.) 139 ; Hart v. Fitz- gerald, 3 Mass. 509 ; Bruen v. Ogden, 6 Halst. (N. J.) 371 ; Buckley ®. Buck- 24 GENEEAL PEINOIPLES. be said to be the proper form of action, iu all cases where the plaintiff, having a general or special property, with the right to the immediate possession of chattels personal which are wrongfully detained by another, desires to recover the specific goods, and this without reference to whether they were wrong- fully taken or not. .The wrongful detention of another's goods will generally, under the statutes and decisions in this country, render the defendant liable in this action.' § 34. It is a mixed action, partly in rem and partly in per- sonam. It is a mixed action, being not only for specific articles but for damages which the taking and detention has occa- sioned. ^ It is a proceeding partly in rem and partly in per- sonam. Insomuch as it seeks the return of specific chattels it is a proceeding in rem, resembling a libel in a court of ad- miralty, both parties being claimants ;3 and so far as the object is to obtain a judgment against the defendant for damages is a proceeding in personam,^ and can be brought only against the person having possession or control of the goods at the time the suit is begun. The writ in addition to the order for delivery, contains a summons to the defendant, and if the plaintiff does not obtain delivery of the goods upon the writ, he may have judgment for the value against the defend- ant personally.^ ley, 12 Nevada, 426 ; Yates v. Fassett, 5 Denio, 21 ; Burr v. Daugherty, 31 Ark. 559 ; Gray i). Nations, 1 Ark. 559 ; Whitfield «. Whitfield, 40 Miss. 352; Broadwater «. Darne, 10 Mo. 278; Loomis v. Tyler, 4 Day, (Coan.) 141; Frazier u. Fredericks, 4 Zab. (N. J.J 163; Smith v. Houston, 25 Ark. 184; Parliam a. Riley, 4 Coldw. (Tenn.) 5; Stevens ». Tuite, 104 Mass. 333. : Peirce «. Hill, 9 Port. (Ala.) 151; Brooke v. Berry, 1 Gill. (Md.) 153 ; MfTston V. Baldwin, 17 Mass. 609 ; Paul v. Luttrell, 1 Colorado, 317 ; Brownell V. Manchester, 1 Pick. 283. ' Fisher.«. Whoollery, 25 Pa. St. 197 ; Herdic v. Young, 55 Pa. St. 176. 8 Brown ii. Smith, 1 N. H. 38; Wheeler v. Train, 4 Pick. 168; Fletchers. Wilkins, 6 East. 233; Sharp ». Whittenhall, 3 Hill, (N. Y.) 576; Eaton «. Southby, Willes, 131 ; Baldwin v. Cash, 7 Watts & S. 435 ; Lowry v. Hall, 2 W. & S. (Pa.) 133. * Kamsdell v. Buswell, 54 Me. 547; Burr». Daugherty, 21 Ark. 559; Dag- gett «.• Robins, 2 Blackf. (Ind.) 416; Stevens v. Tuite, 104 Mass. 333. 5 Bower v. Tallman, 5 W. & S. (Pa.) 561. In some of the States the plaintiff may file a count in trover for such goods as the olHcer returns he cannot find, but in most of the Slates the value of the chattels is given in FORM OF PEOOEEDING IN DIFFERENT STATES. 25 § 35. The writ is a writ of right. Bj the common law the writ was a writ of right, not of grace or favor, ' and in most of the States the common law i$ recognized as the foundation of the action, the statutes only adapting the remedy to the wants of modern society. 2 § 36. Form of proceeding in different States substantially the same. So far as its name is concerned this action has been abolished in most, if not all, of the 'States which have adopted a code.* It was never recognized in Alabama.* It obtained a foothold in Mississippi only after a struggle. ^ In Connec- ticut and Yermont it was formerly allowed only in cases of distress and attachment.* In South Carolina the writ would only lie for a distress.' In Virginia it was abolished by stat- ute, except in cases of distress. ^ In Louisiana, where the civil law prevails, the writ is unknown ; and the same may be said of Texas. But in States adopting a code, provisions are made by which substantially the same results are reached. This is done by what is claimed to be a more simple and equitable proceeding, and one in which the same principles the form of damages in the replevin suit. See Greenwade v. Fisher, 5 B. Mon. (Ky.) 167. In Minnesota it was held so far a proceeding in rem be- fore a justice of the peace that delivery of the goods was necessary to give jurisdiction, and that upon a return of "no property found" the justice could not proceed. St. Martin v. Desnoyer, 1 Minn. 41. ' Anon, 2 Atk. 237. ' Chadwick «. Miller, 6 Iowa, 34. ' "The form of the action was abolished by the code, but the principles which governed it remain, and now, as much as formerly, control in deter- mining the rights of parties.'' Eldridge v. Adams, 54 Barb. 417. To the same effect, Collins v. Hough, 26 Mo. 152 ; Chadwick v. Miller, 6 Iowa, 34. * Smith V. Crockett, Minor, (Ala.) 377, (1834) ; Peirce v. Hill, 9 Porter, (Ala.) 155. ^ In Wheelock v. Cozzens, 6 How. (Miss.) 381, one of the counsel says he would as soon expect to see the court recognize the obsolete remedy of wager of battle, or wager of law, as replevin. See, also, a similar remark by counsel in "Virgina. Nicolson v. Hancock, 4 Hen. & M. (Va.) 491. « Watson V. Watson, 9 Conn. 140 ; Watson v. Watson, 10 Conn. 75. Against the attachment creditors, and not against the officer. Bowen is. Hutchings, 18 Conn. 550; Glover v. Chase, 37 Vt. 533. ' Hewitson «. Hunt, 8 Rich. (S. C.) 108. See Charleston v. Price, 1 Mc- Cord, 299; Byrd «. O'Hanlin, 1 Mill. (S. C.) 401. 8 Vaiden v. Bell, 3 Rand. (Va.) 448. 26 GENEEAL PRLNCIPI.ES. apply.' In Alabama the action of detinue has been modified and made to serve the same purpose as replevin, and is, in fact governed by the same general principles. ^ In Georgia the writ is called " possessory warrant," and differs somewhat in form from the common law writ,* -while Louisiana and Texas recognize the principles which govern actions of replevin in a proceeding by sequestration.* In Vermont and Connecticut, as a suit to try the title to property, it has only been allowed within a comparatively recent period. ^ In Pennsylvania, it is said, the action rests solely upon the local statutes, there being no right to proceed under the common law or the Stat- ute of Marlbridge,^ though the common law principles apply. But, whether they be of ancient or modern origin, all laws governing actions for the recovery of specific personal chattels can best be discussed under the title of replevin. § 37. Peculiarities of the action ; privileges to the plaintiff. There are some peculiar privileges to the plaintiff in this ac- tion. Upon affidavit being filed that he is the owner of the property in controversy, and entitled to its immediate posses- sion, he can demand that it be delivered to him under the iirst process issued in the case, leaving the title or right of posses- sion to be investigated afterwards. In no other form of action has the plaintiff this right.'' The bond which the plaintiff is required to give is regarded as a sufficient indemnity to the defendant in case the result of the trial shall show the title of ' "The name replevin is much more convenient and suggestive to the profession than that adopted by the code." Ames v. Miss. Boom Co., 8 Minn. 467. See Belkin v. Hill, 53 Mo. 493; Pulis d. Bearing, 7 Wis. 231; Porter «. Willet, 14 Abb. Pr. Kep. 319; Collins v. Hough, 26 Mo. 149; Chad- wick V. Miller, 6 Iowa, 34. ' Peirce «. Hill, 9 Porter, (Ala.) 151 ; Lawson, Admrs. v. Lay, Exrs., 24 Ala. 188. ' Mills -D. Glover, 22 Geo. 322; Stat. Geo. Title, Poss. War. ^ Fowler o. Stonum, 6 Texas, 61 ; Porter v. Miller, 7 Texas, 473. 'Compare Collamer «. Page, 35 Vt. 387; Bennett v. Allen, 30 Vt. 688; Glover v. Chase, 27 Vt. 533 ; Sprague ». Clark, 41 Vt. 6. ' Weaver e. Lawrence, 1 Ball. 156 ; English v. Dalbrow, 1 Miles, (Pa.) 160. ' Hunt V. Chambers, 1 Zab. (N. J.) 624; Yates v. Passett, 5 Denio, 31; Kingsbury's Exrs. v. Lane's Exrs., 21 Mo. 117 ; Creamer v. Ford, 1 Heisk. (Tenn.) 308; Lowry v. Hall. 3 W. & S. (Pa.) 139. IMPORTANCE OF THE ACmON. 27 the latter to be superior; and for the purpose of asserting his title, the defendant is permitted to set it up by his pleading, and to claim its return, and to require the plaintiff to prove aiSrmatively his title or right to possession when the suit was begun. 1 § 38. Importance of the action. The remedy has been called a violent one.* The transfer of the subject of the dis- pute from the defendant to the plaintiff, upon the first process, leaving the question of title to be determined afterward, is,- without doubt, a proceeding liable to abuse, and has probably been made use of to deprive the real owner of his property; yet it has frequently been found to be the only remedy of any real value to the owner of property which has been wrong- fully taken or detained from him. In cases where the defend- ant is irresponsible, or where the identical property must be put to some special immediate use, or where the property is an heirloom, or has some peculiar value to the plaintiff, the necessity of this action has long been apparent. Through a series of legislative acts, and the liberal construction of the courts, it has become a common remedy; indeed, almost the only effective one in cases wherein the plaintiff is entitled to specific chattels, and prefers a recovery in specie, or where, for any cause, he prefers the property to the risks to which the insolvency or knavery of the defendant might expose him, should he have judgment for damages only.^ It is sometimes the only adequate remedy of any kind available when property is withheld. When one owns goods which are in the posses- sion of another, he cannot sue in assumpsit for them, or for their value, but must sue for them in replevin, or for their I Mennie v. Blake, 6 E. & B. (88 E. C. L.) 843. ' Hutchinson i). McClellen, 3 Wis. 17. See, also, Mennie v. Blake, 6 E. & B. (88 E. C. L.) 846 ; Tifft «. Verden, 11 S. & M. (Miss.) 160. Imprisonment is sometimes allowed. Tomlin v. Fisher, 37 Mich. 535. 3 Badger v. Phinney, 15 Mass. 363 ; Town v. Evans, 1 Eng. (Ark.) 363 ; Ames V. Miss. Boom Co., 8 Minn. 467; Kingsbury's Exrs. «. Lane's Exrs. 31 Mo. 117 ; Hunt v. Chambers, 31 N. J. 634 ; Clark v. Skinner, 30 Johns. 467; Travers «. Inslee, 19 Mich. 101 ; Weaver v. Lawrence, 1 Dall. 156. Re- plevin is the only effective remedy when the goods are in the hands of a worthless defendant. Tibbal v. Cahoon, 10 Watts, 333 ; Pettygrove v. Hoyt, 11 Me. 66 ; Mennie v. Blake, 6 Ell. & Bla. (88 E. C. L.) 849. 28 GENEEAL PEINCIPLES. falne in trover. In the latter case, if the defendant is insolv- ent, the judgment is of no value, and the plaintiff is subject not only to the loss of his goods, but to the burden of a suit.' § 39. The right to present possession the chief question at issue. Though conflicting titles may well be settled in this form of proceeding, it is chiefly a possessory action, the right to present possession of the property being the principal question in controversy.^ And where the title is investigated, it is frequently with a view to determine the right of posses- sion, which is in dispute in all cases of replevin. Ownership of chattels usually draws to it the right of possession. Proof of ownershijj would warrant the inference that the owner was entitled to possession ; but a right of possession may be shown independent of or superior to the owner's rights. Thus, if one hire a horse for a stated time, and the owner should retake possession while the contract of hiring was in force, the hirer might sustain replevin. § 40. Statutory provisions allowing the defendant to retain possession. In many of the States statntory provisions exist, whereby the defendant is allowed a reasonable time within which to give bond to secure the plaintiff and retain the prop- erty in his own possession until the questions at issue are determined. This eminently just provision is but a return to the principles of the common law which were in, force in the earliest times.* ' Creel v. Kirkliam, 47 111. 345 ; Johnston v. Salisbury, 61 111. 317; Beth- leliem, etc., v. Perseverance Fire Co., 81 Pa. St. 446 ; Gray «. Griffltli, 10 Watts, (Pa.) 431; Mendelsohn v. Smith, 27 Mich. 2. See the old case of Linden ». Hooper, Cowp. 415, ■where it was held that if a party pays money for the release of his cattle, wronfjfully distrained, he cannot recover it. '^ Heerons. Beck with, 1 Wis. 30; Rose b. Cash, 58 Ind. 378 ; Hunts. Cham- bers, 1 Zab. (31 N. J.) 634; McCoy v. Cadle, 4 Clark, (Iowa,) 557; Johnson e. Carnley, 6 Seld. (N. Y.) 578; Corbitt v. Heisey. 15 Iowa, 296; SeldnerB. Smith, 40 Md. 603 ; Hickey v. Hinsdale, 13 Mich. 100; Smith «. William- son, 1 Har. & J. (Md.) 147 ; Childs v. Childs, 13 Wis. 17 ; Jackson v. Sparks, 86 Geo. 445. 8 Lisher v. Pierson, 11 Wend. 58; Mitchell o. Hinman, 8 Wend. 667. If the defendant claimed the property, the sheriff could proceed no further. The writ de proprietate probanda was then sued out to determine the owner- ship. See ante, § 13. FOEMEELY, WOtJLD LIE ONLY FOE A DISTEESS. 29 § 41. Formerly, would lie only for a distress. Blackstone says the action would lie only for the recovery of a wrongful distress. 1 This statement has been criticised in a number of modern cases. ^ While there is nothing in the form of the writ which necessarily confines it to cases of distress,^ there are many excellent reasons for accepting the statement of Jus- tice Blackstone in preference to his critics. All the early writers speak of replevin simply as the remedy for a wrongful distress,* and it does not seem to be referred to in any other connection until after Blackstone wrote, " A replegari lyeth, as Littleton here teacheth us, when goods are distrained and impounded," etc.^ Britton, one of the eai-liest authorities, lays down the law as follows: "But to the intent that beasts and other distresses may not be long detained, we have granted that the sheriff, by simple plaints and by pledges, may deliver such distresses."* In twenty-six sections, which Britton de- votes to this subject, there is no intimation that the writ would lie for any other purpose than the recovery of a distress.' Gilbert treats of the action simply as the remedy for the recov- ery of a distress. The title of the work usually cited as Gil- bert on Eeplevin, is, " The Law and Practice of Distress and Eeplevin." The second chapter of this work begins as follows: " Having, in the foregoing chapter, shown in what cases a dis- tress or pledge may be taken, and how it is to be disposed of, the next thing in order to be treated of is the remedy given the party to controvert the legality of such caption, in order ' 3 Black. Com. 146. » Herdic c. Young, 55 Pa. St. 177; Daggett c. Robins, 3 Blackf. (Ind.) 416; Chinn ■». Russell, 3 Blackf. (Ind.) 173, note 3; Shannon «. Shannon, 1 Sch. & Lef. 337; Pangbum v. Patridge, 7 Johns. 140; Bruen v. Ogden, 6 Halst. (N. J,) 373 ; Caldwell v. West, 1 Zab. 430 ; Reist v. Heilbrenner, 11 S. & R. (Pa.) 133. The old authorities are, that replevin lies only for goods taken tortiously. Harwood v. Smethurst, 39 N. J. L. 195 ; CuUum v. Bevans, 6 Ear. & J. (Md.) 469. 3 See ante, § 11, note 1. * Britton, Vol. 1, 136, et seq.; F. N. B. 156; Gilbert on Replevin; Cowell Interp. Title Replevin. » Co. Litt. 1456. ' Britton, Nichols' Trans. Vol. 1 p. 136. ' This agrees -witli Bracton, 1056, and Fleta, 94». 30 GENEEAL PBINOIPLES. to bring back the pledge to the proprietor in case the distress were unlawfully taken, and without just cause."i § 42. The same. Of something like a hundred cases re- ported in the time of Edward I., not one is believed to exist that was for any other cause than the recovery of a distress.' The name replevin, from replega/ri, to " take back the pledge," renders it almost certain that the action was originally used to recover goods wrongfully seized as a pledge or security; such seizures, in the ancient law, were always called distresses. Con- sidering these authorities, together with the fact that the an- cient common law gave an appeal of felony in cases where goods were seized otherwise than as a distress, as well as for goods which the distrainor claimed to own;* also, th^t the action of detinue was for goods bailed to, and wrongfully de- tained by, the defendant, and that the action of trover enabled the plaintiff to recover the value of goods wrongfully converted, replevin seems, by the harmony of the ancient law, confined solely to cases of distress. * § 43. The same. Yiewed in the light of these authorities, it would seem that replevin by the common law was an action to test the legality of a distress; that it would lie in no other case; and it admits of no doubt that under the statutes and decisions of the courts in modern times, the settled and prevail- ing doctrine .is that the action lies for any wrongful taking or unlawful detention of the goods of another. ^ ' See, also, Mennie v. Blake, 6 Ell. & Bla. (88 E. C. L.) 843. Replevin is a personal action, to try the legality of a distress. Eaton v. Soutliby, Willes, 134. See, also, Ilsley v. Stubbs, 5 Mass. 380; Bro. Abr. «& Koll. Abr.; Cow. ell's Interp. ; Jacobs' Law Die, this title. ' Year Books, Edward I., 'passim. ' See ante, % 1, note 3, and § 13 and notes. * The Statute 11 Geo. II., Ch. 19, providing for bond, applies only in cases of replevin of distress for rent. Knapp «. Colburn, 4 Wend. 618 ; Statute 11 Geo. II., Ch. 19. 6 In addition to cases before cited, see Pangburn c. Patridge, 7 Johns. 140; Hopkins v. Hopkins, 10 Johns. 369; Gardner v. Campbell, 15 Johns. 401 ; Cullum v. Bevans, 6 H. & J. (Md.; 469 ; Clark ®. Skinner, 30 Johns. 467 ; Rogers ». Arnold, 13 Wend. 30; Wheeler v. McFarland, 10 Wend. 818; Ils- ley «* Stubbs, 5 Mass. 283; Benje e. Creagh's Admr. 31 Ala. 151; Trapnall 0. Hattier, 1 Eng. (Ark.) 31 ; Dudley v. Ross, 37 Wis. 680. SIMILAKITT OF THIS ACTION TO TEESPASS, ETC. 31 § 44. Similarity of this action to trespass, trover and det- inue. A clearer understanding of the law of replevin will be gained by considering it as belonging to the same class of cases as trespass, trover and detinue; that while the form of proceeding is different, and the results are not the same, these actions are strictly analagous in all their governing principles.' "Eeplevin at common law is distinguished from trespass," says CoLEEiDGE, J., " 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 pos- session 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 oflScers of the law with the possession. * * * As a general rule, it is just that a party in the peaceable possession of goods should remain undisturbed, either by parties claiming adversely, or by the oflScers of the law, until the right be determined and the possession shown to be unlawful; but where, either by dis- tress 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 interfere 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 decision." 2 ,' Holbrook v. "Wight, 24 Wend. 169 ; Marshall «. Davis, 1 "Wend. 109 ; "WickliflFe «. Sanders. 6 T. B. Mon. (Ky.) 396; Chapman «. Andrews, 3 "Wend. 242; Heard «. James, 49 Miss. 236; Rogers v. Arnold, 13 "Wend. 30; Briggs D. Gleason, 29 Vt. 78 ; Rector v. Chevalier, 1 Mo. 345. ' Mennie v. Blake, 6 Ellis & B. (88 E. C. L.) 842. " It hears a strong re- semblance to trover." Hisler v. Carr, 34 Cal. 641. The rule in trespass and trover which allows a return to be shown in mitigation of damages is applicable to replevin; exceptions stated. Gary v. Hewitt, 26 Mich. 228. " The same principles govern in trover and replevin." Parmalee v. Loomis, 24 Mich. 343. " When the taking was illegal the action was by replevin ;i when detention only was complained of the remedy was by detinue." Dame V. Dame, 43 N. H. 37. " The action is like trover in principle." Sanford Manf 'g Co. v. Wiggin, 14 N. H. 441. "Where trespass or trover lies for the conversion, replevin will lie for the goods." Sawtelle v. RWlins, 23 Me. 196. See, also, Shannon v. Shannon, 1 Sch. & Lef. 324; Clark ». Skin- 32 GENERAL PEIKCIPLE8. § 45. Characteristics of this action compared with those of trover arid trespass. Trover, by the common law, supposed a casual loss by the plaintiff, and a finding and conversion by ner, 20 Johns. 467 ; Eowell v. Klein, 44 Ind. 294; Vanderburgh «. Bassett, 4 Minn. 243. " Same proof required as in trover." Ingalls v. Bulkley, 13 111. 317. ''Replevin and trover concurrent; different in judgment only." Allen V. Crary, 10 Wend. 349 ; Beebe v. De Baun, 3 Eng. (Ark.) 510. "Anal- agous to trespass." Daggett ■». Robins, 2 Blackf (Ind.) 416. " The meas- ure of damages is found by processes analagous to those in actions for tres. pass." Phillips v. Harris, 3 J. J. Marsh, 123; Warner v. Matthews, 18 111. 83. " For any unlawful taking of chattels out of the possession, actual or constructive, of another, the injured party may have trespass de bonis, or replevin, at his election." Ely «. Ehle, 3 Comst. (N. Y.) 507. " Ordinarily where replevin will lie trover will lie." Pace v. Pierce, 49 Mo. 393. " Re- plevin in the cepit lies only where trespass might have been brought." Rich V. Baker, 3 Denio, 80. "The same general principles regulate tres- pass, trover and replevin." Whitfield v. Whitfield, 40 Miss. 367. " Jiidg- ment in trespass is a bar to replevin for same goods." Coffin ». Knott, 3 Greene, (Iowa,) 582; Karr v. Barstow, 24 111. 580. "Trespass and replevin are concurrent." Gallagher v. Bishop, 15 Wis. 276. " The action is ranked with trespass and trover." Crocker v. Mann, 3 Mo. 473 ; Walpole v. Smith, 4 Blackf (Ind.) 304. Same principles apply as in trover. Gerber v. Monie, 56 Barb. 652. The action of detinue, or of replevin, asserts a continuing property in the plaintiff, while trover proceeds on the assumption that by a wrongful conversion the defendant has become the owner, and seeks dam- ages which the conversion has occasioned. McGavock v. Chamberlain, 30 111. 320. Replevin is by statute made a substiute for detinue and trover. Wright V. Bennett, 3 Barb. 451. Consult, in this connection, Porters. Mil- ler, 7 Texas, 473; Seaver ». Dingley, 4 Gr. (Me.) 306; Grace «. Mitchell, 31 Wis. 533; Childs v. Childs, 13 Wis. 17; Sharp v. Wittenhall, 3 Hill, (N. Y.) 576 ; Brockway v. Burnap, 12 Barb. 351 ; Rich v. Baker, 3 Denio, 79 ; Max- ham «. Day, 16 Gray, (Mass.) 213; Newman «. Jenne, 47 Me. 520; Mitchell V. Roberts, 50 N. H. 490; Angell ». Keith, 24 Vt. 373; Overfield v. Burlitt, 1 Mo. 749 ; Gray «. Nations, 1 Ark. 558 ; Jocelyn v. Barrett, 18 Ind. 128 ; Burr V. Daugherty, 21 Ark. 559 ; Heard v. James, 49 Miss. 246 ; Chinn v. Russell, 2 Blackf. (Ind.) 174; Betheas. M'Lennon, 1 Ired. (N. C.) 523; Stockwell v. Phelps, 34 N. Y. Ct. Appeals, 363 ; Wheeler v. McFarland, 10 Wend. 318. Trespass, replevin and trover are concurrent remedies if an owner has the immediate right of possession. Stanley v. Gaylord, 1 Cush. 536. Tres- pass lies for any unlawful Interference with, or dominion over, the goods of another — Hardy v. Clendening, 25 Ark. 440; Ralston v. Black, 15 Iowa, 47; Reynolds v. Shuler, 5 Cow. 335; Hurd B.West, 7 Cow. 753; Gibbss. Chase, 10 Mass. 125 ; Phillips v. Hall, 8 Wend. 610 ; Coffin v. Field, 7 Cush. 355; Phillips «. Harris, 3 J. J. Marsh, (Ky.) 122— and if the trespasser take possession of goods, replevin was always a concurrent remedy. Cum- mings V. Vorce, B Hill, 282; Dunham v. Wyckoff, 3 Wend. 280; Brockway CHAEACTEEISTICS OF THIS ACTION COMPAEED. 33 the defendant. ^ The distinction between trover and replevin consists mainly in the fact that replevin is a possessory action, while trover is based on a right of property, and requires own- ership, either general or special, to support it. The right of possession figures in the action of trover only as it forms an incident to the title.^ Trespass lies for any unauthorized inter- ference with the goods of another. In trover there must be a conversion.* In other respects the actions are very similar. Detinue was for the detention, and at common law, supposed a bailment of goods by the plaintiff to the defendant, .and a refusal to deliver them after proper request.* In trespass the defendant was liable if he took the goods even for an instant; and an offer to return, accompanied by a tender of the goods, was no defense. In trover the defendant was not liable unless there was an actual conversion. If the defendant surrender the goods on request, he is not liable in trover. § 46. The same. Replevin was formerly based upon a sup- posed wrongful taking of the plaintiff's goods. Authorities in recent times have held that it would not lie at common law, except in cases where there has been a wrongful taking. ^ The whole theory of the action is based upon the assumption that the plaintiff has a general or special property in the goods in dispute, as well as a right to their immediate pos- session, and that the defendant wrongfully took or wrong- V. Burnap, 13 Barb, 347 ; Marshall «. Davis, 1 Wend. 110 ; Allen v. Crary, 10 Wend. 349. 1 3 Black. Com. 151. « Burdick «. McVanner, 3 Denio, 171; Heyland v. Badger, 85 Cal. 404; Ward V. Macauley, 4 Term Rep. 360, 488. Compare Waterman ®. Robinson, 5 Mass. 304. So, in trespass, the plaintiff must aver and prove title. Car- lisle V. Weston, 1 Met. (Mass.) 36. - Price ■». Helyer, 4 Bing. 597. ' 8 Black. Com. 155 ; Selw. N. P. 657 ; Fitz N. B. 333 ; T. B. 6 H. 7, 9 ; Law- son 1). Lay, 34 Ala. 188; Schulenberg v. Campbell, 14 Mo. 491. spirani ■». Barden, Pike, (5 Ark.) 84; Wallace «, Brown, 17 Ark. 453; Neff V. Thompson, 8 Barb. 315 ; Marshall v. Davis, 1 Wend. 113 ; Wood- ward v. Railway Co., 46 N. H. 535 ; Smith v. Huntington, 3 N. li. 76 ; Whee- lock V. Cozzens, 6 How. (Miss.) 380; Miller v. Sleeper, 4 Cush. 370; Rams- dell V. Buswell, 54 Me. 548 ; Chinn v. Russell, 3 Blackf. 176, note 3 ; Vaiden V. Bell, 3 Randolph, 448; Watson v. Watson, 9 Conn. 140; Drummond v. Hopper, 4 Harr. (Del,) 837. 3 34 GENERAL PEINCIPLES. fully detained them from him ; i and upon this assumption the law steps in and restores the property to the original possessor, upon his giving bond to make good his claim to the property.^ § 47. Distinetion between this action and trespass and trover. While replevin has a strong resemblance to detinae, trespass and trover, as has been shown in the preceding sec- tions, yet there are certain points of distinetion which it is important to observe. One of the principal differences is, that in replevin the property in dispute may be delivered to the plaintiff upon the first process in the case, while in the com- mon law action of detinue, the property is not delivered until after judgment. ^ In trespass and trover the property was never delivered to plaintiff. In each of these actions he seeks only to recover the value of his goods, and damages for the injury to or conversion of them. These distinctions, however, only apply to the effect of the remedy; not to the principles which govern in determining the question of right. § 48. The same. Replevin may frequently be sustained in cases where trespass will not lie. Thus, it is essential, to sus- tain trespass, that there should be some proof that the defend- ant has in some way interfered with the plaintiff's goods, or done some act in some way wrongfully interfering with the plaintiff's possession.* Simple omission or refusal to deliver goods rightfully in the defendant's possession would not be an act of trespass, but such refusal might furnish ample grounds to sustain an action of replevin for the detention, or trover for their value. ^ Again, trespass will not lie against one who comes 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.* So, when a bailee of goods ' Hunt V. Chambers, 1 Zab. (21 N. J.) 624. - Mennie v. Blake, 6 Ell. & B. (88 E. C. L.) 850. 3 Cox ». Morrow, 14 Ark. 608; Badger v. Phinney, 15 Mass. 362; Bobin- son V. Ricbards 45 Ala. 358 ; 8 Black. Com. 153. * Grace «. Mitchell, 31 Wis. 536. " See Isaac v. Clark, 3 Bulst. 310. Sometimes cited as Thimblethorp's Case. = Barrett v. Warren, 3 Hill, (N. T.) 348 ; Wilson v. Barker, 4 Barn. & Adol. (24 E. C. L.; 614 DIFFERENCE BETWEEN REPLEVIN AND TRESPASS. 35 sells and delivers tliem without authority, such sale and deliv- ery conveys no title to the purchaser; and though replevin would lie at the suit of the rightful owner, trespass would not lie. If, however, no delivery of the goods accompany such sale, and the purchaser take possession by his own wrong, tres- pass or replevin for the wrongful taking would lie, at the election of the injured party. ^ § 49. The same. If an infant sell his goods and deliver them with his own hand, though the act be voidable and replevin lies, yet he could not recover in trespass. If, how- ever, the vendee should take them by force, trespass would lie, notwithstanding the sale.^ In a case where the action was in the cepit for barrels of ilour sold by a carrier without author- ity, and the defendant pleaded non cepit, with notice that he should claim: 1st, that the property was his; 2d, that it was the property of the carriers, and 3d, that the carrier had the right of possession. On the trial the defendant proved that he purchased the flour in good faith, for a fair price, from H., the captain of a canal boat, but it was held that under the plea of non cepit the title was not put in issue; that proof of purchase from H. was imma- terial unless defendant showed that H. was authorized to sell; that there was no proof of delivery, but only of sale by the carrier, the flour being found in the defendant's possession, the action for taking was properly brought, and the plaintiff recovered.* Again, in replevin the plaintiff is bound to take the goods he sues for when delivered to him by the oflBcer, even though they be in a damaged condition.* But in tres- pass the plaintiff is not bound to take the goods, but may insist on judgment for value. ^ § 50. The same. Another important distinction is, that in order to sustain replevin, the defendant must have the actual '- Marshall c. Davis, 1 Wend. 109 ; Nash t. Mosher, 19 Wend. 431 ; Bar- rett «. Warren, 3 Hill, 348. - Fonda ®. Van Horn, 15 Wend. 631 ; Koof v. Stafford, 7 Cow. (N.T.) 179, ' and note, citing many cases on the law of infancy. 2 Ely -o. Ehle, 3 Comst. (N.Y.) 506. * Allen «. Fox, 51 N.T. 564. ' Robinson «. Mansfield, 13 Pick. 144. 36 GENERAL PEINCIPLES. or constructive possession of the goods at tlie time suit is commenced; in other words, he must be in a condition to deliver the property when called on by the officer, in obedience to the command of the writ.^ Thus, when a creditor in an execution directs the sheriff to levy on certain property, and the sheriff does so and takes possession of it, the sheriff and the creditor in execution may both be liable in trespass ; but the sheriff having possession of the property would alone be liable in replevin. ^ § 51. Where one takes forcible possession of his own property, he may be liable in trespass, but not in replevin. "Where a person takes forcible possession of his own goods, he may be liable, in certain cases, 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 retake the goods. 3 ' Lathrop v. Cook, 2 Shep. (14 Me.) 415; Ricliardson v. Reed, 4 Grey, 443; Uickey «. Hinsdale, 13 Mich. 100; Ramsdell v. Buswell, 54 Me. 546. To this rule some exceptions have been stated, as where the defendant had possession of the goods at one time, but had purposely put them out of his hands to defeat the plaintiflF. Ellis v. Lersner, 48 Barb. 539 ; Brockway s. Burnap, 16 Barb. 309. See post, § 145. While in trespass the defendant may never have had possession. Trover may be sustained where the defendant once possessed the goods, but has disposed of, or has destroyed or made way with them before suit brought. Richardson©. Reed, 4 Gray, 443; Taylor D. Trask, 7 Cow. 249 ; Woolbridge o. Conner, 49 Me. 353 ; McNeeley v. Hun- ton, 80 Mo. 332; WicklifiFe v. Sanders, 6 T. B. Mon. (Ky.) 296; Kreger t. Osborn, 7 Blackf. (IndO 74. = Grace v. Mitchell, 31 Wis. 533 ; Coply ®. Rose, 2 Comst. 115 ; Mitchell v. Roberts, 50 N. H. 486. Gontra, see Allen b. Crary, 10 Wend. 349. The point was made in a case in New York that the plaintiff in execution who had done nothing except to direct the sheriff to levy, had never had pos- session of the goods, and therefore could not be a defendant in replevin, but the court followed Allen o. Crary, 10 Wend. 349, and held that this was a sufficient proof of taking to enable the owner to bring replevin. Knapp V. Smith, 27 N.Y. 280. 3 Taylor «. Welbey, 36 Wis. 43; Carroll «. Pathkiller, 3 Porter (Ala.) 279; Keely v. Lyon, (18 Tenn.) 10 Yerg. 473; Bogard v. Jones, 9 Humph. (Tenn.) 739; Hodgeden v. Hubbard, 18 Vt. 504; Owen ®. Boyle, 22 Me. 67; Hurdft West, 7 Cow. 753; Spencer ®. McGowen, 13 Wend. 256; Coverlee «. Warner, 19 Ohio, 29; Marsh s. White, 8 Barb. 518; Collomb e. Taylor, 9 Humph. (Tenn.) 689. EEPLEVIN IN OEPIT, DETINET AND DETINUET. 37 § 52. Actual detention of tlie goods necessary to sustain replevin. While proof of a wrongful or forcible taking from the plaintiff's possession, may be suflScient to sustain tres- pass, it will not always be sufficient to sustain replevin, without proof of an actual detention of the goods by the ■defendant at the time the suit was brought. For instance, if the defendant should show that before the suit was brought he returned the goods to the plaintiff", proof of the fact that he had taken them by force would not justify a finding against him in replevin.i So, a levy by an officer not authorized by law is a trespass, and an action may be sustained without proof of a removal of the goods. ^ But replevin would not lie unless the officer should remove the property, or should have the possession of the goods at the time the suit was brought.* § 53. Eeplevin in cepit, detinet and detinuet. The action is frequently spoken of as replevin in the cepit and in the ■detinet. There was formerly a distinction between these, amounting to more than a form of pleading. The old style of declaration, in case the goods were not delivered on the writ, was * * * "Wherefore, he took, and until now anjustly detains," etc. When the goods were delivered on the writ the form was, "Wherefore, he took and unjustly de- tained," etc.* Eeplevin the cepit is simply for the wrongful taking, from capio in Latin, "to take;" and replevin in the ■detinet is for the detention of goods only, detinet being from de and teneo, " to hold." This distinction, though not of as much importance as formerly, should still be kept in mind.^ There is another technical distinction between the action in the detinet and in the deiinuet, the former signifying " he de- tains," and the latter " he detained." The latter form in the ■declaration imports that the goods have been delivered to the ' Paul V. Luttrell, 1 Colorado, 318. See post, § 134, and following. = Allen ■0. Crary, 10 "Wend. 349; Wheeler v. McFarland, 10 Wend. 333; Neff 0. Thompson, 8 Barb. 215. ' English v. Dalbrow, 1 Miles, (Pa.) 160. * Harwood v. Smethurst, 5 Dutch. (39 N. J.) 303. » Pierce v. Van Dylie, 6 Hill, 613; Oleson v. Merrill, 20 Wis. 463; Cum- mings -B. Vorce, 3 Hill, 383. 38 GENERAL PEINCTFLES. plaintiff upon his writ; he, therefore, can only recover dam- ages for the taking and detention up to the time of delivery, and not the value of the goods, which by legal intendment are in his possession. When he charges that the defendant de- tains, that is in the detinet, and he may have the value as damages. 1 § 54. Wrongfiil taking. Proof of any unlawful taking or control of the goods of another is sufficient to sustain an alle- gation of taking, without proof of an act^ial forcible dispos- session of the plaintiff. 2 Wrongful taking, as used in this connection, does not imply any forcible or malicious act; it simply means that the taking is against right.* Oases fre- quently arise, however, where the defendant has become pos- sessed of the plaintiff's goods in a lawful manner, and refuses to deliver them on request. In such cases the action is for the detention, and is called replevin in the detinet. With this form of action trover is always concurrent; or the plaintiff may, at his election, employ it where the goods were taken by force.* As every unlawful taking is 'prima facie an unlaw- ful detention, proof of a wrongful taking is permitted so far as to excuse the plaintiff from the necessity of proof of a demand, even where the form of action is for detaining. The right to prove a wrongful taking in cases where the charge is for detention only will not, however, be permitted to affect the question of damages.^ ' Petre «. Duke, Lutw. 360; Potter v. North, 1 Saund. 347 &, note 2; Truitt v. Revill, 4 Harr. (Del.) 71; Fox «. Prickett, 5 Vroom, (N.J.) 13. See Boswell v. Green, 35 N. J. L. 890. « Haythorn «. Rusliforth, 19 N. J. L. 160; Gox v. Morrow, 14 Ark. 608; Stewart ». Wells, 6 Barb. 80; Nefif v. Thompson, 8 Barb. 215; Wheeler o. McFarland, 10 Wend. 323; Barrett v. Warren, 8 Hill (N.T.) 349; Murphy «. Tyndall, Hempst. C. C. 10. * Moore v. Moore, 4 Mo. 431. < Ronge ». Dawson, 9 Wis. 246 ; Cummings v. Vorce, 3 Hill, (N. T.) 282. 6 Eldred ». The Oconto Co., 33 Wis. 133 ; Newell ». Newell, 34 Miss. 400; Smith v. McLean, 34 Iowa, 333. Replevin in the detinet was seldom used until it was made applicable by statute to a large majority of cases — Tates V. Fassett, 5 Denio, 36 ; Potter «. North, 1 Saund. 347 b — and it is now the most common form of the action. Daggett v. Robins, 3 Blackf. 416. SCOPE OF THE INVESTIGATION IH THIS ACTION. 39 § 56. The scope of the investigation in this action. The parties to this action are not confined to an investigation of the naked question of title or right of possession, but may go into all the incidents that go to make up these, as being neces- sary to arrive at a correct decision. Thus, where replevin was brought to recover property seized under a chattel mortgage, the plaintiff claimed that the note described in the mortgage under which the seizure was made was given for machinery that was warranted; that there was a breach of the warranty, and consequently a failure of consideration to the amount of that note; and the matter was held proper. ^ Where the action was for a distress for rent the defendant was permitted to show that he purchased the premises with the consent of his land- lord;^ and where the action was for wheat stored with the defendant, and he justified on the ground that he was a ware- houseman, the plaintiff replied that some forty bushels were lost or destroyed, and that this equaled in value the storeage.s § 56. The same. 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.* In another case, where the de- fendant claimed that the property belonged to his minor son, and that he, as natural guardian, was bound to keep the cus- tody of it, the plaintiff offered proof that he bought of the defendant and his son; thereupon the defendant introduced evidence to show that the sale was fraudulent. ^ § 57. The same. When the action is for the recovery of goods wrongfully attached by an officet on process against another, the plaintiff must recover on the strength of his own title, which is subject to encounter whatever would tend to show that the property was liable to the levy.* > Hutt B. Bruckman, 55 111. 441 ; Bruce v. Westervelt, 3 E. D. Smith, 440. ' Hill V. Miller, 5 S. & R. (Pa.) 355. » Babb B. Talcott, 47 Mo. 343 ; Gillham «. Kerone, 45 Mo. 490. « Dix V. Van Wyck, 3 Hill, (N. T.) 533. : Bliss V. Badger, 36 Vt. 338. • Hotchkiss V. Ashley, 44 Vt. 198. 40 WHEN 'AND FOE WHAT IT LIES. OHAPTEK III. WHEN AND FOR WHAT IT LIES. Section. 58 59 60 61 63 63 64 Replevin lies only for ciiattels . Illustrations of the rule . Chattels severed from realty- Buildings prima facie real es- tate Chattels may become part of the realty What Is or is not real estate How far the question as to what is or is not real estate may be litigated in replevin The same 65 The same 66 The same. Trade fixtures . 67 Buildings, while fixed to land, are part of the realty . . 68 Articles severed from the realty 69 The same 70 The same 71 The same 72 Severance from realty does not change title . . . .73 Growing crops . . . .74 Actual severance not necessary to give property the character of personalty . . . .75 The same Chattels fixed to the land of an- other without his consent Same entry under adverse claim Title to real estate, when evi- dence in replevin . The same Holder of colorable title cannot recover chattels severed Defendant holding color of title Action cannot be used to litigate title to land . . . . Chattels severed through mis- take Chattels severed by a trespasser The same The same Severed by one claiming to own the land Summary of the rule How far a mortgage on real es- tate passes title to chattels sev- ered therefrom The same The same The same Section. . 76 77 78 79 81 84 87 91 § 58. Replevin lies only for chattels. • Keplevin lies only for chattels personal, and not for real estate, or anything attached to or forming part of the realty. >• The title to land cannot be tried in this action, though, as will be shown here- - Roberts v. The Dauphin Bank, 19 Pa. St. 75 ; Ricketts ». Dorrel, 55 Ind. 470; Vausse ». Russell, 2 McCord, (S. C.) 339; Eaton ». Southby, Willes, 181 ; Bower o. Tallman, 5 Watts & Serg. 556. SOME ILLUSTRATIONS OT THE EULE. 41 after, where the title to chattels depends on the ownership of the soil from which they may have been severed, the title of the land can be investigated, with the view of determining the ownership of chattels. i Tlie term " goods" or " chattels," as used in this connection, has the same signification, and in- cludes all species of animate and inanimate movable, tangible property. 2 § 59. Some illustrations of the rule. The writ lies for do- mestic animals, but not for wild animals, until after they are reclaimed;' or for the increase of domestic animals, and the plaintiff may have judgment in his favor for tlie young of such animals born, or for wool shorn from them after the animals are replevied.* It lies for money in a box or bag, or so sepa- rated from other money that it can be distinguished ;S or, bonds which can be identified ; ' or, the records of a parish or church ; ' or corporate company ;» or, for a note or a check by the legal owner; 8 but not by the winner of a wager, against the stake- holder, for the winning.^" It does not lie after the death or destruction of the chattel sued for.n Neither can it be em- ployed to quiet title to property in the plaintiff's possession.' ^ ' Snyder v. Vaux, 2 Rawle, (Pa.) 437 ; Nibblet «. Smith, 4 Duruf & E. 504; Gullett ■». Lamberton, 1 Eng. (Ark.) 109 ; F; N. B. 156 ; Brown e. Wallis, 115 Mass. 158; Bacon v. Davis, 30 Mich. 157; Cresson «. Stout, 17 Johns. 131 ; Chatterton v. Saul, 16 111. 150 ; Knowlton v. Culver, 1 Chand. (Wis.) 214; S. C, 2 Pin. (Wis.) 86. » Eddy V. Davis, 35 Vt. 248 ; Graff v. Shannon, 7 Iowa, 508. » Amory ■». Flyn, 10 Johns. 103; Goff «. Kilts, 15 Wend. 550; Buster®. Newliirk, 20 Johns. 75. * Arundel v. Trevil, 1 Sid. 81 ; Buckley v. Buckley, 12 Nev. 433. ' Bull, Nisi Prius, 33; Skidmore v. Taylor, 39 Cal. 619; Dows v. Bignall Lalor Supt. (Hill & Denio,) 408 ; Core's Case, Dyer, 33 6. e Sager «. Blain, 44 Hand, (N. Y.) 448. " Baker v. Pales, 16 Mass. 147 ; Sawyer v. Baldwin, 11 Pick. 493 ; Sud- bury V. Stearns, 21 Pick. 148. 8 Southern Plank Koad Co. ■». Hixon, 5 Ind. 166. s Clapp 0. Shepard, 3 Met. 127 ; Graff v. Shannon, 7 Iowa, 508 ; Chicker. ing V. Raymond, 15 111. 863 ; Bissell v. Drake, 19 Johns. 66. But, see Bar- nett v. Selling, 70 N. T. 493. "> Merchant's S. L. & T. Co. v. Goodrich, 75 111. 554. " Lindsey v. Perry, 1 Ala. 204; Scott v. Elliott, 63 N. C. 215. »» Bacon v. Davis, 30 Mich. 157 ; Hickey «. Hinsdale, 12 Mich. 100. 42 WHEN AND FOE WHAT IT LIES. Nor will the action lie to remove public papers or documents from a public office. Such instruments are in the custody of the law, and the writ, if issued for their seizure, will be quashed, and the papers returned. ^ Nor for an apprentice, at the suit of his master, the apprentice being a freeman,^ though it would always lie for a slave. Nor will it lie for articles in actual use at the time of the service of the writ. Beasts of the plow or tools in actual use could not be distrained. Neither will it lie for articles of clothing or ornament actually worn upon the person, though it be with the design to prevent the service of the writ.* Neither will it lie by the appointee to an office, for his commission, after it has been made out and duly exe- cuted by the appointing power. The judgment is for the thing or its value, and the value of a public office cannot be ascer- tained or awarded as damages. Replevin, in such cases, is like replevying an office, which the law does not permit.* And without attempting to enter into specific details, the writ may be said to lie for all chattels personal which are in esse, and subject to manual delivery, not actually in use or exempted by law.^ § 60. Chattels severed from realty. Chattels personal, however ponderous or bulky they may be, and notwithstand- ing the fact that they may have previously been part of the real estate, may be recovered in this action. ^ In Arkansas, the statute which made slaves real estate was designed only to change the mode of descent and conveyance, and not to deprive the owner of a right to replevin them in case they were wrong- fully taken or detained.' " Brent v. Hagner, 5 Cranoh C. C. 71 ; Marbury v. Madison, 1 Cranch, U. S. 49. 2 Morris v. Cannon, 1 Harr. (Del.) 330. 8 Maxham e. Day, 16 Gray, (Mass.) 313. * Marbury «. Madison, 1 Cranch, U. S. 50. » Brown v. Caldwell, 10 S. & R. (Pa.) 118. The old rule was that it would lie for anything that could be distrained. Bacon Abr., title Replevin. 'Gear v. Bullendick, 34 111. 74; Foy ». Reddick, 31 Ind. 414; Keeseo. Jared, 15 Ind. 143; Ombony s. Jones, 31 Barb. 530; Dubois v. Kelley, 10 Barb. 496 ; Mills v. Eedick, 1 Neb. 187 ; Pennybecker o. McDougal, 48 Cal. 163; Huebschman v. McHenry, 39 Wis. 659. ' GuUett V. Lamberton, 1 Eng. (Ark.) 118. WHAT IS OR IS NOT KEAL ESTATE. 43 § 61. Buildings are prima facie real estate. Buildings, such as dwelling houses and similar structures, are prima facie real estate. i They are not fixtures in the common intend- ment of the law, but part of the land.^ So, also, the engine and other machinery of a mill or factory which is attached to or forms part of the permanent structure, is presumptively part of the real estate,* and as such, not subject to be delivered on this writ; but a building may become personal property with the consent of the owner, or by circumstances which clearly indicate the intention of the owner so to regard it, and it will then be properly the subject of delivery upon the writ of replevin.* § 62. Chattels may be attached to, and become part of the realty. Articles of personal property may be permanently attached to, or become part of a building, and when so attached they are considered part of the real estate, as boards may be wrongfully taken and built into a house or other permanent structure, or machinery may be permanently built into a mill. In snch case the owner cannot sustain replevin, but is driven to his action for the value. ^ § 63. What is or is not real estate. A discussion of what is or what is not real estate, would more properly belong to a treatise on some other subject than replevin, but as it is frequently the most important question to be determined before bringing this action, and as articles which are really c&attels sometimes apjjear to be attached to the realty, and articles which are in fact part of the real estate sometimes appear to be chattels, a brief reference to a few of the author- ' Chatterton r>. Saul, 16 111. 151 ; Madigan v. McCarthy, 108 Mass. 376 ; Smith V. Benson, 1 Hill, (N. Y.) 176 ; Meyers ». Schemp, 67 111. 469; Vausse D. Russel, 2 McCord, (S. C.) 329; Davis o. Taylor, 41 111. 405. = Goff V. O'Conner, 16 111. 433. 3 Harlan v. Harlan, 15 Pa. St. 513. * Doty v. Gorham, 5 Pick, 487 ; Ashmun v. Williams, 8 Pick. 403 ; Wells V. Banister, 4 Mass. 514; Bicker «. Kelly, 1 Gr. (Me.) 117; Yale ®. Seely, 15 Vermont, 331 ; Fahnestock i>. Gilham, 77 111. 687 ; Beers v. St. John, 16 Conn. 332 ; Dooley v. Crist, 25 111. 551 ; ISTalor v. CoUinge, 1 Taunt. 19 ; Mans- field v. Blackburn, 6 Bing. 426. 5 Fryatt n. The guUivan Co., 5 Hill, (N. Y.) 117; Ricketts ®. Dorrel, 55 Ind. 470. 44 WHEN AND FOE WHAT IT LIES. ities in whicli this question and its relation to the action of replevin are considered, may be in place. § 64. How far the question as to what is or is not real estate may be investigated in replevin. The action will lie for trade fixtures and other property not part of the realty, and the question as to whether the property in dispute is or is not part of the real estate can generally be investigated and deter- mined in this action. "While authorities on this point are not as numerous as might be wished, it is probable that the action would be permitted to investigate the title to property con- cerning the nature of which an honest, fair question might be made;- and for this purpose the sheriff would be warranted, in obedience to the mandate of the writ, in severing and remov- ing property which might appear to be a part of the real estate; but in so doing the sheriff should exercise a reasonable discretion, and if his right to sever the property be denied on the ground that it is in fact real estate, he ought to permit the defendant all the opportunity to restrain the proceeding which he can consistently with his duty, and ought not to execute the writ by making such severance unless it appears the party is acting in good faith, on reasonably probable grounds, and not then in an oppressive manner, or without ample security, § 65. The same. Hamilton v. Stewart, 59 111. 331, was an injunction to restrain a party from entering and removing from a basement room, certain fixtures which had been placed there for the convenience of parties occupying it as a saloon. The property consisted of a counter, ice box, shelves and gas fixtures. The court said that the party would have the undoubted right to employ replevin; and on the trial the nature of the fixtures could be investigated, whether they were permanently attached to the building and formed part of the realty, or whether they were mere temporary articles placed there for the convenience of the trade carried on in the build- ing, and which could properly be removed by a tenant, or a purchaser from him; thus recognizing the right of a party to have the question as to whether the articles were part of the real estate determined in the replevin suit. § 66. The same. When the property was 'a frame dwell- TEADE FIXTURES. 4:5 ing, it was said that the action should not be dismissed until the court could first determine from the evidence whether it was real or personal property. ^ So it was no cause of demurrer to a declaration in replevin that it was brought for a barn, shingle mill and office. These things might be real estate; yet they might be personal property ; and whether they are or not is a matter of evidence upon which the court must deter- mine as the facts shall appear after a full consideration of the evidence. 2 § 67. The same. Trade fixtures. Ewell on Fixtures (p. 91) states the law to be well settled "that mere utensils or' machines, or other articles of a similar nature, being "them- selves of a chattel nature, and capable of being detached without material injury to the freehold or themselves, and of being set up and used elsewhere, are removable by the tenant or his vendee during his term." All such articles would therefore be the proper subjects of a suit in replevin, and the officer having such a writ, properly describing them, would without question be authorized to sever and remove them. " On the other hand," continues the same authority (p. 93), "there may be annexations made by a tenant occupy- ino- premises for trade purposes of so intimate and permanent a character as to furnish satisfactory evidence that the annexations were intended to be permanent accessions to the realty." In such cases the action of replevin would of course fail; but this statement of the general rule leaves a wide field open to dispute as to whether, in any particular case, the prop- erty in question should be placed with the former or the latter class. Upon this question it can only be said that each case must necessarily present a mixed question, consisting mostly of fact, to which the general rules of the law must be applied.^ J Elliott v. Black, 45 Mo. 373. s Brearly ■». Cox, 4 Zab. (24 K. J.) 287. Consult, also, Guthrie v. Jones, 108 Mass. 193 ; Hanratan v. O'Reilly, 103 Mass. 201 ; Fahnestock v. Gilliam, 77 111. 637; Goodrigli ■». Jones, 2 Hill, 143; Reynolds «. Shuler, 5 Cow. 333. » Consult Brown ■». Wallis, 115 Mass. 158; Guthrie v. Jones, 108 Mass. 191; Cressonj). Stout, 17 Johns. 116; Hanrahan v. O'Reilly, 102 Mass. 301; Bliss «. Whitney, 9 Allen, 114; Cong. Society of Dubuque «. Fleming, 11 Iowa, 533. 46 WHEN AND FOB WHAT IT LIES. § 68. Buildings while fixed are part of the realty ; while being moved are personalty. In Illinois wlien a house was built on a foundation in such a manner as showed that it was intended for a permanent residence, and not for a temporary purpose, it was held part of the realty, and in such case if the house had been removed to another lot, and there again fixed upon a permanent foundation, such as would show it was intended to be permanent, though it might be regarded as personal property while in transit, yet when so fixed upon the second lot it would again become realty, and not subject to replevin.^ § 69". Fixtures, or other articles severed from the realty, become personalty. Fixtures severed from the realty become personal property, and are subject to recovery in this action as though never attached to the soil.^ Thus it lies for machinery of a mill severed from the real estate,* or trees cut down;* or property which would otherwise be treated as real estate may, by the act of the parties, be regarded and treated as personal, even without actual severance, and so become the subject of recovery in this action.^ Grass cut from the free- hold is personal, and in an action for it the plaintiff need not show title to the land.' § 70. The same. Where a person purchased a mill at sheriff's sale, and the real estate only was sold, another party claimed the machinery and severed and took it, with the knowledge of the purchaser at the sheriff's sale, who afterward brought replevin, claiming it as part of the real estate. The purchaser was permitted to show that it was in fact part of the realty, and was sold by the sheriff with the realty and con- veyed to him, and upon making such proof he could sustain ' Salter ». Sample, 71 111. 431. » Brown «. Caldwell, 10 S. & R. 118; Heatoa ®. Findlay, 13 Pa. St. 304; Mather ■». Ministers of Trinity Church, 3 S. & R. 509. Compare Voorhis 0. Freeman, 3 Watts & Serg. 116; Pyle r>. Pennook, lb. 390; Baker e. Howell, 6 S. & R. 476. ' Cresson v. Stout, 17 Johns. 116; Harlan v. Harlan, 15 Pa. St. 514. * Richardson v. York, 3 Shep. (Me.) 316 ; Bower ®. Higbee, 9 Mo. 360. " Shell «. Haywood, 16 Pa. St. 537 ; Piper v. Martin, 8 Barr. (Pa.) 311. • Johnson v. Barber, 5 Gilman, (111.) 436. SEVEEANCE OF CHATTELS DOES NOT CHANGE TITLE. 47 replevin against the party who wrongfully severed it.^ When one built a mill on the land of another, tinder an agreement that it was to be the property of the builder until a certain judg- ment should be paid, the judgment was not paid but the land, with the mill standing thereon, was sold on execution, the mill was held to be the personal property of the builder.^ § 71. The same. Two persons leased land for a salt well on shares. Petroleum came up with the salt water and they collected and sold it, and the owner of the land brought trover. The court held that the salt only was granted, and that every- thing else was reserved, but that as the lessees could not run the salt water without the petroleum, that the severance of the oil from the real estate was inevitable and lawful, and that this possession by the defendants was lawful; that trover would not lie; that the proper remedy was in equity.* This case con- forms in principle so far as the question of severance is con- cerned, to the current of authorities, but no good reason is per- ceived why, if the owner of the land was entitled to the oil, he could not, after demand, recover it in replevin. § 72. The same. A party bought a lot, paying only a small part of the purchase money, and built a house on it. After a number of installments of the purchase money were due and unpaid, he moved the house off. Thereupon the owner of the ground demanded it as personal property, and replevied it. It was held that the action was proper and could be sustained, so long as the house was not permanently attached to other realty.'* § 73. The severance of chattels does not change the title. It is an unquestioned rule of the common law that standing trees belong to the realty, and as such they are not subject to replevin; but trees cut down by a tenant become personal property, and if the tenant had no right to cut them they belong to the owner of the land, and he can sustain replevin ' Harlan ■». Harlan, 15 Pa. St. 513. See, also, Heaton v. Findlay, 13 Pa. St. 304. 2 Yater v. Mullen, 34 Ind. 377. ' Kier v. Peterson, ^1 Pa. St. 358. * Ogden ■». Stock, 34 111. 533. See, also, Salter v. Sample, 71 111. 433. 48 WHEN AND FOR WHAT IT LIES. for them.i Timber cut on State lands belongs to the State, and may be followed as long as it can be identified.* "When plaintiff bought land at sheriff's sale, and took deeds, and also took possession, with permission to defendants to remain in two houses on the land as tenants at sufferance, and while there they cut hay on the land, the purchaser was allowed to recover in replevin.* The reason for this rule is, that a severance of property from the realty does not change the ownership. It belongs to the owner of the land as much after the severance as before, and he is entitled to all the remedies for its recovery which the law allows for any personal property wrongfully taken or detained from its owner.* § 74. The same. Growing crops. Crops growing on land pass with the title to the realty. So, when a tenant rents land from one against whom suit in ejectment is pending, of which the tenant has notice, and the suit is determined against his landlord, the growing crops pass with the soil, and the party recovering in ejectment may recover them in replevin, if the tenant harvests them and refuses to deliver. ^ Upon a sale of the land, and reservation in the deed of plants or crops grow- ing thereon, they become personal property, and replevin will lie for their recovery. ^ So where crops of wheat or corn are wrongfully severed by a trespasser, the owner is not thereby divested of his property, but may sustain replevin.' § 75. Actual severance not necessary to give property the character of personalty. An actual severance or disconnec- tion of property from the real estate is not essential to give it ' Paget's Case, 5 Co. Rep. 76 6; Richardson ». York, 2 Sliep. (14 Me.) 216; Bower «. Higbeo, 9 Mo. 260 ; Gillerson ®. Mansur, 45 Me. 26 ; Snyder v. Vaux, 2 Rawle, (Pa.) 427. ' Schulenberg v. Harriman, 21 Wall. 44. 8 Nichols V. Dewey, 4 Allen, (Mass.) S86. - Halleck v. Mixer, 16 Cal. 578. ' Rowell J). Klein, 44 Ind. 290, citing many cases. Manure made on the . farm is part of the realty, but not manure made at a livery stable. Daniels V. Pond, 21 Pick. 370; Middlebrook v. Corwin, 15 Wend. 169. 8 Ring V. Billings, 51 111. 475 ; Gibbons v. Dillingham. 5 Bng. (Ark.) 9. " Bull v. Grjswold, 19 111. 632 ; Anderson v. Hapler, 34 111. 439 ; Langdon ®. Paul, 22 Vt. 205; Sands v. Pfeiflfer, 10 Cal. 258; Sanders v. Reed, 13 N. H. 558. CHATTELS FIXED TO LAND WITHOUT CONSENT, 49 the character of personal property. Simple consent or agree- ment of the owner of the real estate will usually be sufficient, and such consent may be inferred from his acts or from his dealings, when they clearly indicate such intentions. Thus, the sale of an engine and boiler separate from the land, accom- panied by possession and acts of ownership by the vendee, amounts to a severance of the property from the real estate. ^ § 76. The same. A building or other fixture, which is or- dinarily a part of the real estate, when placed on the land of another, with his consent, with the intention of removal, is regarded as personal property, and may be the subject of re- plevin. * In California, a building which was placed on blocks not in any way attached to the soil, was regarded as personal property. 3 A fence was built on the land of another by mis- take, and remained there for fifteen years with the consent of the owner of the land; he then requested the plaintiff to remove it, and shortly after took it away himself. The owner of the fence brought, and was permitted to sustain replevin.* §- 77. Chattels fixed to the land of another without his con- sent. Where the owner of chattel property fixes it to the real estate of another without his consent, it becomes real estate, and cannot be the subject of an action of replevin. So, if one acquire possession of his neighbor's chattels, and fix them to his own land, so that they form part of the real estate, though trespass or trover might lie, replevin would not furnish a remedy. 5 A building placed on the land of another by mistake, without the owner's knowledge or consent, would be personal property, and liable for the debts of the builder — the owner of the land not objecting. * § 78. Same. Entry under adverse claim. Where one en- ' Hensley v. Brodie, 16 Ark. 611. ' Weathersby v. Sleeper. 42 Miss. 733; Hines v. Ament, 43 Mo. 300; Ash- mun V. Williams, 8 Pick. 402; Russell ®. Richards, 10 Me. 429; Foy «. Reddick, 31 Ind. 414. 8 Pennybecker v. McDougal, 48 Cal. 163. See, also, Mills v. Redick, 1 Neb. 437. But, see Huebschman v. McHenry, 29 Wis. 658. * Hines «. Ament, 43 Mo. 300. » Fryatt o. Tlie Sullivan Co., 5 Hill. (N. T.) 117. • Fuller V. Tabor, 39 Me. 520. 4 60 WHEN AND FOE WHAT IT LIES. ters OH the land of another under an adverse claim, and erects a house, and after ejectment removes the house, the owner of the land can recover it in replevin ; and the fact that it was a wooden building, and that the builder erected it intending to remove it at some future day, will make no difference;! but in such case, if the building had been removed before the suit in ejectment was determined, it might have presented another case.^ § 79. The title to real estate — when evidence in replevin. "While, as has been shown, replevin does not lie for real estate, and the title thereto cannot be directly tried in this acticn,^ yet this rule only applies so far as the suit is for the purpose of investigating the title to real estate. When the title only comes in question as a means of determining the ownership of chattels, there is no reason why the courts hav- ing the proper jurisdiction may not resort to an inquiry into the title of real estate, as determining the ownership of chat- tels which have been severed therefrom ; for in such case it is not a trial of the title to lands, but of chattels.* § 80. The same. The current of authorities fully sustains this doctrine. The title to land must sometimes be inquired into, as the only means of determining the ownership of chattels which have been severed therefrom, and in such case deeds and title papers may be read in evidence, in replevin. As a gen- eral rule governing such cases, it may be stated that the title to real estate may be incidentally called in question in this action, not for the purpose of determining disputed titles to real property, but to enable the court to pronounce intelligently on the title to chattels, where other evidence leaves a doubt. § 81. Holder of colorable title cannot recover chattels sev- ered. In a suit for logs cut on land, the title to which was claimed by plaintiff, and of which the plaintiff was in actual possession, the action might be sustained without proof of title; but in such case the defendant could show an adverse title ■ Huebschmann ». McIJenry, 29 Wis. 659. " See § 85 and note, and § 88 and note, s See ante, § 58. * Clement v. Wright, 40 Pa. St. 351. HOLDEE OF COLORABLE 'HTLE. 51 to the land of a higher character than the plaintiff's and defeat the action. The holder of colorable title, without other right, though in possession, cannot recover against the real owner by a resort to replevin, any more than in any other action ;i but the holder of colorable title in good faith would doubtless be permitted to defend in this action. ^ Where the plaintiff cleared land and put in wheat, and was in possession when the defendant entered and cut it, the defendant offered to prove that the land was his, and that the plaintiff was a trespasser, in sowing the grain, and the court admitted the evidence.^ § 82. The same. Defendant holding under claim of title in good faith. But when the defendant is in possession of the land, holding adversely under color of title in good faith, the plaintiff, even though he be the real owner of the soil, cannot recover chattels severed therefrom. Replevin cannot be the means of litigating and determining the title to real estate between adverse claimants.* The owner of land may bring replevin for chattels severed from the freehold, where there is no adverse possession, or where the adverse possessor is a tres- passer; but the law does not permit adverse claimants to contest the title to land under pretense of a contest about chattels, as this would perhaps sometimes give a decided advantage to the plaintiff; ^ and the general rule may be stated that neither replevin nor trover lies against a party in the actual possession of land holding title, for timber, slate, or any other thing severed therefrom, even in case the title is in dispute, but it does lie by the owner in possession either actually ' Hungerford ». Redford, 39 Wis. 347. See, also, Schulenberg v. Camp- bell, 14 Mo. 493 ; Harlan ■». Harlan, 15 Pa. St. 513 ; Hart v. Vinsant, 6 Heisk. (Tenn.) 616. ■^Seei)os*, §83. 3 Elliott B. Powell, 10 "Watts, (Pa.) 454. ■> Snyder v. Vaux. 3 Rawle, (Pa.) 437 ; Halleck v. Mixer, 16 Cal. 575 ; Har- lan V. Harlan, 15 Pa. St. 513 ; Da Mott v. Hagerman, 8 Cow. 319. = Vausse v. Russel, 3 McCord, 339 ; Mather «. Trinity Churcli, 3 S. & R. 509; Baker v. Howell, 6 S. & R. 476; Brown v. Caldwell, 10 S. & R. 114; Powell ■». Smith, 3 Watts, 136 ; De Mott v. Hagerman, 8 Cow. 330 ; Davis v. Easley, 13 111. 193; Saunders v. Reed, 13 N. H. 558; Langdon «. Paul, 33 Vt. 305; Sands v. Pfeiffer, 10 Cal. 358; Anderson v. Hapler, 34 111, 436; Cresson «. Stout, 17 John. 116. 52 WHEN AND FOE WHAT IT LIES. or constructively, as against oue who wrongfully severs and removes any part of the realty without color of right, i § 83. The same. The action cannot be used to litigate title to land. This rule, though clearly defined and well estab- lished, requires some care in its application. "When the plaintiff bases his right to recover a chattel which has been severed from realty, on the fact that he owns and is entitled to immediate possession of the land from which the chattel was severed, he may give evidence of his title to the land, and that will establish his title to the chattel, and a mere intruder or trespasser on the land cannot object so as to defeat the action; but when the defendant in such cases is in possession, and claims a title adverse to the plaintiff, and has color of title in good faith, the plaintiff cannot recover against him in replevin. 2 § 84. The same. Chattels severed through mistake in boundaries. "When O. built a cabin and stable, and cut timber on land, the boundaries of which were not exactly known, and some of the timber cut was on the land of another, it was held that the possession of the land where the timber was cut was not such as could be used as a defense in a suit in replevin. Nothing short of an actual adverse possession, under claim of ownership, will deprive the owner of the right to sue in this action for chattels severed from his land;^ and the rule that a party in possession under paper title is restricted in his pos- session by the calls in his deed (unless he has actual possession of other lands), applies in replevin as in other actions. § 85. The same. Chattels severed by a trespasser. Plain- tiff was in possession of about eight hundred acres of land, ' Brewer v. Fleming, 51 Pa. St. Ill ; Wright b. Guier, 9 Watts, 173 ; Elliott B. Powell, 10 Watts, 454; Harlaa b. Harlan, 8 Harris, (15 Pa. St.) 509; Brown «. Caldwell, 10 S. & R. (Pa.) 114. Where a disseizor enters and sows wheat, and the real owner afterward re-enters, he shall have the crop, whether cut and on the premises or growing, because he takes his former title, and the crops belong to him, and the disseizor can take nothing. Hooser v. Hays, 10 B. Mon. (Ky.) 73. » Halleck v. Mixer, 16 Cal. 579; Page v. Fowler, 28 Cal. 608; Harlan e. Harlan, 15 Pa. St. 513 ; Anderson «. Hapler, 34 111. 439. » Young v. Herdic, 55 Pa. St. 172. CHATTELS. SEVEEED BY A TEESPASSEE. 63 which had been inclosed for several years, but the fences had fallen down in places. Defendants entered and claimed to pre-empt, each one-quarter section. They built houses and lived on the claims. They were not successful in establishing their claim for pre-emption, and plaintiff recovered against them in ejectment. While they were in possession, they cut hay, which the plaintiff replevied. Held, that the replevin suit could not be sustained; that the owner of the land was out of the possession, and defendants in possession, claiming to own it. The owner of land, being ousted, may have his action for the rents and profits, but not for the crops grown on the land and harvested and removed by the disseizor. The law in all such cases gives the owner an action for the rents and profits, but not the crops, or their value. It would be oppressive to require one, after years of litigation, after finding he had a bad title, to pay the value of the crops grown ; and it would be an inconvenience to the public if they were obliged to look at his title before buying his crops. ^ § 86. The same. When replevin was brought for wood cut on plaintiff's land by defendant, who was in possession as a trespasser without color of title, adverse possession of the land, unless for a period long enough for the statute of lim- itation to run, would not protect the defendant in an action for the timber severed from the realty; the court saying that when the defendant is in possession as a trespasser, his rights resting only on a naked assertion of title sufiicient to put the statute of limitations in operation, the question of title can- not be said to be in issue until the statute has actually run.^ § 87. The same. When a trespasser entered on land and sowed grain, and the land was afterward sold by the sheriff upon execution against the owner, the purchaser at such sale was entitled to the grain; and when the purchaser, by mistake, took the trespasser for a tenant of the former owner, and seized upon the grain by distress for rent, and it was replevied by the trespasser, who pleaded non tenuit to the avowry in replevin, the defendant in replevin (the purchaser) » Page ■B. Fowler, 39 Cal. 415 ; Page «. Fowler, 38 Cal. 608 • Kimball ®. Lohmas, 31 Cal. 155. 54 WHEN AND rOE WHAT IT LIES. was entitled to take him at his word, and if not a tenant he was a trespasser, and the defendant in replevin was entitled to recover.! The doctrine stated has been carried even further in Califol-nia, where it was said the owner of the laud cannot sustain replevin for crops raised on the land by one who holds possession with adverse claim of right, even though without color of title.^ § 88. Where a party in possession of lands claiming to own them severs chattels. Land was in the actual possession of "W"., claiming the premises as his own, and holding adversely to plaintiff, who had the title; while so in possession he cut a quantity of hay and sold it to defendant, and plaintiff brought replevin. Held, it could not be sustained, "W. being in posses- sion and claiming title must be regarded as the owner until after judicial decree.^ § 89. Summary. From these cases it would seem, then, that the mere assertion of title by one in possession will not defeat the rights of the real owner of the fee. The law will not permit a mere trespasser to set up a claim of title and thus acquire rights, or protect himself in his wrong-doing. The title which will protect one in possession must be a color- able title, made in good faith. It is not adverse possession alone, nor adverse possession claiming title, unless for a suffi- cient length of time for the statute of limitations to run that constitutes the grounds of defense, but a colorable title made in good faith. The assertion of title by a trespasser confers no title,* 1 Hellings o. Wright, 14 Pa. St. 375. ' Pennybeoker b. McDougal, 46 Cal. 663. 8 Stockwell ». Phelps, 34 N. Y. 363. See Mather v. Ministers, etc., Trinity Church, 3 S. & R. 509 ; Lehman «. Kellerman, 65 Pa. St. 489 ; Ralston v. Hughes; 13 111. 469. >■ Halleck c. Mixer, 16 Cal. 574; Pages. Fowler, 39 Cal. 413; Kimball «. Lohmas, 31 Cal. 158 ; Stockwell v. Phelps, 34 N. T. 363 ; Brown «. Caldwell, 10 S. & R. 118. An execution debtor has no right to keep purchaser at sheriff's sale out of possession by sowing crops (wheat) which may not mature until after the purchaser is entitled to his deed. The debtor, after such sale, cannot maintain replevin for such crops as sown by himself. Parker d. Btorts, 15 O. St. 353. It was said if the owner of a mill take out MORTGAGE ON EEAL ESTATE. 55 § 90. How far a mortgage on real estate passes title to chattels severed therefrom. The question as to how far a mortgage passes the title to land so as to convey chattels severed from the realty to the mortgagee is often of the greatest im- portance, and sometimes attended with considerable difficulty. Upon this- question authorities are not uniform. The general rule may be stated, that in States where the mortgage is by law regarded as an absolute conveyance of the land with a con- dition of defeasance on payment of the mortgage debt, that chattels severed from the realty during the existence of the mortgage may be said to belong to the mortgagee, and he may recover them in an action of replevin. But when the mort- gage is only regarded as a security for debt, and not a convey- ance of the title to the land chattels severed from the land, do not necessarily belong to the mortgagee, at least not until after default and foreclosure. In many of the States a mortgage is considered a conveyance of the fee, and in such case a fixture severed without the consent of the holder of the mortgage so as to endanger the security may be recovered in replevin, as he is looked upon as the owner of the fee.^ § 91. The same. In Minnesota it was held that the holder of a mortgage on real estate is not entitled to the timber cut from the mortgaged property, even after default, until he shall have foreclosed his mortgage. The reason for this decision seems to be based on the statute which substantially declares that a mortgage shall not be held a conveyance so as to entitle the holder to recover possession without foreclosure. ^ But in Khode Island it was held that the mortgagee could sustain a mill stone to pick It, and devise the mill while it is out, the mill stone shall pass by the devise. Bull, N. P. 34. 1 Smith V. Goodwin, 3 Me. 173; Hemenway «. Bassett, 13 Grey, 378; Gore 8. Jenness, 19 Me. 53 ; Roberts v. Dauphin Bank, 19 Pa. St. 75 ; Cope v. Ro- meyne, 4 McLean, 384 ; Latham v. Blakely, 70 N. C. 368 ; Gray v. Holdship, 17 8. & R. 413; Goff ■». O'Conner, 16 111. 431; Sanders v. Reed, 13 N. H. 561; Frothingham, v. McKusick, 34 Me. 405; Bussey v. Page, 14 Me. 133; Smith V. Moore, 11 N. H. 55; Thomas «. Crofut, 14 N. T. 474; Van Pelt o. McGraw, 4 K. Y. Ill; Fernald v. Linscott, 6 Me. 334; Bratton v. Clawson, 2 Strobh.' (8. C.) 478. " Adams v. Corriston, 7 Minn. 456. 66 WHEN AND FOE WHAT IT LIES. replevin against the mortgageori in possession for timber cut on the mortgaged premises in substantial dimunition of the security of the mortgage. ^ Substantially the same rule was declared to be the law in Maine and New York, where the court permitted the mortgagee before entry to recover in trespass for cutting timber in the mortgaged premises; the reason being that it might diminish the security.* § 92. The same. In Vermont the mortgagee, after condi- tion broken and before foreclosure, was allowed to sustain trover against the mortgageor for the value of timber cut, and replevin would of course have been permitted had that been the form of the action.* But in Kansas the mortgageor re- moved a house from the mortgaged premises and the remedy was denied.^ §93. The same. "The question," said Eedfield, J., "in Langdon v. Paul, 22 Vt. 210, is whether the mortgagee, after condition broken, can maintain an action in the nature of waste against the mortgageor in possession for cutting timber and selling it, or trover for the timber." There is no English case against the action. In the case of Hitchman v. Walton, 4 Mees. & W., 409, the court of exchequer upon a full argument decided the action maintainable on either count. The mort- gageor, said the court, has no just grounds of complaint. He may at any time defeat the plain tiif's action by paying the mortgage debt and tending the costs. If he will not do that, ' It is with feelings of extreme diffidence tliat the author has ventured to depart from the examples of many eminent law writers in the orthography of this word. He has, however, followed the legal pronunciation and the spelling of the dictionaries, all of which it is believed will be found to agree therewith. * Waterman and Wf. v. Matteson, 1 Ames, (4 R. I.) 540. 3 Stowell B. Pike, 3 Greenleaf, (Me.) 387 ; Fernald ». Linscott, 6 Greenleaf, (Me.) 338; Gore v. Jenness, 19 Me. (1 App.)54; Smiths. Goodwin, 3 Me. 173. See, also, Northampton Paper Mill v. Ames, 8 Met. 1 ; Yates v. Joyce, 11 Johns. 136 ; Jackson v. Bronson, 19 Johns. 336 ; Hatch v. Dwight, 17 Mass. 399; Van Pelt v. McGraw, 4 Comst. (N. Y.) 110; Gardner ®. Heartt,3 Denio, 333. « Langdon v. Paul, 33 Vt. 310. See, also, Lull ®. Matthews, 19 Vt. 322; Morey v. McQuire, 4 Vt. 337. ' Clark V. Reyburn, 1 Kan. 381. MOETGAGE ON EEAL ESTATE. 57 but suffer tlie estate to go upon the mortgage, the mortgagee is entitled to his judgment. ^ » Morey v. McGuire, 4 Vt. 327; Lull v. Matthews, 19 Vt. 333. See, also, Blaney v. Bearce, 2 Me. 133 ; Frothingham v. McKusick, 11 Shep. (34 Me.) 403; Gore v. Jenness, 19 Me. 58. 68 PLAINTIFF MUST HAVE EIOHT TO POSSESSION. OHAPTEE lY. PLAINTIFF MUST HAVE THE RIGHT TO IMMEDIATE AlTD EXCLUSIVE POSSESSION. Section. Plaintiff must have a right to immediate and exclusive pos- session . • . . . .94 Proof of wrongful taking not necessary . . . .95 The term " property" or " prop- erty in the plaintiff," does not mean absolute ownership . 96 Right of possession and owner- ship maybe in different persons 97 Property of bailee . . .98 One entitled to possession for a special purpose . - .99 Illustrations of the rule . . 100 The same 101 Ownership not necessarily de- termined in the action . . 102 Borrower cannot set up a title , 103 Carrier cannot show title in a third party as a defense to an action by the shipper or con- signee 104 Legal title will prevail over the equitable .... 105 Assignee in bankruptcy . . 106 Right to present possession does not depend on former posses- sion 107 Rule similar to that In trespass 108 Prior rightful possession, when sufficient 109 The same 110 Application of the rule . . Ill The same . . . . .113 Rightful possession evidence of title 113 Conflicting claims to possses- sion 114 Section. Possession must be under a claim of right . . . ug But need not be under a claim of title. Finder of property 116 The same 117 Lien of a finder for reward of- fered 118 Finder of a note has no right to collect it . . . .119 Where title is the issue, good title must be shown . . 130 Nature of the special property necessary to support replevin 121 Owner usually entitled to pos- session. Exceptions . . 122 Liens 133 The same 134 The same 135 The same. Taking up of an estray 126 Goods lost at sea . . . 127 Goods in possession of one's servant . ... . .128 Contract for purchase of prop- erty does not necessarily con- fer right of possession . . 129 An officer levying procesahas special property and right to possession 130 Possession of a receiptor to an officer 131 An agent who is responsible to the owner has sufficient pos- session to support replevin . 133 Wrongful seizure or sale by an officer does not affect owner's right . . . . • . 138 IMMEDIATE AND EXCLUSIVE POSSESSION. 59 § 94. Plaintiff must have a right to immediate and exclu- sive possesion. One of the cardinal rules in this action is, that the plaintiff must in all cases have a general or special property in the goods which he seeks to recover, with the right to their immediate and exclusive possession at the time of the commencement of his suit. This has been the rule from the earliest times, and is sustained by an unbroken current of authorities to the present day.i It is also an established rule that the plaintiff, having such property and right of possession, may sustain the action without other title, even against the general owner. ^ In Iowa it is said the simple question to be determined is, " in whom was the right of possession at the time of the institution of the suit." And in this view it is sufficient for the plaintiff to allege his right of possession when his suit was begun.* So, where the action was for the ' Britton, Nichol's Trans., Vol. 1, p. 139 ; Gordon v. Harper, 7 Durnf & East. 9 and 6 ; Smith v. Plomer, 15 East, 607; Jimmerson v. Green, 7 Nebraska, 36; Meredith v. Knott, 34 Geo. 233; Croclier v. Mann, 3 Mo. 478; Russell 0. Minor, 33 Wend. 659 ; Mclsaacs v. Hobbs, 8 Dana, (Ky.) 368 ; Hubloun's Case, Sliinner, 65; Reese v. Harris, 37 Ala. 306; Loveday «. Mitchell, Co- myns, 347 ; Hilger v. Edwards, 5 Nev. 84 ; Muggridge ®. Eveleth, 9 Met. 335 ; Kirby v. Miller, 4 Cold. (Tenn.) 3 ; Sager v. Blain, 5 Hand. (N. Y.) 449 ; Bas- sett s. Armstrong, 6 Mich. 397 ; Barrett v. Scrimshaw, Combe, 477 ; Lloyd V. Goodwin, 13 S. & M. (Miss.) 333 ; Packard v. Getman, 4 Wend. 613 ; Wa- terman ®. Robinson, 5 Mass, 304; Hallinbake a. Fish, 8 Wend. 547; Fair- bank V. Phelps, 33 Pick. 538 ; Forth v. Pursley, 83 111. 153 ; Ingersoll v. Em- merson, 1 Carter, (Ind.) 77; Bradley v. Michael, 1 Carter, (Ind.) 553; John- son ■». Neale, 6 Allen, 338 ; Barry v. O'Brien, 103 Mass. 531 ; Pattison v. Ad- ams, 7 Hill, (N. T.) 136; Wade «. Mason, 13 Gray, 335. '■' Crocker v. Mann, 3 Mo. 473 ; Prater v. Frazier, 6 Eng. (Ark.) 249. 2 Cassell V. Western Stage Co., 13 Iowa, 48. But, see, and compare Pat- tison V. Adams, 7 Hill, (N. Y.) 136. "The plaintiff must have a general or special property in the goods, with the right to immediate possession." Lowry V. Hall, 2 W. & S. (Pa.) 133 ; Stapleford v. White, 1 Houst. (Del.) 338; Lester v. McDowell, 18 Pa. St. 91 ; Pierce d. Stevens, 30 Me. 184; Hay- thorn V. Rushforth, 4 Har. (19 K. J.) 160 ; Seibertu. M'Henry, 6 Watts. (Pa.) 303. " The action cannot be sustained by one who has not at the time a gen- eral or special property in the goods, with the right to their immediate pos- session." Miller v. Adsit, 16 Wend. 335; Perley v. Foster, 9 Mass. 114; Thompsons. Button, 14 Johns. 84; Dunham b. Wyckoff, 3 Wend. 381; Red- man V. Hendricks, 1 Sandf. (N. Y.) 33. "The plaintiff must have the ex- clusive right to the possession of the goods at the time the suit is begun." Hunt V. Chambers, 1 Zab. (31 N. J.) 633 ; Kingsbury v. Buchanan, 11 Iowa, 60 PLAINTirF MUST HAVE EIGHT TO POSSESSION. grain in a warehouse, the defendants were permitted to show that there was grain in the warehouse belonging to other parties, as a defense. ^ Therefore, -^en the plaintiff 's right to possession did not accrue until after his suit was begun, he had not at that time the right to possession, and could not sustain the action.^ § 95. Proof of wrongful taking not necessary. An actual wrongful or forcible taking from the plaintiff's possession was formerly essential;-' but as the law stands now, such proof is not requisite.* § 96. The term " property," or " property in the plaintiff," does not mean absolute ownership. The term "property," or " property in the plaintiff," used in this connection, and generally in this action, does not mean ownership by absolute title, but a right to the possession or dominion over the goods, which he seeks to recover, at the time he makes demand or brings suit." So, in case of the defendants, a plea of property 387; Noble «. Epperly, 6 Port. (Ind.) 416; Barrett n. Turner, 2 Neb. 174; Dickson v. Mathers, Hempst. TT. S. 0. C. 65. Possession for the full period of the Statute of Limitations invests the party with title. He may make use of it against the former owner, if he assume to retake the property. Hicks V. Fluit, 31 Ark. 463. " Persons having a special property in tlie goods, with the right to immediate possession, may sustain the action." Wheeler v. MoFarland, 10 Wend. 324; Branch «. Wiseman, 51 Ind. 1; Tut hill D. Wheeler, 6 Barb. 363; Mead v. Kilday, 3 Watts. 110; Hamilton «. Mitchell, 6 Blackf. 131; Burton b. Tannehill, 6 Blackf. 470. The plaintiff must have a right to delivery of the goods at the time the writ issues. Sharp 11. Whittenhall, 3 Hill, 576. ' Nelson i>. Mclntyre, 1 Bradwell, (111.) 603. See, also, Gillett ». Tre- ganza, 6 Wis. 343. Consult Rose v. Tolly, 15 Wis. 444; Walpole v. Smith, 4 Blackf 306; Presley -u. Powers, 82 111. 125; Chinn s. Russell, 3 Blackf. 174; Clark v. Heck, 17 Ind. (Harrison,) 381 ; Wheeler v. Train, 3 Pick. 255; Beckwith v. Philleo, 15 Wis. 223; Appleton v. Barrett, 22 Wis. 569; Rogers B. Arnold, 13 Wend. 30. 2 Campbell v. Williams, 39 Iowa, 646. ' Ely v. Ehle, 3 Comst. (N. Y.) 506; Dame 'o. Dame, 43 N. H. 37; Wright o. Armsti-ong, Breese, (111.) 130; Harwood v. Smethurst, 29 N. J. L. 195. * Kerley v. Hume, and Hume v. Gillespie, 3 T. B. Mon. (Ky.) 181. Com- pare Cobb V. Megrath, 36 Geo. 625; McArthur v. Hogan, Hempst. 386; Skinner v. Stouse, 4 Mo. 93. See cases cited in notes to § 94. ' Johnson v. Carnley, 6 Selden, (N. Y.) 570; Sprague «. Clark, 41 Vt. 6. PKOPERTY OF BAILEE. 61 in defendant does not mean absolute ownership, but a rigbt to present and exclusive possession. ^ § 97. Right of possession and ownership may be in different persons. The right to the immediate possession may, some- times, be in one person, while the title may be in another,^ as frequently arises in cases of bailment for a special purpose. The bailee may have the right to the immediate possession by virtue of a lien for services bestowed, or a lease for an unex- pired time, and in such case the action can be sustained by the owner of the special property even against the owner of the title, upon showing right to possession as against him at the time the suit was begun;* and the plaintiff's claim is suffi- ciently maintained if he shows himself entitled to possession as against the defendant at the time the suit was begl^n. He is not obliged to show title against the world.* The statutes giving the right to maintain replevin, which are substantially the same in all the States, do not limit the action to the owner of absolute title, but any owner of special property with the right to possession is entitled to sustain the action the same as though he held absolute title. ^ § 98. Property of bailee. As a general rule, property in the hands of a borrower, trustee or bailee, for a limited time or purpose, without fraud or wrongful intent, is not liable to be taken upon process for the collection of his debts, and if so taken, the real owner, entitled to immediate possession, may sustain replevin ;8 but cases often arise where a bailee has an interest in the property bailed, which may be seized and sold on process against him. For example, if one hire a horse for a year, and acquire the right to exclusive possession for that time, his interest may be taken and sold on execution. In this case, only the interest of the bailee, not the general property, ' Hunt V. Chambers, 1 Zab. (21 N. J.) 620 ; Cleaves v. Herbert, 61 HI. 137. » Childs ■B.-Childs, 13 Wis. 20; McLaughlia v. Piatti, 27 Cal. 452. •Bowen v. Fenner, 40 Barb. 385; Roberts v. Wyatt, 3 Taunt. 268; Burton s. Hough, 6 Mod. 834; Pain v. Whittaker, Ry. & Moody, 99. * Summons v. Austin, 36 Mo. 808; Ingersoll v. Emmerson, 1 Carter, (Ind.) 78. » Williams v. West, 3 Ohio St. 83, • Robinson v. Champlin, 9 Iowa, 91. 62 PLAINTIFF MUST HAVE EIGHT TO POSSESSION. would pass by such a sale.i "Where plaintiff leased oxen to A. for three months, and they were levied upon by an attach- ment against A. before the three months had expired, the court was unanimous that, inasmuch as the plaintiff had no right to the immediate possession when the suit was begun, he could not recover in replevin, even though he was the general owner. ^ § 99. Keplevin lies at the suit of one entitled to the prop- erty for a special purpose. "Where a party bought five hundred head of cattle, and paid the full purchase price, the vendors agreeing that the purchaser might select that number from tlieir herd and take immediate possession, the court intimated in argument, that he might, upon refusal of the vendors to permit him to make the selection, have replevied the whole herd, and selected his five hundred therefrom, and returned the remainder.^ !N"o matter what the plaintiff's title may be, he cannot sustain the action against a defendant who had the right of possession at the time the suit was begun.* § 100. Illustrations of the rule. A multitude of cases will doubtless suggest themselves to the reader, where the neces- sities of commerce and business require that a party entitled to present possession of a chattel should find a ready and effective remedy to enforce his rights to it, against all persons, even the general owner, who acts in disregard of them. The bailee of a horse or ship for a special purpose, or for a stated time, the carrier who transports goods for hire, the commission man who advances money upon goods consigned to him, or the warehouse man who stores them at the owner's request, or the mechanic who repairs a watch or carriage, each has a ' Caldwell «. Cowan, 9 Terg. (Tenn.) 263. « Collins V. Evans, 15 Pick. 63. See, also, Wheeler v. Train, 3 Pick. 255; Gordon v. Harper, 7 Durnf. & East. 10 and 6 ; Dixon v. Thatcher, 14 Ark. 144; Hunt v. Strew, 33 Mich. 85; Smith v. Plomer, 15 East. 607; Bruce «. Westervelt, 3 E. D. Smith, (N.Y.) 240; Cox ®. Hardin, 4 East. 311; Porth o. Pursley, 83 111.153; Wyman o. Dorr, 8 Me. 183; Templeman's Case, 10 Mod. 25. ' McLaughlin v. Piatti, 27 Cal. 453. See, also, Wilson v. Royston, 2 Ark. 315. * Rucker v. Donovan, 13 Kan. 351. BOEEOWEK CANNOT SET UP TITLE. 63 special property in tlie goods so placed in his possession, whicli is superior, until it is lawfully determined, to the rights of the owner. And it would be disastrous to commerce, as well as unjust to such bailee, if the owner were permitted to retake possession of his goods without first discharging the special lien of the bailee, and in a lawful manner putting an end to his title. The law therefore recognizes and protects the right of possession the same as it does absolute title. ^ § 101. The same. When the plaintiff furnished cloth upon which to print calico, under an agreement that the calico was to be sold, and, after deducting advances, commissions, and cost of the cloth, the balance was to be paid to the printer, it was held that while the goods were in the hands of a factor for sale, the sheriff could not levy on them by virtue of an attachment or execution against the printer. The factor in such case having a special property in the goods, with posses- sion and the right of possession, process against the printer was regarded the same as process against any stranger. ^ So, when a factor advances money on goods stored with him, and has a lien for his advances, the owner cannot sustain replevin until he tenders the advances and expenses. ^ § 102. Ownership not necessarily determined in this action. The general ownership of property is not necessarily deter- mined in replevin, but the right of possession always is.* Where the plaintiff, who was the general owner, sued a rail- road company for goods which it refused to deliver unless the plaintiff signed a receipt stating. that they were in good order, the detention was held to be rightful; the company had a right to require such a receipt; that the plaintiff had a right to examine the goods at the time and place of delivery, and before he could insist on removal. ^ § 103. Borrower cannot set up title. A simple borrower of property cannot set up title in himself against his bailee; ' Williams v. West, 2 Ohio St. 85. ' Wood «. Orser, 25 N. Y. 348. ' Tyus 'B. Eust, 34 Geo. 382. See, also, McCoy v. Cadle, 4 Iowa, 558 ; Corbitt V. Heisey, 15 Iowa, 297. *■ * Warner v. Matthews, 18 111. 83; Rogers v. Ai-nold, 12 Wend. 80. ' Skinner v. C. R. I. & P. R. R., 13 Iowa, 191. 64 HAINTIFF MUST HAVE EIGHT TO POSSESSION. he must restore the property before he can assert ownership in himself. A person claiming to be the owner cannot be per- mitted to employ such means to obtain possession of goods and then hold under pretense of superior title. The act of borrowing is such a recognition of the lender's title as estops the borrower from asserting ownership until after he has sur- rendered the goods. 1 So, when property was seized and the owner gave the officer a receipt for it, and then refused to deliver it, he was not allowed to set up title in himself as against the officer when sued by the latter. ^ § 104. Carrier cannot show title in third party as a defense to an action by the shipper or consignee. Neither can a car- rier who acquired possession from a shipper excuse himself for a non-delivery by showing title in a third party or in him- self. Though a seizure of the property upon a writ of replevin, or other legal process against the shipper or consignee might be shown, and would constitute a good defense to the carrier in an action against him for the goods.* § 105. The legal title will prevail over the equitable. In this action, as in other actions at law, legal title will in all cases prevail over a mere equitable title,* but the fact that the plaintiff holds only as trustee for another, or as guardian or executor, will not debar him. So long as he holds the legal title, with the right to immediate possession, he may sustain replevin, s § 106. An assignee in bankruptcy. An assignee in bank- ruptcy takes the title of the bankrupt, and is entitled to the possession of the goods the same as the bankrupt was before the bankruptcy. Proceedings, however, by the assignee to recover the property of the bankrupt, do not usually take the 1 Simpson ®. Wrenn, 50 111. 224. ^ Brusley v. Hamilton, 15 Pick. 40. ' G. W. Ey. Co. V. MoComas, 33 111. 185. " Heyland e. Badger, 35 Cal. 404; Reese v. Harris, 27 Ala. 306; Killian s. Carrol, 18 Ired. (N. C.) 431. 5 Bergesch v. Keevil, 19 Mo. 128. A father -who is the natural guardiaa for his minor children has sufficient right to the possession of their prop- erty to enable him to sustain replevin against one who wrongfully takes or detains it. Smith «. Williamson, 1 Har. & J. (Md.) 147. EIGHT TO PRESENT POSSESSION. 65 form of a suit in replevin, though such a suit would doubtless be. sustained. The shorter and more effective coxarse is by application to the court in a summary proceeding for the posses- sion of the goods. A bankrupt has title against all but his assignee. 1, When in replevin against a sheriff he answered that he seized the goods on an attachment against one W., and that afterwards proceedings in bankruptcy were taken against W., who was adjudged a bankrupt, and that the assignee appointed by the court had demanded and taken all the goods, the answer was regarded as a sufficient defense for the sheriff. ^ § 107. Riglit to present possession, does not depend on former possession. A legal right to the possession of the goods at the time the suit was begun has been frequently held to be all that is essential to sustain replevin. But what cir- cumstances invest a party with this right remains a question unsolved by the statement, and perhaps no rule can be given which will apply in all cases. Where the plaintiff asserts the right to present possession, his right to recover does not depend on the question as to whether he had the possession at any former time, but as to whether he had the right at the time the suit was begun.* So, when the plaintiff is not entitled to bring suit for the goods without prior demand for the possession, and does begin suit without such demand, he is not entitled to possession at the time the suit was begun, and cannot succeed.* Any fact showing that the plaintiff in replevin had no right to the immediate possession when he began his suit is a com- plete bar to the action. ^ ' Sawtelle v. Rollins, 23 Me. 199; Fowler v. Down, 1 Bos. & Pull. 44; Hurst V. Gwennap, 2 Stark. 306 ; Webb v. Fox, 7 Term. E. 392, 224. 2 Bolander v. Gentry, 36 Cal, 109. = Stoughton B. Kappalo, 3 S. & R. 562; Harlan v. Harlan, 15 Pa. St. 513; Shearick v. Huber, 6 Binn. 3 ; Hunt v. Strew, 33 Mich. 85 ; Herdic i). Young, 55 Pa. St. 177; Hatch ». Fowler, 28 Mich. 210; Morgner». Biggs, 46 Mo. 65. Contra, see Cobb e. Megrath, 36 Geo. 625. * Alden b. Carver, 13 Iowa, 254. See Campbell v. Williams, 39 Iowa, 646. 5 Consult the following cases : Belden v. Laing, 8 Mich. 503 ; Clark v. West, 23 Mich. 243 ; Davidson v. Waldron, 31 111. 120 ; Hill «. Freeman, 3 Cush. 260 ; Dixon V. Hancock, 4 Cush. 96 ; Waterman v. Robinson, 5 Mass. 303 ; Fairbnuk ■B. Phelps, 22 Pick. 538 ; Walcot v. Pomeroy, 2 Pick.121 ; Whitwell «. Wells, 24 Pick. 25 ; Parley «. Foster, 9 Mass. 1 12 ; Ludden v. Leavitt, 9 Mass. 104 ; War- 5 66 PLAINTIFF MUST HAVE EIGHT TO FOSSESSION. § 108. Eule similar to that in trespass. The rule, as has been shown, is similar to that in trespass de bonis asportatis, and this latter action cannot be supported unless the plaintiff have the actual or constructive possession of the goods, or a general or special property in them, with a 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 such a title as will authorize him to reduce the goods to his possession when he pleases, i § 109. Prior rightful possession; when suflaeient. It has been stated that prior rightful possession of property, without any other title, is sufficient to sustain the action against a wrongdoer, such possession being a good title until a bettei one be shown. Prior rightful possession is of itself ^n?m facie proof of title, and as against all, except the owner, is ren d. Leland, 9 Mass. 265 ; Mitchell v. Roberts, 50 N. H. 486 ; Wallace «. Brown, 17 Ark. 450; Hill «. Robinson, 16 Ark. 93; Britt v. Aylett, 6 Eng. (Ark.) 476 ; Wilson v. Royston, 3 Ark. 315 ; Dixon ». Tliatcher, 14 Ark. 141 ; Parsons «. Boyd, 30 Ala. 117 Reese v. Harris, 37 Ala. 305 ; Bryan «. Smith, 33 Ala. 589; Beazley v. Mitchell, 9 Ala. 780; Parham «. Riley, 4 Cold. (Tenn.) 5. Ownership without right to possession is not sufficient. Wil- liams «. West, 3 O. St. 83 ; Tison's Admr. s. Bowden, 8 Pla. 69 ; Neff a Thompson, 8 Barb. 313 ; Johnson ii. Neale, 6 Allen, 338 ; Brown s. Chick- opee Falls Co., 16 Conn. 87 ; Tomlinson v. Collins, 30 Conn. 365 ; Smith a. Orser, 43 Barb. 187; Muggridge v. Eveleth, 9 Met. 333; Wade ». Mason, 12 Gray, 385; Bradley v. Michael, 1 Cart. (Ind.J 553; Pangburn «. Patridge,-7 John. (N. T.) 140; Hotchkiss ». McVickar, 13 Johns. 403; Clark v. Skin- ner, 30 John. (N. Y.) 465 ; Marshall «. Davis, 1 Wend 109 ; Hall v. Tuttle, 2 Wend. 475 ; Dubois o. Harcourt, 30 Wend. 41 ; Rogers v. Arnold, 13 Wend. 80. Prima facie title better than possession. La Fontaine v. Greene, 17 Cal. 396; Emmons v. Dowe. 3 Wis. 333; Rose v. Tolly, 15 Wis. 448; Beck- with v. Philleo, 15 Wis. 234; Sager «. Blain, 5 Hand, (N. Y.) 449; Wyman B. Dorr, 3 Gr. (Me.) 186; Pierce ». Stevens, 30 Me. (17 Shep.) 184; South- wick V. Smith, 29 Me. 239; School Dist. No. 5 v. Lord, 44 Me. 384; Melton V. McDonald, 3 Mo. 45 ; Ramsay v. Bancroft, 3 Mo. 151 ; Bush v. Lyon, 9 Cow. 53 ; Warner v. Hunt, 30 Wis. 201 ; Harrison v. Mcintosh, 1 Johns. 380; Eisendrath v. Knauer, 64 111. 403; Skinner «. Stouse, 4 Mo. 93. ' Putnam v. Wyley, 8 Johns. 433; Cannon ». Kinney, 3 Scam. 9; Hume o. Tufts, 6 Blackf. 136 ; Boise v. Knox, 10 Met. 40 ; Bell v. Monahan, Dud- ley, (S. C.) 38; Crenshaw «. Moore, 10 Geo. 384; Lunt ». Brown, 13 Maine, 236 ; Heath v. West, 8 Foster, (N. H.) 101 ; Muggridge ®. Eveleth, 9 Met. 233. Contra, Cobb ». Megrath, 36 Geo. 625. APPLICATION OF THE EULE. 67 Bufficient to entitle the plaintiff to recover.! Where the plain- tiff is able to show that the defendant was taking away prop- erty of 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.® Such recovery is permitted on the presumption of ownership, which, in the judgment of the law, accompanies actual possession, but which may be rebutted by proof. ^ § 110. The same. If the right of the plaintiff is better than that of the defendant, whatever it may be with regard to the rest of the world, he can recover. Possession is sufficient evidence of right against every one who is not the true owner or right- fully entitled to possession by virtue of some superior right.* § 111. Application of the rule. The rule last stated requires some care in its application, as cases are found where the doc- trine seems to be denied. Thus, where the plaintiff's title is denied in the pleadings, naked proof of possession would not suffice; the rule in such cases being that the plaintiff must make out his title by proofs — i.e., he must recover on the ' Hunt c. Chambers, 1 Zab. (31 N. J.) 634 5 Morris «. Danielson, 3 Hill, 168. " Moorman v. Quick, 30 Ind. 68 ; Miller n. Jones' Admr., 36 Ala. 360 ; Shomo v. Caldwell, 21 Ala. 448 ; Bayless v. Lefaivre, 87 Mo. 119 ; Duncan «. Spear, 11 "Wend. 54; Daniels v. Ball, 11 "Wend. 58 note; Smith v. Lydick, 43 Mo. 309 ; Johnson v. Carnlcy, 10 N. Y. (Seld.) 579 ; Davis v. Loftin, 6 Tex. 495; Cook V. Howard, 13 Johns. 376; Demick v. Chapman, 11 Johns. 133; Pangburn v. Patridge, 7 Johns. 140 ; Cresson v. Stout, 17 Johns. 116 ; Wheeler V. McFarland, 10 "Wend. 333 ; Schermerhorn v. Van Volkenburgh, 11 Johns. 539. " Possession is sufficient as against all persons not having a better title." Bogard v. Jones, 9 Humph. (Tenn.) 738 ; Sawtelle v. Rollins, 33 Me. 199 ; Morris v. Danielson, 3 Hill, 168 ; IngersoU v. Emmerson, 1 Carter. 76. " Possession is a right of property against all the world but the owner." Armory ■». Delamire, 1 Str. 505 ; Summons «. Austin, 36 Mo. 308. * "Van ZSTamee v. Bradley, 69 111. 801 ; Freshwater v. Nichols, 7 Jones, fN". C.) 253. Possession, if recently before the taking, would raise a presump- tion of ownership which, unless contradicted, would be sufficient. Hunt V. Chambers, 1 Zab. (31 N. J.) 634; Morris v. Danielson, 3 Hill, 168; Smith V. Graves, 35 Ark. 461. ' Gartside ■». Nixon, 43 Mo. 138 ; Gray v. Parker, 38 Mo. 160 ; Harrison v. M'lntosh, 1 Johns. 380. 68 PLAINTIFF MUST HAVE EIGHT TO POSSESSION. strength of his own title, and not on the weakness of his ad. versary's, in support of which many cases may be cited. §112. The same. "Where the title is placed in issue, and proof of possession is made only as a circumstance tending to show title, the question of title, and not mere possession, must^ govern,! the burden of proof, in such cases, being on the plaintiff. 2 One of the reasons for this rule is found in the fact that the plaintiff's title or right of possession in this ac- tion is always in question. Unless admitted, it must be main- tained by a preponderance of proof. The defendant's title is in no way impeached by the plaintiff's affidavit, or by the writ, if he fails to establish his title at the trial.* § 113. Rightful possession evidence of title. But, posses- sion of goods under a claim of ownership is of itself one of the strongest evidences of title; and the plaintiff who has shown such possession has fully complied with the obligation to show title; and if such possession be shown to be long con- tinued and open, under a claim of ownership, the law will presume title;* and naked claim of title, no matter how form- ally pleaded, ought not to be sufficient to overcome such title. If, therefore, the plaintiff is able to show an undisputed pos- session, under a claim of ownership for a length of time, such possession alone will be sufficient to entitle him to recover against a defendant who has wrongfully deprived him of such possession, unless the latter show something more than a mere assertion of title in his pleading. ^ § 114. Conflicting claims to possession. Where the plain- > Hatch V. Fowler, 28 Mich. 206. s Patterson ®. Fowler, 22 Ai'k. 898 ; Simcoke v. Fredericks, 1 Ind. 54. In Broadwater v. Dame, 10 Mo. 285, the court says that bare possession, with- out other right, will not support the action. " When the defendant has become bankrupt, and canpot defend, it will not do away with the neces- sity of proof on the part of the plaintiff." Hallett v. Fowler, 8 Allen, 93. In this action, as in ejectment and trover, the plaintiff must maintain his title, or fail in his action. Davidson v. Waldron, 31 111. 120. 8 Dows V. Green, 32 Barb. 490 ; Barnes i). Bartlett, 15 Pick. 75 ; Bogard «. Jones, 9 Humph. (Tenn.) 739; Fowler v. Down, 1 Bos. & Pull. 44. *Shomo «. Caldwell, 31 Ala. 448; Robinson «. Calloway, 4 Ark. 100; Sprague v. Clark, 41 Vt. 6; Dixon v. Thatcher, 14 Ark. 141. ' Smith V. Graves, 25 Ark. 461 ; 2 Greenleaf on Ev. 637. POSSESSION FINDER OF PBOPEETY. 69 tiff shows ownership of the property in himself, a short pos- session by the defendant, without plaintiff's knowledge or acquiesence, will not amount to title in the defendant ;i and when possession alone is relied upon by plaintiff, a prior pos- session of as high a character by the defendant, in the absence of any proof of ownership, is a better proof of a right to -present possession than subsequent possession of theplaintiff.^ § 115. The possession must be under a claim of right. As before stated, actual possession of property, when accompanied by a claim of ownership, is prima facie evidence of such own- ership. And the simple possession of chattels, without other title, is regarded a sufficient evidence of ownership to sustain an action against one who wrongfully usurps possession;^ but this must be possession by the plaintiff in his own right, and under a claim of right, not as servant of another. A servant who has the goods of his master, and who must surrender them on demand, has no such possession as will enable him to sustain the action.* The possession must also be under a claim of right in the plaintiff himself. ^ It must also be a rightful possession, acquired without force or fraud. ^ § 116. But need not be under a claim of title. Finder of property. But the possession need not be accompanied by a claim of absolute ownership. The finder of property has an undoubted right to retain possession against all the world until the rightful owner appear to claim his property, or the author- ities lawfully interfere to take charge of it, as they do in some cases; and if, while the finder is in possession, looking for the owner, another, by fraud or superior force, take the property from him,' trover or replevin will undoubtedly lie, at the suit ' Tompkins v. Halle, 3 Wend. 406. « Summons v. Austin, 36 Mo. 308. 3 Davis ®. Loftin, 6 Tex. 497; Scott v. Elliott, Phil. (N. C. L.) 104. ^ Mitchell V. Hinman, 8 Wend. 667 ; Brownell ». Manchester, 1 Pick. 232 ; Stanley «. Gaylord, 1 Cush. 536 ; Harris «. Smith, 3 S. & R. 23 ; Bond «. Padelford, 13 Mass. 395 ; Perley v. Poster, 9 Mass. 114 ; Summons v. Austin, 36 Mo. 308. ' Cases last cited. Holliday «. Lewis, 15 Mo. 406. ' Hatch ». Fowler, 28 Mich. 205; Bayless v. Lefaivre, 37 Mo. 120. ' Armory «. Delamire, 1 Stra. 505. 70 PLAINTIFF MUST HAVE EIGHT TO POSSESSION. of the finder. So money picked up on the floor of a shop,i or found in a railroad car,^ belongs to the finder, rathei than to the owner of the shop or car, and he may recover it or its value;* but money laid down by the owner in a shop or bank is regarded as left in the custody of the owner of the shop or bank, rather than in the care of a chance finder.* "Where one had a simple authority to recover animals which had strayed, and of which he never had possession, and for which he was in no way responsible to the owner until he should have posses. sion, he had no such title as would authorize him to bring replevin, s §117. The same. The plaintiff bought an old safe, and left it for sale, with permission to the defendant to use it until sold. Defendant afterwards] found a package of money in it. The plaintiff demanded the money, which was refused. He then demanded the safe and contents. The safe was at once deliv- ered, and plaintiff sued for the money. Plaintiff did not claim any right to the money as against the real owner, but claimed that, as against the defendant, he had a better right; The plaintiff never had possession, except unwittingly, and it was held, as against him, the finder had the superior right. The place of finding did not change the rights of the parties.' Perhaps, however, if the question had been between the original owner of the safe and the finder, the result would have been different. Under the cases cited in the preceding- section, the money would probably have been held to he left in the care of the owner of the safe. § 118. The lien of a finder for reward oflFered. The findei of property lost or stolen has a lien on it for the reward offered by the owner for its recovery. The owner, by public offer of ' Bridges r). Hawkesworth, 7 E. L. & Eq. Rep. 484. * Tatum ®. Sharpless, 6 Phila. 18. ' Consult Regina v. West, 1 Dearsley C. C. 403 ; People i>. McGai'ren, 17 Wend. 460. * State V. McCann, 19 Mo. 249; McAvoy v. Medina, 11 Allen, 548; Law- rence «. The State, 1 Humpli. (Tenn.) 228; McLaughlin ». Waite, 9 Cow. 670; McLaughlin v. Waite, 5 Wend. 405. ' Holliday v. Lewis, 15 Mo. 406. « Durfee v. Jones, 11 R. I. 590. PEOPERTY NEOESSAET TO SUSTAIN REPLEVIN. 71 reward, constitutes the finder his bailee, to take and care for the property;! \,^^^^ ^ finder wlio voluntarily incurs expense in keeping or caring for property he has found, unless necessary for its preservation, has no right to retain it for the purpose of enforcing his claim. § 119. Finder of a note has no right to collect it. The finder of a note, bill or lottery ticket, while he may retain it as against all but the owner, has no such right to the money due or payable thereon as will authorize him to recover it from the person promising to pay.^ § 120. Where the title is the issue, good title must be shown. A party rightfully in possession cannot, as against an intruder or wrong doer, be required to show title beyond proof of his possession in the first instance; but when he undertakes to show title, and bases his right on title, rather than possession,- he must show a suflicient title. ^ § 121. The nature of the special property necessary to sus- tain replevin. The exact nature of the special property which will sustain the action has not been very accurately defined. Greenleaf says:* " Special property, 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 sufiice against a stranger or w-rong doer. For a wrong doer is not permitted to question the title of one in actual possession of goods whose possession he has invaded." This doctrine was cited approvingly in an Illinois case. 5 A definition of this special property ample enough to embrace all cases would be too general to be of great value in any particular case. A statement of some of the principles which govern in particular cases will convey the best idea of the rule. When one has a temporary property, with right of possession of a chattel, and delivers it to the general owner ' Cummings v. Gann, 52 Pa. St. 489. ' McLaughlin v. Waite, 5 Wend. 405; McLaughlin v. Waite, 9 Cow. 670; Killian v. Carrol, 13 Ired. (N. C.) 431. « Hatch V. Fowler, 38 Mich. 205. * Greenleaf on Evidence, 637. • Eisendrath v. Knauer, 64 111. 402 72 PLAINTIFF M0ST HAVE EIGHT TO POSSESSION. for a special purpose, he may maintain replevin for it after that purpose has been accomplished. * § 122. General owner usually entitled to possession ; excep- tions. As a general rule it may be said that a right of prop- erty carries with it a right of possession.* But the right of the general owner to present possession of property may be suspended in a variety of ways; as when he deposits it as security for a loan, or where he delivers possession to a me- chanic for repairs, the mechanic has a right to retain the prop- erty until reasonable or stipulated compensation is paid. In these and similar cases the rights of the general owner await the temporary, but superior right of the bailee, and until these latter are discharged the bailee, and not the general owner, will be the proper plaintiff in replevin. ^ § 123. Liens. In discussing the question as to what title or what special property in the plaintiff is sufficient to sustain the action of replevin, or what title in the defendant will defeat it, there is no question of more importance than the question of liens. The general principle may be stated that when one has possession of goods with a valid lien thereon against the owner, the owner's right to possession is suspended until the lien is legally discharged.* § 124. The same. Among the most familiar instances of liens are bailees for special purpose. The workman who repairs a carriage or watch for the owner has, unless some special con tract exists, a lieu on the article until paid for his services.' So warehousemen are entitled to a lien on property stored with them until their proper charges are paid.* The taker up of a stray animal, who properly conforms to the law relating ' Roberts v. Wyatt, 3 Taunt, 268; Eisendrath v. Kanuer, 64 111. 402; Rich V. Ryder, 105 Mass. 310. 2 Wilson B. Royston, 3 Ark. 315. ' Wallace ». Brown, 17 Ark. 450. 4 Moore v. Hitchcock, 4 Wend. 393 ; Everett v. Coffin, G Wend. 603; Bush V. Lyon, 9 Cow. 53; Jones v. Sinclair, 3 N. H. 319; M'Comble, «. Davies 7 East. 5 ; Wilbraham v. Snow, 2 Saund. 47. " Hollingswortli v. Dow, 19 Pick, 338; Morgan v. Congdon, 4 ComsU553; M'lntyre v. Carver, 2 Watts & Serg. 393 ; Curtis «. Jones, 8 Denio, 590. « Piatt 11. Hibbard, 7 Cow. 497 ; Tyus v. Rust, 34 Geo. 828. TAKING UP OF AN KSTRAY. 73 to estrays, lias a lien for his lawful charges.* An innkeeper who entertains the traveler has a lien for his charges on the chattels of his guest in the inn or its stables. ^ "When a factor advances money on goods consigned to his care or for sale on commission, he has a lien, or qualified right to possession of the goods, and may retain them until his lien is satisfied.* In these and other kindred cases, when a lien exists the right of the general owner is subservient to the lien, and before he. can be permitted to assert his title he must show that the lien has been discharged. § 125. The same. When one has a lien on property which is forcibly and clandestinely taken from him, he can sustain replevin for its recovery. Thus, a hotel keeper has a lien on his guest's horses; and in some States a livery stable keeper has a lien on horses boarded with him ; and when lie keeps several for the same owner the lien is not against each horse, but is against the owner and upon all the horses, and one may be detained for the keeping of all.* § 126. The same. Taking up of an astray. When a person has taken up an estray, and advertised it according to law, he has a lien upon and a right to retain it until the lien is satisfied, and may maintain replevin against the owner who takes it away without paying the lawful charges. ^ But this lien is given by statute. The owner cannot be deprived of his prop- erty, or the right to immediate possession, except by a proceeding in accordance with the statute. A party, there- fore, who asserts title under a law respecting the taking up of estrays, must comply strictly with the provisions of the statute, or his lien will be lost.^ The taker up of an estray, who duly complies with the law with reference thereto, has an unquestionable hen upon the property until his legal charges ' Phelan v. Bonham, 4 Eng. (Ark.) 389 ; Bayless v. Lefaivre, 37 Mo. 119. " Thompson v. Lacy, 3 Bam. & Aid. 287 ; Turrill v. Crawley, 13 Ad. & El. 197; Sunbolf v. Alford, 3 Mees. & W.348. ' Wood V. Orser, 35 N. Y. 349; Brownell v. Camley, 3 Duer, (N. Y.) 9; Holbrook v. Wight, 24 Wend. 169. * Young V. Kimball, 23 Pa. St. 195. • Ford V. Ford, 3 Wis. 399 ; Bayless v. Lefaivre, 37 Mo. 119. « Brown «. Smith, 1 N. H. 36; Morse v. Reed, 28 Me. 481. 74: PLAINTIFF MDST HAVE EIGHT TO POSSESSION. are paid. And, to the extent of his lien, he has a special property in the animal taken up, and may assert it, it would seem, against the owner who takes the property without complying with the law.i § 127. Goods lost at sea. Where goods were found upon the ocean, and by the salvors brought into port, it was held that the ownership had been changed to the insurer by the abandonment; that the insurers of goods abandoned to them had acquired property in them, and that they, with the owners of the goods not insured, were the owners, subject to the lien of the salvors; that the salvors had simply a lien, and had no right to sell or pledge the goods, and a party purchasing from them could not sustain replevin. ^ § 128. Goods in possession of one's servant. When goods are taken from a carrier by process against him, the owner may sustain an action against the taker, the owner being regarded as in possession, and the carrier as his servant. Such a case presents a marked distinction from the case of one who hires goods for a stated period.* § 129. Contract for purchase of property does not neces- sarily confer a right of possession. When the plaintiff claims to have bought the property, of which he never had the pos- session or right to possession, replevin will not lie; the proper remedy being an action for a failure to complete the contract of sale.* Plaintiff bought a horse for one thousand dollars, and paid one hundred dollars, and was to have the horse on payment of nine hundred dollars more within thirty days. It was held to be an executory, not an executed contract. And the fact that, pending the contract, the defendant trotted the horse, would not enable the plaintiff to maintain trover until after the conditions were complied with.^ > Ford V. Ford, 3 Wis. 399 ; Morse v. Reed, 28 Me. 481 ; Barnes d. Tanne- hUl,7 Blackf. 606; Bayless v. Lefaivre, 37 Mo. 119; Hendricks v. Decker, 35 Barb. 398. ! Whitwell V. "Wells, 24 Pick. 81. ' Gt. W. E. R. Co. V. McComas, 33 111. 186. * Haverstick v. Fergus, 71 111. 105. » Whitcomb «. Hungerford, 43 Barb. 177. See, also, Stevens «. Eno, 10 OFFICEE LEVYING PROCESS, 75 § 130. An oflacer levying process has a special property, and a right to possession. An officer has a special property by the lien of an execution in his hands, and has sufficient prop- erty in goods that are levied on to sustain replevin against the owner who is defendant in the process, or any one who wrongfully takes them.i But an officer has no such lien until he has actually levied on the property ;2 and after the levy and execution was set aside, the officer could not recover. ^ "When an officer claims title to property upon a process in his hands, he must not only show a process regular on its face, but a valid judgment.* §131. Possession of a receiptor to an ofificer. But whether a receiptor to the sheriff, who has levied on the goods, can maintain this action, is a question upon which the authorities are somewhat variant. In JSTew York, the possession of the receiptor is the possession of the officer. ^ When goods were attached by the sheriff, and left in the hands of the debtor, who gave a receipt, and they were afterward attached by another creditor, the attachment by the second officer might be re- garded as a trespass on the right of the jSrst, but not on the right of the debtor. The latter cannot complain as owner, and also as bailee of the first. He has no such special property in the goods as would entitle him to bring replevin in his own name. 8 Barb. 95; Lester v. East, 49 Ind. 588; Roper «. Lane, 9 Allen, (Mass.) 510; Updike e. Henry, 14 111. 378; Golder v. Ogden, 15 Pa. St. 528. ' Martin v. Watson, 8 Wis. 315 ; Bhoads «. Woods, 41 Barb. 471 ; Mulheisen 9. Lane, 82 111. 117 ; Dayton v. Fry, 29 111. 529 ; Dezell v. Odell, 3 Hill, 215 ; Morris B. Van Voast, 19 Wend. 283; Clark «. Norton, 6 Minn. 412; Lock- wood V. Bull, 1 Cow. 833 ; Dunkin v. McKee, 28 Ind. 447 ; Walpole «. Smith, 4 Blackf. 304; Whitney v. Burnette, 3 Wis. 625. ' Mulheisen v. Lane, 82 111. 117. " The sheriff who has seized the goods of a debtor on execution has a special property in them, and, if they are taken from him, he may sustain trover, trespass or replevin." Ladd v. North, 2 Mass. 516 ; Pomeroy ®. Trimper, 8 Allen, 399 ; Fitch v. Dunn, 3 Blackf. (Ind.) 142. ' Walpole V. Smith, 4 Blackf. (Ind.) 304. * Yates V. St. John, 12 Wend. 74; Earl v. Camp, 16 Wend. 562; Dunlap e. Hunting, 2 Denio, 643. » Mitchell B. Hinman, 8 Wend. 667; Phillips v. Hall, 8 Wend. 610. 6 Brown V. Crocket, 22 Me. 540. See Butts v. Collins, 13 Wend. 139; 76 PLAINTIFF" MUST HAVE EIGHT TO POSSESSION. § 132. An agent who is responsible to the owner has suf- ficient possession to sustain replevin. An auctioneer agent who is responsible to the owner may have replevin for goods committed to his possession and sold by him, and not paid for according to the conditions of the sale; this being a special property sufficient to sustain the action. ^ § 133. Wrongful seizure or sale by an officer does not aflfeot owner's right. The wrongful sale of one's property, on an execution against a third party, does not divest title, and the owner can sustain replevin ;2 and, generally, in all cases where an officer wrongfully seizes and sells goods, the title is not divested by such sale, and the owner may have replevin for the goods against the purchaser.* Miller v. Adslt, 16 Wend. S35; Browning v. Hanford, 5 Hill, 588; Dezells. Odell, 3 Hill, 215. Contra, Burrows v. Stoddard, 3 Conn. 160. ' Tyler v. Freeman, 3 Cush. 261. » Dodd 11. McCraw, 8 Ark. 83. ^Eggleston v. Mundy, 4 Mich. 295; Ward v. Taylor, 1 Pa. St. 338; Shearick c. Huber, 6 Binn. (Pa.) 2. DOES NOT LIB AGAINST ONE NOT IN POSSESSION. 7T OHAPTEE V. POSSESSION BY THE DEFENDANT. Section. Replevin does not lie against one not in possession of the goods .... The same ; some exceptions The writ lies only for property in existence Proof that the defendant was about to take possession.will not sustain replevin Neglect to deliver ; when not a conversion The same 139 Taking under a license not a conversion A firm may be responsible for the act of one member . Taking by an officer ; when suf- ficient to render him liable in this action 134 135 136 187 138 140 141 143 Section. Possession by an officer not pos- session of the creditor in the writ Servant not usually liable for holding his master's goods Where defendant has put the goods out of his possession . Or put it out of the officer's power to execute the writ Fraudulent transfer of goods . Clothing worn on the person not subject to the writ . Possession after dismissal of an action of replevin . Defendant acquiring possession with plaintiflf's consent The action permitted in some States without delivery of the goods 143 144 145 146 147 148 149 15a 151 § 134. Eeplevin does not lie against one not in possession of the goods. It is also a rule in replevin that the action only lies against a defendant who is in possession of the goods at the time the demand is made or suit is begun. In order to hold a party liable for the immediate delivery of the goods, he must have the actual or constructive possession of them at the time, so that he can comply with the demand if made, or with the mandate of the writ for delivery if it should issue against him.^ A wrongful taking unless followed by a wrong- " Ames V. Miss. Boom Co., 8 Minn. 470 ; Brockway v. Burnap, 8 How. Pr. Rep. 188; Roberts v. Randel, 3 Sandf. (N. Y.) 707; Bradley v. Gamelle, 7 Minn. 381; Hall v. White, 106 Mass. 600; McCormick v. McCormick, 40 78 POSSESSION BY THE DEFENDANT. ful detention will not sustain the action, i In trespass, the restoration of the goods would be no bar to the suit. The action having once accrued, no act of the defendant's can deprive the plaintiff of it; but replevin, for the delivery of specific goods, only lies in case the goods are detained. Where the statute allows the plaintiff to have judgment for the goods or for their value, at his option, the reason for this rule would not apply. § 135, The same ; some exceptions. For instance, a wrong, ful taking followed by an immediate restoration of the goods; or, where the taking though wrongful was in ignorance of the plaintiff's rights, and the goods have been in good faith sold or disposed of, before demand or suit brought; or, when the property has been destroyed; or, an animal has died; in such case some other action than replevin must be pursued.* The gist of the action being the wrongful detention, ^ it lies for goods wrongfully detained though the taking was rightful;* but does not lie, unless there is a wrongful detention at the time the suit is brought. ^ In New York, a statutory provi- sion allows the arrest of the defendant whenever it is shown that he has concealed, removed or disposed of the property to avoid the writ, or deprive the plaintiff of the benefit of it;' and the courts hold, that in such cases, that the action may be prosecuted where the defendant has not the possession of the goods, having parted with them for the purpose of avoiding Miss. 760; Burton v. Brashear, 3 A. K. Marsh, (Ky.) 377; Howe v. Shaw, 56 Me. 291; Grace v. Mitchell, 31 Wis. 536; Baer v. Martin, 3 Carter, (Ind.) 229; Myers v. Credle, 63 N. C. 505. ' Savage v. Perkins, 11 How. Pr. Rep. (N. T.) 17; Paul «. Luttrell, 1 C!ol. 317. ' Meriden c. Wheldon, 31 Conn. 118 ; Lindsay v. Perry, 1 Ala. (n. s.) 204; Richardson v. Reed, 4 Grey, 443; CoflBn «. Gephai-t, 18 Iowa, 257; Moore 0. Kepner, 7 Neb. 294. •' Haggard v. Wallen, 6 Neb. 272; Mercer a. James, 6 Neb. 406. "Esson V. Tarbell, 9 Cush. 407; "Waterman v. Matteson, 4 R. I. 539; Dimond v. Downing, 2 Wis. 498. ' Savage v. Perkins, 11 How. Pr. 17 ; Hay ward n. Seaward, 1 Moore & Scott, 459. « Watson V. MoGuire, 33 How. Pr. Rep. 87. See Barnett «. Selling, 70 N. T. 492. WEIT UES ONLY FOR PEOPEETY IN EXISTENCE. 79 the writ;^ but as we shall see, this ruling does not depend entirely upon the statute, but applies independent of the stat- ute in many cases where the defendant has put the property out of his hands to avoid the writ. § 136. Tlie writ lies only for property in existence. The property must also be in being, of tangible or appreciable form, subject to manual delivery, thus for the young which animals are expected to produce, replevin is not the remedy.^ When A. agreed that his horse should serve the mare of B. upon con- dition that the produce should belong to 0. Held, that 0. took a sufficient title to sustain trover, but could not have replevin before the colt should be foaled. ^ Neither will the action lie for property destroyed, or for a slave who died before suit commenced;* but the plaintiff may have judgment for the young of animals recovered by him, notwithstanding they may have been born after the suit was begun. ^ § 137. Proof that the defendant was about to take posses- sion win not sustain replevin. As has been stated, the action is in the nature of a pro.ceeding in rem for the delivery of the identical goods, and in such actions the defendant must have the actual or constructive possession of the property sued for at the time suit is brought, as the action lies only against one who has such possession and can deliver the goods sued for.* Proof, therefore, that the defendants were about to take. pos- session, but had not actually done so, will not sustain the action;' nor will proof that the defendant intended or agreed to convert the goods to his own use, amount to a conversion, without some actual interference with the property. ^ ' Ellis D. Lersner, 48 Barb. 539; Nichols b. Michael, 23 N. Y. 264. 5 Lindsay « Perry, 1 Ala. 203; Chissom v. Hawkins, 11 Ind. 318. 2 McCarty v. Blevins, 5 Terger, (Tenn.) 196. « Burr V. Dougherty, 21 Ark. 559 ; Caldwell v. Fenwick, 3 Dana, (Ky.) 833. ' Buckley v. Buckley, 12 Nev. 426. 6 Lathrop v. Cook, 2 Shep. (Me.) 414; Sawyer «. Huff, 12 Shep. (Me.) 464; Small «. Hutchins, 1 Appl. (19 Me.) 355; Learned v. Bryant, 13 Mass. 234; Mccormick v. McCormick, 40 Miss. 761; Gaff v. Harding, 48 111. 148. 1 Whitwell V. Wells, 24 Pick. 29. «Herron o. Hughes, 25 Cal. 555. See Squires v. Smith, 10 B. Mon. (Ky.) 34. 80 POSSESSION BY THE DEFENDANT. § 138. Neglect to deliver; when not a conversion. When at the time of the service, the defendant was not in possession of the property, and denied having anything to do with it, but pointed out his son in whose house he lodged, who was then present and had possession; held, the action could not be sustained against the father, even though he advised his son not to deliver it.i § 139. The same. When the plaintiff and his wife occu- pied separate parts of the wife's house, pending a suit for divorce, after the divorce the plaintiff suffered his goods to remain in the house; afterwards, when plaintiff was out, the defendant fastened up the doors and windows. The plaintiff demanded to be let into the house, but did not demand the goods, the defendant offered to put out his property, but the plaintiff forbid her to do so, and brought replevin. Held, that the defendant was not guilty of detaining; she excluded the plaintiff from her building as she had a right to do, but there was nothing to show taking or detention of the goods.^ And the rule appears general, that mere neglect to deliver goods unless they are actually in the defendant's possession at the time of demand, will not amount to a conversion. ^ § 140. Taking under a license not a conversion. When the taking was made under an implied license to the taker, no conversion results. When H. hired a buggy and injured it, it was agreed that he should pay for the repairs; plaintiff took it to a shop for repair; next day, H. went to the shop and the buggy not being repaired or in process of repair, he took it to another shop and had it repaired ; he did not take or obtain it for his own use or the use of anyone else, it was not injured in his possession, and in fact, no element of con- version appeared in any act of the defendant.* Such a taking is looked upon as by the owner's consent, rather than wrong- ' Jolinson Admr. v. Garlick, 25 Wis. 705 ; Timp ®. Dockham, 33 Wis. 151 ; Grace «. Mitchell, 31 Wis. 539. 2 Bent V. Bent, 44 Vt. 634. 3 Whitney «. Slauson, 30 Barb. 276; Hawkins b. Hoffman, 6 Hill, 586; Hill V. Covell, 1 Comst. 533 ; Hall «. Robinson, 2 Oomst. 293 ; Miller ®. III. Cent. R. R. Co., 24 Barb. 313. , * Eldridge v. Adams, 54 Barb. 417, POSSESSION BY AN OFFICEE. 81 ful, but if the defendant while so in the actual possession of the goods had refused to deliver on demand, or done any act inconsistent with the owner's right, he would have been liable. § 141 . A firm may be responsible for the act of one member. A firm may be responsible in this action for the taking and detention by one member when he acts for and on 'the part of all, though if his wrongful act was without the consent of the others, he would alone be liable. ^ § 142. Taking by an officer ; when sufficient to render him liable in this action. Where the defendant was an ofBcer who had levied on property, but did not remove it, the defendant in the execution who still retained the goods, will not be per- mitted to sustain replevin against the officer, as the possession was still in himself ;2 but when an officer levies on goods, and takes an inventory, and directs a receiptor to prevent their re- moval, he has a sufficient possession to enable the owner to sustain replevin.* And such a taking is sufficient ground on which to base an action against the officer. § 143. Possession by an officer not possession of the cred- itor in the writ. The actual possession of an officer who has seized goods on process in his hands, is not the constructive possession of the creditor in the writ.* An attachment cred- itor, therefore, is not jointly liable with the officer. He has no property in the goods, entire, general or special, and no possession or right of possession. ^ But where the attaching creditor claimed to be the owner of the property, and attached the goods to get possession of them, and had them in posses- ' Howe V. Shaw, 56 Me. 291. 5 Hickey d. Hinsdale, 12 Mich. 100. See Mitchell «. Roberts, 50 N. H. 486 ; Ramsdell v. Buswell, 54 Me. 548, overruling Sayward v. Warren, 27 Me. 453 ; English v. Dalbrow, Miles (Pa.) 160 ; Wood v. Orser, 25 N. Y. 355 ; Angel V. Keith, 24 Vt. 373. 3 Fonda v. Van Home, 15 Wend. 632. < Gallagher v. Bishop, 15 Wis. 282; Booth v. Ableman, 16 Wis. 460; Ilsley V. Btubbs, 5 Mass. 283; Smith v. Orser, 43 Barb. 187; Grace ®. Mitchell, 31 Wis. 533. "Douglass ■O.Gardner, 63 Me. 462; Richardson b. Reed, 4 Grey, 442; Ladd V. North, 2 Mass. 516 ; Grace v. Mitchell, 31 Wis. 533 ; Small «. Hutohins, 19 Me. 255 ; Mitchell v. Roberts, 50 N. H. 486. Gontra, see Hathaway v. St. John, 20 Conn. 346; Bowen v. Hutchins, 18 Conn. 550. 6 82 POSSESSION BY THE DEFENDANT. sion, he was liable in replevin as well as in trespass or trover;^ and where the plaintiff in an execution directed the sheriff to levy on certain articles belonging to another party, the court considered the officer as the servant or agent of the plaintiff in execution, and sustained replevin against him, not- withstanding he was never in actual possession of the property.^ Where an officer has levied on bulky articles, and endorses his levy on his process, and refuses to give them up, but asserts his right, he has such a possession as wiU justify replevin against him, there being no actual possession and control of the goods in any other person. ^ § Hi. Servant not usually liable for holding his master's goods. As a general rule, the possession of the defendant must be a possession under some claim of right in himself. A ser- vant is not, as a general thing, a proper defendant in replevin, when he only holds the goods as his master's, unless he is guilty of some wrongful act.* So, where a servant refuses to deliver goods entrusted to him by his master, without his mas- ter's order, the servant is not personally liable in replevin, the master being the proper defendant, ^ the possession being the possession of the master. So, in trover for a note, the defend- ant claimed to be agent for his wife, and the possession was regarded as in the wife.* But the agent of an express com- pany may be sued if he refuse to deliver goods after payment or tender of legal charges.' § 145. Where defendant has put the goods out of his pos- session. There are eases which hold that the action may, under certain circumstances, be brought against a defendant after he has parted with the possession of the goods; thus, when the defendant has let the goods for hire, and it appears ' Tripp V. Leland, 42 Vt. 488. « Allen «. Crary, 10 Wend, 349. 3 Halcli V. Fowler, 28 Mich. 213. * Bennett i>. Ives, 30 Conn. 339 ; Owen i). Gooch, 3 Esp. 567. * Mires v. Solebay, 3 Mod. 343; Mount v. Derick, 5 Hill, 456; Storms. Livingston, 6 Johns. 44; Alexander o. Southey, 5 Barn. & Aid. 247. « Hunt V. Kane, 40 Barb. 638. See Matteawan Co. ■». Bentley, 13 Barb. 643. ' Eveleth v. Blossom, 54 Me. 447. OUT OF officer's POWER TO EXECUTE WRIT. 83 he can resume them at pleasure, i Also, where the defendant has lately had possession of the goods, and has fraudulently made away with them, for the purpose of defeating the action, it may sometimes be sustained.^ Where defendant was charged with fraudulently obtaining possession of plaintiff's property, and consigning it to his uncle in London, and that he had drawn drafts on the bill of lading, payable when it should arrive, the plaintiff might sustain action.* It will be seen that it is not absolutely necessary to sustain the action, that the officer be able to find -and deliver the goods. Exceptions to the general rule arise in many cases. § 146. Or put it out of the oflaeer's power to execute the writ. When the defendant puts it out of the power of the ofiicer to proceed and execute the writ, the plaintiff may be allowed to proceed with the case and recover the full value of the goods, with damages for the detention.* Where the writ was for rails, and the defendant took part of them and built them into a fence, it was admitted the sheriff could not take them ; but the plaintiff was permitted to recover damages to the full value. To permit the defendant so to take advantage of his own wrong ' Gaines n. Harvin, 19 Ala. 491 ; Bradley ®. Gamelle, 7 Minn. 331 ; Harris p. Hillman, 26 Ala. 383. ■^ Drake®. Wakefield, 11 How. Pr. Eep. 107; Nichols v. Michael, 23 N- T. 264; Ellis V. Lersner, 48 Barb. 539; Dunham s. Troy Union R. R. Co., 3 Keyes, (N. Y.) 543: Havage o. Perkins, 11 How. Pr. Rep. 17. ' Ellis v. Lersner, 48 Barb. 539. See, also. Burton ■». Brashear, 3 A. K. Marsh, (Ky.) 278; Powers v. Bassford, 19 How. Pr. 309; Garth v. Howard, 5 Car. & P. 352; Ford v. Caldwell, 3 Riley, (S.C.) 277, 3 Hill & New Ed., 3 Hill, *338 ; Anderson v. Passman, 7 C. & P. 193 ; Harris ®. Hillman, 26 Ala. 880 ; Clements v. Flight, 16 Exch. 42 ; Walker v. Fenner, 20 Ala. 198 ; Brock- way 0. Burnap, 16 Barb. 309, overruling S. C. (12 Barb,) 347; Southcote v. Bennett, Cro. Eliz. 815 ; Jones v. Dowle, 9 M. & W. 19 ; Garth v. Howard, 6 C. & P. 346 ; Anderson v. Passman, 7 C. & Payne, 193 ; 8 B. & Aid. 703. * Pomeroy v. Trimper, 8 Allen, 403 ; Bower «. Tallman, 5 Watts & 8. 561 ; Baldwin d. Cash, 7 Watts & 8. 426. See able dissenting opinion in Rams- dell «. Buswell, 54 Me. 548; Boss ». Cassidy, 37-37 How. Pr. 416. In New York, when the defendant had put the property out of his hands, for the purpose of preventing the writ, the statute formerly allowed an arrest. Roberts «. Randel, 3 Sandf (N. Y.) 707. Consult Van Neste d. Conover, 30 Barb. 547; Ward ». Woodburn, 37 Barb. 346; Nichols «. Michael. 33 N. Y. 264; United States v. Buchanan, 8 How. 83 ; Brockway «. Burnap, 16 Barb. 309. 84 POSSESSION BY THE DEFENDAHT. is contrary to all the principles of the law.i When the officer caused the value of the property to be ascertained, and had taken security required by law, and had taken" the property into his custody, when it was forcibly taken from him by the defendant, the plaintiff may proceed and recover the value as damages. § 147. Fraudulent transfers of goods. "When one obtains goods by fraud, and had transferred them to a trustee for his creditors, a joint action lies against both.^ Where A., with- out any authority, pledges the property of B. to C, action of detinue may be against both.* § 148. Clothing worn on the person not subject to the writ. While the property must be in the defendant's possession, yet it is not all property in his possession which is liable to be taken on a writ of replevin. Thus, where the property is in actual use by the defendant, or worn upon his person, as a jewel or watch, even though worn for the purpose of evading a seizure. The officers cannot take it so long as it continues to be worn on the person of the defendant. A man's clothes cannot lawfully be taken from his back, nor his watch from his pocket or his hand, by an officer upon a writ of replevin-.* § 149. Possession after dismissal of an action of replevin. When the action of replevin was dismissed without an order for a return, the defendant is not liable to a second action for the same property, unless it appears that the goods have come into his possession, and that he has asserted a right or done some act inconsistent with the plaintiff's claim. The return of the property to an inn-keeper, from whose house it was taken, is not of itself a restoration to the defendant, unless he authorized or adopted the act as his own. The defendant in the first action made no claim to the property, and this would ' Bower v. Tallman, 5 W. &S. (Pa.) 561'. See Snow «. Key, 22 Wend. 604 "Nichols «. Michael, 23 N. Y. 269. 8 Garth v. Howard, 5 Car. & P. 346. 4 Maxham o. Day, 16 Gray, (Mass.) 214; Gorton v. Falkner, 4 D. & Bast. 565 and 305 ; Storey v. Robinson, 6 Term. R. 139 and 73 ; Mack v. Parks, 8 Gray, (Mass.) 517 ; Sunbolf v. Alford, 3 Mees. & W. 848. As to whether the sheriff can break and enter a dwelling house, see post, power and duty of sheriff. AOriOH PEEMITTED IN SOME STATES. 85 seem to indicate that he did not intend further to assert any claim to it.i § 150. Defendant acquiring possession with plaintifif's consent. "Where the defendant sells, or otherwise disposes of the goods, the owner standing by and making no objections, when he can, with propriety, speak, he cannot afterward sustain replevin against purchasers. ^ This rule finds numer- ous illustrations in different cases, but the general principle is the same in all — that when one stands by in silence and permits another to act upon an erroneous state of facts,. to the injury of the person whom he suffered to remain in error, he is estopped from setting up his rights.^ §151. The action permitted in som.e States without delivery of the goods. In many of the States actions for the recovery of goods in specie may be prosecuted without asking a delivery of the goods until after the final judgment of the court on the merits of the controversy. In such case, the reason for the rule which forbids the action against any one not in pos- session fails; and, while adjudications directly on this question are not numerous, no reasons exist why, in such, the plaintiff may not have an alternative judgment, for the goods or their value, against a defendant, after he has parted with the possession, as well as before. > Way V. Barnard, 36 Vt. 370. ' Skinner v. Stouse, 4 Mo. 93. 'Thompson v. Blanchard, 4 N. T. 303 ; Erie Savings Bank v. Eoop, 48 N. T. 292; Brewster v. Baker, 16 Barb. 613; Otis v. Sill, 8 Barb. 102; Hope v. Lawrence, 50 Barb. 258. 86 JOINT OWNEES. CHAPTEE YI. JOINT OWNERS. Section. One joint tenant cannot main- tain replevin against his co- tenant 153 The same. Appearing in the writ, or pleaded by the de- fendant 153 Replevin does not lie for an un- divided interest . . . 154 Owners of separate interests cannot join, but joint own- ers must 155 Action by one of two owners does not lie against a stranger for the joint property . . 156 The same. Illustrations of the rule 157 Landlord reserving a share of the crop cannot sustain re- plevin until his share is set apart 158 Section. Death of one partner, who en- titled to the partnership prop- erty 159 The same. Joint tenancy, how pleaded 160 By agreement of all joint own- ers, the right of possession may be in one . . .161 The severance of the joint ten- ancy by agreement . . 162 Severance by the act of one joint tenant . . . .163 Purchaser of a joint tenant's interest at sheriff's sale . 164 Sale by one partner of his in- terest in goods . . .165 An officer with process against one member of a firm may seize all the partnership goods 16B The same 167 § 152. One joint tenant cannot sustain replevin against his eo-tenant. One joint tenant cannot sustain replevin against his co-tenant for the possession of the chattels owned by them in common, for the reason that, unless there be some agreement to the contrary, one has as much right to the possession of the joint property as the other, i ' 'Prentice v. Ladd, 13 Conn. 331; Russel d. Allen, 13 N.Y. 173; Wilson D. Reed, 3 Johns. 177; Ellis «. Culver, 1 Hax. (Del.) 76; Barnes v. Bartlett, 15 Pick. 71; Hardy D. Sprowle, 33 Me. 333; Wills «. Noyes, 13 Pick. 334; Eakin v. Eakin, 03 111. 160. But if one tenant in common destroys the thing, trover will lie. Wilson v. Reed, 3 Johns. 177 ; Co. Litt. 300 a. Ten- ants in common are npt like partners. One partner may sell the flrm APPEAHING IN THE WRIT. 87 § 153. The same. Appearing in the writ, or pleaded by the defendant. If the fact of joint tenancy be shown by the plaintiff in his pleadings, or in his writ, the suit must fail. The court will usually in such case direct that the writ abate,! and the defendant may have a return of the goods. But when the joint tenancy is pleaded by defendant, it is a matter of defense, and is the subject of proof So when it appears during the trial that the parties own the property jointly, or are partners, the court will not for that reason dis- miss the proceeding, but will leave it to the jury as one of the issues in the case, and will direct them, in case they find a joint tenancy, that the verdict must be found for the de- fendant. ^ property without being liable ia tort. Fox «. Hanbury, 3 Cowp. 450. But one partner cannot sustain replevin against his partner for the exclusive possession of the firm property. Azel ■». Betz, 2 E. D. Smith, 188 ; Helton B. Binns, 40 Miss. 493; Noble v. Epperly, 6 Port. (Ind.) 416; Mills v. Malott, 43 Ind. 353 ; Rogers v. Arnold, 12 Wend. 30 ; Eakin v. Eakin, 63 111. 160; Wetherell v. Spencer, 3 Mich. 123; Hill v. Robinson, 16 Ark. 90; Hardy v. Sprowle, 33 Me. 322; M'Elderry v. Flannagan, 1 Har. & G. (Md.) 308. One partner cannot maintain replevin against the other for firm goods,. and defendant may have return. Reynolds b. McCormick, 63 111. 415. See Chambers v. Hunt, 33 N. J. L. 554. The possession of one tenant in common is the possession of all. Walker ». Penner, 38 Ala. 873. All the plaintiffs must be entitled to recover, or none of them can. lb. By the common law, if a woman own chattels in common with another, and marry, the tenancy in common ceases, and the husband becomes tenant in common with the others. Walker ». Fenner, 28 Ala. 373. Husband and wife could not be tenants in common, as her chattels are absolutely his. lb. If one tenant in common take all the goods, by common law, the other has no remedy, but might retake the goods, if he could. Co. Litt. 300 a; Dixon ». Thatcher, 14 Ark. 145 ; M'Elderry v. Flannagan, 1 H. & Gill. (Md.) 308; Daniels •!). Brown, 34 N. H. 454. In some of the States, statutory enactments have changed or modified this rule ; as, in California, a statute provided that "joint tenants" may jointly or severally bring or defend any civil action for the enfoi'cement or protection -of the rights of such party. This statute was construed, in Schwartz v. Skinner, 47 Cal. 6, which was a case for the undivided part of the furniture of a hotel. The defendant in possession refused to permit the plaintiff to take or share possession, and refused to pay any rent. The court directed a judgment for the plaintiff. The case of Schwartz v. Skinner seems to stand alone ; but see Bostick v. Brittain, 25 Ark. 482 ; Hewlett v. Owens, 50 Cal. 475. , 1 Hart «. Fitzgerald, 3 Mass. 509. ' Belcher v. Van Duzen, 37 111. 383. ■ Consult, also, Hunt v. Chambers, 1 88 JOINT OWNEBS. § 154. Keplevin does not lie for an undivided interest. Eeplevin does not lie for an undivided interest in a chattel, as an undivided part is not susceptible of delivery without the whole. 1 The plaintiff must have an entire interest, or a right to the entire and exclusive possession, or his action must fail.s When a party claims only a lien unaccompanied by a right to possession, lie cannot maintain replevin to obtain possession of the property in order to enforce his lien.' § 155. Owners of separate interests cannot join, but joint owners must. Where several plaintiffs claim several and dis- tinct rights in the property they cannot join in an action for it.* But where the goods are the joint property of several, all must join as plaintiffs or replevin will fail. One joint owner cannot sue alone and recover possession of the goods, even from a third party. ^ § 156. Action by one of two joint owners does not lie against a stranger for the joint property. It does not admit of dispute that one tenant in common cannot maintain replevin against his co-tenant. But tlie question has been suggested as to whether he could maintain the action against a stranger who wrongfully took the possession. There is no doubt that the part owner of chattel in his possession may support the action against one who, without right, should forcibly dis- Zab. (N. J.) 620; Chambers v. Hunt, 3 Zab. (33 K J.) 554; D'Wolf o. Harris, 4 Mason C. 0. 515 ; Helton v. Binns, 40 Miss. 491. ' Kindy v. Green, 33 Mich. 310; Price v. Talley's Admr., 18 Ala. 31; Par- sons V. Boyd, 30 Ala. 113; Kimball v. Thompson, 4 Gush. (Mass.) 447; Hart V. Fitzgerald, 3 Mass. 509. 5 Frierson «. Frierson, 21 Ala. 549; Bell v. Hogan, 1 Stewart, (Ala.) 536; Miller v. Batman, 11 Ala. 609. 3 0tis«. Sill, 8 Bart. 103. " Cha&bers v. Hunt, 18 N. J. L. 339 ; Barry •o. Rogers, 3 Bibb. 314; Hinch- man v. Patterson, H. R. R. Co., 17 N. J. Eq. 75; Owings «. Owings, 1 Har. & Gill. (Md.) 484; Glover v. Hunnewell, 6 Pick. 333; Walker «. Fenner, 28 Ala. 373. " McArthur b. Lane, 15 Me. 345 ; Reinheimer v. Hemingway, 35 Pa. St 435; Demott v. Hagerman, 8 Cow. 230; Coryton v. Lithebye, 3 Saund. 116; Decker v. Livingston, 15 John. 479 ; Portland Bank v. Stubbs, 6 Mass. 432; D'Wolf V. Harris, 4 Mason C. C. 515; Eakln v. Eakin, 63 111. 160; Colton «. Mott, 15 Wend. 619. Consult Gilmore v. Wilbur, 12 Pick. 120; Picker- ing v. Pickering, 11 K. H. 141. ILLTJSTJBATIONS OP THE EtJLE. 89 possess him. It is true, also, tliat one of two joint tenants is owner of the half of the whole, and as against all but his co- tenant would seem to Iiave a better right to the exclusive pos- session than any stranger; but it must be remembered that his right extends only to half, and not to the whole, and that as against a stranger in possession he has no greater rights to his co-tenant's interest than any other third person. There- fore, when he relies on his title, and not on his prior posses- sion, his title will not avail in action against a stranger. The case of Schwartz v. Skinner, 4Y Oal. 6, and the dicta in D ' Wolf V. Harris, 4 Mason, 0. C, 515, may be quoted against these views; but the former was decided under a special stat- ute, and the latter is mere dicta, and the entire current of authority is the other way. ^ § 157. The same ; illustrations of the rxile. Where a land- lord agreed to receive part of the crop for his rent, to be har- vested and delivered to him in the crib, it was levied on as the property of the tenant while in the field. Held, the landlord could not sustain replevin for his share prior to a division. ^ So where a party purchased land, and being unable to pay for it agreed to deliver a part of the crop for the use, but after- wards refused to do so, and was hauling the grain to the mar- ket and storing it in his own name and the names of other parties; the landlord brought a bill to restrain aM the par- ties, which was held the proper remedy in such case. The plaintiff could not maintain replevin for an undivided portion of the corn ; his only remedy was held by bill in equity. ^ ' Chambers ■o. Hunt, 18 N. J. L. 339; Hunt v. Chambers, 1 Zab. (K. J.) 623; Barnes v. Barlett, 15 Pick. 75; M'Eldery «. Flannagan, 1 Har. & Q-. (Md.) 308; Russell v. Allen, 3 Kern, (N. Y.) 178; Wilson «. Gray, 8 Watts, 35 ; Deacon ». Powers, 57 Ind. 489. Where the property is admitted to be in the plaintiff by the pleading, and the joint ownership is not made a ground of defense, the rule cannot be enforced — Tell v. Beyer, 38 N. Y. 161 — and when one joint tenant sells a stranger the right to cut timber off the common property, the other cannot succeed in replevin for the timber after it is cut. Alford v. Bradeen, 1 Nev. 328. ' Sargent v. Courrier, 66 111. 245. The same rule was applied in Indiana. Lacy ■». Weaver, 49 Ind. 376 ; Williams v. Smith, 7 Ind. 559 ; Lindley v. Kelley, 42 Ind. 294. » Parker «. Garrison, 61 HI. 251. 90 JOINT OWNEES. § 158. Landlord reserving a share of the crop cannot sus- tain replevin untU his share is set apart. Where a tenant agrees to deliver a share of the crop for his rent the landlord cannot snstain replevin for any portion until his share has been ascertained and set apart or separated from the tenant's.' But when the grain was harvested and put in the barn, and the tenant divided and took away his share, leaving the land- lord's, it was held a suflScient division of the crops to enable the latter to maintain replevin for his share.^ § 159. Death of one partner, who entitled to the partner- ship property. On the death of one of two partners the partnership is dissolved. In some of the States the survivor is entitled to retain possession of the partnership effects; and in such case, upon conforming to such regulations as the stat- utes provide concerning an account, he is entitled to the pos- session of all the chattels belonging to the firm, and may bring replevin for them. In other States the property of the de- ceased member of a firm goes to his administrator,* and in such case the surviving partner having only a joint interest cannot, upon that title, sustain replevin. § 160. The same. Joint tenancy, how pleaded. Where the plaintiff fails to establish his right to the possession exclu- sively in himself, be cannot succeed. The joint tenancy of others may be pleaded in abatement or may be taken advan- tage of on the trial, under a plea in bar setting up tliat fact.* § 161. By agreement of all joint owners, the right to pos- session may be in one. When by the agreement of all the joint owners, the right to the possession is vested exclusively in one of them, he may replevy with success even against his ' Lacy V. Weaver, 49 Ind. 373; Williams v. Smith,? Ind. 559; Cliissonm. Hawkins, 11 Ind. 316; Fowler b. Hawkins, 17 Ind. 311; Sargent ®. Cour- rier, 66 111. 245; Alwood v. Ruckman, 31 111. 300; Dixon «. Nicoolls,39 111. 373 ; Daniels v. Brown, 34 N. H. 454. 2 Burns v. Cooper, 31 Pa, St. 429. » Putnam ». Parker, 55 Me. 236. * Reinheimer v. Hemingway, 35 Pa. St. 435 ; Cullum v. Bevans, 6 Har. & J. (Md.) 469 ; Harrison ». M'Intosh, 1 John. 380 ; Chambers ®. Hunt, 3 Har. (18 JST. J.) 339; Marsh «. Pier, 4 Rawle. 373. Consult D'Wolf «. Harris, 4 Mason, C. C. 515 ; Addison e. Overend, 6 Terra. R. 357, 766. SEVEKANCE OF JOINT TENANCi'. 91 co-tenants.^ Where the property was the equipment of a whaling vessel, and the master had the exclusive right to pos- session during the voyage, but after the return the general agent, whose right and duty it was, under the contract with all the owners, to take charge of the stores and dispose of them, had the right to possession, the latter could sustain replevin against anyone who should interfere with his posses- sion. ^ When the partnership was for the manufacture of saddles, and one partner was to furnish all the stock and the other to do the work, the partner owning the stock might replevy it from an officer who seized it on process against the working partner before any work was done on it.' § 162. The severance of the joint tenancy by agreement. The severance of the joint tenancy so that any allotted part is set off to either, will vest in him such a title as will enable him to sustain replevin. So when a certain part of a cargo was sold by consent of all the joint tenants, the purchaser was entitled to bring replevin.* § 163. Severance by the act of one joint tenant. The question sometimes arises how far a joint tenancy in chattels can be severed by the act of one of the joint owners. In a case where the parties owned a number of bags of coffee, not in any way distinguished by marks or otherwise, the court said each one might have taken tlie num'ber of bags which belonged to him by his own selection. ^ Where the property, consisting of grain, raised and owned jointly by two, was put into two cribs, containing equal portions, and each tenant iiad a key to one of the cribs with the right to feed therefrom, there, was not such a separation as would justify an action on the part of either against the other,* there being no formal settlement or division. But where a party purchases goods inrbulk, and the separation depends on his own selection, he may, by making his selection, have the absolute property in 1 Newton o. Gardner, 24 Wis. 233 ; Corbett v. Lewis, 53 Pa. St. 331. ' Rich V. Ryder, 105 Mass. 307. 3 Boynton v. Page, 13 Wend. 425. * Seldon v. Hickock, 2 (Cain's Ca.) N. T. Term R. 166. ' Gardner v. Dutch, 9 Mass. 437. But, see editor's note to this case. « TJsry V. Rainwater, 40 Geo. 333. 92 JOINT OWNERS. the part so selected by him.i And where the joint property is of such a nature that one may take his share without in any way affecting the value of that remaining, cases can be found which say he may do so without consent of his co- tenants.^ § 164. Purchaser of a joint tenant's interest at sheriff's sale. Where the interest of one partner is sold by the sheriff or executor, the purchaser becomes a quasi tenant in common with the other partners so far as to entitle him to an account, but not to the exclusive possession of any part of the prop- erty, and replevin by such purchaser would fail.^ § 165. Sale by one partner of Ms interest in goods. "When one partner sells his interest to a stranger, the purchaser can- not sustain replevin on the refusal of the other partner to admit him into partnership. The sale was a dissolution of the partnership, and the continuing member was not compelled to admit the purchaser into partnership with him.* § 166 An officer with process against one member of a flrm may seize all the partnership goods. The rule is settled that a sheriff with process against one member of a firm, may levy upon the interest of that member in partnership property, and may sell such partner's interest.^ Partnership accounts can- not be settled in replevin. ^ § 167. The same. Where there is a judgment against one partner and an execution issues thereon, the ofiicer cannot seize a part of the partnership property; he must seize the entire property subject to levy and must take and retain the custody thereof. This rule seems to arise from the necessities of the case. The ofBcer cannot in any other way take posses- sion of the property subject to levy and sale. And while the law does not permit the sale of more than the interest of the party agaihst whom the execution runs, the interests of the other partner must so far yield as to permit the possession ' Clark V. Griffiths, 24 N. T. 596; McLaughlin v. Piatti, 27 Cal. 452. ' Forbes ». Shattuck, 33 Barb. 568 ; Tripp o. Riley, 15 Barb. 334. ^ Beinheimer v. Hemingway, 35 Pa. St. 435. * Reece «. Hoyt, 4 Port. (Ind.) 169. 6 Waldman v. Broder, 10 Cal. 378; Scrugham v. Carter, 13 "Wend. 131. « Chandler v. Lincoln, 53 111. 76. OFFICEK MAT SEIZE PAETNEESHIP GOODS. 93 of the whole long enough for the sale of the undivided interest of the execution debtor who is part owner, and the other partner cannot sustain replevin. ^ 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.^ ' Branch «. Wiseman, 51 Ind. 1 ; Ladd «. Billings, 15 Mass. 15 ; Haydon v. Haydon, 1 Salk. 392; Shaver e. White, 6 Munford, (Va.) 110; Mersereau V. Norton, 15 Johns. 179 ; Sidpp ®. Harwood, 3 Swanst. 586 ; Johnson v. Evans, 7 Man. & Q. 240; Whitney v. Ladd, 10 Vt. 165; Kemmington v. Cady, 10 Conn. 44; Lawrence v. Burnham, 4 Nev. 361; Rapp v. Vogel, 45 Mo. 524; GoU v. Hinton, 8 Abb. Pr. 120; James ®. Stratton, 32 111. 202; White ■». Jones, 38 111. 159; Sanders v. Young, 31 Miss. Ill; Bernal v. Hovious, 17 Cal. 541 ; Hardy v. Donellan, 38 Ind. 501 ; Moore v. Sample, 3 Ala. 319. See Jones v. Thompson, 12 Cal. 191 ; Walsh v. Adams, 3 Denio, 125. But, compare these cases with Treadwell v. Brown, 43 N. H. 290 ; Gibson v. Stevens, 7 N. H. 353; Morrison v. Blodgett, 8 N. H. 238; New- man v. Bean, 31 N. H. 93; Crockett v. Grain, 38 N. H. 548. » Garvin v. Paul, 47 N. H. 168. 94 DESOEIPTION, IDENTITY OF THE GOODS. CHAPTEE YII. DESCRIPTION, IDENTITY OP THE GOODS. Section. Plaintiflf must prove himself to be the owner of the identical property sued for . . . 168 The writ must describe the prop- erty particularly . . . 169 The property must be capable of delivery . . . .170 Strictness of the rule in regard to description, and the reason for it 171 The same. A description good in trespass or trover not suffi- cient in replevin . . . 172 The same 173 The same 174 "When the sufficiency of descrip- tion is a question for the jury 175 Synonymous descriptions. Il- lustrations of, and when al- lowable 176 The rule as to certainty of de- scription .... 177 The same 178 Description of numerous arti- cles, as the goods in a store . 179 Descriptions which may refer to kind or quantity . . 180 A quantity described as " about " so much 181 Section. The proof as to description must correspond with the writ 182 Exact quantify need not he given where the particular property is indicated . . 183 Writ of return and verdict may follow declaration as to de- scription 184 When objections to the insuffi- ciency of description must he taken Replevin does not lie for goods sold, unless they are in some way separated from all others or identified . The same 187 The same 188 The same . The same. Selection by the pur- chaser, when sufficient . The same Property acquired by verbal gift without delivery . The general rule applicable in these cases .... Symbolic delivery Goods distinguished by marks or by separation . 185 186 189 190 191 192 193 194 195 § 168 Plaintiflf must prove himself to be the owner of the identical property sued for. It is an inflexible rule in replevin that the plaintiff must show himself to be the owner of the identical articles for which the suit is brought, or that PKOPKETT MUST BE CAPABLE OF DKLIVEET. 95 he is entitled to their immediate possession. It is not suifi- cient that he o^vn goods of like description and value; he must show that the identical property described in the writ and pleadings is his, and also that the articles can be distinguished and separated from all others, or he will fail in his action, i The few exceptions to this rule are in cases where identifica- tion is impossible and of no importance. They will be noted hereafter. § 169. The writ must describe the property particularly. The writ must specify the particular property to be replevied. ^ Thus, when the property was described as " Buckwheat, valued at three hundred dollars," or " Sweet potatoes valued at thirty- nine dollars," or "About ten acres of potatoes," or "Four acres of squash," there was a failure to identify the property, or to furnish any means by which it could be ascertained, and the writ failed.* But where the sheriff levied on coin which was by consent and for convenience exchanged for bank bills, this alteration was held not to prejudice the rights of a stranger to the proceeding who claimed to own the money and sought to recover the bills in replevin.* § 170. The property must be capable of delivery. The property must be in esse, and in such form of existence that it may be the subject of delivery. "Where a colt, the expected progeny of a mare owned by another, was the subject of dis- pute, replevin was not the proper form of action." Neither 1 3 Bla. Com. 145 ; 1 Ch. Pleadings, 163 ; Hurd v. "West, 7 Cow. 752 ; Sny- der V. Vaux, 3 Rawle, (Pa.) 433 ; Ames v. Miss. Boom Co., 8 Minn. 470. ^ Snedeker v. Quick, (6 Halst.) 11 N. J. 179; Pope v. Tillman, 7 Taunt. 643; Davis v. Easley, 13 111. 193. ' Welch ». Smith, 45 Cal. 330. Reasonable certainty must be used in the description. Root v. Woodruft, 6 Hill, (N. T.) 418 ; Snyder «. Vaux, 3 Rawle, 437; Kaufmann v. Schilling, 58 Mo. 319; Gray «. Parker, 38 Mo. 160; Ryder ■». Hathaway, 31 Pick. 305 ; Hart «. Fitzgerald, 3 Mass. 509 ; Carlton «. Davis, 8 Allen, (Mass.) 94; Low «. Martin, 18 111. 286; Reese v. Harris, 37 Ala. 306; Stevens «. Osman, 1 Mich. 93; Parwell v. Fox, 18 Mich. 169; Stanchfleld v. Palmer, 4 Or. Greene, (Iowa,) 35 ; Brown ». Sax, 7 Cow. 95 ; Heard v. James, 49 Miss. 245; Root v. WoodruflF, 6 Hill, 424; Smith «. Sanborn, 6 Gray, 134; Dodge v. Brown, 33 Mich. 449. * St. Louis & Alton R. R. i). Castello, 28 Mo. 380. ' McCarty ■». Blevins, 5 Yerg^r, (Tenn.) 196. 96 DESCEIPTION, IDENTITY OF THE GOODS. would the action lie for a slave who was dead at the time of the commencement of the suit,* or for property destroyed before the suit was begun. ^ In these and similar cases, where the property is not in existence at the time the suit is com- menced, there can be no delivery, and for that reason replevin is not the proper form of action. ^ Some novel and intricate questions will arise under this head touching the separation of goods purchased from bulk, the mixture or confusion of goods belonging to different owners, the change of form which goods may undergo in the hands of the defendant, the effect which these conditions may have upon the rights of the sev- eral parties claimant, as well as in relation to the description of the goods. § 171. Strictness of the rule in regard to description and the reasons for it. An exceedingly strict practice prevails as to the description of the chattels sued for. The rule is, that the property must be particularly described, not simply by the number and class of articles, but that each article, where this is practicable, be so described that it can be identified and de- livered by reference to the description only. Thus, where the property is described as " six oxen," it is not sufficient. If they be called " six red oxen," this would confine the selection to a class — that is, to " red oxen "; but it would still be un- certain which " red oxen " were intended. To obviate this, the size, age, marks or spots, if any, and the place where they are, should be stated, with any other particulars that would lead to their identification,* the object being not only to ap- prise the defendant what property the plaintiff will assert title to, but to indicate to the officer the property which he is to ' Caldwell t>. Fenwick, 3 Dana, (Ky.) 333. ' Burr ti. Daugherty, 31 Ark. 559. 8 Lindsey ». Perry, 1 Ala. (n. s.) 303 ; Chissom v. Hawkins, 11 Ind. 318. See Otis v. Sill, 8 Barb. 103, for an interesting case of sale of property not in esse. « Farwell v. Fox, 18 Mich. 169; Stevens v. Osman, 1 Mich. 93; Wilson e. Gray, 8 Watts, (Pa.) 39. In Indiana, a description, "one white shoat, of the value of fourteen dollars," was held sufficient. Onstatt v. Ream, 30 Ind. 359. But this evidently falls short of the exactness usually required. Compare Dowell v. Richardson, 10 Ind. 573. GOOD IN TEBSPASS NOT SUFFICIENT IN EEH^EVIN. 97 seize and deliver nnder the writ, so that there may be no doubt or uncertainty;! for example, " fifteen hundred pounds of cot- ton seed " was held suflScient to describe the substance and quantity; but something further should have been added, as that it was in such a house or place, to enable the officer to find and identify it from the writ.^ § 172. The same. A description good in trespass or trover not sufficient in replevin. A description which is perfectly good in detinue, trover or trespass is not necessarily good in replevin. The distinction is, that in those actions the goods themselves are not in dispute, simply their value, while in re- plevin the identity of the property often forms the chief ques- tion in controversy; and, while it would be competent for a plaintiff to recover the value of a " red ox " in trover, yet that description would not be sufficient in an action of replevin.* § 173. The same. Illustrations of the rule. " Divers goods and chattels;"* or, "a quantity of corn, about two hundred bushels; "^ or, "a lot of goods in the store of A.,"^ would not be sufficient description in replevin, though perhaps they would be in trover. In an action of trover for " forty ounces of mace, nutmegs and cloves," without saying how much of either, the description was held sufficient, but would not have been in replevin.'' So, "fourteen skimmers and ladles, and three pots," is faulty in replevin, but might not be in trespass or trover;* but a box of skins and furs marked "J. "Winder, Logansport, Ind.," is sufficient. » And the general rule is, that ' Ruch v. Morris, 28 Pa. St. 345. s Hill v. Robinson, 16 Ark. 90. » Kinaston v. Moor, Cro. Car. 89 ; Farwell v. Fox, 18 Mich. 169 ; Taylor V. Wells, 1 Mod. 46 ; Gordon v. Hostetter, 37 N. Y. 108 ; Hartford v. Jones, 3 Balk. 654. The declaration ouglit to be accurate in setting up the number, kind and description of the cattle. Bull N. P. 53; Neiler v. Kelley, 69 Pa. St., 407; Wood v. Davis, 1 Mod. 390. ^Pope V. Tillman, 7 Taunt. 643; Warner v. Aughenbaugh, 15 S. & R. (Pa ) 9. ' Stevens ■». Osman, 1 Mich. 93. 6 Edgerly d. Emerson, 3 Foster, (33 N. H.) 555. ' Hartford ». Jones, 3 Salk. 651. 8 Bern v. Mattaire, Ca. Temp. H. 119. « Minchrod v. Windoes, 39 Ind. 388. 7 98 DESOEIPTION, IDENTITY OF THE GOODS. a description which will enable the sheriff, aided by inquiries, to identify the property, will be sufficient to support the action.* § 174. The same. " All articles of household furniture now contained in said house, (describing it,) consisting of carpets, chairs," etc.,^ is good. So, of " five hundred and seventy-two three-year old Texas cattle, now in possession of the party des- ignated, in' Morris Co., Kansas" ;3 or, "all the stock, tools, and chattels belonging to the mortgageor, in and about the wheelwright shop now occupied by him."* A description which is sufficient to pass property is usually suflBcient in replevin. 5 § 175. When the suflaciency of description 'is a question for the jury. "Where the identity of the property or the correct- ness of the description becomes a question, it is for the jury to determine from the evidence. Suppose the description ran, " A black horse, now in the stable of A," This would doubt- less be sufficient; but suppose the evidence showed there were two black horses in that stable. It would then be a proper question for the jury to determine whether or not the plaintiff was entitled to the horse delivered.^ And this rule would apply in all cases where the question is as to whether a given description applied to or covered the property in dispute; but if the question was as to the sufficiency of a given description to pass title or sustain the action, it would be for the court, and not the jury, to decide. § 176. Synonymous descriptions. Illustrations of, and when allowable. The term heifer may be used to describe a cow. "I know of no authority," says Gteat, J.,'' "for con- sidering ' heifer ' to be a mis-description of a cow, except in ' More V. Clipsam, Allen, 33 ; Same v. Same, Sty. 71 ; Smith v. McLean, 34 Iowa, 334; Lawrence v. Coates, 7 Ohio St. 194; Buckleys. Buckley, 9 Nev. 379. ' Beach ». Derby, 19 111. 619. * Brown v. Holmes, 13 Kan. 493. « Harding o. Coburn, 13 Met. 333; Morse v. Pike, 15 N. H. 529; Burdett D. Hunt, 25 Me. 419; Wolfe v. Dorr, 24 Me. 104; Winslow v. Merch. Ins. Co., 4 Met. 306. ' City of Fort Dodge v. Moore, 37 Iowa, 388. 8 Vcnnura v. Thompson, 38 111. 144. ' Pomeroy v. Trimper, 8 Allen, (Mass.) 403. EULE AS TO CEETAINTT OF DESOEIPTION. 99 penal statutes." i Upon the authority of these cases, it may be proper to describe a hog as a pig, or vice versa; colt may perhaps be used for horse. But the safer way is to make the description accurate, and in the terms which are in common use where the suit is brought, or in the trade or business with which it is connected. §177. The rule as to certainty of description. This action does not lie for money, unless it be in a bag or package, or in some way distinguished from all other money ;» but it lies for money or jewels in a bag,^ or bonds which are numbered and can be identified.* When coin belonging to several different owners was in a safe, and the sheriff, with a writ of attach- ment, separated eighteen hundred dollars from the remainder, and put it in a bag, and the plaintiff brought suit in replevin to recover the money from the sheriff, the court regarded the separation as sufficient to enable him to sustain the action. " § 178. The same. The plaintiff alleged that he was induced by fraud to buy a book, and to pay one thousand dollars, by a draft, which was delivered to a banker, and by him collected and placed to the credit of the seller. Plaintiff sued for one thousand dollars gold. On leave given to amend, he induced the defendant, the banker, to put nine hundred and fifty dollars in coin in a bag, and brought replevin for it. Held, that he could not recover; that he showed no title to the specific property; that the banker could not make it the ' H. P. C, 183 ; Carruth v. Grassie, 11 Gray, 211 ; Freeman v. Carpenter, 10 Vt. 434. A man brought replevin for a " heifer,'' and in his writ of second deliverance he called it a " cow." Fitzhbbbbrt said the writ was good. It was a heifer; it may be a cow now. Y. B. 26 H. 8, 6, 27. 2 Holiday v. Hicks, Cro. Eliz. 661 ; Draycot v. Plot, Cro. Eliz. 818 ; Rapalje b. Emory, 2 Dall. 51. " If I bail twenty pounds to one to keep for my use, if the money were not contained in a bag, coffer or box, detinue doth not lie" — Core's Case, Dyer, 22 6; 6 E. 4 11; 7 H. 4 14; Banks ». Whetstone, Moore, 394— but trover would lie. Hall v. Dean, Cro. Eliz. 841. As to bank bills, see Dows v. Bignall, Lalor's Suplmt. 408; "Warner «. Sauk Co. Bank, 20 Wis. 492 ; Jackson v. Anderson, 4 Taunt. 24 ; Skidmore c. Taylor, 29 Cal. 619: Ames t. Miss. Boom Co., 8 Minn. 472. 3 Bull N. P. 32. * Sager «. Blain, 44 Hand. (N. Y.) 448. ' Griffith B. Bogardus, 14 Cal. 410. The distinction between money and spe- cific property is stated by Lord Mansfield in Clarke d. Shee, 1 Cowp. R. 300. 100 DESOEIPTION, IDENTITY OF THE GOODS. money of his depositor,. so as to subject it to the replevin suit, by putting it in a bag, without the depositor's consent.^ § 179. Description of numerous articles, as the goods in a store. "Where the articles are numerous, and a separate de- scription of each would not aid in their identity, a more general ' method, if it be definite, may be employed. Thus : " 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 sufiicient for the store and contents. * So, when a chattel mortgage enumerates sundry articles specifically, and also includes "all other articles of personal property in and about the mortgageor's shop," the general description will pass all.' § 180. Descriptions which may refer to kind or quantity. It may be a question, at times, whether the words used in the writ are employed to designate the kind and description of the article, or the quantity. Thus, "barrels of lime" may mean lime in barrels, or it may refer to the quantity in bulk; "bar- rels of flour " may be a proper description of flour in bags, because the common usage of the trade in many parts of the country warrants it, but the better practice is to avoid any description which may be ambiguous. Where the writ directed the sheriff to take " barrels of No. 1 mackerel," and the return showed that he took barrels and half barrels, the defendant moved for a return of the half barrels, upon the ground that they were not described in the writ; whereupon plaintiff proved that when the writ was being served, the defendant agreed that two half barrels should be taken for a whole one, and the court held that " the term ' barrel ' should be regarded as a designation of quantity, irrespective of the mode in which it was packed, or the particular vessels in which it was contained."* ' Pilkington v. Trigg, 38 Mo. 98. ' Ellsworth ». Henshall, 4 G. Greene, (la.) 418. To invoice a stock would be tedious, expensive, and sometimes impossible ; and the courts have held that when the store is identified, the " contents " are sufficiently ascertained by such description. Litchman ®. Potter, 116 Mass. 373. » Harding v. Coburn, 13 Met. 333. * Gardner v. Lane, 9 Allen, (Mass.) 493. PEOOF AS TO DESOKIFnON. 101 § 181. A quantity described as "about" so much. On a writ of replevin for " about four hundred tons bog ore," the sheriff was not authorized to deliver seven hundred and twenty tons. Such a writ was held defective, and that the sheriff miglit have refused to execute it. If the ore had been identi- fied as such a lot or such a pile, describing it, the number of tons might have been regarded as surplusage, i § 182. The proof as to description, must correspond with the writ. The proof must correspond to the writ and decla- ration as to description of the property; any material variance will defeat the action. Where the suit was for two "bay horses," and the proof showed one of them to be a sorrel, the variance was fatal. ^ In trover for " a slave named John," the proof showed conversion of a slave but not that his name was John; held, the plaintiff could not recover.* When a note was described in the declaration as " a note for $180," and the proof was a note for $300; held, a fatal variance.* But an omission of some words in the description which does not render the writ so defective that the property cannot be iden- tified, such as the omission of the word " feet," in describing timber, does not render the writ void. The sheriff may per- haps refuse to serve it unless it be amended, but if he does, by taking the right property, the court will have jurisdiction. ^ § 183. Exact quantity need not be given where the partic- ular property is indicated. It is not essential that exact quantities be stated when the description is otlierwise certain; as for example, " a pile of wheat," or " a quantity of barrels of pork," in a certain warehouse, would be good without men- tioning the number of bushels or barrels; and a description sufiicient to pass title will be good in this action.* § 184. Writ of return and verdict may follow declaration, as to description. The description in the writ of return is ' DeWitt «. Morris, 13 Wend. 495. 5 Taylor d. Riddle, 35 111. 567. 3 Ward V. Smith, 8 Ired. (N. O.) 396. « Bissel V. Drake, 19 Johns. 66. « Nolty v. The State, 17 Wis. 668. 6 Scudder v. Worster, 11 Cush. 573; Groat . Morrill, 56 Me. 566. * Gordon t. Jenney, 16 Mass. 469. » Adams ». Wildes, 107 Mass. 124. Upon this subject, consult Johnson 110 CONFUSION OF GOODS OF DIFFEEENT OWNEES. different articles, and on his failure to do so, the whole may go to the mortgagee. § 200. The same. When tools belonging to different work- men, A. and B., were mixed, so that it was difficult to distin- guish them, and A. sold his tools to C without specifying them, and B. had the tools removed, and in so doing, some of A.'s were taken; in trespass for such removal, the judgment was for defendant.^ § 201. The same. General principles in such cases. The principle which seems to govern in such cases, is, that the mixing or confusion is regarded as a wrongful attempt to deprive the owner of the means of identifying his goods. To guard against this wrong, the law leaves the party who has been guilty, without a remedy, and gives the goods without account to him whose rights have been invaded. But this principle is not carried to the extent of revenge or punish- ment, except in cases where the trespass was willful. The law will not siiffer the principle to be carried further than is required for the protection of an innocent party from injury, with as little loss to the other as is consistent with the inno- cent party's rights. ^ The further principle is to be gathered from the cases cited, that the fact of mixture or confusion of goods does not change the rights of the respective owners, unless it produce such confusion that the separate property of each cannot be distinguished. The wrongful turning of horses into a pasture with others would not forfeit the horses, though the party might be liable for the trespass. Neither would the mixture of any other goods produce a change in the title nor make the parties joint owners, unless the separa- tion of the differeflt articles became impossible or imprac- ticable. § 202. Changing marks to produce confusion. If property is marked in a particWar way by the owner, and another «. Neale, 6 Allen, 227; Ropes v. Lane, 9 Allen, 502; Rockwell v. Saunders, 19 Baib. 473 ; Seibert v. M'Hemy, 6 "Watts, (Pa.) 301 ; Hyde B. Cookson, 2t Barb. 92; Barron v. Cobleigh, 11 N. H. 557. 1 Rose «. Gallup, 33 Conn. 338. » Holbrook v. Hyde, 1 Vt. 286. See Simmons v. Jenkins, 76 111. 483. MIXTUEE OF GEAIN. HI without his consent changes the mark, or marks his own property in a similar manner for the purpose of creating confusion, the law usually gives the whole to the innocent owner; and although he could not sustain replevin for a part of the property unless he could identify it, yet he may in many cases have replevin for the whole. Where plaintiff was the owner of certain logs, marked in a particular manner, and the defendant caused another mark to be put upon them so that they would be marked like his own, the plaintiff was permitted to sustain replevin for the entire lot.i § 203. Mixture of grain; when each owner may take his share. "When the mixture occurs without wrong, and where from the very nature of the property the different articles are incapable of being distinguished, and where such separation, could it be made, would not be of the least advantage to any one, the just rule and the current authorities is, that each must take his share from the common mass. Thus, when like grain of different owners is mixed, the separation is not only impos- sible, but the failure to make it cannot injuriously affect either party in the slightest degree. And in all such cases when the mixture has been by consent, or under circumstances in which the mixture would be reasonably expected by both, or when it has been occasioned by accident, or mistake, and without any wrong intent, the law will give to each his just propor- tion,2 for the reason that in such case the mixture does not change the title, nor are the consequences such as follow the mixture of ingredients incapable of separation. ^ § 204. The same. When plaintiff delivered barley on con- tract to sell for cash, and it was put in a warehouse with other ' Wingate «. Smith, 20 Me. 287; Jenkins v. Steanka, 19 Wis. 127; Willard «. Rice, 11 Met. 493; Beacli v. Sclimultz, 20 111. 185; Weil v. Silverstone, 6 Bush. (Ky.) 698; Thome v. Colton, 27 Iowa, 437; Gilman ». Hill, 36 N. H. 311 ; Stephenson v. Little, 10 Mich. 433 ; Seavy v. Dearborn, 19 N. H. 851 ; Ryder v. Hathaway, 31 Pick. 399. . ^Stephenson v. Little, 10 Mich. 433; Buckleys. Buckley, 9 Nev. 879; Lupton V. White, 15 Ves. 483; Forbes b. Shattuck, 22 Barb. 568; Tripp v. Riley, 15 Barb. 334. ' Story on Bailments, this title ; Wilson v. Nason, 4 Bosw. (N. Y.) 155 ; Ryder v. Hathaway, 21 Pick. 398. 112 CONFUSION OF GOODS OF DIFFERENT 0WNEE8. barley, but was not paid for according to contract; held, in an action for conversion that tlie plaintiff had a right to the amount of his grain from the common bulk.^ § 205. The same. The law is well settled that, where prop- erty cannot be identified or separated so as to be seized, replevin is not the proper remedy. But in cases like the precedino', where the goods mixed are of the same kind, though not capable of separation by identification, yet if a separation and delivery can be made of the proper quantity without injnri- ously affecting the remainder, each may claim his share from the general mass, and may employ this action to secure it.^ § 206. The same. Rule in Illinois. In Illinois the rule seems to be that if the mixture was by consent, the parties became tenants in common, and neither could sustain replevin. If by fraud the tenancy in common does not arise, and the inno- cent may sustain replevin for the whole. A warehouseman re- ceived a quantity of corn in store, and mixed it with other corn owned by himself and others, with the consent of the owner, and with the understanding that a like quantity and quality should be delivered to him out of the common mass, the court held that they were tenants in common, and neither could main- tain replevin against the other.* But if the mixture had been made by the wrongful act of the warehouseman, without the owner's consent, it would have been otherwise.* § 207. The rule in New York. In New York, where the wheat of A. and B. was mixed in a bin by consent, it was held to create a tenancy in common.^ ' Morgan v. Gregg, 46 Barb. 183; Bristol v. Burt, 7 John. 254 ^ Kaufmann ». Schilling, 53 Mo. 319 ; Inglebright «. Hammond, 19 Ohio, 337 ; Ryder v. Hathaway, 21 Pick. 305. So when wood of two persons be- came mingled, without the fault of either, each was held entitled to his share. Moore «. Erie R. R. Co., 7 Lans. (N. Y.) 39. Where a warehouse- man gave a receipt for wheat that was never delivered to him, the holder of the receipt could not set up a claim to a portion of the wheat as against owners that actually put in. Jackson b. Hale, 14 How. (CJ. S.) 525. 3 Low B. Martin, 18 111. 286. See Parker v. Garrison, 61 111. 253. * "Warner «. Cushman, 31 111. 383. ' Nowlen v. Colt, 6 Hill, 461. When the property of several owners is in its nature severable (like corn, wheat, etc.,) without injury to the mass or to the interest of the other owners, one may appropriate his share if it can be GENERAL STATEMENT OF THE EULE. 113 § 208. Where an oflficer is induced by fraud of a third party to levy on goods not the property of the defendant in the pro- cess. The defendant in execution was the owner of a piano which was left with a third party, who caused it and another one resembling it to be boxed up for shipment. The officer noti- fied the bailee that he held an execution, and desired her to point out the piano which belonged to the defendant in the process. She, however, induced him to levj' on the one be- longing to herself, for which she afterwards brought replevin, while the one which she knew the officer intended to levy on was shipped away. The court held that under such circum- stances she was estopped from asserting title to the piano which had been seized by her procurement. ^ § 209. General statement of the rule in the foregoing cases. It does not appear that any general rule can be deduced from the cases above cited. A different practice has grown up in different States. The rule, as stated in Michigan, and a simi- lar rule applies in Wisconsin and Missouri, seems to commend itself not only as being fair, but as certain and convenient of application. .It may be stated, in substance, that when goods of similar description, belonging to different owners, become mixed, so that separation becomes impossible, either may take his share or proportion from the common mass, and may if he choose, resort to replevin for the purpose of asserting his right. "When logs are mingled in the river, the plaintiff can only pursue such as he can identify; but if not able to distin- guish his own, there being no evidence that they differed in value or description from others, witlj which they were mixed, he may maintain replevin for a quantity out of the common mass equal to the quantity owned by him.^ Where the de- fendant cut logs on the land of another by mistake, and min- gled them with his own, so that they could not be distinguished, the plaintiff might have replevied the amount belonging to determined, without the consent of the others. Forbes v. Shattuck, 23 Barb. 568; Tripp v. Riley, 15 lb. 334; Morgan v. Gregg, 46 lb. 184. So, also, in Minnesota. Ames ®. Miss. Boom Co., 8 Minn. 473. " Colwell «. Brower, 75 111. 532. 2 Eldred v. The Oconto Co., 38 Wis. 141. See also, Kaufmann v. Schil- ling, 58 Mo. 318. 8 114 CONFUSION OF GOODS OF DIFFERENT OWNEES. him from the mass.i Where wheat was stored in a warehonse and by consent of the owner it was mixed with that of the ware- houseman, after shipments 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 the right to follow it as long as he could identify it.^ In Missouri it was said, when the goods are of the same kind, and not capable of identification, that if a division can be made of equal value, as in the case of grain, each may claim his proportionate part.* § 210. Change of form, and the effect of such change on the rights of the parties. It frequently happens that goods in the possession of a defendant have undergone a material change while in his hands. Cloth may have been made into garments, leather into shoes, logs sawed into boards, or wheat ground into flour; or, perhaps, the art;icle has become a part of some- thing else, as hoop-poles may have been placed upon barrels, timber converted into a house or ship, skins into parchments, on which valuable deeds have been written ; or the thing may have undergone a chemical change, which has completely destroyed the original, as corn manufactured into whisky, grapes into wine, apples into cider or vinegar. And the ques- tion must be decided what effect these changes have had on ownership, or the right to recover them in replevin. § 211. Bule of the civil law. Justinian said, " If a man make wine with my grapes, oil of my olives, or garments with my wool, knowing they are not his own, he shall be compelled, by action, to produce the wine, oil or garments."* Pufendorff states the law : " In all cases, it is to be enquired whether the person who bestows a shape on another's matter doth it with " Stearns v. Raymond, 26 "Wis. 74 Such is also the law in Minnesota. Scliulenberg v. Harriman, 31 Wall, 44. ^ Young V. Miles, 23 "Wis. 644; Young v. Miles, 20 Wis. 615. ' Kaufmann v. Schilling, 58 Mo. 218 ; luglebriglit v. Hammond, 19 Ohio, 337 ; Ryder v. Hathaway, 21 Pick. 805. Compare Kimberly v. Patcliin, 19 N. Y. 330; Scudder ii. Worster, 11 Gush. 573; Gardner v. Dutch, 9 Mass. 437, leading cases on this subject. * Justinian Inst. ; Digest, Liber, 10 Tit. 4 Leg. 13. PEOPEKTY TAKEN BY MISTAKE. 115 an honest or dishonest design. For he who acts thns out of a knavish principle can by no means pretend that the thing be- longs to him, rather than to the owner of the matter, though all the former reasons should occur; that is, though the figure should be most valuable, though the matter should be, as it were, lost or swallowed up in the work, and though he should be in very great want of what he has thus compacted. For the greater part of the two doth not draw it itself; the less, barely by its own virtue, or on its own account. Hence, if a man, out of willful and designed fraud, puts a new shape on my matter, that he may by this means rob me of it, he neither gains any right over the matter by his act, nor can he demand of me a reward for his labor, any more than the thief who digs through my walls can claim to be paid for his trouble in making a new door to my house. * * * AH this doth not proceed from any positive constitutions, but from the very dictate and appointment of natural reason. Though nature doth not determine any particular penalty in the case."' § 212. Property taken by mistake. No general rule can be stated which will be applicable .in all these cases; each must greatly depend on its own peculiar surroundings. A rule which would be just and convenient in one case, might, in another very similar case, be exceedingly unjust. Thus, if one cut trees by mistake, on another's land, and convert them into logs, the owner of the trees might recover the logs, and the person who had cut them would lose his labor. ^ But sup- pose the trees are made into slabs, and the slabs into costly furniture, then the rule might be extremely unjust. § 213. Change of form does not change the title. Where the goods ean be identified, owner may sustain replevin. The rule may be stated as having a general application, that it is not essential the property should remain in its original form, in order to support replevin, provided it can be identified.* In other words, a change of form, when the property can be identified, is not a bar to the action unless the change has ■ Pufend'orfif Law of Nature, Book 4, Ch. 7, § 10. ^ Snyder «. Vaux, 2 Kawle, 437. 8 Wingate v. Smith, 20 Me. 387. 116 CONFUSION OF GOODS OF DIFFERENT OWNERS. been wrought in good faitli by an innocent party, and has materially increased the value, or it has become incorporated with, and forms part of, another thing, which is the principal.i § 214. The same. Two cherry trees, growing on the un- enclosed wood-land of the plaintiff, were cut by some one unknown ; defendant hauled the logs to mill, where they were sawed, and took the boards to his house. The conrt sustained replevin brought by the owner of the land, saying that what- ever alteration of form property may assume, the owner may reclaim it, if he can establish the identity of the original material. 2 In Pennsylvania, the court held replevin would not lie when the property had undergone any essential change, so that its identity cannot be ascertained. But simple change of form will not defeat the plaintiff's right.* § 215. Goods taken by a thief or trespasser, and enhanced in value by his skill or labor. It is an elementary principle in the law of all civilized communities that no man can be deprived of his. property, except by his voluntary act, or by operation of law. The thief who steals a chattel, or the trespasser who takes it by force, acquires no title by such taking. The sub- sequent possession by the thief or the trepasser is a continuing wrong, and if, during its continuance, the wrong-doer enhances the value of the chattel, by labor and skill bestowed upon it, the manufactured article still belongs to the owner of the original material, and he may retake it, or recover its increased value. Even if the wrong-doer sell the chattel to a purchaser having no notice of the fraud, he obtains no title, because the trespasser had none to give. § 2 16. Rule where the goods come to the hand of an inno- cent purchaser. But if a chattel, wrongfully taken, afterward comes into the hands of an innocent holder, who, believing himself to be the owner, converts it into a thing of different species, so that its identity is destroyed, the original owner cannot reclaim it. In a case of this kind, the change is not 1 Gray «. Parker, 38 Mo. 165. » Davis ». Easley, 13 111. 198. 8 Snyder v. Vaux, 2 Rawie, (Pa.) 427; Curtis ®. Groat, 6 Jolina. 168; Bab- cook ». Gill, 10 John. 287 ; Brown «. Sax, 7 Cow. 95. OWNER SHOULD EECLAIM HIS PEOPEKTY. 117 an intentional wrong to the original owner. It is therefore regarded as a destruction or consumption of the original material, and the true owner is not in such case permitted t6 trace its identity into a manufactured article, for the purpose of appropriating to his own use the labor and skill of the innocent party who wrought the change; but he is to put his action for damages as for a thing converted, and he may recover its value as it was when its conversion ' or consumption took place. 1 It will be seen that the question is not whether a defendant can acquire property by mixing it with other property, or by destroying its identity, but whether the plaintiff can separate his property after such change.^ § 217. Owner should reclaim his property before its value is greatly enhanced. The rule in Wisconsin seems to commend itself, as well for its plainness as for the manifest justice which it seems to deal out to all parties. It is there held that the owner of chattels does not lose his property by mere change of form, at the hands of another; but he should reclaim it before the new possessor has greatly increased its value by the bestowal of his skill and labor. And, in event of his failure to do so, he should be restricted in his recovery to the amount of damages he has actually sustained, unless the taking was accompanied with some circumstances of malice or insult that might make it proper to inflict exemplary damages. This rule, while it protects the owner fully, will be easy of application, and do justice to both parties, when such a result is attainable.* In Michigan, a somewhat similar ' Hiscox V. Greeuwood, 4 Esp. 174; Wetherbee v. Green, 33 Mich. 311; Belts V. Lee, 5 Johns. 348 ; Curtis v. Groat, 6 Johns. 168 ; Chandler v. Edson, 9 Johns. 363; Hyde ». Cookson, 31 Barb. 93; Baker v. Wheeler, 8 Wend. 508; Snyder ». Vaux, 3 Eawle, 437 ; Eiddle v. Driver, 13 Ala. 59"; Ryder v. Hathaway, 31 Pick. 305 ; Heard v. James, 49 Miss. 337 ; Martin v. Porter, 5 Mees. & W. 353 ; Rightmyer d. Raymond, 13 Wend. 51 ; Baker v. Wheeler, 8 Wend. 505; Wild v. Holt, 9 Mees. & W. 673; Harris «. Newman, 5 How. (Miss.) 658; Putnam v. Gushing, 10 Gray, (Mass.) 334; Mallory v. Willis, 4 Comst. 76. See Linch v. Welsh, 3 Pa. St. 394. 2 Ames «. Miss. Boom Co., 8 Minn. 470. ' Weymouth «. C. & N. W. Ry. Co., 17 Wis. 550 ; Single v. Schneider, 30 Wis. 573 ; Hungerford v. Redford, 39 Wis. 345. Consult Austin v. Craven, 4 Taunt. 644. 118 CONFUSION OF GOODS OF DIFFEKENT OWNERS. doctrine prevails. When timber wortli twenty-five dollars had, by one in the exercise of a supposed right, in good faith, been converted into hoops worth seven hundred dollars, it was held that the title passed to the party who had in good faith expended his labor, and the owner of the timber in such case could not sustain replevin for the hoops. ^ In Pennsylvania, the plaintiff sought to recover, in trover, the value of coal dug out of his mine by mi-stake, and was allowed only the value of the coal before it was mined. The court says: " It is apparent that any other rule would transfer to the plaintiff all the defendant's labor in mining the coal, and thus give her much more than compensation for the injury done."^ § 218. Wliere the taking was wrongftil, the taker cannot change the title by any change- in the property. In New York, in a case in trover, where the defendant wrongfully cut logs on the plaintiff's land and converted them into lumber, the court held, that the property was not changed, and laid down the rule, that in cases of wrongful taking, the defendant cannot by any act of his, change the title -to the property.^ Probably the strongest case in the books will be found in New York. It was where corn was taken by a willful trespasser and converted into whisky. The court held, that the change of form had not changed the ownership, and that the whisky belonged to the owner of the corn, and was liable to be seized on execution for his debts.* This case gains importance from ' Wetherbee v. Green, 22 Mich. 311. » Forsyth v. "Wells, 41 Pa. St. 291. Contra, see Robertson ®. Jones, 71 El. 405. If a man take my garment and embroider it with silk, I may take back the garment; but if I take the silk from you and embroider or face my garment, you shall not take my garment for your silk, which is in it, but are put to your action for my taking the silk from you. Anoa Pop- ham, 38. 8 Brown «. Sax, 7 Cow. 95. See, also, Hyde v. Cookson, 21 Barb. 92; Martin ». Porter, 5 Mees. & W. 352; Betts «. Lee, 5 Johns. 348; Rightmyer «. Raymond, 12 Wend. 51; Wild v. Holt, 9 Mees. & W. 672; Curtis s. Groat, 6 Johns, 168; Babcock v. Gill, 10 John. 287; Ricketts s. Dorrel,55 Ind. 470. So, when wool was taken and made into coats. Curtis t. Qroat, 6 John, 168. * Silsbury b. McCoon, 3 Comst. 380. PEOPERTY ANNEXED TO EEAL ESTATE. 119 the fact that it had twice before been considered in the supreme court and a contrary conclusion reached J § 219. Measure of damages in such eases. The rule as before stated does not apply to cases of willful taking. A trespasser cannot change the property by changing the form, so long as the identity of the article can be shown. If the labor of the defendant has added to the value, it is in his power to relinquish the increased value or to keep it himself. If he claims the property, it is, under the statutes in many States, in his power to retain it by giving bond to the sheriff; and the effect of a verdict for plaintiff, for value, is a transfer of the title to the defendant. The rule of damages, if the trespass was by mistake, would be the value before the defend- ant had, by bestowal of his own labor, increased it. If the trespass was willful, the damages would be the value at the time of bringing suit.^ § 220. Change of form by agreement does not aflFect the rights of the parties. Where a levy was made upon gold coin, which for convenience was converted into large bills, and the bills were then replevied by a stranger to the execution, held, that the substitution of the bills by agreement would not defeat the action.* § 221. Property taken and annexed to real estate or other thing which forms the principal. If property taken, be an- nexed to and made part of some other thing which forms the principal, the owner cannot, as a rule, sustain replevin, but must resort to his action for damages. "When timber has been converted into boards and they have been incorporated with others into a house, the chattel is regarded as a part of the building, and replevin does not lie.* It will be seen that ' Silsbury s. McCoon, 3 Comst. 380, and 8. C, 4 Denio, 332; 8. C, 6 Hill, 426. See, also, Gray v. Parker, 38 Mo. 160. See the able and exhaustive argument of Mr. Hill, in note to 8 Comst. 380. 2 Herdio t. Young, 55 Pa. 8t. 178 ; Young v. Herdic, 55 Pa. St. 173 ; Sny- der V. Vaux, 2 Rawle, 427 ; Heard v. James, 49 Miss. 236 ; Bull b. Griswold, 19 111. 631. » St. L. A. & C. R. R. ■». Castello, 28 Mo. 380. For a case of trover for the produce of stolen notes, see Golightly v. Reynolds, LoHt. 88. • Snyder v. Vaux, 2 Rawle, 433 ; Ricketts ®. Dorrel, 55 Ind. 470 ; Betts v. Lee, 5 Johns. 348; Brown v. Sax, 7 Cow. 95; 3 Bla. Com. 404. 120 OONFPSION OF GOODS OF DIFFEEENT OWNERS. these rules are for the most part arbitrary, differing widely in cases which are very similar. And the difficulty of deducing any rule applicable in all cases is apparent. It should in each case be considered whether the taking and subsequent change of form was made by mistake, while in the exercise of a sup- posed right, or was in willful disregard of the rights of the owner. In the former case, where the property had under- gone a material change, largely increasing its value, the rights of the party who had in good faith bestowed such increase of value must be respected. But when the taking and subse- quent change was in willful disregard of the rights of the plaintiff, it is eminently proper that the taker should not be permitted to derive any profit from his wrongful act, and that the owner be allowed to recover his goods, even if it result in taking with them some of the fruits of the wrong doer's labor. § 222. Description to be employed where the property has undergone a change. When the suit is brought for property which has undergone a change of form, the writ and proceed- ing should describe it in the form in which it exists at the time when the suit is begun. ^ And the ownership of the original materials and proof of identity may be given in evidence upon the trial. ' Wingate v. Smith, 20 Me. 287. MOETGAGEOE HAS AN INTEKEST. 121 OHAPTEE IX. CHATTEL MORTGAGE. Section. Bights of a mortgagee in a chattel mortgage . . 333 a The mortgageor has an inter- est which may be seized and Section, sold on execution . . 333 6 Rights of mortgagee against third parties . . . 333 § 222 a. Rights of a mortgagee in a chattel mortgage. Upon a failure of the mortgageor of chattels to perform the conditions, the legal title to the property conveyed in a chattel mortgage of the usual form becomes vested absolutely in the mortgagee,! and he may recover the property in replevin. Where there are several notes he does not lose his lien upon the non-payment of the first note becoming due, but may wait until the last note matures, and then take the property. ^ § 222 b. The mortgageor has an interest which may be seized and sold on execution. Where a mortgageor is in possession of mortgaged chattels u)ider a clause in the mortgage which gives him the right to retain possession until the mortgage is due, he has an interest which but for the clause giving the mortgagee, (in case he feels himself insecure,) a right to take possession, might be seized and sold on execution against him.* When such goods are seized and the debt matures before the sale, or where the mortgage contains the insecurity clause above referred to, the ' Brown s. Bement, 8 Johns. 96 ; Saxton v. "Williams, 16 Wis. 393 ; Ackley V. Pinch, 7 Cow. 390 ; Butler s. Miller, 1 Comst. (N. Y.) 496 ; Langdon v. Buel, 9 Wend. 80 ; Livor «. Orser, 5 Duer, 501 ; Patchin v. Pierce, 13 Wend. 61 ; Heyland «. Badger, 35 Cal. 411 ; Brookover v. Esterly, 13 Kan. 149. ' Cleaves n. Herbert, 61 111. 137. See Reese «. Mitchell, 41 111. 365. » Saxton n. Williams, 15 Wis. 293 ; Redman ®. Hendricks, 1 Sandf. (N. T.) 83; Priors. White, 13 111. 361; Schrader v. Wolflin, 31 Ind. 238; Mattison e. Baucus, 1 Comst. (N. Y.) 395; Cotton «. Watkins, 6 Wis. 639. 122 CHATTEL MOKTGAGE. mortgagee may demand the goods, and on refusal may sustain replevin for them.^ In such eases the possession of the mort- gagee can only be asserted in compliance with the terms of the mortgage. The distinction between a chattel mortgage and a pledge is clearly stated in Heyland v. Badger, 35 Cal. 409. The mortgage passes the property to the mortgagee, subject to be redeemed according to the terms of the contract, and if not redeemed the property becomes absolute in the mortgagee, who may sustain replevin for the goods, or trover for their vahie. The mortgageor could not maintain trover against the mortgagee for refusing to deliver the goods, or for selling them, for the title at law is in the mortgagee and trover depends on title, general or special, to support it, and the mortgageor has no title — only an equitable right to redeem the property by payment of the amount due on the mortgage.^ § 223. Rights of mortgagee against third parties. Where a chattel mortgage is properly executed and recorded, so as to be a valid transfer of the property in the county where the property is situated, and where the parties and property are bound, the subsequent removal of the property by the mort- gageor to another county or State in contravention of the terms of the mortgage, will not deprive the mortgagee of his right to the property. He may follow it and assert his title in an action of replevin against the mortgageor so removing it, and the authorities are tolerably uniform that a purchaser of snch property in a foreign county or State, without notice and for value, cannot resist the claim of the mortgagee. The mortgage being an absolute transfer of the property to the mortgagee ' Simmons v. Jenkins, 76 111. 481 ; Carty v. Fenstemaker, 14 Ohio St. 457; Mclsaacs v. Hobbs, 8 Dana, (Ky.) 268 ; Putnam v. Gushing, 10 Gray, (Mass.) 334; Bates v. Wilbur, 10 Wis. 415; Randall v. Cook, 17 Wend. 55; New- man V. Tymeson, 13 Wis. 173; Bailey «. Burton, 8 Wend. 339; Egglestono. Mundy, 4 Gibbs, (Mich.) 295 ; Beach «. Derby, 19 111. 622; Frisby v. Lang- worthy, 11 Wis. 379. 2 Consult White ». Phelps, 12 N. H. 385 ; Burdick v. McVanner, 2 Denio, 171 ; Holmes «. Bell, 8 Cush. 323 : Tannahill v. Tuttle, 3 Mich. 110, citing many cases. Wood ■». Dudley, 8 Vt. 430; Brown u. Bement, 8 Johns. 96; Tabot V. De Forest, 3 G. Greene, (Iowa,) 586 ; Dewey v. Bowman, 8 Cal. 150; Ferguson v. Thomas, 36 Me. 499. See, in this connection, Mobley «. Letts, 61 Ind. 11 ; Hunt v. Bullock, 23 111. 335 ; Titus t>. Mabee, 23 111. 257. EIGHTS OF MORTGAGEE. 123 with a statutory permission to the mortgageor to retain pos- session for a limited time, the bare possession does not confer title. Sale by the mortgageor under such circumstances is, in its most favorable light, looked upon as a sale by a bailee, without right, and such sale cannot affect the title of the mortgagee. ^ > Welch B. Sackett, 13 Wis. 343 ; Smith v. McLean, 24 Iowa, 323 ; Cotton v. Watkina, 6 Wis. 629; Blystone v. Burgett, 10 Ind. 28; Pickard ». Low, 15 Me. 48 ; Offut s. Flagg, 10 N. H. 46. See, also, Martin «. Hill, 13 Barb. 633 ; Brackett v. Bullard, 12 Met. 309; Ryan v. Clanton, 3 Strob. (8. 0.) 413; Bar- ker V. Stacy, 35 Miss. 471 ; Jones v. Taylor, 30 Vt. 43 ; Loeschman v. Machin, 3 Stark. 311. 124 PEOPEETT SEIZED FOE A TAX. OHAPTEE X. PROPERTY SEIZED FOR A TAX. Section. Property seized for the payment of a tax not repleviable . . 334 Irregularity in issuing the war- rant does not change the rule 335 Nor the fact that no taxes are due from the party whose goods are seized . . . 236 Prohibition extends to goods seized for tax due the United States or an incorporated vil- lage . . . . . .337 The usual form of the prohibi- tion is a requirement in the affidavit 338 The jealousy with which the courts look upon attempts to evade this requirement . . 239 Questions of double assessment cannot be tried in this action 230 Property seized for the payment of a tax due from another per- son 331 The same 333 The prohibition of this remedy does not affect the rights of 234 235 Section. the party to employ any other remedy 233 The action permitted where the plaintiff does not ask deliv- ery of the property The prohibition does not extend to a purchaser at tax sale The bare assertion of the defend, ant that the goods are seized for tax, not sufficient . . 236 The warrant must be regular on its face, and purport to be issued by competent author- ity 237 It must appear to be for a tax which, by legal possibility, may be valid . . . .238 The seizure must be by an offi- cer 239 Where an officer goes out of his bailiwick .... The prohibition extends to goods seized for payment of a fine 241 Replevin against a purchaser . 342 240 § 224. Property seized for the payment of a tax not replevi- able. There is a provision common to the laws of all the States, that goods seized on legal process issued for the collection of a tax cannot be retaken from the officer by a writ of replevin.^ I People V. Albany C. P., 7 "Wend. 484; Bilbo «. Henderson, 21 Iowa, 66,; Macklot V. City of Davenport, 17 Iowa, 379; Hershey v. Pry, 1 Iowa, 593; Vocht v. Reed, 70 111. 491 ; LeRoy «. East Sag. Ry. Co., 18 Mich. 283; Mo- EBEEGULAEITY IN ISSUING THE WAEEANT. 125 The reason for this rule is found in the necessity for protect- ing the public revenue, and to prevent the delay in its collec- tions which might result if property seized by an officer upon a warrant for the collection of taxes were permitted to be taken from his hands pending an inquiry into the propriety of the seizure. While other and ample means of redress are provided for the owner, in case his property is wrongfully distrained, this remedy is forbidden. The prompt collection of the pub- lic revenue is regarded as a standing and public exigency, to which private rights must yield or be abridged ; at least, of this action. The law therefore forbids replevin of goods so seized, and remits the party to his action for trespass or trover, or such other proper action as he may elect.' "Disastrous in- deed," says Justice Beebse, " would be the consequences to the public, was it allowed to every taxable inhabitant who may have conceived a notion that a law of general application im- posing taxes is void, and therefore he shall be permitted to arrest 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 of this State, by means of the action of replevin, and for the reasons we have given. "^ § 225. Irregularity in issuing the warrant does not change the rule. Keplevin will not lie for property taken by virtue of a warrant for the collection of a tax, even though the warrant may have issued erroneously or irregularly, or contrary to law. If on its face it gives the officer authority to collect a tax, and to seize property for that purpose, replevin for property so seized cannot be sustained in this action. It is not that greater license is given to an officer collecting a tax than to one exe- Claughry d. Cratzenberg, 39 111. 123; Bringhurst «. Pollard, 6 Porter, (Ind.) 453; Buell «. Ball, 30 Iowa, 383; Hudler«. Golden, 36 N. T. 446; Stoddard ®. Gilmaa, 23 Vt. 570; Troy & Lans. R. R. •». Kane, 73 N. T. 614 ' Stiles V. Griffith, 3 Teates, (Pa.) 83; Heagle v. Wheeland, 64 111. 423; Le Roy v. Bast Sag. Ry. Co., 18 Micli. 333. » McClaugliry v. Cratzenberg, 39 111. 122. 126 PEOPEETT SEIZED FOE A TAZ. cuting other process. An irregular warrant or a void levy of a tax warrant is no protection to the officer; but the injured party cannot employ replevin ; he cannot begin a contest over the regularity of the proceeding by withdrawing the property from the custody of the law. ^ § 226. Nor the fact that no taxes are due from the party whose goods are seized. When a defendant justified under a tax warrant, a replication that there were no taxes due from the plaintijQf to the town would in effect bring up the entire question of the legality of the tax, and such a replication would be bad. 3 § 227. Prohibition extends to goods seized for tax due the United States or an incorporated village. The prohibition is not confined to goods seized for the payment of taxes due the State, but extends to and embraces goods which have been seized by virtue of a warrant for the collection of taxes levied tinder a law of Congress, ^ or under the internal revenue laws of the United States.'* So, where the seizure was for taxes levied by virtue of a process for the collection of a tax due an incorporated city, town or village, levied under its cor- porate powers, the same rule applies, and prohibits replevin of the property from the officer seizing it. In this case the municipal authorities are regarded as acting under a law of the State, and all the reasons which prohibit the seizure in the case of the State apply when the tax. is for the benefit of a local municipal corporation, to the same extent and in the same manner. In all these cases, therefore, when the seizure has been made by an officer acting under the authority of a tax warrant valid on its face, the property seized is exempt from the operation of the writ of replevin.^ 1 People D. Albany Com. Pleas, 7 Wend. 485 ; Hudler ». Golden, S6 N. Y. 446 ; Buell v. Schaale, 39 Iowa, 293 ; Niagara Elev. Co. v. McNamara, 2 Hun, (N. T.) 416. ' Mt. Carbon Coal Co. v. Andrews, 53 111. 177. » O'Reilly v. Good, 43 Barb. 531. " Delaware R. R. Co. «. Prettyman, 7 Int. Rev. Rec. 101; Fallen v. Ken- singer, 11 Int. Rev. Rec. 197 ; Brice v. Elliot, 8 Legal News, 333. 'Mt. Carbon Coal Co. ■». Andrews, 53 111.183; People B.Albany Com. Plea, 7 Wend, 485 ; Savacool «. Bougbton, 5 Wend. 178. Due proms of law USUAL FORM OF THE PEOHIBITION. 127 § 228, The usual form of the prohibition is a requirement in the afladavit. This exemption, as -was stated, is a statutory provision common to all the States where this action is in use; and though the common law was not unlike the statute on this subject, local statutes have defined and emphasized the prohibition, and control the practice in all cases. The usual form of the statutory prohibition is a provision that the writ shall not issi^e for the delivery of the property in any case, unless the plaintiff shall first file an affidavit that the goods for which the writ is about to be sued out have not been taken for any tax, etc., levied by virtue of any law of the State. ^ This provision is imperative, and any attempt to evade its let- ter or spirit will be regarded as an attempt to evade one of the vital prerequisites to the issuing of the writ. "When the plain- tiff filed an affidavit that " the property had not been taken for any legal tax, as this affiant is informed and believes," the court said the departure from the requirements of the statute ^as very palpable, and upon the plaintiff desiriug leave to amend the affidavit, the court refused permission and quashed the writ, holding that it was informed of the design of the plaintiff to test the constitutionality of the law under which the tax was' assessed. " The amended affidavit," said the court, "if filed, and trial had, would have presented the same ques- tion." The court would have been compelled to dismiss the suit the very moment it was shown that a question of taxa- tion was involved, and the constitutionality of the law impos- ing the tax was the hinge on wliich the case turned. * "Where the defendant in replevin pleaded formally that the property had been seized for a tax due the town of Murphreysboro', setting up, also, his authority as collector of taxes, and the plaintiff replied, 1st, that defendant was not duly or legally appointed collector, etc. 2d. That there was no such corporation or city. 3d. No valid ordinance in force authorizing defendant to dis- in the assessment of taxes does not require a judicial proceeding. McMil- len ». Anderson, U. S. Sup. Ct. Oct. 1877 ; Cent. Law Journal, Nov. 23, 1877, p. 445; Pullen «. Kensinger, 11 Int. Rev. Eec. 197. ' See Bringhurst v. Pollard, 6 Ind. 452. " McClaughry v. Cratzenberg, 39 111. 138. See McPhelomy v. Solomon, 15 Ind. 189. 128 PEOPEETT SEIZED FOE A TAX. train, etc. 4:th. No tax due from plaintiff. 5tli. The goods not legally distrainable. To these replications a demurrer was interposed and sustained, and an appeal taken to the supreme court, where the decision was affirmed, the court holding 1st. Eeplication was no bar, because it failed to deny, that the defendant was collector de faoto or de jwe. The ques- tion whether he was lawfully in office could not be tried in this action; hence, the replication tendered a collateral issue. 2d. The question whether the town of Murphreysboro' was legally incorporated could not be tried in this proceeding. Had the replication been that the town had never been and was not then acting as a corporation, and the defendant acted without color of right, the question would have been different, and the replication might have been sufficient. " The fourth replication sought to present the question whether there was any tax due the town. It would, as pleaded, have opened the entire question whether the tax was legally levied, and might have led to an investigation whether the town had observed the requirements of its charter and ordinance in levying the tax, and led to the very controversy which the General Assem- bly intended should not be litigated in this form of action." The questions of the legality of the levy, or of the observance or neglect of any of the formal requirements of the levy, cannot be inquired into in this action. ^ § 229. The jealousy with which the courts look upon at- tempts to evade this requirement. The courts look with extreme jealousy upon all the provisions of the law upon this subject, and any attempt to evade them, or by indirection, to use this writ for the purpose of defeating or delaying the col- lection of a tax, will be stranded at the threshhold. Where the affidavit stated that the property had not been taken " in execution " for any tax assessment or fine, the court said: " The statute required an affidavit that the property had not been taken for any tax, etc. The plaintiff has sworn that it had not been taken by virtue of a particular process, that is, the process of execution ; but this may be true, and still the • Mt. Carbon C. & R. R. Co. ■». Andrews, 53 111. 184. Due feom another peeson. 129 property may have been distrained for taxes," and the afBdavit was held insufficient. i § 230. Questions of double assessment cannot be tried in this action. Questions of erroneous, illegal, or double assess- ment, cannot be tried in this action. If error in the assessment, or mistake or illegality in the levy, could be tried, very few- cases would be found to lack these elements, or some of them. "Where a collector distrained for a tax assessed against the owner of property, he cannot replevy it by showing that it was, when assessed, in the hands of an agent, and had been assessed as belonging to the latter, and the tax paid on such assessment. 2 § 231. Property seized for the payment of a tax due from another person. When a party has his property seized for a tax due from another person, with whom he is in no way con- nected, and for which he is in no way responsible, replevin will be permitted at the suit of the owner. This rule will not apply where the taxgatherer finds the property seized in the possession of the delinquent tax-payer; in making the seizure in such cases the officer does nothing but his duty.* But when the tax collector seizes upon the property of A. in A.'s pos- session, to satisfy a tax due from B., whether the seizure be by design or evident mistake, the act is wrongful, and the warrant, though never so formal and proper so far as A. is concerned, yet it is no warrant against B., and by all the anal- ' Campbell v. Head, 13 111. 136. When property which has been seized for a tax is by any means replevied from the officer, the court will, at once upon that fact becoming apparent, dismiss tlie action and order a return. McOlaughry v. Cratzenberg, 39 111. 123 ; People v. Albany Com. Pleas, 7 Wend. 485; Bringhurst v. Pollard, & Ind 453; Dowel! v. Richardson, 10 Ind. 574. When the plaintiff made oath that goods were not taken for any tax, and the collector and his deputy both swore in positive terms that it was taken for a tax, we should probably assume that the plaintiff was mis- taken, and did not know that it was taken for a tax. O'Keilly v. Good, 43 Barb. 531. A tax warrant, regular on its face, is a protection to the officer, so far as the writ of replevin is concerned, and while the owner may en- quire into the legality of the levy by certiorari or other proceeding, he cannot by replevin of the property. Bilbo v. Henderson, 31 Iowa, 57. ' Palmer ®. Corwith, 3 Chand. (Wis.) 297. ' Sheldon v. Van Buskirk, 3 Comst. (N. Y.) 473. i 130 PEOPEETy SEIZED EOK A TAX. ogies of the law in similar cases, will not furnish any justification to the officers. ^ A warrant for the collection of taxes by distraint on the goods of A. is, in fact, no justification of a willful trespass by the officer upon the goods of B.,^ and replevin will lie. § 232. The same. The case of Vocht v. Beed, 70 111. 491, holds a doctrine directly contrary to that stated above. The law in Illinois is of course settled by this case; and in States where a similar statute exists, should the case arise for the first time, the construction adopted in Illinois may be fol- lowed, or the decision in Michigan or New York may be thought the most worthy example.* ' Travel's ®. Inslee, 19 Mich. 100; Stockwell v. Veitch, 15 Abb. Pr. 412. ' Atlantic, etc., R. R. v. Cleino, 3 Dillon, 175 ; Noyes v. Haverhill, 11 Cush. 338. See and compare Heagle v. Wheeland, 65 111. 425. ' Opinion of the court by Mr. Justice Ckaig: Upon compa-ison of the two clauses of § 8, it vcill be seen there is a striking difference between them. The one reads, " And that the same has not been taken for any tax, assessment or fine, levied by virtue of any law of this State ;" and the other clause reads, " nor seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution or attachment." Where the goods of a stranger to an execution are taken, he can, with truth and propriety, swear that the property was not taken by virtue of an execution or attachment against his goods and chattels liable to execution or attachment ; but where property is taken by a tax collector under a war- rant for taxes, a different case is presented. The point is not whether the property is liable to a tax warrant, as is the case when taken on execution or attachment, but has the property been taken on a tax warrant? If it has, the writ of replevin cannot issue, because the statute says no writ shall issue until an affidavit is filed that the property has not been taken for any tax assessment or fine levied by virtue of any law of this State. The effect of the statute is that the action of replevin does not lie in any case where the property is seized by a tax collector under a tax warrant. The object and intent of the statute are obvious. The government cannot be carried on, and the laws enforced, without the revenue is collected. If the collectors of the revenue were to be hampered and tied up by replevin suits when they are collecting the taxes, it would be found difficult, if not impossible, to make collection ; and we have no doubt the legislature fore- saw these difficulties, and prohibited the action of replevin for the very purpose of avoiding them. It is, however, insisted by appellee that it is a great hardship to have one man's property taken to pay a tax of another. The tax collector has no right to take the property of one to pay the tax of another; if he does it, he is liable. The injured party has his remedy in trespass or trover. If the officer takes property of one to pay the tax EIGHT TO EMPLOY OTHEE EEMEDIES. 131 § 233. The prohibition of this remedy does not aflfect the right of the party to employ any other proper remedy. While the law prohibits the use of the action of replevin for the recovery of goods seized for a tax, it by no means debars the injured party of other and proper remedies. The intention of the law is to prevent the withdrawal of property seized for a" tax from the custody of the officer ; not to prevent the party from proceeding to recover damages in case the seizure was wrongful. The owner of goods so seized may, therefore, sue the officer in trespass, or any other proj)er form of action, and of another, he acts at his peril ; and the laws of the country will compel him to respond in ample damages to the injured party; so that the law, while it prohibits a remedy by action of replevin, affords ample protection in another form of action. The judgment of the circuit court will be re- versed and the cause remanded. Bkebse, Chief Justice, dissenting : I cannot believe it was the intention of the legislature to authorize the levy and sale of the property of A. to pay the taxes of B. The design of the statute evidently was to prevent any person whose property has been levied on, for taxes assessed against him, to question it in an action of replevin, and that is the extent of McClaughry ». Cratzenberg, 39 111. 117, as the reasoning of the opinion shows. A person may be passing through a town or city of this State, with his vehicle, and it was seized by a tax-gatherer for the taxes, not assessed against that prop- erty or its owner, but against another person. Under this decision, that official, in Chicago or any other place, can enter the dwelling of a person and take from it his choicest furniture, his heirlooms, and valuable works 01 art, to pay taxes not assessed against it, and for which it is not liable. It is poor satisfaction, and the merest trifling with one's right to property, to say he can sue the officer in trespass or trover. The officer may not be able to respond in damages, and in the meantime the owner has lost an article of property for which money would be no compensation, as there is a matter of sentiment involved in the possession of such. It would be no satisfaction to one on a journey to have his horse and carriage taken from him in this way, and be denied a speedy remedy, by replevin, to repossess himself of his property and proceed on his journey. Nor would it be to a farmer who has brought a load of wheat to market. In this case, there is no public necessity for this levy, as tlie land, upon which the tax was assessed, was immovable, and could be sold, as in like cases, for the taxes. I cannot believe it could have been the intention of the law-makera that this act should have the construction' now given by this court. Every man's property is now at the mercy of the tax-gatherer, whether taxes are due upon it or not. This is, in my opinion, a great wrong and injustice. Mr. Justice Scott: I concur with the Chief Justice in the above con- struction of the statute. Vocht «. Reed, 70 111. 491. 132 PEOPEETY SEIZED FOE A TAX. may recover the value of his goods with damages for the taking and detention. ^ § 234. The action permitted where the plaintiflf does not ask delivery of the property. The action of replevin has been permitted to contest the legality of a tax in cases where the • plaintiff does not claim delivery of the goods pending the suit. This, it will be observed, in no way interferes with the prompt collection of the revenue, which is the only reason for the gen- eral rule, and there appears no objection in the principle to allowing the action in all cases as a means of contesting the validity of the tax levy, provided the writ is not allowed to interfere with the possession of the property by the officer who holds the tax warrant, or delay the collection of the tax. The statute in many States permits the plaintiff to sue in this form of action without asking deliverance until the court shall have had an opportunity to try the title and pronounce upon the rights of the parties. In such case the action is similar to tro- ver; the judgment is for the property, or its value in case it cannot be had. This proceeding in no way delays the collec- tion of the taxes, and none of the rules which apply in such cases apply in this.* § 235. The prohibition does not extend to a purchaser at tax sale. While property which has been seized upon a war- rant for the collection of a tax or a fine cannot be replevied, the prohibition goes no further than to the officer. The owner of goods wrongfully seized and sold for taxes may employ this remedy against the purchaser, and may show that the judg- ment levy or sale was void, or that no tax was due, or in fact may set up any error which would make the sale void. A void judgment, levy, or sale for tax conveys no better title to the purchaser than a void judgment upon any other claim. So, also, where the property is seized and sold for a tax due from ' DowD. Sudbury, 5 Met. 73; Shaw «. Becket, 7 Cush. 442; Cardinal «. Smith, Deady, C. 0. 197 ; Ware v. Percival, 61 Me. 391 ; People v. Super- visors of Chenango, 11 N. Y. 563; Supervisors, etc., v. Manny, 56 111. ICl; Lauman v. Des Moines C, 29 Iowa, 310. » Dudley v. Ross, 27 Wis. 680. WARRANT MUST BE REGULAR. 133 anotlier person, the owner may have replevin against the pur- chaser. ^ § 236. Tlie bare assertion of the defendant that the goods are seized for tax, not sufllcient. While the law will not per- mit the action of replevin in a case where the property sought to be recovered was seized for a tax, yet the bare assertion of the defendant that such is the case, or an unsupported plea, will not justify the court m refusing to proceed with the case. The defendant should produce some warrant, or valid authority to him, to take the property, or show the court by satisfactory evidence that his claim is valid and just, and that the seizure was made in the discharge of his duty as a tax collector. 2 Were the law otherwise any defendant, whether an officer or trespasser, might claim the immunity which the law only extends to its officers. § 237. The warrant must be regular on its face, and purport to be issued by competent authority. The warrant must be regular on its face; it must purport to be a regular tax war- rant; it must in terms authorize the officer to proceed with the collection of the tax mentioned by seizure of the goods of the tax payer It must also purport to be issued by some com- petent legal authority, and must be for a tax which can by legal possibility be levied. * A sham warrant issued by irre- sponsible parties, or a regular warrant for a sham tax, where it is apparent from the face of the warrant that it was issued without jurisdiction, will furnish no protection to the officer and replevin will lie. "When the law authorized the village trustee to assess the vahie of the improvement of a sidewalk on the property of adjoining owners, and they did assess the value of an improvement of the street, and the warrant so showed on its face, it was held to confer no authority, and replevin of property seized under it was sustained.* So when ' Dudley s. Ross, 37 Wis. 679 ; Macklot e. Davenport, 17 Iowa, 379 ; Heagle ®. Wheeland, 64 111. 433; Stiles v Griffiths, 3 Teates (Pa.) 83; Bilbo v. Hen- derson, 31 Iowa, 57. = Mt. Carbon Coal Co. 0. Andrews, 53 111. 177; Hudler v. Golden, 36 N. T. 446; Le Roy ». East Sag. R. R., 18 Mich. 338. » Hudler «. Golden, 36 N. Y. 446. ^ Wright o. Briggs, 3 Hill. 77. 134 PEOPEBTY SEIZED FOIJ A TAX. the defendants justified the seizure by virtue of a tax warrant for taxes due the city of Muscatine; the boundaries were extended, taking in the plaintiff's farm land for purposes of taxation, and the act had been held unconstitutional — held that replevin would lie.i And in the latter case the plaintiff in replevin was held not estopped from denying the vahdity of the tax by the fact that he has paid several similar taxes on the same property before.^ § 238. It must appear to be for a tax which, by legal possi- bility, may be valid. It must appear that the tax was such as- could by legal possibility have been properly and lawfully levied by regular and proper legal proceedings for that pur- pose. Thus, when the act of incorporation of a railroad com- pany provided that the company should pay annually a specified tax of one-half of one per cent, on the whole amount of its paid in capital stock, in lieu of all other taxes on the property of the company, the company was allowed to sustain replevin against a collector who seized tlieir property for the payment of a tax assessed by a city situated on the line of its road.' "Where it is made to appear that the tax under which the seiz- ure was made was never levied, or that the levy was afterwards legally rescinded, the owner of the property seized for such tax may sustain replevin. Thus, at a town meeting a certain tax for road purposes was laid, but at a subsequent legal town meeting the tax was rescinded. The collector could not legally proceed to collect such tax, and where he seized prop- erty for that purpose, the owner was permitted to sustain replevin.* § 239. The seizure must be by an officer. The seizure must be a legal seizure by an officer duly authorized to act in that behalf. It is true the title of the officer cannot be questioned in this action,^ but the officer must at least assume to be an officer authorized to act at the time and place where the ' Morford v. linger, 8 Iowa, 82. ' Buell v. Ball, 30 Iowa, 283. 3 Le Roy -o. East Saginaw City Ry., 18 Mich. 237. « Stoddard ». Gilman, 33 Vt. 570.. « Mt. Carbon Coal Co. e. Andrews, 53 111. 183. FOR THE PAYMENT OF A FINE. 135 seizure was made. An officer duly authorized in one county or district would have no authority to go into another county or district to seize' property, even though the property was once within his bailiwick and assessed there. § 240. Where an officer goes out of his bailiwick. When plaintiff's wagon was distrained for a school tax, it appeared that after the tax was levied a new school district was created, and plaintiff resided in the new district and contended that the seizure by distress was unlawfully made by the secretary of the old district within the limits of the new. Held, that tax was no lien until seizure; that the tax gave' no right to seize the wagon where it could be found, and the seizure with- out the district was unauthorized and illegal. The law forbids the replevin of property seized for any tax, assessment or fine levied under the authority of law. The principle extends to the seizure as well as to the assessment, and equally forbids all questions respecting the validity and regularity of the war- rant and of the assessment, but there must be some color of authority for making the seizure. For instance, it has been held that when the warrant was issued without jurisdiction, and when the statute under which the assessment was made was unconstitutional, that replevin would lie. If this were not the rule defendant in replevin might always defeat the action by pretending that the property had been taken to satisfy a tax. An officer without his , bailiwick is without authority, and his seizure by distress for tax is illegal.^ § 241. The prohibition extends to goods seized for the payment of a fine. The statute which prohibits the replevin of goods seized for the payment of a tax also embraces goods seized for the payment of a fine.^ Cases of replevin for go9ds seized for non-payment of a fine are not numerous, but the same principles would apply in such a case that govern cases of seizure for tax. TJie seizure should be by process formal on its face, issued by a tribunal which has by law authority to impose a fine, and in a case where by legal possibility a fine can rightfully be imposed. The execution of the process ought ' McKay v. Batcliellor, 2 Oolorado, f591. ^ Pott «. Oldwine, 7 Watts, 173 ; Martin «. Mott, 12 Wheat. 19. 136 PEOPEETr SEIZED FOE A TAX. to be by an officer who at least is an officer de facto at the time and place where tlie seizure is made. Should any one of these essentials be lacking in a seizure for a fine, by the analo- gies which obtain in other cases, replevin would lie for the goods so seized. 1 § 242. Beplevin against a purchaser. Where the defend- ant justified under a pound master's sale, it was held that an officer to justify a seizure of property must produce a process regular and valid on its face. That to sustain a sale by a pound master he would be bound to prove that the animal was in the situation which the ordinance had designated to author- ize him to make seizure before he could be justified. The main fact that they are officers of the law does not constitute a justification for seizing and selling property, but the author- ity must be shown. A person having purchased any article of personal property at a sheriff or constable's sale, and sued by the former owner for its recovery, must deraign and show his title through and by an execution against the claimant, or the owner of the property, and a sale by the officer. The mere proof of a sale would not suffice to establish the transfer of the title to the purchaser. Nor has the law created any greater or different presumption in favor of a sale made by a pound master than by a sheriff or constable. In either case the validity of the sale must be established by showing the authority, which cannot be presumed. In the one case it is done by documentary evidence; in the other it is necessarily oral. 2 Where property is sold for a fine or penalty, the owner may employ replevin against the purchaser, and require him to show the validity of the proceeding under which the sale was made.* > See Martin b. Mott, 13 "Wheat. 19. 2 Clark «. Lewis, 35 111. 433. « Heagle o. Wlieeland, 64 111. 433 GOODS IN THE CUSTODY OF THE LAW. 137 CHAPTEE XI. GOODS IN THE CUSTODY OF THE LAW. Section. Replevin does not lie for goods in the custody of the law Limitation upon this rule Lies for goods wrongfully seized by an officer upon process Of the right of a person to take possession of his goods which have been wrongfully seized by an officer . Replevin does not lie for goods in the hands of a receiver of court .... Does not lie at the suit of a de- fendant in execution against the sheriff Nor at the suit of a grantee of such defendant after the seiz- ure The reason for the rule Qualifications of the rule . Does not lie for liquors seized under an act to preveut the sale of intoxicating beverages 253 But the writ was allowed where the seizure was under an ordi- nance which had been de- clared void by a court of competent jurisdiction . Does not lie for cattle legally impounded > . Lies for powder seized under an ordinance prohibiting its in- troduction in large quantities into a city Does not lie for property taken 343 344 345 246 347 348 349 250 351 353 354 355 Section, on a writ of replevin until after the former case is decided . 356 The distinction between a writ of replevin and an execution or attachment .... 357 Cross-replevins not allowed 358, 359 The sheriff charged with the ex- ecution of process must obey it at his peril . , . 360, 361 Replevin lies for goods wrong, fully sold by sheriff on execu- tion 363 Distinction between replevin for the goods and an action against the officer as a tres- passer 363 Writof replevin — when and how far a protection to the officer serving it ... . 364 Whether the writ authorizes a seizure of the goods from a stranger .... 265, 266 Writ of return authorizes seizure only from the person named . 367 Replevin lies for exempt prop- erty wrongfully seized . . 268 The aid of the statute must be invoked 369 The exemption a personal priv- ilege 370 The same. Damages and costs in such cases .... 371 Jurisdiction in replevin, where gSods have been wrongfully seized 373 138 GOODS IN THE CD8T0DT OF THE LAW. The same. The question stated 373 The rule in Freeman v. Howe . 274 The doctrine in this case con- sidered . . . . 275 to 382 The power, duty and responsi- bility of the sherilf in serving the writ of replevin He must see that the writ is in form And that it issue from a court of competent jurisdiction to .issue such a writ . The writ does not authorize a seizure of goods from the per- son of the defendant The right of an ofioer to break and enter a dwelling to take goods Parties bound to know the sheriflf Duty of the sheriff to take bond. His liability in respect to the bondsmen Extent of the sheriff's liability . 283 284 285 286 287 388 289 290 Return by sheriff of wrongfully seized by him . Duty of a sheriff on receiving a writ of replevin . Duty of the sheriff with respect to severing articles claimed to be real estate . The liability of the oiflcer a per- sonal one . . . , The sheriff liable for the acts of his deputies Disputes between deputies of the same sheriff settled by him The officer's return , As to the service of a writ of replevin Effect of the replevin of prop- erty seized on execution Special property created by a levy on goods .... Justification by an officer . The defense by sheriff, whea goods seized are replevied from him 303, 295 297 300 301 § 243. Beplevin does not lie for goods in the custody of the law. It was an ancient maxim of the law, that goods seized •by an oflacer, in obedience to legal process, were in the custody of the law.i The court regarding the officer only as its min- ister, and goods in his possession, upon the order or mandate of the court, as in the custody of the court, they could only be taken upon its order or permission. Any attempt to interfere with them, without such permission, was looked upon as aeon- tempt. Replevin, therefore, from an officer so holding prop- erty was looked upon as a contempt, and punished.^ ' McLeod V. Gates, 8 Ired. (N. C.) 387; Jenner v. Joliffe, 9 Johns. 384; Buckley v. Buckley, 9 Nev. 379; Raiford v. Hyde, 36 Geo. 98; Phillips o. Harriss, 3 J. J. Marsh. (Ky.) 122; Reade v. Hawks, Hob. 16; Reesideu. Tischer, 2 Har. & G. (Md.) 330; Watkins v. Page, 2 Wis. 97; Hall s.Tuttle, 2 Wend. 478; Morgan v. Craig, Hardin, (Ky.) 101. ' Funk V. Israel, 5 Iowa, 450 ; Phillips v. Harriss, 8 J. J. Marsh. (Ky.) 123; Cooley «. Davis, 34 Iowa, 128; Powell v. Bradlee, 9 Gill. & J. (Md.)220; Hagan «. Deuell, 24 Ark. 216 ; (j'oodrich v. Fritz, 4 Ark. 525 ; Allen «. Sta- pies, 6 Gray, (Mass.) 493 ; Beers v. Wuerpul, 24 Ark. 273 ; Shearick v. Ruber, WEONGFULLT SEIZED BY AN OFFIOEE. 139 § 244. Limitation upon this rule. This rule, tliougli still in force, must be understood as applying only to cases where the seizure is rightful, and upon valid and sufficient process, and not generally to all cases where an officer assumes to execute process. § 245. Lies for goods wrongfully seized by an oflBcer upon process. If an officer, in attempting to execute process of execution or attachment, by mistake or design take goods not the property of the defendant in the writ, or goods not law- fully subject to seizure on such writ, he is a trespasser, and acquires no right to the goods seized ;i and the injured party may have replevin for their recovery, or may proceed against the officer in trespass or trover, at his election.^ § 246. Of the right of a person to take possession of his goods which have been wrongfully seized by an ofiacer. A man is not a trespasser for taking possession of his own goods, if he does 80 peaceably; and when he does so acquire the possession of his own property, the fact that it had, before then, been levied on by the sheriff, by virtue of an execution, or taken on a writ of replevin, to which he was not a party, will not render him liable as a trespasser; nor would replevin lie against him for the possession of his property so taken. ^ When, therefore, goods which had been levied on by the sheriff came peaceably to the possession of the owner, who was a stranger to the exe- cution, and they were retaken from him by the sheriff, he was 6 Binn. 4 ; Spring v. Bourland, 6 Eng. (Ark.) 658 ; Watson v. Todd, 5 Mass. 271 ; Mulholm v. Cheney, Addis, (Pa.) 301 ; Goodheart ■». Bowen, 3 Bradw. (111.) 578 ; Badlam u. Tucker, 1 Pick. 389 ; Brownell ■». Manchester, 1 Pick. 234 ; Milliken ». Selye, 6 Hill, 623 ; Squires v. Smitli, 10 B. Mon. 38. Though trover or trespass was permitted. Cromwell ■». O wings, 7 Har. & J. 55. ' Clark V. Skinner, 20 John. 468; Tison v. Bowden, 8 Fla. 70; Gardner v. Campbell, 15 John. 401 ; Chinn v. Russell, 2 Blackf. 172. ^ Hunt «. Pratt, 7 R. I. 283 ; Gibson v. Jenney, 15 Mass. 205 ; Foss «, Stewart, 14 Maine, 312 ; Bean «. Hubbard, 4 Cush. fMass.) 85 ; Deyo v. Jen- nison, 10 Allen, 410; Leavitt v. Metcalf, 2. Vt. 343; Haskill ®. Andros, 4 Vt. 609; Mulholm «. Cheney, Addis, (Pa.) 301; Stone v. Bird, 16 Kan. 488. ' Spencer ®. M'Gowen, 13 Wend. 256 ; Sims v. Reed, 13 B. Mon. (Ky.) 51 ; Wood «. Hyatt, 4 John. 313 ; Hyatt v. Wood, 4 John. 150 ; Merritt v. Miller, 13 Vt. 416; -Barnes «. Martin, 15 Wis. 240; Marsh «. White, 3 Barb. 518; Kunkle «. State, 82 Ind. 220; Bills v. Kinson, (1 Fost.) 31 N. H. 448. 14:0 fclOODS IN THE CUSTODY OF THE LAW. entitled to sustain replevin for tlieir recovery, i This is but an application of the well-known rule, that an officer, taking possession of goods by virtue of process, must keep possession. A voluntary surrender releases the levy. § 247. Replevin does not lie for goods in the hands of a receiver of court. Property in the hands of a receiver of court, duly appointed to take charge of that property, is in the custody of the law, and cannot be seized upon execution or attachment, or replevied without permission oi the court by whose appointment it is held. It is for the time in the custody of the court, to be disposed of as the law directs.^ But when the receiver assumes to hold property not included in the decree, and to which the debtor never had any title, with respect to such goods he is not regarded as an officer, but as a trespasser, and the rightful owner can sue him in any appropriate form of action, either for the property or for damages.* The more appropriate course would be to apply to the court under whose authority the receiver assumes to act, and upon a showing of the facts the court will unques- tionably make such order as would fully protect the rights of the claimant; and if he show himself to be the owner, the court will, without doubt, order the property to be sur- rendered.* § 248. Does not lie at the suit of a defendant in execution against the sheriff. By the common law, and by a provision existing in the statutes of all, or nearly all, the States, a de- fendant in an execution or attachment cannot sustain replevin for goods which have been taken from him by virtue of process to which he is a party defendant, unless the property is by statute exempt from seizure.^ So, when the mortgageor of 1 Hall V. Tuttle, 2 Wend. 476. ' Wiswall «. Sampson, 14 How. 53; Noe v. Gibson, 7 Paige, 515; Robin- son V. Atlantic & Gt. W. Ry., 66 Pa. St. 160 ; Parker v. Browning, 8 Paige, 388. = Hills V. Parker, 111 Mass. 510; Paige «. Smith, 99 Mass. 395; Leigliton «. Harwood, 111 Mass. 67. * Parker v. Browning, 8 Paige, 388 ; In re Vogle, 7 Blatcbf. 19. « Hopkins v. Drake, 44 Miss. 633; Yarborough v. Hai-per, 35 Miss. 112; Dearmon i>. Blackburn, 1 Sueed. (Tenn.) 390; Wilson v. McQueen, 1 Head, DOES NOT LIE AT SUIT OF GRANTEE AFTER SEIZURE. 141 chattels brought replevin against the sheriif for seizing the mortgaged property on execution against the mortgagee, it appeared that the judgment and execution was against both the mortgageor and mortgagee, in such case neither could sustain replevin against the officer. ^ § 249. Nor at the suit of a grantee of such defendant after the seizure. Neither can a grantee of such defendant, after the goods were seized, sustain the action, as he occupies no better position than the defendant.® The rule may there- fore be stated as general, that when goods, not exempt by law, are taken from the possession of the defendant named in the process, by virtue of an execution regular on its face, replevin will not lie at the suit of such defendant. ^ § 250. The reason for the rule. The reason for this rule is apparent when it is considered that if the defendant were per- mitted to maintain replevin,, it would be in his power to prolong and perhaps defeat a valid claim, upon which he has had a full opportunity to make his defense when judgment was rendered against him; and this would produce delay in the execution of a process which is final in its nature. Statu- tory provisions exist in some States which permit the replevy- ing of property attached, but such proceedings are a part of the attachment suit, and are not aflPected by any of the ordinary rules in this action.* § 251. Qualiflcations of the rule. The execution, however, must be a valid one, and issued by competent authority, as an execution void on its face is no justification, ^ Also, in case (Tenn.) 19; Omer v. Hollman, 4 Whart. (Pa.) 45; Kellogg o. Churchill, 3 N. H. 413; Ilsley «. Stubbs, 5 Mass. 380; Morris v. DeWitt, 5 Wend. 71; Melcher v. Lamprey, 30 N. H. 403 ; Perry v. Richardson, 9 Gray, 316. ' Talbot «. De Forest, 3 Gr. Greene, (Iowa,) 586. ' Hines u Allen, 55 Me. 115; Gardner «. Campbell, 15 Johns. 401; Dun- ham v. Wyckofl, 3 Wend. 380 ; Shaw ®. Levy, 17 S. & R. (Pa.) 103. = Hall B. Tuttle, 3 Wend. 478 ; Judd v. Fox, 9 Cow. 363 ; Ilsley ». Stubbs, 5 Mass. 288 ; Thompson ». Button, 14 John. 84 ; Gardner «. Campbell, 15 Johns. 403; Mills 7). Martin, 19 Johns. 33; Shaddon p. Knott, 3 Swan, (Tenn.) 358. ^ Green v. Holden, 35 Vt. 315. The Kentucky reports contain many cases of this nature. ' White V. Jones, 38 111. 165 ; Campbell v. Williams, 39 Iowa, 646. 142 GOODS IN THE CUSTODY OF THE LAW. the levy is void or wrongful, for any misconduct of the ofiBcer the defendant in the process may take advantage of the error, and bring replevin as though he was a stranger to it. When the levy was made on Sunday, the statute of the State for- bidding service on that day, the levy was held void, and the defendant in the process was permitted to sustain the action.^ Or where a constable who has no authority to execute a par- ticular process attempts to make a levy, the levy is void.* These cases are all based upon the principle that the taking, though under color of legal process, was wrongful, and aiforded no protection to the officer, even when suit was brought by the •defendant named in the process. § 252. Does not lie for liquors seized under an act to pre- vent the sale of intoxicating beverages. The protection which the law affords to property in its custody is governed by rules which will be best nnderstood by illustrations, the principles which underlie all these being substantially the same, to-wit: That when the law has assumed control of property for the purpose of disposing of it between disputing claimants, it will not suffer it to be withdrawn from its custody until final dis- position has been made by the court. Where liquors had been seized, and were awaiting the action of the court, under a process looking to their condemnation under a statute forbid- ding intoxicating liquors to be kept or sold, they coiild be replevied by the owner,* and the court properly dismissed the action, on motion. Even if the defendant had proved that he had the liquor for the lawful purpose of making vinegar, it would have been no defense as against the motion to dismiss. If the defendant's purpose was lawful, that fact could be made to appear in the original proceeding, but the court would not -allow property so seized to be withdrawn, from its custody at the suit of the owner, until it had passed on the question of the seizure. The same rule was applied in New Hampshire, where liquors, having been illegally kept, had become a nuisance, and were seized by an officer under a warrant to 1 Peirce v. Hill, 9 Porter, (Ala.) 151. » Conner ®. Palmer, 13 Met. 303. ^ Funk et al. v. Israel, 5 Iowa, 450 ; Monty c. Arneson, 25 Iowa, 383. POWDER SEIZED UNDER ORDINANOE. 143 seize and keep them until final action of the court. They were regarded as in the custody of the law, and not subject to be taken upon a writ of replevin.^ These cases proceed upon the ground that when a seizure has been made by an ofi&cer in the execution of his duty, the courts will retain the possession of the property pending the inquiry into the propriety of the seizure, and will not suffer a claimant to withdraw the property under pretense that he desires to contest the seizure. § 253. Wliere the seizure was under an ordinance which had been declared void. But where liquors were seized under a town ordinance for the suppression of the sale of intoxicating liquors, and the ordinance had been held void by a court of competent jurisdiction, the owner brought replevin and recovered.^ § 254. Does not lie for cattle legally impounded. The action does not lie against a pound master for cattle legally impounded, so long as he retains them in the custody of the law; but when he removed them from the lawful pound and put them in his own pasture or barn, and the owner finding them there took them, and the pound master re-took them ; held, that the pound master had lost his legal custody and the owner could recover.* This, however, will not preclude the owner from testing the legality of the seizure and impounding of his cattle in this action. If the owner, in such a case, can show the seizure or detention to be illegal, for example, suppose the pound master should refuse to deliver the cattle upon demand after payment of all dues; replevin would unquestionably be a proper remedy. § 255. Lies for powder seized under an ordinance prohib- iting its introduction in large quantities into a city. Although the common council of a city may pass an ordinance prohib- iting the bringing of powder in large quantities into the city, and though it may impose a penalty for the violation, or may compel the removal of the powder, such an ordinance will not ' State B. Barrels of Liquor, 47 N. H. 374. So in Massachusetts, Allen B. Staples, 6 Gray, (Mass.) 491. ' Sullivan v. Stephenson, 63 111. 297. « Bills V. Kinson, 1 Fost. (31 N. H.) 449; Gate v. Gate, 44 N. H. 311. 144 GOODS IN THE CUSTODY OF THE LAW. justify the council in declaring the powder forfeited or with- holding the possession from the owner, who may bring replevin if it be withheld from him.^ § 256. Does not lie for property taken on a writ of replsTin untU after the former case is decided. When an officer has taken property by virtue of a writ of replevin for the purpose of delivering it in obedience to the mandate, he is regarded as holding it in the custody of the law, and it is not liable to any other replevin from him.* One of the reasons which seems to govern in such cases is that the writ of replevin com- mands the officer to seize the identical property and make a particular disposal of it; and while the ofBcer is acting in obedience to that command the law will not permit any other party to interfere and prevent him from doing what the writ directs him to do.* § 257. The distinction between a writ of replevin and an execution, or attachment. There is a marked distinction to be observed between goods taken by an officer on an execution, or attachment, and goods taken on a writ of replevin. In the latter case the identical goods are in the custody of the law, and are before the court to be disposed of as it shall see proper; and the proceeding is so far in rem that the goods cannot be seized upon any process until the court shall have taken action. If, therefore, a party finds his goods in the hands of an ofiicer upon a valid writ of replevin, and that they have been taken from the possession of the defendant named in the writ, his remedy is by an application to the court to be permitted to come in and set up his claim to them, and not by an independ- ent replevin. Whereas, if goods are wrongfully seized by an officer upon execution or attachment it cannot be said to J Cotter V. Doty, 5 Ohio, 395. ' Contra, see Hagan v. Deuell, 24 Ark. 216. s Sanborn v. Leavitt, 43 N. H. 473; Lowry v. Hall, 2 "W. & S. (Pa.) 131; Bell V. Bartlett, 7 N. H. 188; Maloney v. Griffin, 15 Ind. 214; Willard o. Kimball, 10 Allen, 311; Shipman v. Clark, 4 Denio, 446; Foster v. Petti- bone, 30 Barb. 350; Stimpson v. Reynolds, 14 Barb. 506; Ilsley b. Stubbs,5 Mass. 380; Morris v. De Witt, 5 Wend. 71 ; Rhines v. Phelps, 8 Gilm. (111.) 455 ; Spring v. Bourland, 6 Eng. (Ark.) 658. SHERIFF CHAEGED WITH EXECUTION OF PEOOESS. 14:5 confer any lien on them, or to bear any resemblance to a pro- ceeding in rem.^ § 258. Cross-replevins not allowed. Instances have oc- curred where the defendant in replevin has sought to forestall the action by another replevin at his own suit for the same goods. This is in the nature of a cross-replevin, which the law does not permit.^ Neither can a grantee of the defendant, after suit brought. The rights of all parties can be deter- mined in the fii-st action. This is now a statutory provision in many States.* § 259. The same. Illustration. A. replevied property and obtained possession of it without there being service on defend- ants. The proceeding, except the issue of the writ, was set aside by the court. The defendant in first suit sued out replevin against plaintiff for same property; defendant in the second suit pleaded general issue {non oepit,) and gave notice that Ae would prove the pendency of tlie first suit, etc. Held, that as the proceedings in the first suit were set aside, that taking was the same as though it had been without any writ, and in such case the second replevin, though by the defendant from the plaintiff in the former suit, is not a cross-replevin.* § 260. The sheriff charged with the execution of process must obey it at his peril. It is an old and well established rule that a sheriff charged with the execution of a process ' Watkins «. Page, 2 Wis. 95. Property in the hands of the sheriff by virtue of a writ of replevin is in the custody of the law and is not liable to a second distress. Milliken «. Seyle, 6 Hill, 623; Gilbert ». Moody, 17 Wend. 358; Lovett v. Burkhardt, 44 Pa. St. 174. 2 Hagan b. Deuell, 34 Ark. 316; Powell d. Bradlee, 9 Gill & Johnson, 330; Shaw v. Levy, 17 Serg. & R. 103; Maloney ». Griffin, 15 Ind. 313; Dear- mon B. Blackburn, 1 Sneed, (Tenn.) 390. When property is taken by writ of replevin the defendant cannot retake it by second writ while the first is pending. Ilsley e. Stubbs, 5 Mass. 380 ; Morris «. De Witt, 5 Wend. 71 ; Sanborn b. Leavitt, 43 N. H. 478; Belden v. Laing, 8 Mich. 503; Clark «. West, 23 Mich. 343; Lowry t. Hall, 3 W. & S. (Pa.) 131; Hagan ». Deuell, 24 Ark. 316. ' Hines o. Allen, 55 Me. 115. A second suit brought by the defendant in the first suit and his partner against the same plaintiff is a cross replevin. Beers «. Wuerpul, 34 Ark. 373. < Smith V. Snyder, 15 Wend. 334. 10 146 GOODS IN THE CUSTODY OF THE LAW. must obey its mandates at his peril. "Where a writ of execu- tion or attachment directs him to seize upon the goods of A. he must assume the responsibility of determining what goods belong to A.; and if he seize upon the. goods of B. the writ is no protection to him in so doing, and he becomes liable to B. in trespass or replevin at his election^ If the seizure was made with a deliberate wrongful intention on the part of the ofBcer to seize the goods of one who was in no way connected with the writ, no one would for a moment attempt to justify such a seizure; and if it was made by mistake it would be equally absurd to contend that the blunder of an officer could deprive the real owner of his goods, or of any of his rights in them. 2 Even when the officer does not remove articles, a levy by him may become a trespass as against the real owner, and render him liable under that action ; or the owner may, if a stranger to the process, maintain replevin, provided his pos- session is taken from him.* § 261. The same. This question was considered in a late case in Illinois, where plaintiff in attachment, who had prose- cuted his suit to judgment, asked a process against the sheriff to compel him to sell the attached property. The sheriff replied that it had been taken from him by a writ of replevin, describing it. " The question then occurs," said Mr. Justice ScHOLFiELD, in delivering the opinion, " is replevin a proper remedy against a sheriff who has levied a writ of attachment against one person upon the property of another, at the in- stance of the party whose property is thus wrongfully levied ' Ackworth v. Kemp, Doug. (Eng.) 40 ; Ealston ®. Black, 15 Iowa, 47. « Stewart ®. Wells, 6 Barb. 79; Buck ®. Colbath, SWall. (TJ. S.) 334; Allen «. Crary, 10 Wend. 349; Shipman v. Clark, 4 Denio, 447; Hall e. Tuttle, 2 A¥end. 476 ; Ilsley v. Stubbs, 5 Mass. 280 ; Phillips v. Harriss, 8 J. J. Marsh, Ramsdell v. Buswell, 54 Me. 546. See Willard «. Kimball, 10 Allen, 201. 150 GOODS m THE CUSTODY OF THE LAW. never been in the possession of tlie defendant in the writ, but had for a long period been in the hands of another claiming to own them, the officer would unquestionably be justified in re- fusing to dispossess such third party under a writ in which he ■was not named, If he assume to serve the writ he must show that the goods were actually the property of the defendant named in his process, ^ and must take the risk of a suit for trespass, against which he ought, when his act has been in good faith, to be fully indemnified by. the party in whose interest he acts. § 267. Writ of retorno authorizes seizure only from the per- son named. When a writ of retorno issues, the sheriff cannot take the property from any other person than the one named in the writ.^ § 268. Replevin lies for exempt property wrongftilly seized. There exists in many, if not all the States, statutory provisions exempting a certain amount in value of property, or certain specific articles, from levy and sale upon execution. As to such property, the rule is, that notwithstanding there may be a judgment and execution against the defendant, valid in all respects, and sufficient to authorize the seizure of property of the debtor not exempt; as to exempt property, he is bylaw privileged to retain it, notwithstanding the execution; and if an officer, disregarding such exemption, seize upon the prop- erty, the debtor may assert his right in replevin for the goods, or in an action against the officer for their value.* • Hilliard on Torts, 194 ; Orosby v. Baker, 6 Allen, (Mass.) 295 ; Common- ■wealth 1). Kennard, 8 Pick. 133 ; Brush «. Fowler, 36 111. 59 ; Jansen ®. Acker, 33 "Wend. 480 ; Perkins v. Tliornburg, 10 Cul. 189. 2 Lear v. Montross, .50 111. 509. 8 Wilson «. McQueen, 1 Head. (Tenn.) 17; Bean v. Hubbard, 4 Gush. 86. A non-resident cannot assert this privilege. Newell ». Hayden, 8 Iowa, 140; Sims V. Reed, 12 B. Mon. 53; Moseley u. Andrews, 40 Miss. 55; Wilson «. McQueen, 1 Head. (Tenn.) 16; Elliott s. Whitmore, 5 Mich. 532; Wilsons. Stripe, 4 Gr. Greene, (Iowa,) 551; Lynd ■». Picket, 7 Minn. 184; Douclis. Eahner, 61 Ind. 64. Dental tools held mechanical tools, and exempt as such. Maxon «. Perrott, 17 Mich. 333. Whether the articles claimed as tools are necessary as tradesman's tools, and for that reason exempt, is a question for the jury to determine. A judgment and order to sell exempt property is no bar to an action of replevin ; but the replevin of the property will not avoid the judgment. Wilson «. Stripe, 4 G. Greene, (Iowa,) 551. EXEMPTION A PEESONAL PRIVILEGE. 151 § 269. The aid of the statute must be invoked. An officer witli execution is not bound to consult with the execution debtor as to what property is exempt, but he may seize and proceed to sell any or all the debtor's propei'ty upon which he can lay his hands ;i and if the debtor desires the protection of the statute, he must invoke its aid. It does not operate unless its shelter is sought. When exempt property' is levied on, the debtor ought, at the time, or seasonably thereafter, to specially claim the benefit of the exemption; he cannot sustain replevin for property he has not selected and claimed as exempt.^ So, when a certain amount of a particular kind of property is ex- empt, the debtor must select and claim, or in some lawful manner assert his rights. If the sheriff levy execution on the whole of that class of property, the debtor cannot sustain replevin until he select and demand the exempted portion.* A waiver of exemption in favor of one creditor cannot be taken advantage of by another.* Nor will a mortgage be a waiver of the right to claim property as exempt, except as against the mortgagee. ^ Under a statute which exempts swine, the flesh of such swine, when killed and dressed, is also exempt. ^ So of butter made from a cow which is exempt. '' But hay or grain exempted for the purpose of feeding domestic animals is not exempt unless the party claiming it has the animals.* §270. The exemption a personal privilege. This exemption of property from forced sale on execution is a personal privilege, and must be exercised by the debtor personally, or it will be re- garded as waived.' In replevin against the sheriff, the plain- tiff claimed a span of horses, by purchase from B. The sheriff ' Twinam v. Swart, 4 Lans. (N. T.) 363. • O'Donnell v. Seger, 35 Mich. 371 ; Seaman v. Luce, 33 Barb. 340. As to the practice, see Newell «. Hayden, 8 Iowa, 140. But, see Frost v. Mott, 34 N. Y. 353. » Tunis 9. Orthwein, 5 Minn. 377. • Frost V. Mott, 34 N. T. 353. « Kcynolds v. Salee, 3 B. Mon. (Ky.) 18. • Gibson 9. Jenncy, 15 Mass. 306. ' Leavitt?). Metcalf, 3 Vt. 343; Haskill «. Andros, 4 Vt. 610. 8 Foss «. Stewart, 14 Me. 313. »Bonsall«. Comly,44 Pa. St. 443; Mickes ». Tousley, 1 Cow. 114; Earl «. Camp, 16 Wend. 563. 152 GOODS IN THE CUSTODY OF THE LAW. replied that he had seized them on an execution against B., and that they were B.'s property. The plaintijff asked the court to instruct the jury that, " under the laws, one span of horses was exempt, and that if B. had no other horses than these, which were exempt, the defense of the sheriff would fail." The court properly refused the instruction. The exemption was the personal privilege of the debtor, and might be waived by him, and if so waived, it could not be asserted by another.^ § 271. Tlie same. Damages and costs in such cases. "While the rule which permits replevin for property by law exempt is supported by abundant authority, it has been said that neither damages nor costs should be awarded in such cases;* but this does not seem to rest on any well founded reason. The sheriff who willfully or ignorantly takes prop- erty in defiance of the law, should respond to the injured party in compensatory damages, at least.* § 272 Jurisdiction in replevin, where goods have been wrongfully seized. When goods have been wrongfully seized by an ofiBcer upon process, and the owner desires to contest the validity of the seizure, the question arises, in what court shall his suit be brought? There may be a court competent to take jurisdiction over the subject matter of the controversy, as well as the person of the defendant, within easy access; while the court from which the process issued, upon which the wrongful seizure was made, may be distant and difficult of access. Whether any exclusive jurisdiction attaches to this latter court may be a question of importance. There appears to be no good reason why the court issuing the process, behind which the officer assumes to shelter himself, should alone have juris- diction in such cases. Upon process of attachment issxied from the Superior Court of Cook County, the sheriff levied upon goods which were afterwards replevied from him by the owner, (who was not the defendant in the attachment,) upon a writ of replevin issued out of the Circuit Court of Cook County. ■ Howl and v. Fuller, 8 Minn. 50. 2 Saffell V. Walsh, 4 B. Mod. (Ky.) 93. 8 Pozzoni V. Henderson, 2 E. D. Smith, 146 ; Whitaker v. Wheeler, 44 111. 447 ; Llvor v. Orser, 5 Duer. 501. RULE IN FBEEMAN V. HOWE. 153 The court said, " there is no apparent reason why, if the action of replevin might be brought in the Superior Conrt of Cook County, it might not, with equal propriety, be brought in the Circuit Court of that county, which is practically a branch of the same court." ^ The court, however, in this case, cites Tay- lor eb al. V. Carryl, 20 How. (U. S.) 583, and Freeman v. Howe, 24 How. 450, and seems to recognize the doctrine that when goods are in the custody of the officer of a United States court, under its process, they cannot be taken by process from a State court. § 273. The same. Tlie question stated. It is unquestion- ably the law, that when goods are rightfully in the custody of an officer of the United States court, under judicial process from such court, replevin will not lie to dispossess him ; but where an officer assumes to take goods, in violation of the com- mands of his writ, he cannot be said to take them by virtue of the process of the court. On the contrary, all the authori- ties agree that an officer so holding is a trespasser. His hold- ing is, in fact, a disobedience of the mandate of the court, and he is personally liable to the injured party. This presents the question, as to whether a party whose property has been wrong- fully taken by an officer of the United States, on process from a federal court, can employ the officers and process of the State courts to recover it. § 274. The rule in Freeman v. Howe. The leading case on this subject is Freeman v. Howe, which originated in a State court in Massachusetts, and was subsequently passed upon by the Supreme Court of the United States. Process of attach- ment in a suit for debt was issued from a United States Court to its marshal, commanding him to attach the property of the Yermont & Massachusetts K. K. Co. Upon that process the marshal seized upon thirteen cars, which were afterwards re- plevied upon a writ issued from a State court in Massachusetts. Upon the trial, the marshal contended that the property was taken by him under process from the United States court, and that replevin in a State court would not lie. Dewey, J., in de- livering the opinion of the appellate court in Massachusetts, ' Samuel v. Agnew, 80 111. 554. 164 GOODS IN THE CUSTODY OF THE LAW. said : " These articles were not seized for the purpose of being proceeded against in the courts of the United States by any proceeding in rem. They were not the subject of the case then to be tried. The process from the United States court was that usually issued for the recovery of a debt, unaccomjja- nied by any lien or charge upon the goods, except that result- ing from an attachment to secure an alleged debt. The only process to the marshal was one commanding him to attach the property of the Yermont & Massachusetts E. K. Co. ; not a warrant to seize these cars." Aud upon this reasoning the court held that replevin in a State court, by the real owner, against the marshal, was proper, i The case, however, went to the United States Supreme Court, and the decision of the State court was reversed ; the reversal being placed upon the ground that the right of the defendant, the marshal, to hold the goods was a question belonging to tlie federal court, under whose process they were seized, and that there was no authority in an officer, under process issued from a State court, to inter- fere with property which had been seized by a marshal under process from a United States court.* § 275. The doctrine in this case considered. This decision has not provoked the discussion which it would certainly have occasioned had it been a similar opinion from any other court. The bare authority of the Supreme Court of the United States being a sufficient reason for avoiding all question as to its cor- rectness. The reasoning has, nevertheless, been criticized in a number of cases in the State courts, and explained at least once in the United States Supreme Court. Mr. Justice Paine, of Wisconsin, remarks, " that the conclusions of the court, (in Freeman v. Howe^ do not appear to be based upon any effect given to any provision of the constitution or laws of the United States, so that its decision would not, according to the prevailing opinion, be binding in the State courts; but it seems to rest upon grounds of comity." And while the doctrine in that case is followed,* it is with doubt and misgiving as to the ' Howe «. Freeman, 14 Gray, (Mass.) 572. » Freeman ». Howe et al., 24 How. (U. S.) 450. » Kinney v. Crocker, 18 Wis. 79 See Buck ». Colbath, 7 Minn, 310. THE DOCTEINE IN THIS CASE CONSIDEEED. 155 correctness of the principle. In Minnesota, in replevin from a United States marshal, the answer of the marshal denied the plaintiff 's right, and set up that the defendant, a United States marshal, held a valid writ of attachment against the goods of L. ; that he levied on the' goods as the property of L. and that they were his property, and demanded a return. To this plea there was no answer, and the court said the case stands admitted for want of an answer. The court, in delivering its opinion, cited the case oi Freeman Y.IIowe, and said: " If we understand this decision, it is based upon the sole gi.-ouud that one court cannot take the property from the custody of another by replevin, or any otlier process ; for this would produce a con- flict extremely embarrassing to the administration of justice. Whether this evil may be greater than that of always compel- ling 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 questioned. * * * Jt cannot be denied but that there are expressions and statements in the opinion in Freeman v. Howe which would lead to the conclu- sion that the court in that case reversed the decision of the State court upon the ground that the State court had not juris- diction of the case, but we think not. * * * Conceding, therefore, the correctness, or, at least, the binding force of the decision in Freeman v. Howe, we think the judgment must be for a return."! § 276. Tlie same. The same court had the question before it again, where it employed the following reasoning: "If there is any principle of law which may be considered as settled by a long series of uniform decisions, it is, that he, whether an officer of the law or otherwise, who takes the property of another without authority, is a wrong-doer, and the taking is wrongful. * * * The only approach to any innovation upon this rule, so far as we are aware, by the courts of this country, is the case oi Freeman v. Hov)6, 24 How. (U. S.) 450. Even though the officer acted upon the fullest knowledge and information obtainable, as to the ownership of the property, and that he fully and honestly believed, and had ' Lewis -0. Buck, 7 Minn. 104. 156 ' GOODS IN THE CUSTODY OF THE LAW. good reason to believe, that the property was the property of the defendant, and that he was in duty bound to levy on it, it is no defense. The law has not left the rights of property and the protection afforded thereto to depend on the mere belief or good faith of the oiScer holding process; nor will his good faith protect him from the consequences of his illegal acts. The sheriff, when he levies on property, must do so at his own risk, and if he seizes property not authorized by his process, he is a trespasser."^ In Wisconsin, the doctrine was distinctly stated, that when property exempt from seizure by the laws of the State, was seized by a United States officer, for debt, replevin would lie in the State court. It was claimed in this case that the horses were taken and held by virtue of an exe- cution issued out of the District Court of the United States, and hence were in the custody of the law. " But how could they be in the custody of the law unless the marshal had a lawful right to take them into his custody? The idea that an unlawful custody of property can be the custody of the law is absurd. "2 § 277. The same. "While the case of Freeman v. Hoxm may be regarded as a decision of this question by the court of the last resort, the reasoning of the court and the conclu- sions arrived at do not produce that convi'ction of the sound- ness of the doctrine laid down which usually follows the opinion of that eminent tribunal. It seems to be in conflict with the earlier case of Slocum v. Mayherry, 2 "Wheat. 2. It is difficult to see where any material inconvenience wonld follow the enforcement of a contrary rule; while it is apparent that the practical operation of the rule as laid down is to permit an officer with process of execution or attachment against A. either ignorantly or willfully to seize on the goods of B., and to compel the real owner to submit to their loss, or be at the vexation and expense of a resort to a distant court. ■ Caldwell e. Ai'nold, 8 Minn. 265. 2 Gilman «. Williams ct al., 7 Wis. 339. See the [case of Booth v. Able- man, which appeared in 16 Wis. 463, and again in 18 Wis. 496, and in 20 Wis. 33 and 633; Ward v. Henry, 19 Wis. 77; Weber v. Henry, 16 Mich. 399 ; Hanna «. Steinherger, 6 Black, 521. THE DOCTRINE IN THIS CASE CONSIDEEED. 157 § 278. The same. From the time of the case of Ralleb v. Byrt, Garth. 380 (A. D. 1687), until the present day, the courts have, without an exception (unless it be in Freeman v. Howe), sustained the doctrine promulgated in that ancient case, that where the sheriff by process of execution or attachment is directed to levy on the goods of the defendant in the process, and this he must do at his own peril, not at the peril of the owner of the goods. Another and serious embarrassment which seems to grow out of the enforcement of the rule as laid down in the case of Freeman v. Howe, is tliat it draws into the Federal courts all litigation in respect to the title to property attached by the United States Marshal, though between strangers to the attachment suit and although involving the adjudication of mere legal claims between citizens of the same State, which the Constitution designed to exclude from Federal jurisdiction. § 279. The same. Slooum v. Mayherry, 2 Wheat. 2, was a case where a ship was seized for a suspected violation of law; the cargo was taken with the ship and detained by the United States officer; the owner of the cargo brought replevin in the State court of Ehode Island, and was sustained by the United States Supreme Court. Chief Justice Marshall, delivering the opinion of the court, said: "The cargo remained in the custody of the officer because it had been placed on a vessel in his custody, but no law prevents it being taken out of the vessel. The owner has the same right to his cargo that he has to any other property, consequently he may demand it from the officer in whose possession it is, that officer having no legal right to withhold it from him; and if it be withheld he has a right to appeal to the laws 6f his country for relief. The acts of Congress neither expressly nor by implication forbid the State court to take cognizance of suits instituted for property in the possession of an officer of the United States, not detained under some law of the United States, consequently the jurisdiction remains. Had the replevin been for the vessel, which was detained by the authority of the law of the United States, the case would have been entirely different." 158 GOODS IS THE CUSTODX OF THE LAW. § 280. The same. Chancellor Kent lays dowa the law that if a marshal of the United States, under an execution against A., should seize the property of B., then the State courts have power to restore the property so illegally taken. > This state- ment is, in the opinion of Freemcm v. Howe, 24 How. 439, said to be " an error into which the learned chancellor fell, from not being practically familiar with the jurisdiction of the Federal courts." But the opinion of Chief Justice Mae- shall, in the case before cited, seems in substantial principles to sustain the statements of the chancellor. Davidson v. Waldron, ^1 111. 121, was an action of trover, where David- son, with others, sought to recover the value of lumber which he alleged was levied upon by himself as United States Marshal. The defendants resisted on the ground of the insufficiency of the levy, and this was objected to by Davidson on the ground that the validity of the levy could not be enquired into in the State court; but the court said that the remedy was sought by the party as an individual, not as an officer of court. " There is no principle of law which renders writs issued by United States courts, or the acts of officers claiming to act under such writs, invulnerable to criticism in the State courts." And this appears to offer a solution of the question. An officer of the United States court ought not to have any special privilege to commit trespass. § 281. The same. Buck v. Goliath, 3 Wal. (U. S.) 334, was an action of trespass originally begun in a State court in Minnesota. The defendant pleaded that he was a United States Marshal for the District of Minnesota; that a writ of attachment came to his hands, and that he levied on goods, for the taking of which he was sued by Colbath, but he did not in his plea OAier that the goods were the property of the defendant in the attachment. The plaintiff had judgment in the State court, and the case was taken to the United States Supreme Court, under Sec. 25, of the judiciary act of the United States. Mr. Justice Millee, in delivering the opinion of the latter court, says : " The decision in Freeman y. Rowi^ took the profession generally by surprise, overruling as it did, ' 1 Kent Com. 410, citing Slocum «. Mayberry, iwpra. THE DOCTEINE IN THIS CASE CONSIDERED. 159 the unanimous opinion of the Supreme Court of Massachu- setts, as well as the opinion of Chancellor Kent." The court, however, follows the doctrine in Freeman v. Howe, alleging as a reason, that a departure from the rule in that case would lead to the utmost confusion and endless strife. The court further says substantially, that property may be siezed by an officer of court under a variety of writs. These may be divided into two classes: 1st, Those in which the process or order of the court describes the property to be seized and which contain a direct command to the officer to take posses- sion of that particular property. Of this class are the writ of replevin at common law, orders of sequestration in chan- cery, and nearly all the processes of the admiralty courts by which the res is brought before it for its action. 2d, Those in which the officer is directed to levy the process on the property of one of the parties to the litigation, sufficient to satisfy the demand against him, without describing any par- ticular property to be thus taken. Of this class are the writ of attachment, or other mesne process, by which the property is seized before judgment, and the final process of execution, elegit, or other writ by which an ordinary judgment is carried into effect. It is obvious, on a moment's reflection, that the claim by the officer executing these writs to the protection of the courts from whence they issue, stand upon very different grounds in the two classes. In the first class, he has no discretion to use, no judgment to exercise, no duty to per- form but to seize the property. And if the court had juris- diction, and the process was valid on its face, and the officer had kept himself within the mandatory clause of the writ, it is a complete protection in all courts. In the other class of cases, the officer has a large and important field for the exercise of his discretion. 1st, In determining that the prop- erty on which he proposes to levy is the property of the person against whom the writ is directed. 2d, That it is subject to levy, etc. So where the action was trespass in the State court against the Marshal for wrongful levy of an attachment issued from the Federal courts, the court said there was nothing in the fact that the writ issued from the Federal court, to prevent 160 GOODS IN THE CUSTODY OF THE LAW. the Marshal from being sued in the State court for his own tort for levying on property of a person not named in the writ. Among courts of concurrent jurisdiction, that one which first obtains jurisdiction has the exclusive right to decide every question in the case, but this only extends to suits between the same parties or persons seeking the same relief, and does not affect the parties so far as other and dis- tinct relief is concerned, nor does it affect strangers to the proceeding. 1 § 282. The same. Apart from the eminent authority of the cases in conflict with the doctrine laid down in Freeman T. Howe, 24 How. 450, the principles of the law which have been recognized since the earliest consideration of this ques- tion, warrant the conclusion that where an officer with process commanding him to take the goods of A., does with a willful and deliberate purpose of oppression, take the goods of B., the writ is no protection to him in his willful trespass; or, where an officer with such process ignorantly or carelessly levies on the property of a stranger to the writ, it affords, him no justification, or confers any right or title to the property. That in either of these cases, the outraged owner may proceed against the wron^ doer personally, and in such case he cannot plead license from any court whose authority he has abused and whose mandate he has disobeyed. The principles gath- ered from these cases seem to be in confiict, but the task of harmonizing them must be left to future consideration of the courts. Whether the State courts will feel bound to follow the ruling of the United States court upon this question, which does not involve the construction of the Constitution, or any of the laws of the United States, is a question upon which different courts will be likely to entertain difierent views. 3 § 283. The power, duty and responsibility of the sheriflF in serving the writ of replevin. The responsibilities of the sher- iff in serving the writ of replevin are considerable, and with » Buck V. Colbath, 3 "Wall. (U. S.) 334. » Kinney «. Crocker, 18 Wis. 79; Bruen b. Ogden, (11 N. J. L.) 6 Halat. 371. COUET MUST HAVE JUKISDICTION TO ISSUE WEIT. 161 the responsibility imposed, the law gives a corresponding authority to be exercised by the officer in his own protection. An officer has immunity for acts done in the proper discharge of his duty in executing legal process, but when he attempts to execute illegal process, or legal process in an illegal manner, it afl'ords him no protection J § 284. He must see that the writ is in form. An officer who assumes to act under color of authority of law, must take the responsibility of determining whether the law has given him the authority which he assumes to exercise. Thus, an officer is not justified in executing an order or process which is void on its face, or which the court has no jurisdiction to issne.2 !N"either has he a right to execute process, however legal or formal it be, in any other than a legal manner; as when the statute forbids service on Sunday, he would have no lawful authority to execute process on that day.* It therefore becomes the duty of the officer in receiving a writ of replevin to see that it is substantially in legal form. If for any defect on its face it is void or inoperative, he will be liable as a trespasser or may be liable for the value of the goods, if he proceed to execute it.'* § 285. And that it issues from a court of competent juris- diction. The officer must also decide whether the court had jurisdiction to issue the writ. This by no means requires him to inquire whether the court acted properly in issuing the writ, for that question is entirely beyond his right to deter- mine. ISTeither is he called upon to determine the rights of the parties, or whether the writ was properly issued or not. If the process be formal and sufficient on its face, and if the court from whence it issued had jurisdiction to issue such a ' DriscoU V. Place, 44 Vt. 258. If an officer levy an execution after the return day has expired, he is a trespasser. Vail v. Lewis, 4 Johns. 450. Consult Dynes «. Hoover, 20 How. 65; Wise «. Withers, 3 Cranch. U. S. Sup. Ct, 331 ; Brown v. Compton, 8 Term. R. 424, ; Davison «. Gill, 1 East. 64. « Leadbetter v. Kendall, Hempst. (U. 8. C. 0.) 302; Brown v. Compton, 8 Term. R. 424 and 231 ; Dynes «. Hoover, 20 How. (U. 8.) 65 ; Wise v. With- ers, 3 Cranch, (U. S.) 331. 8 Peiree v. Hill. 9 Porter, (Ala.) 151: Aliens. Crary, 10 Wend. 349. ^ Dame v. Pales, 3 K H. 70. 11 162 GOODS IN THE CUSTODY OF THE LAW. writ, it will be a complete protection to him, acting in obedi- ence to its commands, so long as he acts within the scope of his legal duties and for the purpose of obeying its commands. He is to employ sufficient force to execute its mandates, i But if he have knowledge aliunde of the want of jurisdiction and persists in executing the writ notwithstanding, he will be liable.^ Or where, from the circumstances of the case appear- ing on the face of the paper, the officer can see that there may be cause to suspect that process apparently formal has been improperly issued, he ought to examine into the matter to see that it is regular before serving it.* As where under the stat- ute an execution must issue within one year after judgment is rendered, without which a subsequent execution is void.* A judgment was rendered in 1863 and no execution issued thereon until 1869, when execution was issued and returned nulla hona, and a transcript afterwards taken to the circuit court and another execution issued thereon. The latter execu- tion was held no protection to the officer. ^ The officer should examine the description of the property in the writ, and if it be so uncertain that he cannot distinguish the property, or if the property shown him be essentially different from the goods described, he may refuse to serve the process. ^ It does not follow that the writ which may be sufficient to protect the officer, will also afford the same justification to the party.' § 286. The writ does not authorize a seizure of goods from tlie person of the defendant. When the defendant is wearing a watch, or other article, either of ornament of apparel, the writ would confer no authority on the officer to seize it ■ Fulton V. Heaton, 1 Barb. (N. Y.) 553; Ela v. Shepard, 33 N. H. 277; Colt v. Eves, 13 Conn. 351; Young v. Wise, 7 "Wis. 138; Sprague «. Birch, ard, 1 "Wis. 458 ; McLean v. Cook, 33 "Wis. 365 ; Bogert v. Phelps, 14 Wis. 88; Landt v. Hilts, 19 Barb. 388; Earl v. Camp, 16 "Wend. 563; Dominick «. Eacker, 8 Barb. 17-; Bagnall «. Ableman, 4 "Wis. 163. !* Sprague «. Birchard. 1 Wis. 457; Grace ®. Mitchell, 31 Wis. 539; Colt D. Eves, 13 Conn. 348. 3 Bacon «. Cropsey, 3 Seld. 195. * Morgan v. Evans, 73 111. 586, and cases cited, » Hay v. Hayes, 56 111. 343. • De Witt V. Morris, 13 Wend. 495. ' Brown v. Bissett, 1 Zab. 31, (N. J.) 46. EIGHT OF OFFIOEE TO TAKE GOODS. 163 from his person, even when worn for the purpose of keeping it from such seizure, the person of the defendant being free from molestation upon process of this nature. ^ § 287. The right of an oflaGer to break and enter a dweE- ing to take goods. The question as to wliether an oiBcer has a right to break and enter the dwelling of the defendant to serve a writ of replevin seems to present itself here. Under the ancient common law the right and duty of the officer was unquestioned. A man's house was his castle, and would pro- tect his person or his goods from seizure on civil process, but the wrongful taking of the goods of another was looked upon as little better than robbery,* and the "Safeguards thrown around a dwelling house would not privilege the owner to take or keep the goods of another. The Statute Westminster 1, Chapter 17, expressly directed the sheriff to break and enter a dwelling house or stronghold to make replevin of goods therein wrongfully detained. Authorities in modern times upon this question are meager, but it has been held that the sheriff had a right to enter the defendant's house to search for goods de- scribed in a writ of replevin, and that the legality of his entry did not depend on the fact of his finding the property therein. The court said, "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. "^ A man's house is not a castle, nor does it carry any privilege but for himself. It will not protect a stranger who may fly there, nor will it protect the goods of another brought there to avoid a lawful execution. * § 288. Parties bound to know the sheriflF. If an officer ' Maxham v. Day, 16 Gray, 313. Nor will an inn keeper be permitted to assert a lien on the garments whicli his guest is wearing on his person. Sunbolp V. Alford, 3 Mees & W. 249. ' Gilbert on Rep. 70; Britten, title Replevin. 3 ICneas s. Fitler, 3 8. & R. (Pa.) 365. * Semaney's Case, 5 Coke, 91. The sheriff may break and enter a barn or outhouse to serve an execution. See M'Gee v. Given, 4 Blackf. 18, note; Haggerty ». Wilber, 16 Johns. 287. See cases cited in State v. Smith, 1 N. H. 346. 164 GOODS IN THE CUSTODY OF THE LA"W. serves the writ in person all parties are bound to know and recognize him. So, doubtless, of a regularly appointed deputy ; but if the sheriff appoint a special deputy, though his power and authority is the same as the. sheriff to serve that process, yet he would be obliged to show his authority, if it were ques- tioned, as the defendant is under no obligation to recognize him without it.^ § 289. Duty of the sheriff to take bond ; his liability in re- spect to the bondsmen. The law required the sheriff to take bond from the plaintiff, with two securities, conditioned that he would duly prosecute the suit, or make return, etc., and held the sheriff ressponsible for the solvency of these securi- ties; not only that they were solvent when accepted by the sheriff, but that they should continue so down to the time when they should be legally called upon to make good the con- ditions of their bond.* The harshness of this rule has been greatly modified of late. And so far has the change in this direction been carried in many of the States that the statute provides a method by which the defendant may except to the bondsmen of the other party within a limited time, and in case of failure to do so within that time he is precluded from doing so afterwards.* And the sheriff is not liable unless a formal exception is sustained.* But if the securities fail to justify when excepted to, the sheriff is liable. ^ § 290. Extent of the sheriff's liability. The question has arisen as to the extent of the sheriff's liability; whether it is limited by the amount of the bond, or whether, in case the real damage sustained exceeds .that amount, the sheriff should be held for the real damages. The penalty in the bond,' where the suit is for taking insufficient security, is usually the limit ' Burton v. "Wilkinson, 18 Vt. 186. See, also, Alexander v. Burnham, 18 Wis. 300 ; State, etc., ex rel. v. Williams, 5 Wis. 308, and note to new ed. p. 631. " Grant v. Booth, 31 How. Pr. Rep, 354. s 'Clinton v. King, 8 How. Pr. Rep. 55; Weed «. Hinton, 7 Hill, 157; Burns v. Robbins, 1 Code R. 62. * Wilson V. Williams, 18 Wend. 681. » Hoefheiner «. Campbell, 1 Luc. (10 Mod.) 157. ' Evans v. Brander, 3 H. Bla. 557 ; Jeffrey v. Bastard, 4 Ad. & E. 823. DUTY OF THE SHEKIFF. 165 of damages. But -where the sheriff fails to take any bond, or takes bond in a sum less than double the value of the property, the injured party may unquestionably recover the real damages he has sustained.^ By statutes in some of the States, the clerk, not the sheriff, takes the security, which may be excepted to by the opposing party, if he think it insufficient. The gen- eral rule, however, requires the sheriff to take bond from the plaintiff before serving the writ, and the writ cannot be exe- cuted by delivery of the property unless the bond provided by statute be given. ^ And if he omits to require such bond as the statute provides, he is liable to the defendant for failure to take bond. § 29 1. Return by sheriff of goods wrongfully seized by him., "When the sheriff wrongfully took property from a person other than the defendant named in the attachment, and afterwards, to a suit for such wrongful taking, he answered that he had returned the property to the parties from whom he took it; held, immaterial. The answer did not allege a return to the plaintiff, or any one by him authorized to receive it. The party who had it may himself have been a wrongdoer; or, sup- pose the property was seized while in the hands of a drayman, being moved from one point to another; a return to the dray- man would not constitute a defense to the claim of the owner.* The plaintiff sues for a taking or detention of the goods from him, and it is no answer to his claim to say they have been voluntarily delivered to another. § 292. Duty of the sheriff on receiving a writ of replevin. It is the duty of the sheriff, on receiving a writ of replevin, to execute it in the manner required by the statute, which should be his guide. He must serve it on the defendant in person, if he can be found; but a seizure and delivery of the property must be made where that can be done, wliether per- sonal service is had on the defendant or not.* He must make ' People, etc. b. Core, 85 111. 248. * Smith v. McFall, 18 Wend. 521; Wilson «. Williams, 18 Wend. 581; Milliken «. Selyo, 6 Hill, 623. ' Caldwell «. Arnold, 8 Minn. 265. * Abrams v. Jones et al., 4 Wis. 808. 166 GOODS IN THE 0TI8T0DT OF THE LAW. all reasonable efforts to find the goods. If he cannot do so ■without, he must search and inquire. If, influenced by vague rumors, he retufns the writ without obtaining the goods, when they could have been found by search and inquiry, he will be liable.^ The writ will sometimes be of no avail to the parties unless served promptly; and while the sheriff is not bound to lay aside all other business to attend to it, he is bound to use all reasonable endeavors to execute the process, so that it may take effect as the party designed. ^ In New York, when the sheriff has seized property under a writ of replevin, he is not bound to deliver it to the plaintiff before the securities on the bond have been accepted, or justified, and during the time the goods remain in his possession, he is not an insurer of them, but is bound to use such care of the goods as a careful man would exercise with his own property; whether he has done so or not, is a question for the jury.^ It has been held that if the sheriff leaves goods in the hands of the debtor, taking security for their delivery, or payment of the debt, he becomes liable if they are destroyed by fire or otherwise, except by act of God or the public enemy.* § 293. Duty of the sheriff with respect to severing articles claimed to be real estate. One of the most difBcult questions touching the power and duty of the sheriff, is, when he is called upon to serve the writ of replevin by taking and deliv- ering property apparently real estate, and which requires to be severed from the realty, to enable the oflicer to obey the command of the process. The writ is effectual for the delivery of personal property only, and furnishes no justification to aa oflScer who, in attempting to serve it, severs and delivers part of the realty.' So when suit was for rails, when defendant ' Bosley v. Farquar, 3 Blackf. 66. » Hiuman ■». Borden, 10 Wend. 367; Whitney v. Butterfleld, 13 Cal. 339;. Lindsay Exrs. «. Armfleld, 3 Hawks. (N. C.) 548; Kennedy ®. Brent, 6 Crancli, 187 ; Payne e. Drews, 4 East, 533 ; Van Winkle ®. Udall, 1 Hill. 559. » Moore v. Westervelt, 21 N. Y. 103 ; Moore «. Westervelt, 1 Bos. (N. Y.). 858. See Rives ». Wilborne, 6 Ala. 45. * Browning v. Hanford, 5 Denio, 586. « Roberts ®. The Dauphin Bank, 19 Pa. St. 75 ; Ricketts v. Dorrel, 55 Ind. 470. UABILITT OP THE OFFICEE A PEESONAL ONE. 167 had built part of them into a fence before the writ was served, it was said those built into the fence were real estate, and could not be taken, i This rule undoubtedly governs in all cases. The sheriff is liable as a trespasser if he severs any part of the realty and delivers it, even though it is the identi- cal property described in the writ. But the sheriff is also liable, if he refuse to serve the writ by delivering personal property therein described under pretense that it is real estate, unless such is really the case, and he must assume the respon- sibihty, and act or refuse to act, as he shall judge proper. But in cases where there can be, and probably is, an honest difference of opinion, and the property is described as personal property in the affidavit and the writ, the sheriff ought to take proper indemnity from the parties and execute the writ, giving the defendant due opportunity to restrain if he wishes to do so. 2 § 294. The liability of the officer a personal one. The officer should bear in mind that any act done under color of his office affecting the rights of parties not named in the writ, may render him liable as a trespasser. ^ So any failure or neglect on his part to serve the writ in a proper and legal manner, within the proper time, may subject him to an action at the hands of the injured party,* and an illegal service may render him liable to the defendant. His liability is a personal one, and his official position does not change it. Where he is guilty of an act of trespass, judgment against him must be satisfied out of his individual property, and his resignation, removal, or the expiration of his term, will not change his liability.^ Therefore, when a reasonable doubt exists, he is not compelled to proceed without indemnity from the party in whose behalf he is acting.^ "When the law requires tlie officer to act, as to acts done in the performance of his duty, it will ' Bowen «. Tallman, 5 S. & W. (Pa.) 560. 'Elliott V. Black, 45 Mo. 374; Hamilton «. Stewart, 59 111. 831. * State V. Jennings, 14 Ohio St. 78; Moulton v. Jose, 35 Me. 76; Caldwell V. Arnold, 8 Minn. 365. * Brown «. Jarvis, 1 Mees. & W. 704. ' Stillman ®. Squires, 1 Denio, 338. * State V. Jennings, 14 Oliio St. 78; Colt v. Eves, 13 Conn. 343. 168 GOODS IN THE CUSTODY OF THE LAW- favor a presumption that he has performed it, and the burden of showing to the contrary is on the other party, i The act of the deputy in seizing property is the act of the sheriff, and the possession of the deputy is the possession of the sheriff.^ So the possession of a bailiff or custodian is the possession of the sheriff, and while the custodian may have a sufficient possession to be made a defendant in replevin, it by no means follows that the officer is not also liable. ^ When a party obtains a valid writ of replevin against a sheriff, the officer should obey the writ by surrendering the goods in obedience to the process, but his refusal to do so does not make him a trespasser in the taking.* § 295. The sheriff liable for the acts of his deputies. The sheriff is liable for all the acts of his deputies in their official capacity. In the view of the law, all the deputies are but the servants of the sheriff. ^ § 296. Disputes between deputies of the same sheriff set- tled by the sheriff. Disputes between deputies of the same sheriff as to the possession of property which both have levied on, should be settled by the sheriff; neither deputy has any technical property in the thing. The sheriff has to answer one or both the attaching creditors, and must settle the dispute.' 1 Shorey v. Hussey, 33 Me. 580. * Stillman ■». Squires, 1 Denio, 328. ' Ralston v. Black, 15 Iowa, 48. 4 "Walker ®. Hampton, 8 Ala. 413; Cole v. ConoUy, 16 Ala. 371 ; Six Car. penter's Case, 8 Co. Rep. « Grinaell v. Phillips, 1 Mass. 530; Miller v. Baker, 1 Met. 37; Tuttle u. Cook, 15 "Wend. 374; The People i). Schuyler, 4 Comst. 178; Poinsett «. Taylor, 6 Cal. 78; King «. Chase, 15 N. H. 9; King ii. Orser, 4 Duer. 431; People «. Brown, 6 Cow. 41 ; Terwillingcr v. "Wheeler, 85 Barb. 630. But not for the act of his deputy in levying a distress warrant illegally; in such case he acts as bailiii' of landlord. Moulton ». Norton, 5 Barb. 386. See Vanderbilt v. Richmond Co., 3 Comst. 479 ; Cotton v. Marsh, 3 Wis. 340. In "Vermont, the deputy seems to have an action in his own name for any interference with property seized by him. Stanton i). Hodges, 6 Vt. 64. " Perley «. Foster, 9 Mass. 113: Ackeworth v. Kemp, Douglas, 40; "Wood- gate «. Knatchbull, 3 D. & East. 150. Contra, see Gordon v. Jenney, 16 Mass. 469, where it is held that deputies act independently of each other, and that one of them can maintain replevin against another, of the same sheriff. SEKVICE OF A "VVEIT OF EEPLEVIN. 169 § 297. The officer's return. The return of the officer should be made without delay. ^ It must distinctly and clearly set out his acts, under the authority of the writ. If a part of the property only has been taken, the return must show what part, so that from the return alone, the court can see what has been done. Otherwise, upon an order for a return of the property replevied, or on a question arising as to what was actually delivered, a dispute might arise and the court have no certain means of determining. ^ As to matters material to be returned, it is so far conclusive that it cannot be contradicted or avoided in the suit, for the purpose of defeat- ing any rights which have been acquired by the parties under it;* but the return of collateral facts may be traversed.'* § 298. As to the service of a writ of replevin. "Where, as is the case in replevin, the writ points out the precise thing to be done or the specific property to be siezed, the officer has no discretion. He must take the goods if found in the defend- ant's possession, and where he does so, the court will protect him in obeying its mandate. ^ This rule is illustrated in Wisconsin, in a case where an attachment for a laborer's lien was sued out. The writ commanded the officer to attach the identical property and replevin was not permitted, the lien being against that particular property, ^ and the writ was regarded as a protection to the officer in retaining possession of the property.' When an action of trespass was brought against an officer for taking away a horse, under a writ of replevin which commanded him to cause the beast of the ' Hutchinson t. McClellan, 2 "Wis. 17. = Mattingly ti. Crowley, 43 111. 300 ; Pool t. Loomis, 5 Ark. 110 ; Miller v. Moses, 56 Me. 134 ; Nashville Ins. Co. ». Alexander, 10 Humph. (Tenn.) 378 ; ' Knowles v. Lord, 4 Whart. (Pa.) 500 ; Cornell «, Cook, 7 Cow. (N. Y.) 310 ; Messer ®. Baily, 11 Post. (N. H.) 9 ; Pardee «. Robertson, 6 Hill, (N. Y.) 550. ^ Brown t. Davis, 9 N. H. 76 ; Messer «. Baily, 11 Post. (N. H.) 9 ; Atigier c. Ash, 6 Post. (N. H.) 99 ; Lewis «. Blair, 1 N. H. 69 : Evans ». Parker, 20 "Wend. 622; Browning m. Hanford, 5 Denio, 586. In a suit against an offi- cer for taking property by replevin, the return of the officer cannot be read against him without reading the writ. "Weinberg ■». Conover, 4 Wis. 803. ' Buck t. Colbath, 3 "Wall. (Sup. Ct.) 334. ' Union Lumber Co. n. Trouson, 36 "Wis. 129. ' Griffith s. Smith, 32 "Wis. 647 ; Battis v. Hamlin, 33 "Wis. 669. 170 GOODS IN THE CUSTODY OF THE LAW. plaintiff, "impounded or destrained," to be replevied, etc. The horse replevied was not distrained or impounded and the officer knew it, and it was contended that the officer ought not to have served the writ, and that in so doing he became a trespasser; the court, however, held that the defendant was a legal officer and that it was his duty, regardless of any sup- posed knowledge of his own that there existed no cause of action, to serve the writ committed to him; that the writ, valid on its face, was a protection, and it was no part of his duty to determine that the replevin was improperly issued; his duty was to obey the writ.^ As has been shown, the statute in many of the States gives the defendant the right to interpose a claim of property, to give bond and retain the property in his possession until the rights of the contestants are determined. When the defendant claims the property, the sheriff ought, in the absence of any statute fixing time, to allow him a reasonable time within which to give bond to retain the possession, and in an action of trespass against the sheriff, the writ will be no protection unless such time is allowed. 2 § 299. Effect of the replevin of property seized on execu- tion. The levy of an execution will operate as a satisfaction of it, sub modo. Even though the property should be replevied the bond is regarded as an indemnity, and the sheriff cannot make any other or further levy upon that execution. If the result of the suit, however, is against the officer, the levy is not payment of the debt.^ § 300. Special property created by a levy on goods. An officer who has seized property on a writ of execution or attach- ment has such a special property therein as will sustain re- plevin or trover.* This is founded on the officer's responsi- bility for the safe keeping of the goods in his custody as well as his duty and responsibility under his process.^ And a sale ' Watson V. Watson, 9 Conn. 140. s Hocker v. Strieker, 1 Ball, 225, 245. 1 Hunn v. Hough, 5 Heisk, 713. * Lockwood -0. Bull, 1 Cow. 332 ; Polite «. Jefferson, 5 Har. (Del.) 388 ; Nor- ton «. People, 8 Cow. 137; Dezell «. OJell, 3 Hill, 315. » Lathrop o. Blake, 3 Foster, (N. H.) 56. JUSniTOATION BY OFFIOEE. 171 on such process conveys all the title which the defendant in the process had.i When the officer has delivered the goods to a receiptor for safe keeping the officer is regarded as still in possession, and he may maintain trover for them.^ When a marshal of an incorporated town seized goods by virtue of a legal process, and they were unlawfully taken from him, he was allowed to sustain replevin against the wrong-doer. ^ § 301. Justification by an oflBlcer. When an officer justifies his taking under a writ of attachment or an execution, the plea should state the nature of the writ, and the court or authority under which the same was issued. It should also state what the commands of the writ were, so that the court may see what he has done, and whether he has obeyed the writ or not. The plea should also show, if such be the fact, that the plaintiff in replevin was the defendant in the process, and in all cases that the goods belonged to the defendant in the process and were taken from him, or on the process against him, and are in the custody of the law.* But in some States the plea, or answer of general denial, is held broad enough to permit an officer who is defendant to show that he has taken the property upon process, and that the goods belong to the plaintiff, or to the plaintiff and another jointly, and were seized upon process against him."" § 302. The defense by sheriff when goods seized are re- plevied from him. The sheriff, in levying an execution or ' O'Connor v. TTnion Line, 31 111. 230 ; Hazzard b. Benton, 4 Har. (Del.) 63. s Korton «. The People, 8 Cow. 137; Dezell v. Odell, 8 Hill, 215. ' Fitch e. Dunn, 8 Blackf. 143. * Whittington v. Dearing, 8 J. J. Marsh, (Ky.) 684; McCarty v. Gage, 3 Wis. 404; Richardson «. Smith, 39 Cal. 5 39; Parsley®. Huston, 3 Blackf. 348; Dillon v. Wright, 4 J. J. Marsh, (Ky.) 354. See, also, Stephens v. Fra* zier, 3 B. Men. (Ky.) 350 ; Gentry b. Bargis, 6 Blackf. 363 ; Dillon v. Wright, 4 J. J. Marsh, (Ky.) 354; Bridges ». Layman, 31 Ind. 384; Truitt v. Revill, 4 Har. (Del.) 71. The process need not be copied, but must be set up. Parsley v. Huston, 3 Blackf. 348 ; Wheeler v. McCorristen, 34 111. 43 ; Van Namee «. Bradley, 69 111. 301 ; Mt. Carbon Coal Co., etc., ». Andrews, 53 111. 185. For a form of plea in such case, see Lammers v. Meyer, 59 111. 316. ' Branch v. Wiseman, 51 Ind. 1. When the sheriff pleaded that the prop- erty belonged to A. and B. and that he had seized it under an attachment as sheriff; ?ield, that it might be regarded as a plea of property in a third person. Levi v. Darling, 28 Ind. 498 ; Martin v. Watson, 8 Wis. 315. 172 iaOODS IN THE CUSTODT OF THE LAW. attachment, assumes the responsibility that the goods levied on belong to the defendant named in the process, and if the goods are replevied from him his plea must aver that the goods were the property of the defendant in the process under which they were seized.^ When the officer wishes to contest the title of the plaintiff as fraudulent as to creditors' whose pro- cess he holds, the fraud should be specially pleaded; otherwise he may not be permitted to show it.^ So when the claim of the plaintiff is wholly, or in part, void for usury — when the statutes allow the defense to be made by parties or privies — the usury may be pleaded. ^ Where property seized on execu- tion is replevied from the officer, and he wishes an order for return, he must not only plead the execution and a judgment but a valid execution and judgment must also be given in evi- dence to support the plea.* And the plea and the evidence should show that the writ was in full force and not satisfied, and that the property was taken in obedience to the writ.' § 303. The same. When the vendee of goods replevied them from a sheriff who seized them on mesne process against the vendor before the sheriff could contest the sale on the ground that it was fraudulent, he was compelled to make out a prima facie case, at least, of indebtedness. His right depended on the existence of a debt due to the plaintiff in the process.^ The officer, in such case, is representing the cred- itors, and they have no right to contest the sale unless they show a debt, or some obligation which the vendee is under to them. A sale by a sheriff can transfer no better title than the defendant had in the process upon which the sale was made.' ' Smith «. Winston, 10 Mo. 301 ; Gentry «. Bargis, 6 Blaokf. 263; Adams ». Hubbard, 30 Mich. 104; Buck «. Colbath, 3 Wall. 343, 334. ' Frisbee v. Langworthy, 11 Wis. 375. 3 Dix V. Van Wyck, 3 Hill. 533. * Grlascock «. Nave, 15 Harrison, (Ind.) 458; Beach v. Botsford, 1 Doug. (Mich.) 306; Clay v. Caperton, 1 T. B. Mon. (Ky.) 10; Sandeford t. Hess, 1 Head, (Tenn.) 679. « Dayton «. Fry, 29 111. 526. 6 Sanford Manf. Co. «. Wiggin, 14 N. H. 441 ; Damon s. Bryant, 2 Pick. 413. ' Goodrich ®. Fritz, 4 Ark. 535 ; Bheariok v. Huber, 6 Binns. (Pa.) 4; Mc- Donald v. Prescott, 3 Nev. 109; O'Conner ®. Union Line, etc., 81 111. 230; Hazzard a. Benton, 4 Har, (Del.) 63. TAKTNG BY THEFT, FOEOE OE FEAUD. ITS OHAPTEE XII. TAKING BY THEFT, FORCE OR FRAUD. Section. Taking by theft, trespass or fraud 304 Tliief acquires no title to the stolen goods .... 305 Sale in market overt passed title 806 Markets overt unknown in this country 307 Replevin of stolen goods does not depend on the conviction of the thief . . . .308 A trespasser acquires no title, and can convey none by any sale 309 Replevin lies for goods ob- tained by fraud, even from one who innocently purcha- ses 310 Innocent purchaser from a thief may elect to aflarm the con- tract as against the thief . 311 Replevin by the owner of goods sold by a bailee without au- thority 313 The same. Rights and author- ity of a bailee . . .313 The same. Illustrations of the rule 314 Replevin lies against a carrier for goods wrongfully taken and committed to his care, and such carrier has no lien on the goods for freight . 315 Replevin lies where a bailee pledges goods without au- thority 816 The rule when an agent bailee with authority sells at a less price than his instruc- tions warrant .... Fraudulent purchaser takes a title voidable at the election of the defrauded vendor Observations on the rule . The same Illustrations of the rule . Not material at what time the fraudulent representations were made . . . . Goods paid for with a worth- less note, counterfeit money, or stolen goods Replevin against attaching cred- itors in sucli cases . Or against an assignee for the benefit of creditors Does not lie for goods sold to enable the purciiaser to vio- late the law, even though there may have been fraud in the purchase . . . . For goods sold to an infant, when he avoids payment For goods obtained by duress . The general rule stated To avoid a sale, fraudulent inten- tion of purchaser must exist Diligence required of one who would rescind a sale for fraud, return or tender of the consid- eration Section, or 317 818 319 330 821 333 333 324 335 326 337 338 829 330 831 174 TAKING BT THEFT, FOEOE OE FKATJD. What amounts to a return of property 333 Does not lie against an inno- cent purchaser from a fraud- ulent purchaser . . . 833 The distinction between acquir- ing goods by theft or trespass, or by fraudulent purchase . 334 The same. Observations upon the rule 335 The same 336 The same 337 Rule where goods fraudulently purchased are taken in pay. ment of a pre-existing debt . 338 Sale of goods upon condition . 839 Non-payment for goods sold on credit does not warrant a re- scission of the contract . 340 Bule where the vendor stipu- lates to retain title or posses- sion until payment . . 341 The same. Illustrations . . 342 Waiver of conditions of sale . 343 § 304. Taking by theft, trespass or fraud. With the growth of the common law, individual title to property became gradually strengthened, until the rule became crystal- ized in substantially the form in which it exists in the Con- stitution of these States. " No man shall be deprived of his property, unless by his own consent or due process of law." In this respect, the protection given to property was next to that extended to life and liberty. § 306. Thief acquires no title to the stolen goods. A thief acquires no title to the goods he steals and can convey none, by any sale and delivery he may make. The owner of such stolen goods may recover them from whosoever hands he finds them in.i § 306. Sale in market overt. An exception was made by the common law, in cases where goods which had been stolen, were sold in market overt. Such a sale passed absolute title to the purchaser. But the ancient law prohibited the sale of anything above the value of twenty pence, except in market overt. Sales in such markets were exceedingly formal and open, and were required to be preceded by proof of ownership on the part of the vendor, so that there was little danger of ' 3 Bla. Com. 449; Beazley v. Mitchell, 9 Ala. 780; Saltus v. Everett, 20 Wend. 275; Sharp «. Parks, 48 111. 513; Parham v. Riley, 4 Cold. (Tenn.) 9; Hoffman v. Carow, 30 Wend. 20; S. C, 23 Wend. 385; Courtis v. Cane, 33 Vt. 333; Lance v. Cowan, 1 Dana, (Ky.) 195; Arendale u. Morgan, 5 Sneed, (Tenn.) 703; Johnson b. Peck, 1 Wood & M. 0. C. 334; Whiten. Spettigue, 1 Carr. & Ker. 673 ; Florence Sew. Maoh. «. Warford, 1 Sweeny, ,(N. T.) 433. EEPI.EVIN OF STOLEN GOODS. 175 etolen goods being offered without immediate detection of tlie thief. 1 § 307. Markets overt unknown in this country. But mar- kets overt are unknown to the law of this country. ^ Sales of chattels are made on all occasions without question, the purchaser and seller relying on the confidence each has in the other. This confidence, usually well placed, is sometimes betrayed by persons who obtain goods regardless of the own- er's rights, for the sole purpose of mali:ing way with them. This is sometimes done by theft, sometimes by trespass, but oftener by means of a fraudulent purchase, followed by sale to some innocent third party. "Where the goods have been so purchased, the question is, who shall bear the loss, the inno- nocent and defrauded owner, or the equally innocent purchaser. Where the goods are overtaken in the hands of the wrongdoer, his fraud, as we shall see, is no protection, but where they are found in the hands of a iona fide purchaser, for value, the question presents more difficulty. § 308. Replevin of stolen goods does not depend on the eonvietion of the thief. As before stated, goods acquired by theft or robbery do not vest in the taker. The owner may retake them in this action, whether he finds them in the hands of the taker, or of an innocent purchaser for value; and the conviction of the thief, which was under the ancient law a prerequisite, is not now a necessary condition to a successful prosecution of the suit.^ ■ 2 Bla. Com. 449; Hoffman v. Carow, 33 Wend. 285. 2 Griffith V. Fowler, 18 Vt. 390; Dame v. Baldwin, 8 Mass. 518; Parham «. Riley, 4 Cold. (Tenn.) 9 ; Ventress v. Smith, 10 Peters, 161 ; Newkirk ■». Dalton, 17 111. 415; Lowry t. Hall, 3 W. & S. (Pa.) 134. ' With reference to the necessity of a conviction of the thief before the owner can reclaim his stolen property, see Foster v. Tucker, 3 Gr. (Me.) 458; Newkirk ». Dalton, 17 111. 415; Boston & W. R. B. v. Dana, 1 Gray, 83; Pettingill b. Rideout, 6 N. H. 454; Short v. Barker, 23 Ind. 148; Gor- don «. Hostetter, 87 N. Y. 99 ; Boody «. Keating, 4 Gr. (Me.) 164; Wells ». Abraham, L. R. 7 Q. B. 554; Hoffman v. Carow, 23 Wend. 385. The law which prohibited a private action against the thief was for the purpose of compelling the owner to prosecute him to conviction ; the right to recover was suspended. Crosby v. Leng, 13 East. 409. But the prohibition only extended to suit against the thief, therefore, if he had pawned it or sold it, 176 TAKING BY THEFT, FOECE OE FEAUD. § 309. A trespasser acquires no title, and can convey none, by any sale. One who wrongfully takes goods without the owner's consent, acquires no title thereby, and can convey none, by any sale or transfer he may make. So when such a taker sells the goods, even to an innocent purchaser for value, the owner may pursue his property and retake it wherever found. Where a willful trespasser cut logs on another's land, and sold them to one who sold them to an innocent purchaser for value, the owner 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.i Where the defendant, by his encouragement, procured a messenger to leave a machine with him, knowing that it was intended for another, and afterward made some repairs on it, the taking was regarded as wrongful, and the owner might sustain re- plevin without demand.^ § 310. Replevin lies for goods obtained by fraud, even from one who innocently purchases. Where a party procured pos- session of leather by personating another, who was an agent of the owner, and shipped it to Chicago, and sold it in open market, the real owner was entitled to sustain trover against the purchaser for value. The possession was not delivered to the vendor, but was obtained under circumstances which might convict him of embezzlement. Under such circumstances no title passed, and the taker could confer none by sale. Posses- sion is one of the indicia of ownership; but bare possession is not title, and when that possession is obtained by force or fraud, it confers no right.* the owner might bring his action against the purchaser or the pawnbroker without waiting for conviction of the thief. White v. Spettigue, 13 M. & W. 608. Tliis cannot be reconciled with Horwood ». Smith, 3 T. R. 750; Gimson v. WoodfuU, 3 Carr. & P. 41. See Stat. 34 and 35, Victoria, Chap. 96, § 100; 7 and 8 Geo. IV., Chap. 30, § 57. ' Nesbitt 11. St. Paul Lumber Co., 31 Minn. 491. See Riley,!!. Boston Water Power Co., 11 Cush. 11; Riford v. Montgomery, 7 Vt. 418; Courtis V. Cane, 33 Vt. 333; Schulenberg v. Harriman, 21 Wall. 44; Williams v. Merle, 11 Wend. 80; Gibbs v. Jones, 46 111. 330. » Purvis V. Moltz, 5 Robt. (N. Y.) 653. ' Fawcett v. Osborn, 33 111. 411. GOODS SOLD BY BAILEE WITHOUT AUTHOEITY. 177 § 311. Innocent purchaser from a thief may elect to affirm the contract as against the thief. While the sale or exchange of stolen goods does not divest the owner of his title, yet, as between the thief and his vendee, the innocent party is the only one able to avoid the sale. Thus, if one buy or exchange for a stolen horse, the owner can recover the horse, and the purchaser may elect to rescind the contract and recover tlie consideration, or he may affirm the contract and recover the value of the horse from the tliief who sold him.i When W. traded to B. a horse which he had stolen, and then sold to 0. the horse he received from B., B. brought replevin against C, and it was held he could not recover. This was not a case where the owner of the stolen horse brought suit, but the plain- tiff was seeking to recover property which he had voluntarily sold and delivered, and something that had come into the pos- session of a lona fide purchaser for value. ^ Some of the cases assert the doctrine that one who receives and sells stolen goods, as agent, and without any knowledge pays the money to the thief, is liable to the owner for the value. ^ Eor example, a stable keeper who receives a stolen horse, without any knowl- edge of the theft, would be liable in replevin, at the suit of the owner, as long as he held possession; and if he sells the horse, he has been held liable for the proceeds, and the fact that he has paid them over to the thief has been said to be no defense.* § 312. Replevin by the owner of goods sold by a bailee without authority. If a bailee, without authority, sell goods entrusted to his care, even though the purchaser pay full value, and have no knowledge of the fraud, still the owner does not lose his title. 8 The general rule is, that an agent cannot bind ■ Titcomb v. Wood, 88 Me. 561; Lee n. Portwood, 41 Mi3S. Ill; Smith v. Graves, 25 Ark. 458. ' Brown v. Campsall, 6 Har. & J. (Md.) 491. Consult Doe «. Martyr, 4 Bos. & Pull. 833. ' Hoffman v. Caxow, 20 Wend. 20; Same v. Same, 23 Wend. 285. *Spraights b. Hawley, 39 N. T. 441; Stanley «. Gaylord, 1 Cush. 586; Dudley a. Hawley, 40 Barb. 397. Compare Rogers v. Huie, 3 Cal. 571 ; where the contrary is held. ' 2 Kent, 824; Hilliard on Sales, 33; 1 Parsons on Contracts, 44; Dyer «. Pearson, (3 B. & C.) 10 E. C. L, 88; Williams s. Merle, 11 Wend. 80; Inger- 12 178 TAKING BY THEFT, FOEOE OE FEAUD. his principal, where he transcends his authority, and persons who deal with an agent in the concerns of his principal ought to know the extent of his authority.^ It is also a rule, that mere possession of chattels will not authorize a transfer of a better title than the possessor has.^ So, where a mortgageor of chattels in Illinois took them to Indiana and sold them, the court said, that upon a proper showing, the mortgagee could recover them.^ A servant who sells his master's goods with- out authority can convey no title.* So, when a servant quits the employ of his master, and takes away his master's goods, it is a conversion, and replevin, without demand, will lie.^ Where one hires a horse, for the purpose of making a particu- lar 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 under those circumstances, it is a waiver of the conversion.' §313. The same. Eights and authority of a bailee. The law simply requires a party, in dealing with an agent or bailee, to look at the acts of the principal. Private communications to the agent would not generally aifect the rights of ionafde third parties dealing with him about the business of the prin- cipal within the scope of his agency. If one send his horse to a place where horses are shod, it confers no authority on the smith to sell; but if he send his horse to an auction stable, soil '0. Eramerson, 1 Carter, (Ind.) 78; Stanley v. Gaylord, 1 Gush. 536; mtGhell «. Vanadar, 1 Blackf. (Ind.) 356; Pribble v. Kent, 10 Ind. 325; Johnson e. Willey, 46 N. H. 76; Sanborn v. Colman, 6 N. H. 14; Pooler Adkisson, 1 Dana, 110; Roland v. Gundy, 5 Ohio, 202; Lovejoy d. Jones, 30 N. H. 169; Sargent «. Gile, 8 N. H. 325; Galvin v. Bacon, 2 Fairfield, (Me.) 38; Nash v. Mosher, 19 Wend. 431; Howland v. Woodruff, 60 N. Y. 74; Neff v. Thompson, 8 Barb. 313; Sarjeant v. Blunt, 16 Johns. 74; Wil- son V. Nason, 4 Bosw. 155 ; Lecky v. M'Dermott, 8 S. & R. (Pa.) 500. Com- pare Drummond v. Hopper, 4 Har. (Del.) 327. ' Cases last cited. Schemmelpennich «. Bayard, 1 Pet. 264. » Hotchkiss v. Hunt, 49 Me. 313 ; Covill v. Hill, 4 Denio, 337. 1 Blystone «. Burgett, 10 Ind. 38; Martin d. Hill, 13 Barb. 631. See Bar- ker v. Stacy, 25 Miss. 477; Oflfutt v. Flagg, 10 N. H. 46; Jones v. Taylor, SO Vt. 43. * Trudo V. Anderson, 10 Mich. 357. ' Pillsbury v. Webb, 83 Barb. 314. « Rotch «. Hawes, 13 Pick. 136. GOODS SOLD BY BAILEE WITHOUT AUTHOEITY. 179 it will not be presumed that he was sent there for safe keep- ing, but for the purpose of sale generally carried on there. ^ If, therefore, in the latter case, the agent sell the horse, even on different terms than his private instructions warrant, the sale would be good -,2 but if the ordinary business of the agent was for purposes other than sale of horses, the sale would confer no title except such as the agent was specially entrusted with. Purchasers must ascertain his authority at their peril. A purchase 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.* § 314. The same. Illustrations of the rule. If a man send his goods to an agent to be sold on his account, and the latter sell them to his creditor for the payment of his own debt, the title of the owner is not thereby divested, and replevin will lie even against a subsequent purchaser, without notice.* But where one obtain goods fraudulently, and bail them to another, the bailee may surrender to the true owner, and may show such facts as a bar to any suit against himself by the bailor. ^ When A. contracted for a boiler and engine of certain power, and paid seven hundred dollars on it, the maker to take it back and refund the money if it did not prove sufficient; it proved insuiEcient, and the maker refused to receive it; but some months afterwards asked A. to let him take it, prom- ising to pay for the use of it. Soon after obtaining it, he mortgaged it to one who had no notice. A. brought replevin, and recovered. Even if the bailee had a right, as he claimed, ' Pickering v. Buslc, 15 East, 39 ; Hicks v. Hankin, 4 Esp. 114 ; Stanley V. Gaylord, 1 Cush. 544. «.Siirjeant «. Blunt, 16 Johns. 74; Moore «. McKibbin, 83 Barb. 246; McMorris v. Simpson, 21 Wend. 610. ' East India Co. v. Hensley, 1 Esp. 112 ; Johnson «. Willey, 46 N. H. 75 ; Penn v. Harrison, 8 D. & E. 754; Sanborn v. Colman, 6 N. H. 14; Lovejoy B. Jones. 10 Poster, 165 ; Sargent v. Gill, 8 N. H. 325 ; Jeflerson v. Chase, 1 Houst. (Del.) 219. Compare Stanley v. Gaylord, 1 Cush. 544. * Galvin v. Bacon, 11 Me. 28 ; Parsons v. Webb, 8 Gr. (Me.) 38 ; Herron V. Hughes, 25 Cal. 556 ; Loeschman v. Machin, 2 Stark. 311 ; Hyde«. Noble, 18 K. H. 494. ' Bates V. Stanton, 1 Duer. (N. Y.) 79. 180 TAKING BY THEFT, FOECE OE FEATTD. to sell it, he had no right to mortgage. ^ This rule is based 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, cannot convey any by sale or trans- fer, and that a purchaser from such bailee takes no title, but simply a possession, without other right.^ § 315. Replevin lies against a carrier for goods wrongfully- taken and committed to his care. Such carrier has no lien on the goods for freight. A common carrier, who receives goods from a wrongful tater, without knowledge of the wrong, can- not resist the action by the true owner. ^ Neither can he as- sert a lien for his services as such carrier.'* Where an inn- keeper was sued in replevin for a horse, and the defendant claimed a lien for his keeping, and plaintiff contended that the horse had been stolen. Lord Holt said the innkeeper is not bound to consider who is the owner of the horse, but whether he who brings him is his guest. ^ This latter ruling, however, was disregarded in the cases before cited. There may be a distinction between an innkeeper who feeds a horse, whicli is necessary to save the animal, and is for the owner's benefit, and a carrier who transports goods, which may be to the injury of the owner. But the cases are tolerably clear that a carrier cannot set up a lien against the true owner for his carriage of such goods, since he may demand his charges in advance, if he be so minded. The action, however, would not lie without demand.* § 316. Replevin lies where a bailee pledges goods with- out authority. When the owner of pork in a warehouse entrusted the warehouse receipts to a party to repack it, and ■ Stevens v. Cunningham, 3 Allen, (Mass.) 492. See, also, Nash s. Moshev, 19 Wend. 431 ; Trudo o. Anderson, 10 Mich. 357; Ballon o. O'Brien, 20 Mich. 304; Legal News, April 7, 1877, 337. ^ Ingersoll v. Emmerson, 1 Carter, (Ind.) 79. « Fitoh v. Newberry, 1 Doug. (Mich.) 1 ; Robinson v. Baker, 5 Cush. 137; Van Buskirk «. Purinton, 3 Hall, (N. T.) 561 ; Collman «. Collins, 2 Hall, (N. T.) 569. * Kinsey t. Leggett, 71 N. T. 387. » Yorke ». Grenaugh, 3 Ld. Raym. 866. " Fitch V. Newberry, 1 Doug. (Mich.) 1. FEATJDULENT PUEOHASEE. 181 the latter pledged the receipts as collateral for a loan of money, and in default of payment the lender sold the pork, the real owner was permitted to sustain replevin, although an innocent party purchased for value.' § 317. The rule when an agent or bailee with authority sells at a less price than his instructions warrant. When an agent or bailee, with authority to sell, does sell at a less price than his instructions warrant, he is not guilty of conversion; nor would a purchase from him, unless fraudulent, render the purchaser liable to the owner either for the value or for the goods.3 In such case the sale is in pursuance of the authority delegated, and the law does not hold a purchaser responsible that the agent observes the details of his instructions. It is enough that the purchaser assure himself that the agent has authority to sell and receive payment, and in such case, if the agent abscond with the proceeds, the pi'incipal by whose authority he acted must assume the loss. § 318. Fraudulent purchaser takes a title voidable at the election of the defrauded vendor. A sale and delivery of goods, procured through the fraudulent representations of the buyer, with intent to cheat the seller, may be avoided by the latter. In such case, as between the vendor and purchaser, a voidable title to the property passes.* The fraud practiced is regarded as sufficient to avoid the contract, if the innocent party so elect. The fraudulent purchaser, however, cannot avoid it on the ground of his own fraud. The real owner may prefer to treat him as a purchaser and recover value, or he may elect to rescind the sale and recover his goods in ' Burton v. Curyea, 40 111. 324. As before stated replevin lies for per- sonal chattels only. Where one hires chattel property and fixes it to real estate, and sells it so fixed to one who has no notice, the owner cannot re- cover from the innocent purchaser, because it has become part of the realty. Fryatt v. The Sullivan Co., 5 Hill, (N. Y.) 117. i^Dufresne v. Hutchinson, S Taunt. 117; Sarjeant v. Blunt, 16 John. 74; Laverty «. Snethan, Cent. Law J. April, 1877, 330 ; Scott v. Rogers, 31 N. T. €76. ' Ayres o. Hewitt, 19 Mo. 331 ; Hunter «. Hudson River Iron Co., 20 Barb. 494; Nichols B.Michael, 23 N.Y. 266; Nichols «. Pinner, 18 N. Y. 295; Sar- gent V. Sturm, 23 Cal. 359. 182 TAKING BY THEFT FOEOE OE FEAUD. replevin. 1 The rule may be regarded as settled that where goods are obtained from the owner by fraudulent purchase, he can sustain replevin against the fraudulent purchaser so long as the goods are in his possession. * § 319. Observations on the rule. An exceedingly plausi- ble distinction was taken in a New York case, where it was said that the goods having been sold and delivered to the de- fendant, the plaintiff had voluntarily parted with his actual as well as his constructive possession, that as the taker had aapired possession by delivery from the owner, trespass would not lie, and that as replevin was strictly concurrent with trespass, replevin would not lie;* but the correctness of this ruling has been doubted,* the error lying in the assumption that trespass and replevin are strictly concurrent. And upon the same point being presented again, the court held squarely that trespass, trover, or replevin in the cepit or detinet would be proper in such case.^ In this case the court says that ' Rowley v. Bigelow, 12 Pick 307 ; Lloyd v. Brewster, 4 Paige, 541 ; Gray ■u. St. Johns, 35 111. 339; Titcomb v. Wood, 88 Me. 563; Halls. Naylor, 1& N. Y. 588; Caiy o. Hotailing, 1 Hill, 311; Ash «. Putnam, 1 Hill, 302; Olmstead v. Hotailing, 1 Hill, 317 ; Matteawan Co. ». Bentley, 13 Barb. 641; Hall v. Gilmore, 40 Me. 581 ; Seaver v. Dingley, 4 Gr. (Me.) 307 ; Gray v. St John, 35 111. 239. Consult Bristol «. Wilsmore, 1 B. & C. 514; Kilby «. Wilson, 1 E. & Moody, 178; Van Cleef «. Fleet, 15 Johns. 149; Hill •<,. Freeman, 3 Cush. 259 ; Hussey v. Thornton, 4 Mass. 405 ; Marston t. Bald- win, 17 Mass. 606; Smith ». Dennis, 6 Pick. 262; Bowen «. Schuler, 41 111. 193 ; Mackinley s. M'Gregor, 3 Whart. (Pa.) 368. » Acker b. Campbell, 23 Wend. 372; Ahbotts v. Barry, (2 Brod. & Bing.)6. E. C. L. 370; Browning ®. Bancroft, 8 Met. 278; Coghill «. Boring, 15 Cal. 2V1; Weed «. Page, 7 Wis. 503; Welker v. Wolveikuehler, 49 Mo. 36; An- drew V. Dieterich, 14 Wend. 32; Mai com ». Loveridge, 13 Barb. 372; Allison V. Matthieu, 3 Johns. 235 ; Keyser v. Harbeck, 8 Duer. 373 ; Williams s. Given, 6 Gratt. 268 ; Jennings ■c. Gage, 13 111. 610 ; Titcomb «. Wood, 38 Me. 561; Caldwell ®. Bartlett, 3 Duer. 841; Stephenson ®. Hart, 4 Bing.476; Bristol ■». Wilsmore, 1 B. & Cress. 514; Manning ». Albee, 14 Allen, 8; Noble s. Adams, 7 Taunt. 59. ' M'Carty d. Vickery, 12 John. 348. Compare Nash s. Mosher, 19 Wend. 431 ; Marshall v. Davis, 1 Wend. 109. These cases only hold that trespass does not lie against one who lawfully acquires possession, even though the original taker was a wrong-doer. * Butler B. Collins, 12 Cal. 457; Ash v. Putnam, 1 Hill, 307; Barrett t. Warren, 3 Hill, 348. ' Cary v. Hotailing, 1 Hill, 812. FEA.TJDTJLENT FUECHASEB. 183 M^Carty v. Vicksry stands alone, all the other cases on this subject being the other way.i § 320. The same. "When consent of the vendor is urged as an element to be weighed, it must be remembered that consent of a person to the sale of his goods means something more than the simple utterance of the words of assent, and something more than a manual relinquishment of them. It must be an act of the mind, unclouded by fraud, falseliood or duress at the hands of the purchaser. Whetlier the degree of fraud is sufficient to warrant the finding of an indictment or not, is of no consequence in a civil action. ^ In such case the law holds that the goods did not lawfully come into the pos- session of the defendant.* § 321. Illustrations of the rule. 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 otliers, and that the goods so obtained were transferred to the defendant, as a circum- stance to show knowledge on his part.* Defendant by forged letters of recommendation, and other false representations, bought goods, and paid in bills which he represented to be accepted by a wealthy business man, but which were in fact accepted by an accomplice for fraudulent purposes. The goods were delivered, 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. ^ "Where one represents himself or his firm to be solvent, when he ' See Olmsted v. Hotailing, 1 Hill, 317. In Trapnall v. Hattier, 1 Eng. {Ark.) 23, where a very similar course of argument with M'Carty v. Vick- ery was pursued, but the question presented in Arkansas involved an Innocent purchaser. ' Irving V. Motly, 7 Bing. 543; Poor v. Woodburn, 35 Vt. 234; Acker v. Campbell, 23 Wend. 373. 8 Seaver «. Dingley, 4 Gr. (Me.) 307; Thurston «. Blanchard, 32 Pick. 20; Hall v. Gilmore, 40 Me. 581 ; Gray ». St. John, 35 111. 239. * Allison V. Matthieu, 3 Johns. 235. ' Tamplin «. Addy, in note to Mowry «. Welsh, 8 Cow. 238. 184 TAKING BY THEFT, FOECE OE FEAUD. knows it to be insolvent, and purchases with intent not to pay, such fraud will avoid the sale, and the owner may sustain replevin ;i and the administrator of the defrauded vendor may sustain the action, as well as the deceased seller. ^ § 322. Not material at what time the fraudulent repre- sentations were made. It is not material whether the fraudulent representations were made at the exact time of the purchase or some time previous. It is sufficient if the goods were obtained through their influence;* or the fraudulent intent may be gathered from the acts of the purchaser after the sale.* § 323. Goods paid for with worthless note, counterfeit money, or stolen goods. When the vendor was induced by the fraudulent representations of the buyer, to sell goods and take the notes of a worthless third party in payment, it would not deprive the defrauded vendor of his right to his goods, even when he had negotiated the note for value, and not reclaimed it, unless he had knowledge of the fraud at the time he parted with it.^ So where one purchase goods and pays for them with counterfeit money, ^ or with other goods which he has stolen.' In these and similar cases the defrauded vendor may recover his goods from the fraudulent purchaser, though not from a hona fide purchaser from such party for value. § 324. Replevin against attaching creditors in such oases. It seems to be the law that when one, through fraudulent rep- resentations as to his solvency, purchases and obtains goods on credit, and they are subsequently attached by his creditors, that the defrauded vendor can sustain replevin as against the 1 Ash s. Putnam, 1 Hill,(]Sr.T.) 308; Bristol ®. "Wilsmore, 1 Barn. & Cress. 515; Kilbyi). Wilson, Ey. & Moody, (N. P.) 178; Atkin b. Barwick, 1 Stra. 165; Johnson «. Peck, 1 "Wood & Minot. C. C.334; Powell ». Bardlee, 9 Gill. & J. (Md.) 230. 2 McKnight ». Morgan, 3 Barb. 171. 5 Seaver ». Dingley, 4 Greenleaf, (Me.) 307. " Bowen v. Schuler, 41 111. 194; Allison ii. Matthieu, 3 Johns. 285. ' Manning B.Albee, 11 Allen, 520; S. C, 14 Allen, 8. » Green «. Humphrey, 50 Pa. St. 213. ' Titcomb b. Wood, 38 Me. 563 ; Lee ®. Portwood, 41 Miss. 111. FKAT3D IN THE PUECHASB. 185 creditors. Of course, as against the debtor the right of the attaching creditors is paramount, but they can only sustain their claim on the ground that the goods belong to the fraud- ulent-purchaser. The purchaser's only title to them, however, being fraudulent, and having been rescinded by the original and prior owner, the attaching creditors cannot resist the suit of the defrauded vendor, i § 325. Or against an assignee for the benefit of creditors. So in case of a voluntary assignment for the benefit of cred- itors of goods fraudulently purchased, the assignment passed no title and conferred no rights, for the obvious reason that the party making it had no right or title (as against the plain- tiff's,) which he could confer on anybody. Therefore, the de- fendant's act in taking possession was an interference with the plaintiff's constructive possession. The defendant's act in assuming dominion over the property was none the less an invasion of the plaintiff's rights because he did not intend a wrong, or know that he was committing one. The law gives the.plaintiff compensation for the injury he sustains, whether the defendant intended it or not.^ § 326. Does not lie for goods sold to enable tlie purchaser to violate the law, even though there may have been fraud in the purchase. Where a party sought to recover intoxica- ting liquors from the possession of the sheriff, who had seized them on process of attachment against the goods of the pur- chaser, on the ground that he purchased them from the plain- tiff by fraudulent representations, the court refused to sustain the action, saying that the liquors were sold to enable the pur- chaser to evade the law, and the court would not give him its aid.s § 327. For goods sold to an Infant, when he avoids pay- ment. When goods are sold to an infant and he avoids pay- ' Bufflngton ©. Gerrish, 15 Mass. 158. » Farley v. Lincoln, 51 N. H. 579 ; Barrett v. Warren, 3 Hill, 350 ; Poor V. Woodburn, 25 Vt. 340. "Where tlie sale is procured through fraudulent representations, if the vendee holds nothing of any value he may sustain replevin or trover without demand, because the taking was tortious. Thayer O.Turner, 8 Met. 550. » Marienthal o. Shafer, 6 Iowa, 336. 186 TAKING BY THEFf, FOEOE OE FEATJD. ment on the ground of infancy, tlie seller may rescind the sale and replevy the goods. ^ § f328. For goods obtained by duress. When a party falsely and maliciously, without probable cause, sue out a war- rant regular in form and cause the arrest of another, and thereby induce him to deliver goods to obtain his release, the party so defauded may sustain replevin for his goods,^ as the law will not permit the use of its process to aid in the perpe- tration of a fraud.* The law, however, will not aid a party to enforce a contract made to defraud others. "When the prop- erty is sold without consideration for the purpose to defraud creditors, the purchaser cannot sustain replevin.* § 329. The general rule stated. The rule is concisely stated in a Pennsylvania case. " When an apparent state of owDer- ship of property produced by the consent or collusion is the means of deceiving third persons^ the owner cannot enforce his rights against such persons in replevin. "^ § 330. Fraudulent intention of purchaser must exist to avoid a sale. Where a party, believing himself to be solvent, orders goods on credit which are shipped and delivered to him, his subsequent insolvency or inability to pay will not be ground for rescinding the contract of sale. In such case, if the purchaser receives the goods and executes a note, or accepts draft in compliance with the terms of the contract, the ven- dors cannot in the absence of fraud at the time of the purchase, annul the contract and sustain replevin, even though the pur- chaser knew himself to be insolvent at the time of receiving the goods and accepting the draft. ^ If the purchaser, At the time of the arrival of the goods, knowing himself to be insol- vent, should refuse to accept them, and direct their return to the vendor, the sale would be incomplete, and the vendor might maintain replevin as against any creditor who should ' Badger v. Phinney, 15 Mass. 359. = Poshay «. Ferguson, 5 Hill, 156. » Watkins v. Baird, 6 Mass. 506. « Payne v. Bruton, 5 Eng. (10 Ai-k.) 53. ■^ Dannels v. Fitch, 8 Pa. St. 497. • Greaner ». Mullen, 15 Pa. St. 206. TENDER OB" THE CONSIDEEATION. 187 attempt to seize upon them. Such a course met the approval of Lord Mansfield.! Or perhaps the receiving of the goods by the vendee and placing them in his warehouse, separate and apart from his goods, with a view to their return intact, with the intent only to protect them from loss or injury until they could be returned, would be sufficient to entitle the ven- dors to reclaim them against creditors who might seize them.* Mere omission to disclose insolvency will not avoid a sale, a purchase made during an honest though hopeless attempt to continue business, where no questions are asked of the purchaser, is not fraudulent. There must be some positive fraudulent representation.* § 331. Diligence required of one who would rescind a sale for &aud, return or tender of the consideration. The party who would assert liis title to property which has been obtained from him by fraud must exercise a certain degree of diligence to ascertain and protect his rights or he will be held to have waived or lost them. When the plaintiff claimed that a horse was stolen from him by E. in a suit against one who claimed to be a hona fide purchaser from K., the fact that the plain- tiff had neglected for several years to proceed against E. who was responsible, and who lived in the same county, was held proper defense.* Where a party seeking to rescind a sale on the ground of fraud has received any valuable consideration for the property, he must put the other party in as good con- dition as he was before by restoring to him whatever he has paid on the contract. Thus, where the vendor charges fraud, and seeks to set aside a sale for which the purchaser has given his note, he must return the note.^ The party seeking to rescind is not required, however, to deliver the note or other ' Harman v. Fishar, 1 Cowper, 117. » James v. Griffin, 3 Mees & W. 633. 8 Nichols «. Pinncn, 18 N. T. 395 ; Conyers b. Ennis, 3 Mason,, 337 ; Pow- ell v. Bradlee, 9 Gill & J. (Md.; 330. ^ Welker ». Wolverlcuehler, 49 Mo. 35 ; Smith «. Field, 5 Term B. 403, (311) ; Furniss «. Hone, 8 Wend. 348 ; Mackinley «. M'Gregor, 3 Whart. (Pa.) 368; Coghill ». Boring, 15 Cal. 213. Compare Marston ■». Baldwin, 17 Mass. 611. ' Nichols V. Michael, 33 N. T. 364 ; Wilbur «. Flood, 16 Mich. 40. 188 TAKING BT THEFT, FOEOE OE FEATJD. consideration in advance of obtaining the goods sold.i And the current of authorities hold it is sufficient if the offer to surrender be made on the trial. ^ Where the fraudulent party has so complicated the transaction that the others cannot restore, the law will only require him to restore as far as he can;8 but unless the tender be made before verdict it will be too late, and the defendant may have a new trial.* § 332. Wliat amounts to a return of property. A party claiming to be damaged by false representations in a horse trade, must return the horse he received. Merely leaving it in the defendant's yard without any notice of his purpose to rescind the contract, although he sued the defendant at the time, is not a rescission within the meaning of the rule. Had he tendered the horse to defendant, or taken reasonable means to do so, and the defendant had avoided him, it might have been sufficient.' He must put the other party in the same condition he was before, i. e., he must restore what he received before he can sustain replevin.^ § 333. Does not lie against an innocent pureliaser from a fraudulent purchaser. The right of a vendor to recover from one who fraudulently purchases his goods with the intent not to pay for them, is clear and well settled, but when the fraud- ulent purchaser has sold and transferred the goods to another, who has no notice of the fraud and who has paid value for them, the question as to the respective rights of the deceived vendor and the innocent purchaser, presents more difficulty.' ' Poor V. Woodburn, 25 Vt. 239. = Weed V. Page, 7 Wis. 511 ; Nichols v. Michael, 23 N. T. 364; Jennings «. Gage, 13 111. 611; Nellis o. Bradley, 1 Sandf. (N. Y.)560; Thurston d. Blanchard, 33 Pick. 20; Coghill v. Boring, 15 Cal. 217; Kimball «. Cun- ningham, 4 Mass. 502; Poor ■o. Woodburn, 25 Vt. 235; Voorhees v. Earl, 2 Hill, 288; Buchenau v. Horney, 13 111. 337; Ryan v. Brant, 43 111. 79; Smith V. Doty, 24 111. 163 ; Matteawan Co. v. Bentley, 13 Barb. 641. " Masson v. Bovet, 1 Denio, 73. * Ayres v. Hewett, 19 Me. 286 ; Manning v. Albee, 11 Allen, 530. » Thayer v. Turner, 8 Met. 553; Perley ». Balch, 23 Pick. 283. ' Conner v. Henderson, 15 Mass. 320; Kimball v. Cunningham, 4 Mass. 603; Thayer v. Turner, 8 Met. 552; Thurston v. Blanchard, 32 Pick. 18. ' Consult Mitchell v. Worden, 20 Barb. 253 ; Nichols «. Pinner, 18 N. T. 205; Malcom d. Loverldge, 13 Barb. 373; Jennings «. Q-age, 13 111.611; DISTINCTION BETWEEN THEFT AND TRESPASS. 189 § 334. The distinction between acquiring goods by theft or trespass, or by fraudulent purchase. Where goods are acquired by theft or robbery, the takei', as we have seen, acquires no title and can convey none, but where goods are bought, and the vendor of his own act delivers them to the purchaser with bill of sale or other evidences of ownership, no matter what fraudulent practices have induced the sale and delivery, the purchaser tabes a title, voidable it is true, at the pleasure of the defrauded vendor, but until declared void by him, it is perfectly good as against all others. If, therefore, while the property is so in the hands of the purchaser, and before the original owner knows of or has time to rescind the sale, the goods are sold and delivered to an innocent third party who pays full value for them, the latter is not regarded as a wrong- ful taker or detainer, and the current of authorities is that as against him, replevin will not lie.^ § 335. The same. Observations upon this rule. There have been decisions which hold, that he who purchases from one who acquired possession of the goods by fraudulent purchase from the owner, is in all respects treated as a trespasser; that he cannot avail himself of the conveyance to justify or excuse the taking. 2 In Saltus v. Everett, 20 "Wend. 275, Senator Vbkplank said: "An honest purchaser under a defective title cannot hold against the true owner." There is no general principle of law or equity that the right of a hona Ohio & Miss. R. E. Co. v. Kerr, 49 111. 458; Powelll «. Bradlee, 9 Gill. & J. (Md.) 320; Shufeldt «. Pease, 16 Wis. 659. Bona flde purchaser holds. Butters s. Haughwout, 42 111. 18; Kranert ». Simon, 65 111. 344; Brnndage V. Camp, 21 111. 330; Burton «. Curyea, 40 111. 320; Powell «. Bradlee, 9 Gill. & J. (Md.) 220. > Saltus ■0. Everett, 20 Wend. 267, Sargent n. Sturm, 33 Cal. 363; Covill v. Hill, 4 Denio, 323; Johnson v. Peck, 1 Woodbury & M. C. C. 334, Inger- soll B.Emmerson, 1 Carter, (Ind.) 77; Nash v. Mosher, 19 Wend. 433; Hyde B. Noble, 13 N. H. 494; Hurst v. Gwennap, 2 Starkie, 306; Root i>. French, 13 Wend. 570 ; Mowrey ®. Walsh, 8 Cow. 238 ; Neal ®. Williams, 18 Me. 391 ; Parley v. Lincoln, 51 N. H. 576; Cobb v. Dows, 10 N. Y. 339; Williams v. Merle, 11 Wend. 80; Covill v. Hill, 4 Denio, 333; Deshon «. Bigelow, 8 Gray, (Mass.) 159. ' McKnight v. Morgan, 8 Barb. 171; Galvin v. Bacon, 11 Me. 28; Lee v. Portwood, 41 Miss. 109. 190 TAKING BY THEFr, FOECE OE FEAUD. fide purchaser sliall be regarded as superior to the prior right of the legal owner. To say that of two innocent men, he should suffer most who trusts most, would authorize anyone to purchase from a fraudulent bailee if this rule be taken in the generally received acceptation of the doctrine. But does he trust more who delivers possession of his goods to a bailee "when the goods themselves are easily identified, or he who parts with his money for goods upon the simple fact that the vendor has possession of them. The rule should be, that as between two equally innocent men, his right should prevail which is prior in point of time.^ He who has been led to part with his goods by fraud has not committed a fault, but •suffered a misfortune. § 336. Tlie same. The same question was presented iu Ar- kansas, where it was said : " It has been contended that the ■owner has consented to the taking; and if that were so, it would be a sufficient reply in replevin, at least for taking. Iu an action against an innocent purchaser of chattels without notice, And with no agency in the trespass, we can find no authority which would authorize a recovery in an action of trespass, and therefore conclude that replevin for an unlawful taking is not supported by such proof."* Notwithstanding the preceding cases to the contrary, the rule is supported by a large prepon- derance of the authorities that, as against an innocent pur- chaser of a chattel from a fraudulent purchaser, without notice of any adverse claim, and with no agency in the fraud by which they were obtained, there is no authority to authorize a recovery.* The loss must fall on him who was foolish enongh to part with his goods before he had security.* ' Ash «. Putnam, 1 Hill, 302. = Trapnall d. Hattier, 1 Eng. (Ark.) 23. 3 Harrison «. M'Intosh, 1 Johns. 384; Ditson ®. Randall, 33 Me. 302; Bristol «. Wilsmore, 1 Bar. & C. 515 ; Kilby «. Wilson, By. & Moody, (N. P.) 178-181. * Jennings «. Gage, 18 HI. 610 ; Harris d. Smith, 3 S. & R. (Pa.) 31 ; Brund- age V. Camp, 21 111. 831 ; Powell «. Bradlee, 9 &ill & J. (Md.) 330; Butters ■». Hough wout, 42 ni. 18; Burton ». Curyea, 40 HI. 330; Arendale «. Mor- gan, 5 Sneed, (Tenn.) 704; Malcom e. Loveridge, 13 Barb. 373; Keysers. Harbeck, 3 Duer, 373; "Williams «. Given, 6 Gratt. 268; Jennings «. Gage, PAYMENT OF FEE-EXISTING DEBT. 191 § 337. The same. A contract originating in fraud may be rescinded at the option of the injured party, and the seller may reclaim the goods, provided the rights of a third party, as a iona fide purchaser, have not intervened. But the right of the seller to rescind exists only so long as the goods are in the hands of the fraudulent purchaser. Until the seller has made use of his option to rescind the sale, the purchaser, no matter what fraud has been practiced, takes a title which may or may not be ratified by the vendor; and if, while so holding, he sells to a bona fide purchaser for value, it will pass title. ^ In Chicago Dock Co. v. Foster, 48 111. 507, the court lays down the law without qualification, that an innocent purchaser for value, from one who has fraudulently obtained the goods from the owner, will be protected in replevin by the original owner. Where certain warrants against the State of California were paid into the State treasury, and afterwards stolen, and sold by the thief to an innocent holder, who again presented them to the State officer, who, in ignorance of the fact that they had once been paid, issued other bonds for them, the State was held Kable on the bonds so issued, and in an action in the nature of detinet, by the State, recovery was denied.^ § 338. Eule, where goods fraudulently purchased are taken in payment of a pre-existing debt. But where goods obtained by fraud are used in payment of a pre-existing debt of the wrongdoer,* or where they have been mortgaged or pledged, or assigned to trustees to pay the debts of the fraudulent pur- chaser, the owner may pursue and recover, as a purchaser for a pre-existing debt, or a pledgee or mortgagee is not regarded in the same light as a purchaser for value;* and the same rule 13111.610; Caldwell v. BarOett, 3 Duer. 341; Smith ». Lynes, 1 Seld. 41 ; Kingsford «. Merry, 84 E. L. & Eq. 607. ' Meer8 v. Waples, 3 Iloust. (Del.) 581 ; Hoffman v. Noble, 6 Met. 75 ; Root 8. Frencli, 13 "Wend. 570; Smith v. Lynes, 1 Seld. (N. T.) 47. ^ State of California ». Wells, Fargo & Co., 15 Cal. 340. 3 Sargent «. Sturm, 33 Cal. 360 ; Root ». French, 13 Wend. 570 ; Codding- ton V. Bay, 20 Johns. 637; Butters v. Haughwout, 43 111. 18; Durell v. flaley, 1 Paige, 493. * Parker ®. Patrick, 5 D. & E. 103, 175; Somes v. Brewer, 3 Pick. 184; Rowley v. Bigelow, 13 Pick. 307 ; Lloyd b. Brewster, 4 Paige, 537. 192 TAKING BT THEFT, FOEOE OE FRAUD. applies where goods so obtained are seized on legal process by a creditor of the fraudulent purchaser; i one of the reasons being, that the only consideration in these latter cases is the extinguishment of a debt which can be revived by setting aside or rescinding the transfer; and in such case the party is no worse than he was before. He is not in the situation of one who has parted with his money.® § 339. Sale of goods upon condition. Sales upon condition, express or implied, as to delivery, payment or security, are of daily occurrence. These conditions are sometimes broken by accident or design, and the effect of the breach is a question which frequently demands adjustment in the action of replevin. § 84:0. Non-payment for goods sold on credit does not war- rant a rescision of the contract. In the absence of fraud or de- ceit on the part of the purchaser, simple non-payment for goods botight on credit is not sufHcient to warrant a rescision of the contract. The vendor has parted with his goods under a full knowledge of all the facts, and the neglect of the pur- chaser to pay the stipulated price is one of the contingencies which he is presumed to have estimated, and in the absence of frand, or the reservation ot a special lien, the seller cannot recover his goods. ^ § 341. Eule where the vendor stipulates to retain title or possession until payment. Where, however, the vendor stip- ulates to retain possession until the purchase price is paid, he may sustain replevin against anyone who wrongfully takes or detains the goods from his possession in violation of the con- ditions of the sale.* "When the plaintiffs sold and delivered a safe, with the express agreement that it should remain their property until paid for, and the purchaser made no payments, but the safe was levied on under execution and sold, the plain- tiffs were regarded as the owners and permitted to sustain ' Durell V. Haley, 1 Paige, 493; Adams «. Smith, 5 Cow. 380; Wiggins. Day, 9 Gray, (iMass.) 97. ' Farley v. Liacoln, 51 N. H. 577. " McNail V. Ziegler, 68 111. 334 * Will3 V. Barrister, 36 Vt. 330; Jessop v. Miller, 1 Keyes, (N. T.) 321. WAIVER OF CONDITIONS OB SALE. 193 replevin;! and the rule is tolerably well established, that in such case sale by the conditional vendee to an innocent pur- chaser for value, would not debar the owner from pursuing and receiving his goods. The rule is, that when the vendor retains title, the vendee takes none, and, of course, can convey none by any sale he may make.* § 342. The same. Illustrations. Goods were sold at auc- tion, to be paid for by note of a third party, at six months, after the goods were delivered, but before the condition had been complied with, they were seized on attachment by credi- tors of the buyer. The seller was allowed to sustain replevin. The delivery was not regarded as a waiver of the condition in this case.* § 343. Waiver of conditions of sale. Goods sold on con- dition and delivered without insisting on the condition, held, prima facie a waiver of the condition, liable to be explained or rebutted by proof.* A firm in Omaha, bought cigars in New York, for which they were to give their note at four months. Before the goods arrived the purchaser went into bankruptcy; some days thereafter the expressman brought the goods to the store of the buyer, and the U. S. Marshal then in possession took them, the vendors were permitted to sustain replevin. The condition of the sale had not been complied with, the note of the purchaser had not been given, and the contract impliedly required the note of the defendants when ' Bradshaw d. Warner, 54 Ind. 58 ; Hodson t>. Warner, 60 Ind. 314 ; Leven %. Smith, 1 Denio, 571; Jennings «. Gage, 13 111. 610; Harris «. Smith, 3 8. & R. (Pa.) 31 ; Tully ». Fairly, 51 Ind. 311. ' Deshon b. Bigelow, 8 Gray, 159 ; Hotchkiss n. Hunt, 49 Me. 313 ; Rowe v. Sharp, 51 Pa. St. 27; Coghill v. Hartford & N. H. R. R., 3 Gray, 545; Sargent ». Metcalf, 5 Gray, 386 ; Burbank ®. Crooker, 7 Gray, 158 ; Holmark «. Molin, 5 Cold. (Tenn.) 483 ; Eaton v. Munroe, 52 Me. 63 ; Meldrum o. Snow, 9 Pick. 441. ' Hill B. Freeman, 3 Cush. 357; Keeler v. Field, 1 Paige, (Ch.) 313; Hus- sey B. Thornton, 4 Mass. 405 ; Marston ». Baldwin, 17 Mass. .606 ; Smith ®. Dennie, 6 Pick. 362; Copland «. Bosquet, 4 Wash. 0. C. 588; Harris «. Smith, 3 S. & R. (Pa.) 30. * Pitt s. Owen, 9 Wis. 152; Lupin v. Marie, 6 Wend. 77; Smith t. Lynes, 1 Seld. 43; Kinsey n. Leggett, 71 N. T. 887; Ives ®. Humphreys, 1 E. D. Smith, 196 ; Leven o. Smith, 1 Denio, 571. 13 194 TAKING BY THEFT, FOEOE OE FEAUD. solvent, not bankrupt, i Where goods are sold for cash on delivery, and the proof tends to show a usage or custom of delivering the goods without demanding instant payment, and goods so sold are actually delivered without payment at the time of delivery, the court may leave it to the jury to deter- mine whether the delivery was made in reference to the usage, and no waiver of the cash payment, or whether the delivery was unconditional. If the delivery was with reference to the usage, and without intention to pass title, replevin will lie.^ From these and kindred cases the general rule may be gath- ered, that a sale of goods upon condition does not vest the title in the purchaser until the condition shall have been complied with. That in the keeping of conditions even where they are express, some latitude is allowed, and the seller does not forfeit his right by reasonable confidence in the integrity of the purchaser and his ability to keep his contract; and if in such case the buyer refuse to perform the conditions, the seller may rescind the bargain and retake his goods. If, how- ever, the seller do any act amounting to a waiver of the con- ditions, he forfeits his right to pursue his goods. • Sutro 0. Hoile, 3 Neb. 190. See Farley v. Lincoln, 51 N. H. 579. » Powell ©. Bardlee, 9 Gill. & J. (Md.) 330. THE DEMAND. 195 OHAPTEE XIII. THE DEMAND. Section. General principles of the law requiring it . . . Demand not necessary when defendant's possession is wrongful; otherwise it is necessary .... The reasons for the rule . ' The same 347 Proof of a wrongful taking suf- ficient 348 The legal effect of a demand and refusal Where possession is taken by a thief or trespasser from an- other thief or trespasser Where goods are converted no demand necessary; meaning of the term " conversion " as here used .... What is a conversion There can be no conversion without control over, or inter- ference with the property Illustrations of this rule . The same Purchaser at sheriff's sale Possession taken simply as an act of charity, or to preserve property, not conversion Borrower cannot set up title in himself as against his bailor 358 Finder of property entitled to a demand 359 The taker-up of stray animals . 360 844 345 346 349 350 351 352 353 354 355 356 357 Section. Purchaser of property payable in installments entitled to a demand before forfeiture Unauthorized interference with the goods of another One who hires property for a special purpose cannot use it for another Innocent receiver of stolen goods may be liable for conversion What is rightful possession Fraudulent purchaser, or attach ing creditor of same, not en- titled to demand . A fraudulent taking confers no right on the taker . Demand necessary where an of. ficer seizes goods from defend, ant named in his process Contra; when he seizes goods from another . . . , Innkeeper or carrier ; when en- titled to a demand . Whattimedemandmustbemade 371 The effect of failure to prove demand 373 Waiver of demand by defendant 373 The same. Claim of ownership by defendant . Upon whom the demand must be made No particular form necessary . General rules governing the de- mand 877 361 363 363 364 865 366 867 368 369 370 374 375 876 196 THE DEMAND. The same. Illustrations . . 378 Demand by father or guardian 379 Refusal to deliver ; true grounds therefor must be stated . . 380 The same. What is a suflBcient excuse for non-delivery . . 381 The same 382 The same asa § 344. Demand ; general principles of the law requiring it. There are many cases where it is necessary, before commenciDg suit, to make a demand upon the defendant for the delivery of the property, and the question whether such demand is neces- sary or not ought always to be fully considered. The effect of a failure to make and prove a demand in cases where the de- fendant is entitled to it, may be to lose an otherwise good case. The fact that the defendant has the possession of goods raises no presumption that he came wrongfully by them, nor does it raise any inference that he will detain them against the own- er's demand.^ The primary object of a demand, independent of the legal rights of the other party, is to obtain the goods without suit, and it should be made in all cases where there is a reasonable belief that it will result in a delivery of the goods, with few probabilities that their possessor will remove or secrete them. A demand is necessary in many cases to afford the defendant an opportunity to restore the goods to the rightful owner, or to make satisfaction if he desires to do so. In all cases where a party is in the possession of the goods of another the law presumes that he will at once deliver them to the owner on request; and this presumption is so strong that it will not allow such possessor to be put to the expense of defending a suit until the opportunity has been offered him to save cost* and avoid litigation by a surrender. ^ § 345. Demand not necessary when the defendant's pos- session is wrongful; otherwise it is necessary. The general rule may be stated that when the defendant's possession has been acquired through force or fraud, or though rightful in its inception, the defendant has subsequently done any act amount- ing to a conversion of the property to his own use, or intended ' Amos B. Sinnott, 4 Scam. 441. » Thompson v. Shirley, 1 Esp. N. P. 0, 31 ; Stanchfleld «. Palmer, 4 Greene, (Iowa.) 24; Homan v. Laboo, 1 Kcb. 308; Pringle v. Phillips, 5 Saadf. (N. y.) 157. NOT NECESSAEY WHEN POSSESSION IS WKONGFUL. 197 to deprive the rightful owner of his goods, demand is not necessary.^ But where the defendant's possession was right- fully acquired, and where he has been guilty of no wrongful act towards the plaintiff's rights, a demand is usually neces- sary before suit can be sustained. ^ Thus, where the defend- ant acquires possessioii by means of a lease from the owner, he is entitled to a demand before being subjected to a suit. Ordinarily this is the case after the lease has expired.* But a servant who quits his master, taking with him his master's goods, is liable without demand.* And where a machine was delivered to one through mistake of an expressman, and he encouraged the delivery and afterwards made repairs upon 1 Bussing 9. Rice, 3 Cush. 48; Thurston ■». Blanchard, 23 Pick. 18; Ayres e. Hewett, 19 Me. 381 ; Foshay «. Ferguson, 5 Hill, 158 ; Stillman v. Squire, 1 Denio, 338 ; Cummings v. Vorce, 3 Hill, 383 ; Pierce v. Van Dyke, 6 Hill, 613; Trudo B.Anderson, 10 Mich. 838; Ballou v. O'Brien, 30 Mich. 304; Le Boy D. East Sag. R. R., 18 Mich. 339; Clark D.Lewis, 35 111. 417; Bruner «. Dyball, 43 111. 36 ; Gibbs v. Jones, 46 111. 330 ; Seaver v. Dingley, 4 Green. (Me.) 314; Griswold v. Boley, 1 Blake, (Montana,) 546; Hicks v. Britt, 31 Ark. 433; Farrington v. Payne, 15 Johns. 433; White v. Brown, 5 Lans. 78; Connah v. Hale, 33 Wend. 462; Bates v. Conkling, 10 Wend. 390; Lewis «. Masters, 8 Blackf. 346 ; Delancey v. Holcomb, 36 Iowa, 96 ; Smith v. McLean, 24 Iowa, 323; Stanchfield v. Palmer, 4 Greene, (Iowa,) 35; Lawson v. Lay, 24 Ala. 188; Gardner ■!). Boothe, 31 Ala. 190; Oleson v. Merrill, 20 Wis. 463; Whitney v. McConnell, 39 Mich. 13 ; Gilmore ». Newton, 9 Allen, 171 ; Stanly v. Gaylord, 1 Cush. 549 ; Riley v. Boston Water P. Co., 11 Cush. 11 ; Henry v. Fine, 33 Ark. 419 ; Courtis «. Cane, 33 Vt, 333 ; Boise v. Knox, 10 Met. 41; Fernald v. Chase, 87 Me. 393; Parsons v. Webb, 8 Me. 39; Bald- win V. Cole, 6 Mod. 313 ; Partridge v. Swazey, 46 Me. 414. s Brown v. Cook, 9 Johns. 361 ; Bough ton v. Bruce, 20 Wend. 334 ; Pierce «. Van Dyke, 6 Hill, 613 ; Stanchfield o. Palmer, 4 Greene, (Iowa,) 25 ; Smith V. McLean, 34 Iowa, 333 ; Gilchrist v. Moore, 7 Iowa, 11 ; Sluyter v. Williams, 1 Swcney, (N. Y.) 215; Stapleford D.White, 1 Houston, (Del.) 238 ; Windsor 0. Boyce. 1 Houst, (Del.) 605 ; Johnson v. Johnson, 4 Har. (Del.) 171 ; Sopris V. Truax, 1 Colorado, 90 ; Roach v. Binder, 1 Colorado, 322 ; Newman v. Jenne, 47 Me. 520; Seaver v. Dingley, 4 Green. (Me.) 307; Pirani •». Barden, (5 Ark.) Pike, 81 ; Burr v. Daugherty, 21 Ark. 564; Hud- son V. Maze, 3 Scam. 582; Ingalls v. Bulkley, 13 111. 317; Smith v. Welch, 10 Wis. 91 ; Stratton o. Allen, 7 Minn. 502 ; Root v. Bonnema, 22 Wis. 539 ; Walpole 9. Smith, 4 Blackf. 306 ; Littcrel v. St. John, lb. 327 ; Conner o. Comstock, 17 Harrison, (Ind.) 90; Bond «. Ward, 7 Mass. 127; Sawyer «. Merrill, 6 Pick. 478. ' White V. Brown, 5 Lans. (N. Y.) 78. " Pilsbury v. Webb, 33 Barb. 314. 198 THE DEMAlfD. it, the taking was wrongful and no demand was neces- sary, i Or where one acquire possession of property, and without legal right assert a claim inconsistent with the owner's rights, the possession from that moment is wrongful, and no demand is necessary. ^ § 346. The reasons for the rule. The reasons for this gen- eral rule are plain. If the original taking was lawful, then the possession under that taking must be rightful until some other person with a better right has asserted his claim by ask- ing that the goods be delivered to him. The law presumes that the defendant who rightfully acquired possession will respect the rights of the true owner on being informed of them, and deliver the possession at once on request. At least he must have an opportunity to do so before he is put to cost of a suit. If, however, he refuses to comply with the demand, or if, after knowledge of the plaintiff's right, he does any act which amounts to a conversion of the property to his own use, his possession from that moment becomes wrongful as against the true owner.* Again, where the defendant's possession was rightfully acquired, his subsequent possession continues to be rightful until he shall have done some act inconsistent with the owner's rights ; and while his possession so continues to be rightful no action which requires for its support proof of a wrongful detention, can lie; so when a demand is required the defendant's possession continues to be rightful up to the time of demand, and until he can have a reasonable opportu- nity to comply with it. Therefore, when a demand is neces- sary, it must be made before the suit is begun.* § 347. The same. So careful is the law of the rights of innocent holders, that in many cases it will not permit the owner to recover his property even when wrongfully taken from him, until after he shall have made demand for it. > Purvis «. Moltz, 5 Robts. (N. Y.) 653. ' Shoemaker v. Simpson, 16 Kan. 43. j 3 Pringle ». Phillips, 5 Sandf. (N. Y.) 161 ; Woodward v. "Woodward, 14 111. 466; Poole v. Adkisson, 1 Dana, (Ky.) 110; Hosmer«. Clarke, 3 Green. (Me.) 308. •> Brown v. Holmes, 13 Kan. 483 ; Windsor v. Boyce, 1 Houst. (Del.) 605i Alden v. Carver, 18 Iowa, 255. PEOOF OF "WEONGFDL TAKING SOTFICIENT. 199 Thus, when the owner of a chattel wrongfully taken from him finds it in the possession of one who acquired it in good faith, by purchase, and in ignorance of the owner's right, a demand is necessary before bringing the action.^ But this rule does not apply to stolen goods, nor can it be said to be the law in all the States.3 § 348. Proof of a wrongful taking suflaoient. While the foregoing is perhaps accurate as a general statement, yet the decisions vary so widely in the different States, that statement of a rule applicable to all cases is impossible. General prin- ciples, however, can be stated, which it is hoped will be a Bufiicient guide. The difference between the action for the wrongful taking, i. e., in the cepit, and for the wrongful detention, i. e., in the detinet, has been stated. ^ When the action is for a wrongful taking, proof of an actual or con- structive wrongful taking by the defendant will be sufficient, without proof of a demand. This rule also holds when the- form of the action is for the detention. The plaintiff may if he so elect, sue in the latter form of action, when his goods have been wrested from him, and may sustain his action without proof of a demand, proof of the wrongful taking being sufficient,* as the law will presume from proof of a wrongful taking, that the goods continue in the taker's pos- session, and that he remains of the same purpose of mind in which he committed the wrong. ^ But such proof is not admissable for the purpose of affecting the question of dam- ' Stanchflcld «. Palmer, 4 Gr. (Iowa,) 34; Wood v. Cohen, 6 Ind. 455; Ingalls s. Bulkley, 13 111. 315. ' Compare Lewis v. Masters, 8 Blackf. 345 ; Riley t>. Boston Water P. Co., 11 Gush. 11 ; Courtis v. Cane, 33 Vt. 333 ; Harding v. Coburn, 13 Met. 343 ; Hoare v. Parker, 3 T. R. 376 ; Hudson v. Maze, 3 Hcam. 583 ; Kelsey v. Gris- wold, 6 Barb. 440; Hall ®. Robinson, 3 Comst. (N. Y.) 395. 8 See ante, § 53. * Stillman v. Squire, 1 Denio, 338; Oleson -b. Merrill, 30 Wis. 463; Cum- mings «. Vorce, 3 Hill, 383; Lewis ». Masters, 8 Blackf. 345; Pierce ». Van Dyke, 6 Hill, 613 ; Zachrissan «. Ahman, 3 Sandf. 68 ; Pringle v. PJiillips, 5 Sandf. 157. » Paul o. Luttrell, 1 Col. 330. • Eldred v. The Oconto Co., 30 Wis. 306. 200 THE DEMAND. § 349. The legal effect of a demand and refusal. A demand and refusal is not a conversion, nor does it produce a conver- sion, i The refusal is interpreted by the law as a declaration on the part of the person refusing, that he intends to make use of the property for his own benefit, and for this the law will hold him responsible as for an actual conversion. Proof of an actual conversion will always obviate the necessitv of proving a demand and refusal. ^ When, therefore, the defend- ant has notice of the plaintiff's rights, any act done for the purpose of defeating them, will amount to a conversion; but where the defendant acts in ignorance of the claim of any other person and in the honest belief that the goods are his, an actual conversion, or a demand and refusal must be proved before the plaintiff can sustain an action. Kenneb v. Robm- son, 2 J. J. Marsh, (Ky.) 84, is one of the most interesting cases on the question of " what is a conversion," that is to be met with. The court there holds in substance, that to consti- tute conversion there must be a taking without the owner's consent, or an assumption of ownership, or an illegal use or abuse of the property, and that in the absence of such proof, there must be proof of a demand and refusal to deliver. § 350. Where possession is taken by a thief or trespasser from another thief or trespasser. If goods be taken by a thief or trespasser from another thief or trespasser, the owner may have trespass or replevin against the last taker without demand. 3 § 351. Where goods are converted no demand necessary; meaning of the term " conversion " as here used. The term " conversion " as here used does not imply a change of con- dition in the goods, but simply that they have been appropri- ated by the party to his own use. If one take corn and refuse to deliver it to the owner on demand, it is a conversion. If he manufacture whisky from it and deliver it on request, it ' Morris v. Pugh, 3 Burr. 1341; Savage v. Perkins, 11 How. Pr. 17; Per- kins v. Barnes, 3 Nev. 557 ; Bruner v. Dyball, 43 111. 35 ; Lockwood «. Bull, 1 Cow. 332; Hill v. Covell, 1 Comst. (N. Y.) 533; Jessop ». Miller, 1 Keyes, (N. Y.) 331. Contra, Baldwin v. Cole, 6 Mod. 313. « Bristol V. Burt, 7 Johns. 357 ; Gilinore «. Newton, 9 Allen, (Mass.) 171. » Barrett v. Warren, 8 Hill, (N. Y.) 348. HO OOKTEKSION WITHOUT AOTTTAL CONTEOL. 201 is no conversion. Proof of a refusal simply raises a legal presumption that the defendant has converted the property. § 352. Wliat is a conversion. The question then presents itself, what proof, aside from a demand, will be sufficient to convict the defendant of a conversion? As a general rule, to render the defendant guilty of conversion, he must have done some positive tortious act. Negligence, or a mere omission, is not usually sufficient. ^ When a carrier loses a box en- trusted to him, such loss, however negligent, does not amount to a conversion.^ But under ordinary circumstances, where property is under the control of the defendant, a willful neglect to deliver on request, or to point out the property, or act in its delivery, will, if unexplained, amount to a conversion and excuse proof of a demand.* One having the right to exclu- sive possession of a building, in which another's goods are stored, may exclude the owner of the goods from the building, and such exclusion will not necessarily be a conversion of the goods;* and an action of replevin for the goods would require some further support than proof of a refusal to admit into the building, s § 353. There can be no conversion without actual control over, or interference with, the property. There can never be an actual conversion of property without an actual possession of it, or the exercise of some control or dominion over it. A mere declaration of ownership by one not in possession, or an assertion of intention to take possession, without any actual interference with it, will not amount to a conversion. ^ A levy by an officer upon goods which he does not see, or in any way 'Jones v. Allen, 1 Head. (Tenn.) 628; Lockwood v. Bull, 1 Cow. 333. Conault Gilmore v. Newton, 9 Allen, 171, and cases cited ; Youl v. Harbottle, Peakes N. P. Cas. 49 ; Presley -o. Powers, 83 111. 135. ' Packard v. Getman, 4 Wend. 615 ; Ross v. Johnson, 5 Burr. 3837 ; Kirk- ham V. Hargraves, 1 Selw. N. P. 425 ; Dwight v. Brewster, 1 Pick. 50, 53. " Mitchell V. "Williams, 4 Hill, (N. T.) 16; Holbrook v. Wight, 24 Wend. 169. * Bent V. Bent, 44 Vt. 634. » Bent V. Bent, 44 "Vt. 634. • Pernald v. Chase, 37 Me. 289 ; Fuller v. Tabor, 89 Me. 531 ; Simmons «. Lettyatone, 4 Exch. 443 ; Rogers v. Huie, 3 Cal. 571 ; Heald v. Gary, 11 Com. B. 993; Presley v. Powers, 82 111. 135. 202 THE DEMAND, interfere with, is no conversion. ^ I^either will a conspiracy, however atrocious, to take or destroy property, confer a ri^ht of action, unless some act to the injury of the party be done under it.^ § 354. Illustrations of this rule. When plaintiff's sheep broke out of his lot and mingled with those of defendant's, which were being driven along the highway, although the latter allowed them to go with his sheep to his lot, where they were separated and driven back toward the direction from whence they came, it was held no conversion.* When cattle break into the field of another, and destroy corn, it cannot be said that their owner converted the corn, because his cattle ate it.* When a horse was conveyed as security for a debt, the debtor to retain possession, castration of the horse, pend- ing the time, is a conversion, and the lender may retake possession in replevin. ^ So, when a horse had been leased for a term, upon an agreement to divide the profits of his ser- vices, and the lessee permitted it to be sold on execution, hdd a conversion. 8 § 365. The same. It is not every taking that amounts to a conversion. A simple taking, without any intention to use property, or to injure or damage it, or delay or affect its own- er's rights, would not be a conversion.' A trespass, however gross, is not necessarily a conversion. Under the law, gen- erally, in this country, a taking, unacconlpanied by a detention, is not a conversion. ^ Plaintiff paid the fare for himself and two horses on a ferryboat; the ferryman told him to remove his horses, he would not carry them. Plaintiff refused ; there- upon the ferryman removed them, while plaintiff remained, and was carried over. Held, that it was not conversion, unless ' Herron 'o. Hughes, 25 Cal. 556. ' HutcMns «. Hutcliins, 7 Hill, (N. T.) 104. s Van Valkcnburgh «. Thayer, 57 Barb. 196. * Smith J). Archer, 53 111. 244. " Eipley v. Dolbier, 18 Me. 382. « Hutchinson ■». Bobo, 1 Bailey, (S. C.) 546. ^ Eldridge «. Adams, 54 Barb. 417. 8 Bogan ». Stoutenburgh, 7 Ohio, Pt. 2, 213; State s. Jennings, 14 Ohio St. 77 ; Paul ». Luttrell, 1 Col. 317 ; Kelson ». Iverson, 17 Ala. 219. BOEEOWEE CANNOT SET VF TITLE. 20S the taking was witli the intent to convert to the taker's use. Trespass might lie, but not trover or replevin.^ A neglect or refusal to deliver goods which are not in the defendant's pos- session at the time of the demand is not a conversion.^ §356. Purchaser at sheriflF's sale. A mere purchaser at a sheriff's sale, who does nothing more than purchase, is not a trespasser, even though the seizure and sale by the officer may have been wrongful, and the sale convey no title. If, upon such sale, the sheriff delivers the property to the purchaser, a demand must be made of him before sn.it. ^ When, however, one obtains goods by trespass, and they are subsequently sold by the officer on execution against the trespasser, and bought by the plaintiff in execution, a want of demand will not defeat the suit.* The purchase, in such case, was only the extin- guishment of a prior debt, and not a purchase for cash.^ § 357. Possession taken simply as an act of charity, or to preserve property, not a conversion. Where one takes posses- sion of property as an act of charity or kindness, or for the purpose of preserving what would otherwise suffer damage, it is no conversion. There is no wrongful act or intention, which is an essential ihgredient in an action for wrongful taking or detention. Consequently a demand must be made.* § 358. Borrower cannot set up title in himself as against his bailor. A borrower or a bailee for hire, cannot set up title in himself against his bailor. He must first restore the property. And while a demand is necessary in such cases, when the defendant has done no act amounting to a conversion, a claim of ownership, in defiance of the rights of lender or hirer, is equivalent to a conversion, and renders a demand unnecessary.' ' Fouldes D. Willoughby, 8 Mees. & W. 540 ; Eldridge v. Adams, 54 Barb. 417. "Whitney o. Slauson, 30 Barb. 276; Hawkins v. Hoffman, 6 Hill, 586; Hall V. Robinson, 3 Comst. (N.T.) 293 ; Hill v. Covell, 1 Comst. 522 ; "Walker v. Penner, 30 Ala. 198. > Talmadge «. Scudder, 38 Pa. St. 518. « Sargent ®. Sturm, 23 Cal. 360. » See ante, § 883. ' Konnet v. Robinson, 2 J. J. Marsh. (Ky.) 84. ' Simpson v. "Wronn, 50 111. 234; Loeschman v. Machin, 3 Starkie, 310. 204 THE DEMAND. §359. Finder ofproperty entitled to a demand. The finder of lost property is entitled to a demand before being subjected to a suit; but be has no lien for expenses gratuitously bestowed in taking care of it; and if be assert his intention to hold it for the purpose of enforcing such a Hen, he will be guilty of conversion. ' Salvage, as allowed in the maritime courts, stands on an entirely different basis, and is enforced only in respect to goods lost on the high seas.* When a raft broke loose from its fastenings on the bank of a river, and the defendant towed it to a place of safety, he was not permitted to set up a lien for his trouble, however meritorious his claim.* Where, how- ever, a reward is offered for lost property, the finder is entitled to retain possession until the reward is paid.* § 360. Taker up of stray animals. The taker up of an estray, who fails to comply with the law with respect to such animals, has no lien for his trouble or expense. He is, in fact, a trespasser. 5 But when the defendant took up stray cattle, complying with the terms of the statute, he was entitled to a demand of possession and a tender of charges before he could bo hold liable in this action. « § 361. Purchaser of property payable in installments enti- tled to a demand before forfeiture. Where one bought a sew- ing machine, and was to pay for it in monthly installments, and paid first installment, and refused to pay the next, alleg- ing the machine was not such as she had bought, the seller brought replevin. Held, it could not be sustained without proof of a demand, and an offer to refund the part of the purchase money which had been paid^' § 362. Unauthorized interference with the goods of another. A forcible seizure is not necessary to constitute a wrongful ' Etter v. Edwards, 4 Watts. (Pa.) 66, citing Binsted «. Buck, 3 W. Blacks. 1117. 2 Hartford ». Jones, 1 Ld. Raym. 393. ■" Nicholas ». Chapman, 3 H. Bla. 254. ■* Cummings v. Gann, 53 Pa. St. 484. ' Bayless «. Lefaivre, 37 Mo. 119. « Holcomb v. Davis, 56 111. 416. ' Hamilton ». Singer Sewing Machine Co., 54 111. 370. INNOCENT EECEIVEE OF STOLEN GOODS. 205 taking;* but any unlawful or unauthorized intermeddling 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. ^ § 363. One who hires property for a special purpose cannot use it for another. When a person hired a horse for a speci- fied journey, and drove it beyond, it was held a conversion. So, if the defendant wrongfully set up a claim for a lien on the property, in reply to a demand for it, it is sufScient evi- dence of a conversion. 3 When the owner demanded his ma- chinery from defendants, who refused to allow him to take it until they had got other in its place: Held, to be an unlawful intermeddling with the plaintiff's property, without any pre- tense of right, and sufficient to sustain an action.* § 364. Innocent receiver of stolen goods may be liable for conversion. This rule has been carried so far, that a person who receives stolen goods in ignorance of the owner's rights, has been held liable for them. Thus, an auctioneer who re- ceives goods from a thief in the ordinary course of business, and sells them, and pays the proceeds to the thief, without any notice or knowledge, was held liable for conversion. ^ The case of Hoffman v. Garow was cited approvingly in a Vermont case, and the court says that probably no case can be found in conflict with it." But where one took goods in pledge for a debt, not knowing they were the goods of a third party, and afterwards re-delivered them to his debtor, upon his promise » Lee «. Gould, 47 Pa. St. 398 ; Haythorn v. Rushforth, 4 Har. 160 ; Ker- ley V. Hume, 3 T. B. Mon. (Ky.) 181 ; Marchmau v. Todd, 15 Geo. 35 ; Skinner v. Stouse, 4 Mo. 98. " Ralston ti. Black, 15 Iowa, 48; Squires v. Smith, 10 B. Mon. (Ky.) 33 ; Ely®. Ehlc, 3 Comst. 506; Hardy v. Clendening, 35 Ark. 436; Gibbs ■».' Chase, 10 Mass. 125 ; Eobinson v. Mansfield, 13 Pick. 139 ; Phillips «. Hall, 8 Wend. 610; Allen «.. Crary, 10 Wend. 349 ; Fonda v. Van Home, 15 Wend. 631 ; Neff «. Thompson, 8 Barb. 213 ; Miller v. Baker, 1 Met. 37 ; Wilson v. Barker, 4 B. & Adolph. 614. ' Jacoby 9. Laussatt, 6 S. & B. 300. * Haythorn v. Rushforth, 4 Har. (19 N. J.) 160. ' Hoffman n. Carow, 33 Wend. 385. Contra, Rogers «. Huie, 3 Oal. 673. ' eourtis II.. Cane, 33 Vt. 233. Consult, also, Spraights «. Hawley, 39 N. Y. 441. 206 THE DEMAND. to sell them and pay the proceeds to him, he was not liable to the owner. 1 "When defendant, a jeweler, sold jewelry for A., and paid him proceeds, without notice of any other claim, he was held liable to the true owner for the value. ^ This rule, at first blush, may seem harsh ; but an auctioneer or commis- sion man of known responsibility ought not to lend the credit of his name to sell goods unless he knows the title will pass. If, through ignorance or carelessness, he sells stolen goods, and his customer be dispossessed, he ought to answer; and if the goods be consumed, or cannot be had by the true owner, it is hj no means unjust that he make good to the owner their value, which he has lost.* § 365. What is rightful possession. It has been frequently held, that when the defendant's possession was rightfully ac- quired in the first instance, that the owner of the goods could not sustain an action for them without proof of demand and refusal.* The application of this general rule requires the solution of the question. What is regarded as a rightful pos- session? The defendant may have purchased the goods from one who, to all appearances, had a lawful and perfect right to sell and deliver, although in fact the goods may have been taken from the owner by robbery or theft; or, the vendor may have acquired them from the owner by some fraudulent prac- tice, or as bailee for some special purpose. A jeweler may sell a watch left in his hands for repair, or a carrier dispose of the goods committed to him for transportation. An officer of the law, armed with legal process against A., may seize upon the goods of B. and sell them, or deliver them to a custodian until the day of sale. In these and a multitude of kindred cases, the possession, apparently rightful, is really wrongful, and the true owner can recover, and usually without demand. The ' Leonard v. Tidd, 3 Met. 6. » Bowen v. Tenner, 40 Barb. 383. 8 See Spencer v. Blackman, 9 "Wend. 167 ; Everett «. Coffin. 6 "Wend. 605 ; M'Combie v. Davies, 6 East, 538; Thorp «. Burling, 11 Johns. 285; Farrar 11. Chauflfetete,5Denio,527; Pearson o. Graham, 6 Ad. & Ell. 899 ; "Williams «. Merle, 11 "Wend. 80. * Gilchrist v. Moore, 7 Clark, (Iowa,) 11; Newman v. Jenne, 47 Me. 530; Stanchfleld v. Palmer, 4 Greene, (Iowa,) 35. FEATTDTJLENT PUECHASEE NOT ENTITLED TO DEMAND. 207 rules are different in different courts. It has been held that where the defendant acquired possession by purchase from one apparently the owner, such possession was so far rightful that the real owner must make demand before bringing suit;i but it has also been held that where one purchased property from one who had no right to sell, it was a conversion, and the owner could sustain replevin without demand, the good faith of the buyer being no defense. ^ § 366. Traudulent purchaser, or attaching creditor of sam.e not entitled to demand. When merchandise was purchased on credit, through fraudulent representations by the buyer as to his responsibility, and after delivery to him was attached by his creditors, the vendor was allowed to maintain replevin without demand.* In a subsequent case, the right of the de- ceived vendor was distinctly put upon the ground of his right to rescind an otherwise valid sale; and it was held he could enforce his claim only while the goods were in the hands of the vendor, or some person with notice of his rights.* In Mich- igan, when property is disposed of without authority by a per- son having it in charge, the owner may bring replevin without demand, even against an innocent purchaser. ^ So, in Maine, the defendant, though a honafide purchaser from one who had no title or right to sell, is not entitled to hold the property; the owner may recover it in replevin without demand. * A ' Stanchfield v. Palmer, 4 Greene, (Iowa,) 24; Ingalls v. Bulkley, 13 111. 315 ; Hudson «. Maze, 3 Scam. 578 ; Pringle «. Phillips, 5 Sandf. (N. T.) 157; Hall ts. Robinson, 3 Comst. 295; Wood ®. Cohen, 6 Ind. 455; Conner e. Comstock, 17 Ind. 90. Conira, Lewis v. Masters, 8 Blackf. 345; Bussing S.Rice, 3 Oush. 48; Thurston v. Blanchard, 23 Pick. 18; Bufflngton «. Gerrish, 15 Mass. 156; Acker s. Campbell, 38 Wend. 373. ^ Gilmore d. Newton, 9 Allen, 171 ; Riley «. Boston Water P. Co., 11 Cush. 11 ; Farley v. Lincoln, 51 N. H. 577 ; Williams v. Merle, 11 Wend. 80. See Riford V. Montgomery, 7 Vt. 418 ; Doty «. Hawkins, 6 N. H. 248 ; Courtis V. Cane, 33 Vt. 333 ; Bloxam v. Hubbard, 5 East, 407 ; Cooper ». Newman, 45 N. H. 339; Galvin v. Bacon, 11 Me. 28; Soames o. Watts, 1 C. & Payne, 400; Stanley r>. Gaylord, 1 Cush. 536; Hyde v. Noble, 13 N. H. 494. * Bufflngton v. Gerrish, 15 Mass. 158 ; Bussing v. Rice, 3 Cush. 48 ; Acker e. Campbell, 23 Wend. 372. * Hoffman v. Noble, 6 Met. (Mass.) 75. « Trudo «. Anderson, 10 Mich. 357. « Prime «. Cobb, 63 Maine, 303. 208 THE t)EMAND. I fraudulent purchaser acquires a voidable title. The fraud may justify the vendor in rescinding the sale and suing for the goods; but until rescinded, the sale is valid, and it is optional with the vendor to affirm it. So, when goods obtained through fraudulent purchase have been sold to a bona fide purchaser, without notice, replevin does not lie. The distinction is, that a fraudulent purchaser takes a title, voidable, nevertheless, but perfectly valid until rescinded ; and if, while holding a valid title, he makes sale to one without notice, the sale is binding on the owner; but a thief or trespasser takes no title, and can convey none by any sale or delivery he may make. § 367. Fraudulent taking confers no right on the taker. "While the forcible seizure of goods of another is always regarded as wrongful, it is no more so than the use of fraudu- lent means by which to obtain possession. He, who by suc- cessful fraud obtains the goods of another, is equally guilty of wrongfully taking with him who seizes them by superior force. It follows that in cases where the defendant fraudu- lently obtains possession no demand is necessary.^ When one professed to have a warrant for the arrest of another, and under that pretense made an arrest and obtained the delivery of cattle in settlement, replevin would lie for the cattle or trover for their value, without demand.^ § 368. Demand necessary where an officer seizes goods from defendant named in his process. Where an oflBcer hold- ing proper legal process takes goods from the possession of the ' Bussing «. Rice, 2 Cush, 48 ; Acker v. Campbell, 33 Wend. 372. » Foshay «. Ferguson, 5 Hill, 158. Where the defendant derives his pos- session by purchase for value, and without any notice of any right or claim by any other person, his detention is usually regarded as rightful until an opportunity has been offered him to restore the goods. Priam s. Harden, 5 Ark. 81; McNeill v. Arnold, 17 Ark. 173; Trapnall ». Hattier, 6 Ark. 18; O'Neill V. Henderson, 15 Ark. 335. Where the original possession was acquired by fraud, and under circumstances which did not transfer the title from the owner, and where the goods were seized and sold on execu- tion against the fraudulent purchaser, and purchased by the plaintiff in the execution, it would seem that the purchaser acquired no better title than the original taker had. In such a case the defendant could not claim title to the goods and resist the plaintiff in the replevin suit on the ground of a want of demand before suit. Sargent v. Sturm, 23 Cal. 360. AT WHAT TIME DEMAND MUST BE MADE. 209 defendant named in his writ, he is but doing his duty and his possession is lawful, so that replevin cannot be maintained against him without demand. ^ § 369. Contra ; when he seizes goods from another. When the property is seized from one not named in the process, the latter may sustain replevin upon showing that the goods belong to him, without proof of a demand.^ The taking in such case is wrongful. ^ § 370. Innkeeper or carrier; when entitled to demand. A carrier has a lien on goods which he has transported, though he might have demanded his charges in advance, and replevin by the consignor or owner wonld not lie against him without demand and payment of charges. So of an innkeeper with respect to the goods of his guest. If a thief, however, take goods and deposit them with a carrier for transportation, or become a guest at an inn, the carrier or innkeeper cannot resist the true owner nor can either assert a lien, though the action cannot in such case be sustained without demand.* § 371. At what time demand must be made. The demand must be made before suit is begun. ^ When demand was made by an officer after the issuing, but before service of the writ, while he held the writ in his hands, it was held too late; the issuance of the writ is the beginning of the suit." In Badger v. Phinney, 15 Mass. 36i, (one of the leading cases on tlie law of replevin,) this question arose, and the court said: "It is a sufficient answer to this, that if the defendant bad delivered the goods on demand, tliere would have been no necessity to serve the writ." But the general rule is un- doubted that wliere goods came lawfully into possession of ' Vose s. Stickney, 8 Minn. 75; Daumiel v. Gorham, 6 Cal. 43; Taylor «. Seymour, 6 Cal. 512; Killey v. Scannell, 13 Cal. 73 ; Bond ®. Ward, 7 Mass. 123; Shumway Johnson ■». Howe, 2 Gilm. 344; Cranz s. Kroger, 33 111. 74; La Place ». Aupoix, 1 Johns. Ca. 407 ; Appleton s. Barrett, 29 Wis. 221 ; Lutz «. Tount, Phill. (N. 0. L.) 367. 2 Simpson ». Wrenn, 50 111. 224. ' Johnson ». Howe, 2 Gilm. 344. ' Butters ti. Haughwout, 42 111. 24. ' Jones V. Spears, 47 Cal. 20. « Seaver ». Dingley, 4 Green. (Me.) 307; Smith c. McLean, 24 Iowa, 337; Newell v. Newell, 34 Miss. 385; Cranz ». Kroger, 23 111.74; Perkins d. Barnes, 3 Nev. 557 ; Pierce « Van Dyke, 6 Hill, 613. ^ Homan «. Laboo, 1 Neb. 207. 8 Whitney «. Slauson, 30 Barb. 276; Andrews «. Shattuck, 32 Barb. 397; McAithur B. Carrire's Admr., 33 Ala. 87; Whltwell o. Wells, 24 Pick. 39 ; Lill, etc., B. Russell, 22 Wis. 178. NO PAETICULAE FOKM NEOESSAKY. 213 the party who is expected to comply with it. A demand on defendant's wife or servant is not sufficient evidence of a con- version by the husband or master. ^ But if the party pretends he has the goods wh.en the demand is made, and induces the plaintiff to sue him, he cannot defend on the ground that he did not have them.® "Wlien goods are bailed to the defendant a demand at the house of the bailee in his absence is not evi- dence of a conversion unless it be shown by circumstances, or otherwise, that he had actual notice of the demand before the suit was begun. 3 But if the bailee should be guilty of any actual conversion he is answerable. When one was entrusted with a package of money for safe keeping and broke the pack- age and appropriated the money, he was liable without de- mand.* When goods were in the actual custody of the defend- ant's wife and daughter, and he absented himself from home, the wife was held his agent for purposes of demand and refusal. ^ When the property is held by two or more defendants acting severally the demand should be upon both ; but if they be part- ners, or acting jointly, a demand on one would be held to extend to both.^ § 376. No particular form necessary. There is no particu- lar form to be observed in making a demand, provided the defendant is distinctly notified what goods are wanted.' A demand for B.'s stock, if not objected to, and no claim that the demand should be more specific, is sufficient. ^ When the ' Storm «. Livingston, 6 John. 44 ; Mount v. Derick, 5 Hill, 456 ; Potho- nier t>. Dawson, Holt, N. P. 383. 2 Hall «. White, 3 Car. & P. 136. ' White D. Demary, 3 N. H. 546. * Shelden v. Robinson, 7 N. H. 157. See Graves v. Ticknor, 6 N. H. 537; Poole V. Adkisson, 1 Dana, 110; Hosmer ®. Clarke, 3 Gr. (Me.) 308. ' Goldsmith v. Bryant, 26 Wis. 39. In this case, however, there was evi- dence to show a fraudulent purpose on the part of the defendant in absent- ing himself, with collusion on the part of the wife. ' Nisbet Logan V. Houlditcli, 1 Esp. N. P. C. 23; 1 Chitty PI. 159. « Appleton D. Barrett, 39 "Wis. 231. » Jacoby «. Laussatt, 6 S. & R. 305 ; Green ». Dunn, 4 Camb. 215 ; Solo- mons ■». Dawes, 1 Esp. 83; Watt v>. Potter, 3 Mason C. C. 77; Ingallsi!. Bulkley, 13 111. 316. * Page v. Crosby, 34 Pick. 316. EEFUSAL TO DELIVEE. 215 property of his minor children. ^ So, also, demand may be made by an agent or any one duly authorized to act for the owner. "When an agent is charged with the whole duty of receiving, receipting for and delivering property, as is the case with railroad and express agents, a demand upon the agent is a demand upon the corporation. ^ § 380. Refusal to deliver. The true grounds therefor must be stated. When the defendant refused to deliver to the agent of the plaintiff, for the reason that the agent had no authority, his refusal must rest distinctly upon that ground. The agent will then be bound to produce his authority, or show that the defendant's refusal is captious. If he does not, defendant's refusal will be only an act of proper caution. To an unquali- fied refusal, however, the agent is not required to produce any authority.* § 381. The same. What is a suflaeient excuse for non- delivery. When a party claims a lien on goods in his posses- sion, he should state the amount of his lien, and the grounds upon which he bases it when the demand is made. Retention on other grounds, without such statement, will be a waiver of the lien. When work was done on a boiler, for which the de- fendant had a lien, as also a general account against the owner, if, at the time of the demand, he insisted on detaining it until the balance of the account was paid, he could not afterward, on trial, set up the particular lien to defeat the plaintiff 's suit. If, however, he had specifically mentioned the amount for which the lien was, and asserted his right to detain for that amount, and for the general balance of the account, the plain- tiff would have been required to tender the amount of the particular lien before he could sustain replevin. ^ Neither can a bailee of goods base his refusal to deliver on demand or his ' Newman v. Bennett, 23 111. 428 ; Smith «. 'Williamson, 1 Har. & J. (Md.) 147. ^ Cass v. N. T. & N. H. R. R., 1 E. D. Smith, 522. »St. John V. O'Oonnell, 7 Porter, (Ala.) 466; Zaohary v. Pace, 4 Eng. (Ark.) 212; Connah v. Hale, 23 Wend. 468; Solomons v. Dawes, 1 Esp. 83; Jacoby v. Laussatt, 6 Serg. & R. 800 ; Watt v. Potter, 2 Mason, 77-81. ^ Thatcher «. Harlan, 2 Houst. (Del.) 194 ; Thompson «. Trail, 6 B. & C. 36; White v. Gainer, 2 Bing. 23 ; Jacoby i>. Laussatt, 6 S. & R. (Pa.) 304. 216 THE DEMAND. desire to consult his bailor, and then at the trial set up a lien for storage. 1 The law, in such case, requires the defendant to act in good faith, and to put his refusal on the true ground, which he will rely upon at the trial.^ He cannot make pne excuse when the demand is made, and then, when suit is brought, defend on another and different ground. The defend- ant, in answer to a demand, cannot pretend he has the goods, and induce the plaintiff to sue him, and then resist the suit on the grounds that he did not have them.^ When goods are entrusted to a servant, and he refuses to deliver them to a stranger, because he had no authority to do so, such refusal is not evidence of conversion in an action against the servant. Nor is a demand on the servant sufficient to charge the master, unless he acted under orders. If the servant refuse, and the master afterward approve of the refusal, for the reason that the servant had no authority, it is no evidence of conversion by the master.* § 382. The same. It is proper for the master, when entrust- ing property to his servant, for which he is responsible to another, to direct that it shall not be delivered to any one, ex- cept upon the master's written or personal order, and a demand on the servant, under such circumstances, would avail noth- ing until he could communicate with and take the order of the master. 5 When W. and E,. hired cows, and W. took them to his farm, some miles from R.'s, and at the end of the time the owner demanded them from R., who said he would have nothing to do with the cows: Meld, it was for the jury to de- termine whether, by the rej^ly, he intended to withdraw from a dispute about the property, (and if so, it was no conversion,) or to collude with W. to hinder the owner from recovering his property, which latter would be equivalent to a positive refusal.* i ' Holbrook v. Wight, 34 "Wend. 169. 2 Isaack ■». Clark, 3 Bulet, 313 ; Jacoby «. Laussatt, 6 S. & K. (Pa.) 304. » Hall ». Wliite, 3 Car. & P. 186. ■* Mount «. Derick, 5 Hill, 456 ; Mires «. Solebay, 2 Mod. 243 ; Alexander -0. Southey, 5 B. & Aid. 247 ; Storm «. Livingston, 6 Jolin. 44; 4 Inst. 317. ' Page D. Crosby, 24 Pick. 315. « Mitchell ». Williams, 4 Hill, 18. EBFUSAL TO DELTVEE. 217 § 383. The same. The defendant rightfully took certain property, and with it a stone. Plaintiff demanded its return. Defendant said he could have it by going to his (defendant's) locker. Plaintiff refused to go, but demanded its return to the place whence it was taken. Defendant refused to comply. Seid, no conversion. ^ > O'Connell «. Jacobs, 115 Mlass. 21. 218 THE BOMD. OHAPTEE XIV THE BOND. Section. No bond required by tbe com- mon law 384 The English statutes the basis of the law concerning bond in this country . . 385 to 387 The bond a prerequisite 388 to 391 The bond must conform to the statute 392 The bond not necessary to the trial 393 Where the sheriff is a party . 394 Defendant may give bond and retain the property . . 395 Bond not necessary where the plaintiff does not ask delivery 396 Objects and purposes of the bond ... 397 to 399 Amount of penalty in the bond ; how ascertained . . . 400 Sheriff may take the property for purpose of appraisement 401 Sheriff not required to prepare bond ; duty of the party . 402 To whom payable . . . 403 Though defective as a statutory bond, it may be good at com- mon law . . . 404, 405 By whom it must be exe- cuted .... 406, 407 Blow executed . . 408 to 412 The conditions separate and in- dependent of each other . 413 The conditions to prosecute without delay .... 414 To prosecute with effect . 415, 416 Section. Prosecution in inferior court not sufficient when the case is appealed 417 Death of party pending suit . 418 The condition to return . . 419 Offer to return unaccompanied by a tender not a perform- ance 420 The condition to return requires the return of the identical goods 431 And in as good order as when taken 433 Judgment for a return, a breach of the condition . . .433 The bond only relates to claims in the suit in which it is given 434 Actual delivery of the goods on the writ precedes liability upon the bond . . .425 Actual return in as good order a compliance with this con- dition 436 Bight of action accrues upon a failure to keep any of the con- ditions .... 427, 438 Right of the securities 439 to 431 Any material alteration in the bond annuls it . . . 432 The same. Securities bound by acts of the principal . . 433 But a settlement does not bind nor discharge them . . 484 Submission to arbitration does not bind securities . . -435 THE ENGLISH STATUTE. 21& 438 439 440 Technical defenses to bond not favored .... 436, 437 The liability of a guardian per- sonal .... Where the words are ambiguous the intent will govern . Proceedings on the bond gov- erned by statute Debt a proper form of action thereon 441 Assignment of the breaches . 443 Proceedings in the replevin es- sential to sustain suit on the bond 443 The material facts to be set up . 444 When bond is lost from the flies 445 Defense to suit on bond . . 446 When ownership of property is settled in the replevin suit When not so settled, it may be set up in suit on the bond Defenses which should be made in the replevin suit Miscellaneous rules in suits on bond .... 447 448 449 450 Variation in description be- tween the bond and affidavit no defense 451 Submission of the replevin suit to arbitration a defense . . 453 Value of the property stated in bond ; how far binding . . 453 Where the value of a number of articles is stated at a gross sum 454 Effect of the destruction of the property 455 Parties to suit on bond cannot discharge it to the injury of the sheriff . . . .456 Damages onbond; how assessed 457 The same. Amount of . . 458 The same. In case of joint owner 459 Release of bond by seizure on another writ pending suit . 460 Limitation to suit on bond . 461 Suit on, by sheriff, may be in his individual name . . 463 § 384r. No bond required by the common law. By the com- mon law no bond was required, the only security being the pledges to prosecute the suit, or answer to the King for false clamor. 1 § 385. The English statute. By statute 11 George II., Ch. 19, § 23, the sheriff was required to take from the plaintiff a bond, with two securities, in double the value of the goods about to be replevied, conditioned to prosecute the suit with effect and without delay, and for a return of the goods if return should be awarded by the court. The sheriff was liable as a trespasser if he served the writ which commanded a delivery of the goods without first taking bond. He was also liable for the sufficiency of the securities,^ even up to the time they were ' Arde, § 26 ; Caldwell v. West, 1 Zab. (31 N. J.) 430. ' Pearce v. Humphreys, 14 S. & R. (Pa.) 35 ; Oxley v. Cowperthwaite, 1 Dall. 350; Myers v. Clark, 3 W. & S. (Pa.) 539. The sheriff was required to take security at his peril. Gibbs v. Bull, 18 Johns. 437. 220 THE BOND. called upon to make good their obligation. The harshness of this rule has been modified somewhat, i and where one of the securities is solvent the fact that others may have been insolvent does not render the officer liable. ^ The statute also provided that the sheriif might assign the bond to the avow- ant, or to the person making cognizance, either of whom might bring suit thereon in his own name if the conditions were broken. 3 This form of proceeding was the common practice in this country, and still prevails in many of the States. In others the bond is made directly to the defendant. Upon this question the statute of the State where the suit is pend- ing will, of course, govern. The statute 17 Oar. 2, Oh. 7, A. D. 1665, provided that when the plaintiff was defeated the avowant should have judgment against the plaintiff for the rent in arrear, in cas.e the value of the cattle distrained amounted to so much, or for an amount equal to the value of the gooods. In case the value of the goods did not equal the rent, then for the value of the goods with execution thereon, and the right to distrain again for any further sum due for rent. Prior to the case of Perreau v. Bevan, 6 Barn. & Oress. 284, it had been a question as to whether the landlord who elected to pro- ceed under this statute had any remedy upon the bond. Since that case, however, such right has not been seriously ques- tioned. The Statute 11 George II., Oh. 19, A. D. 1738, was held to confer an additional remedy, and to be in aid of the proceeding pointed out in the Statute of 17 Oar. 2.* § 386. The English statutes the basis of the law concerning bond in this country. The Statute 11 George II., Oh. 19, is the basis upon which a large proportion of the statutes in this country are framed. Its provisions and the decisions under it have been the foundation which no inconsiderable part of the cases in this country rest.^ ' Hindle ®. Blades, 5 TauDt. 235. ■2 Lord «.Bicknell, 35 Me. 53. 3 Acker o. Finn, 5 Hill, 393 ; Knapp ». Colburn, 4 "Wend. 618. See Waples D. Adkins, Admr., etc., 5 Har. (Del.) 381. * Consult Perreau ». Bevan, 5 Barn. & Cress. 384, and the oases there cited. ' Knapp V. Colburn, 4 Wend. 618. THE BOND A PKEEEQUISITE. 221 § 387. Assignment of the bond to defendant. The usual proceeding, under that statute, and generally under statutes when the bond is to the sheriff, is for the sheriff, (in case the bond is forfeited,) to assign it to the defendant in the replevin suit, who may sue the maker and his security in his own name as assignee. Without the clause authorizing the assignment, the defendant was driven to intricate proceedings against the sheriff, or in the name of the sheriff against the bondsmen. ^ The taking of an assignment of the bond from the sheriff is no waiver of a right to proceed subsequently against him for taking insufficient securities, in case they should prove to be so. A return of nulla bona to an execution upon a judgment against the securities in a replevin bond is not conclusive so as to render the sheriff liable. Proof of their solvency or insolvency may be made by the parties and determined as other issues. 2 A release of the security is equivalent to a release of the sheriff,* and pending a suit upon the bond the suit against the sheriff is suspended.* § 388. The bond a prerequisite. The proper execution of the bond in this action is a statutory prerequisite to the deliv- ery of the property upon the writ.^ This was the rule not only under the English law, but governs in States where the rules of the English law prevail. The officer cannot deliver the property without first taking bond. The command of the writ, as usually framed, is conditional, viz.: " If the plaintiff shall give you security," etc. The prior execution of the bond is as essential as the affidavit; without it, the writ will be quashed, and the judgment will order a return of the goods to the defendant with damages for the wrongful taking.* 1 Gould D. Warner, 3 Wend. 60. = Myers v. Clark, 3 W. & S. (Pa.) 589. »Ib. * Commonwealth v. Rees, 3 Whart. (Pa.) 124; Myers v. Clark, 8 W. & S. (Pa.) 539; Hallett®. Mountstephen, 2 Dowl. & Ryl. 343. ' Pool «. Loomis, 5 Ark. 110. Bond precedes the execution of the writ. Luther v. Arnold, 7 Rich, (8. C.) 897. Whitney v. Jenkinson, 3 Wis. 407 ; Smith D. McPall, 18 Wend. 521 ; Milliken v. Selye, 6 Hill, 633. • Bond must be furnished before writ can be served. Kendall v. Fitts, 3 Post (N. H.) 8; Greeley v. Currier, 39 Me. 518; Thomas v. Spoflord, 46 Me. 222 THE BOND. § 389. Permission to prosecute as a pauper does not excuse giving bond. The action cannot be prosecuted in forma pavr- peris/ that is, the taking of the pauper's oath will not do awaj with the necessity of the bond. Plaintiff may obtain the services of the oificers without cost by taking the neces- sary oath and obtaining permission of the court, but this will not entitle him to a seizure of the goods, nor justify the officer in making such seizure, without bond.^ § 390. Wealth of tlie plaintiff no excuse. Neither will the fact that the plaintiff is a man of abundant means furnish an excuse for not taking the formal bond, with secnrities required by the statute;^ nor will a deposit of money answer in place of the bond.* The statutory bond being in all cases indis- pensable before the delivery of the property by the officer, he is guilty of trespass if he make the delivery without it,* and the defendant may at once bring suit against the officer, or may elect to abide the result of the replevin suit, as he chooses. 5 § 391. Delivery cannot be made without bond given. The ■officer may commence to execute the writ before taking bond; 408. Siieriflf liable in case he fails to take bond as required by this statute, fitate V. Stephens, 14 Ark. 266 ; State o. Boislinlere, 40 Mo. 568 ; Harriman V. Wilkins, 20 Me. 96 ; Kesler «. Haynes, 6 Wend. 547 ; Nunn v. Groodlett, 5 Eng. (Ark.) 100. " Bond for cost is not sufficient ; it must be in compliance ■with the statute, or the suit will be dismissed." Creamer b. Ford, 1 Heisk. (Tenn.) 307. " Failing to give bond works a discontinuance." Weathersby V. Sleeper, 42 Miss. 738 ; Deardorff «. Ulmer, 34 Ind. 353 ; Graves v. Sittig, 5 Wis. 219. And the judgment is for a return, and damages follow. Mor- ris V. Baker, 5 Wis. 389 ; Parker b. Hall, 55 Me. 364. " The bond is as essential .s the affidavit." Smith v. McFall, 18 Wend. 521 ; Wilson ». Williams, 18 Wend. 581 ; Whaling ». Shales, 20 Wend. 673 ; Morris v. Van Voast, 19 Wend. 383; Graves c. Sittig, 5 Wis. 219. If .the sheriff has taken the property without first taking bond with proper security, he ought at once to return it to the defendant. State v. Stephens, 14 Ark. 364; Pirani s. Barden, Pike, (5 Ark.) 81. 1 Horton •». Vowel, 4 Heisk. (Tenn.) 633. = Smith «. Trawl, 1 Root, (Conn.) 165 ; Harriman s. Wilkins, 30 Me. 96. 3 Cummings v. Gann, 53 Pa. St. 488. * Dearborn v. Kelley, 8 Allen, (Mass.) 426 ; Armstrong v. Burrell, 12 Wend. 303. '■ Whitney t. Jenkinson, 3 Wis. 408 ; O'Grady v. Keyes, 1 Allen, (Mass.) 584. MUST CONFORM TO THE STATUTE. 223 that is, where the statute requires an appraisal, he may have the goods appraised, and for that purpose may take the prop- erty, if necessary, from the defendaut;i but he cannot lawfully ' deliver it to thje plaintiff until he shall first have taken bond as the law provides. When the goods are so taken for ap- praisment, unless the plaintiff promptly executes the bond demanded, the sheriff ought to return them.^ From the cases cited, it is clear that when the sheriff serves the writ by deliv- ering the property without first taking bond, or where the bond taken is defective under the statute, the defendant may abate the writ on motion, and compel a return of the goods, or he may regard the taker as a trespasser and recover dam- ages as in other cases of trespass to personal property; but he cannot have trespass with the other actions for the value or for the goods.* § 392. The bond must conform to tlie statute. The bond must conform to the statutory requirements in all essential particulars. It must be in double the value of the property about to be replevied, but if it be in excess of that amount that fact will not render it defective.'* Defects in the form of the bond may be taken advantage of by plea in abatement or by motion to dismiss, ^ or the defendant may, if he prefer such course, obtain a rule of court upon the plaintiff, requir- ing him to furnish a bond in proper form. Defects in the bond should be taken advantage of in the first instance, and such objection comes too late after verdict and judgment.^ In case the sheriff take bond in an insufficient amount, the ' Smith ■». "Whiting, 97 Mass. 316 ; "Wolcott «. Mead, 13 Met. (Mass.) 516. ' State -0. Stephens, 14 Ark. 364. The statute of Wisconsin allows the officer to take the property and hold it a reasonable time to permit the plaintiflf to give bond. Graves v. Sittig, 5 Wis. 319. But unless there are statutory exceptions, the ofllcer cannot serve the writ until the bond is furnished. ' Parker e. Hall, 55 Me. 364; Cady v. Eggleston, 11 Mass. 385. * Owen «. Nail, 6 T. R. 703 and 339 ; Clap v. Guild, 8 Mass. 154; Freeman v. Davis, 7 Mass. 300; Bugle ». Myers, 59 Ind. 73; Whitney ®. Jenkinson, 3 Wis. 407; Smith v. MoFall, 18 Wend. 531. » Houghton t. Ware, 113 Mass. 49; Hicks «. Stull, 11 B. Mon. 53; Doug- lass V. Gardner, 63 Me. 463. ' Bugle B. Myers, 59 Ind. 73. 224 THE BOND. defendant may object and move to dismiss the suit, or he may have an action against the sheriff for his neglect. ^ § 893. The bond not necessary to the trial. The bond, when in form and sufficient, is not necessary to the trial; the case proceeds without reference to it. It is only after judgment, and a failure on the part of the plaintiff to keep the conditions, that resort can be had to it.* Its absence, therefore, at the trial, would in no way affect the jurisdiction or proceeding of the court. ^ The neglect of the sheriff to take bond is not a contempt of court for which an attachment will be issued.* § 394. Where the sheriff is a party. Where the sheriff is interested in the replevin suit, the writ is directed to the cor- oner, who must take the bond. The statute means that the bond shall be taken by the officer who executes the writ." So a bond to the deputy sheriff who signed the return, when he as such deputy assigned the bond to the party, was held suffi- cient under a statute which required the bond to run to the officer serving the writ, designating him as "such officer."' § 395. Defendant may give bond and retain the property. In many of the States, provisions exist by statute, which allow the defendant claiming the property, a reasonable time within which to give bond to the plaintiff, and by so doing he has the right to retain possession of the goods pending the suit. In such case no liability attaches to the makers of the plaintiff's bond. § 396. Bond not necessary where the plaintiff does not ask delivery. Statutes also exist in many States, by which the plaintiff may have the writ without the command to deliver the goods. In such case the property remains in the defend- ant's possession during the suit, and a delivery to plaintiff 'Deardorflf ®. Ulmer, 34 Ind. 353; O'Grady v. Keyes, 1 Allen, (Mass.) 384. So, when a deputy sheriff, acting for his superior, take insufficient security, the slieriff is responsible. Harriman v. Wilkins, 20 Me. 96. ' Tuck v. Moses, 58 Me. 468 ; Pirani v. Barden, 5 Ark. 81. « Tripp v. Howe, 45 Vt. 524; Kesler «. Haynes, 6 "Wend. (N.T.) 547. * Rex V. Lewis, 3 Term. R. 617; Twells v. Coldville, Willes, 875. » Speer «. Skinner, 35 111. 284. • Wheeler e. Wilkins, 19 Mich. 80. EETUEN WITn THE WRIT. 225 only follows a judgment of the court in his favor; conse- quently, in such case no bond is required. § 397. Description of the bond. The bond, in modern practice, is an obligation for the payment of the sum named therein, upon certain conditions. The principal conditions are, that the plaintiif shall prosecute his suit with effect and without delay, or in case of failure to do so, shall make return of the goods, (if return be awarded,) and shall pay such dam- ages as shall be awarded in case of failure to do so — in some States a condition is inserted that the party shall save and keep harmless the sheriff, in making the replevin — with a proviso that if the conditions are kept and fulfilled, the obli- gation shall be void. § 398. Objects and purposes of the bond. Originally the bond was designed to furnish indemnity to the sheriff in taking the goods from the defendant.* In modern practice the bond is not only to indemnify the officer, but it is looked upon as furnishing additional security to the defendant as well, in case the action is not sustained ;2 the object of the bond being to compel the plaintiff to prosecute his suit with effect and without delay, and in case of failure to return the goods, if return be awarded ;3 or, to furnish the defendant with a sufficient indemnity in case its conditions are no* complied with.* § :^99. The return of the bond with the writ. The sheriff is required to return the bond with the writ, so that the defendant may inspect it, and object to its form or sufficiency, or to the solvency of the securities. In some States this is a statutory provision, in others a rule of practice. ^ Upon the return of the bond to the court, the defendant may tile excep- ' Armstrong v. Burrell, 13 Wend. 302; Gordon v. Williamson, 1 Spence, (20 N. J.) 81 ; Barry ■». Sinclair, Phill. (N. C.) 7. ' Langdoc v. Parkinson, 3 Bradw. (Ill ) 138 ; Petrio ». Fisher, 43 111. 443 ; FaUnestock v. Gilham, 77 111. 637; Nunn v. Goodlett, 5 Eng. (Ark.) 100; Smith V. Whiting, 97 Mass. 316; Doogan v. Tyson, 6 Gill. & J. (Md.) 453. ' Badlam -c. Tucker, 1 Pick. 287. * Belt V. Worthington, 3 Gill. & J. (Md.) 347 ; Doogan «. Tyson, 6 Gill. & J. (Md.) 453. ' Petrie v. Fisher, 43 111. 443; Nunn o. Goodlett, 5 Eng. (Ark.) 100. 16 226 THE BOND. tions to its form, or to the sufBciency of the securities. In case the exceptions are sustained, plaintiff may be required to furnish a good bond, and if he neglect to do so, his suit may be dismissed and a return of the property awarded. i § 400. Amount of penalty in the bond The mode of ascer- taining the vahie of the property as a basis for fixing the penalty to be inserted in the bond, varies in different States. By the English law the sheriff was required to take bond in double the value of the property, and also to see that the bond was sufficient not only in respect to the solvency of the secur- ity, but in the amount for which it was taken. In States where the law does not require an appraisment, the practice has become general to accept the statement in the affidavit as the value of the property; and the officer is usually governed by it. In some States this is a statutory provision,* in others a rule adopted by general consent. The sheriff, however, unless the statute requires it, is not bound by the value stated in the affidavit. Where there is no statutory method provided for fixing that value, as by appraisment or otherwise, it is his duty to see that the penalty in the bond is large enough, up to double the value, to fully indemnify him in making the replevin, and to protect the defendant from loss.^ In other States the statute requires that the property shall be appraised by disinterested parties, who fix the value after an inspection. In such case the amount of the bond is based upon the amount of such appraisment.* The parties may agree and so fix the value, and that will be sufficient and binding on both.^ § 40 1. Sheriff may take the property for purpose of apprais- ment. Although the officer has no right to deliver the prop- erty to plaintiff until the bond is executed and delivered to > Allen 0. Judaon, 71 N. T. 77. " Deardorflf v. Ulmer, 34 Ind. 353. See Pomeroy v. Timper, 8 Allen, 401. 3 Murdoch v. Will, 1 Dall. 341; Kimball v. True, 84 Me. 88; Plunkot«. Moore, 4 Har. (Del.) 379; Jeffery v. Bastard, 4 Adol. & E. 823; Roach i. Moulton, 1 Ohand. (Wis.) 187 ; Thomas v. Spofford, 46 Me. 408 ; Gibbs s. Bull, 18 Johns. 435 ; Harriman v. Wilkins, 30 Me. 93 ; People, etc. v. Core, 85 111. 248. * Look at Aulick v. Adams, 13 B. Mon. 104. = Wolcott «. Mead, 13 Met. 516. DEFECTIVE AS A STATUTORY BOND. 227 Mm, yet, for the purposes of appraisment, he may take the property into his possession, i and upon that being done, if the bond is not promptly forthcoming, the sheriff must return the goods to the defendant. ^ § 402. Sheriff not required to prepare bond ; duty of the party. The duty imposed upon the sheriff to take the bond does not require him to demand it from the plaintiff nor to prepare it to be executed. The obligation to "take bond," means that he must, when a sufficient bond is tendered him by the plaintiff or his attorney, accept it and execute the writ.* A delivery of the bond properly executed, to the sheriff, is a sufficient delivery for all purposes.^ § 403. To whom payable. The common law required the sheriff to take the bond to himself. In many of the States, however, it is by statute to be made to the defendant. When the statute requires it to the defendant, the officer is a tres- passer if he take the goods upon a bond to himself, and the instrument is void.^ The statutory provisions upon this question must therefore be closely followed. § 404. Though defective as a statutory bond, it may be good at common law. "While the bond may be faulty under the stat- ute, and insufficient to sustain the plaintiff's suit if objections are properly interposed, yet, when the plaintiff has had the goods delivered to him, and he is defeated, and for any reason the judgment is against him, the fact that the bond does not con- form to the statute is no defense to a suit thereon. It may be entirely inadequate as a statutory bond to sustain replevin on, but may, nevertheless, be good as a common law bond,^ and ' Smith V. Whiting, 97 Mass. 316. 2 State V. Stephens, 14 Ark. 364; Smith v. Whiting, 97 Mass. 316; Wol- cott «. Mead, 12 Met. (Mass.) 516. 3 State V. Stephens, 14 Ark. 366. * Smith V. Whiting, 97 Mass. 317. ' Purple V. Purple, 5 Pick. 336. * Claggett «. Richards, 45 N. H. 360 ; Tuck i). Moses, 54 Me. 115 ; Persse «. Watrous, 30 Conn. 140; Bell v. Thomas, 8 Ala. 537; Barry «. Sinclair, Phill. (N. C.) 7; Florrance «. Goodin, 5 B. Men. (Ky.) Ill; Lambden v. Conoway, 5 Har. (Del.) 1. 228 THE BOHD. as such, must receive sucli constrnction as will most effectually accomplish the intent of the parties to it.i § 405. The same. Construction. In Morse v. Hodsdon, 5 Mass. 318, Paesons, J., said: " The condition of the bond was variant from the statute, but the statute does not prohibit the taking of bond in any other form, or declare such bond void. The plaintiff, under color of the bond given, has obtained pos- session of the goods,' and it would be unreasonable to allow the makers of the bond to dispute it, after their principal has had the benefit of it." And the rule may be regarded as general, that a bond, though irregular under the statutes, is not for that reason void. The party may treat it as a voluntary bond, and recover upon it, provided its terms are sufficient to sustain his claim; 2 and unless it so widely departs from the require- ments of the statute as to defeat the objects, it may still be sufficient to support an action against its makers. ^ Whether a bond, good as a common law bond, but defective as a statu- tory replevin bond, is assignable, under a statute which makes the statutory bond assignable, may be doubted. The party, in seeking to recover upon it, would doubtless be required to con- form his proceeding to his common law rights.* § 406. By whom it must be executed. The bond may be ex- ecuted by the plaintiff in person, or by some one for him, who is duly authorized to sign his name to such an undertaking.^ § 407. Bond may be executed by a stranger to the suit. Or it may sometimes be executed by a stranger to the suit, with proper securities in behalf of the plaintiff. In some of the States the statutes provide that the plaintiff, or some one ' Tuck ». Moses, 58 Me. 472; Livingston v. Superior Ct. N. T., 10 Wend. 547. 2 Branch v. Branch, 6 Fla. 315 ; Stansfeld «. Hellawell, 11 B. L. & Eq. 559 ; Claggett v. Richards, 45 N. H. 360. » Stevenson v. Miller, 3 Litt. Rep. (Ky.) 307; Cobb v. Curts, 4 Litt. Rep. 335; FantB. Wilson, 3 Mon. (Ky.) 343; Hoy B. Rogers, 4 Mon. (Ky.)225; Roman v. Stratton, 3 Bibb. (Ky.) 199; Nunn ». Goodlett, 5 Eng. (Ark.) 100; Fahnestock o. Gilham, 77 111. 637 ; Jennison v. Haire, 39 Mich. 309. * Austen «. Howard, 7 Taunt. 337. » Howe V. Handley, 38 Me. 341 ; Greeley e. Currier, 39 Me. 516; Garlino. Strickland, 27 Me. 443. WHEN IT MAT BE AMENDED. 229 in his behalf, shall execute the bond. Under this provision, it is not essential that tbe plaintiff should appear as a party to it in any way. A bond, in other respects formal and sufficient, made by his agent or friend, or even by a stranger, in his be- half, would be a compliance with such a statute. ^ "When the statutes, however, require the plaintiff to execute the bond, it will be insufficient, unless made by him either personally or by his attorney duly authorized. § 408. How executed. It must be executed under seal. An instrument not under seal cannot be a valid replevin bond. 2 The securities may be released, and others substituted, by leave of the court ; but the party giving the bond cannot, by a deposit of money, release the securities.* § 4:09. When it may be amended. The court may allow amendment to the bond in such particulars as are amendable. When it was not in double the amount, the court permitted a new bond to be filed.* When the statute required two secur- ities, and the bond was signed by but one, the court permitted another bond, with proper security to be given. ^ So, when it ap- pears necessary to use one of the securities as a witness, the court may permit a new bond, with other securities, to be substi- tuted.' "When the securities are insolvent at the time of the commencement of the suit, the court may make order requir- ing good security to be furnished, and may hold the defendant in custody imtil he shall have complied with the order.' A bond executed on Sunday is void,^ under a statute which pro- > Consult Branch v. Branch, 6 Fla. 315 ; Stats, of 111., Title Replevin, § 10 See Frei v. Vogel, 40 Mo. 149; Statute of Michigan, § 504; Claflin «. Thayer, 13 Gray, (Mass.) 459 ; Kinney «. Mallory, 8 Ala. 626. 2 Lovejoy v. Bright, 8 Blackf. (Ind.) 206. This has been changed by stat- ute in many of the States. See Handley v. Hathaway, 4 T. B. Mon. (Ky.) 554. ' Cummings «. Gann, 53 Pa. St. 484. * Where the appraisement was $320.20, and the sheriflf made oath the 20 cents was a mistake, and the bond was in double $320, an amendment of the recital was in order. Hammond t. Eaton, 15 Gray, (Mass.) 186. 5 Whaling v. Shales, 20 Wend. 673; Smith v. McFall, 18 Wend. 528; Hawley v. Bates, 19 Wend. 632; Smith v. Howard, 23 Ark. 203. « Kendall s. Fitts, 3 Fost. (N. H.) 9. ' Cash V. Qaenichett, 5 Heisk. (Tenn.) 738. • Link B. Clemmens, 7 Blackf. 480. 230 THE BOND. hibits common labor. But where the statute required the execution of a bond within twentj-four hours, and the replevin was on Saturday, Sunday was not included in the estimate of time.* One partner cannot bind his co-partner by signing and sealing bond in partnership name.^ § 410. Defect in the bond — when and how taken advantage of. As has been shown, the officer executing a writ of replevin must see that the bond is properly executed and delivered, as required by the statute, or he will be liable as a trespasser;* but the failure of the sheriff to take bond, or the acceptance of an informal or insufficient one, must be taken advantage of by the defendant at the earliest practicable opportunity,* as such defective bond will not deprive the court of jurisdiction, nor in any way interfere with or avoid the proceeding;^ and by omitting to take advantage of such defect, and by pleading to the merits, the defendant will be presumed to have waived his objection, and will not usually be permitted to assert and take advantage of them afterwards. * When the bond did not name the security in the body of it, and being " I " promise to pay, signed by the principal and security, it was held valid as against the signers.' § 411. Eequisites of the bond. The bond should correctly describe the suit in which it is given ; it should name the par- ' ties, especially is it important to correctly name the defendant from whom the goods are to be taken ; otherwise it cannot be told for. whose benefit the bond is given. An omission in this > Link V. Clemmens, 7 Blackf. 480. ' Butterfield v. Hemsley, 13 Gray, 326. Compare Judson d. Adams, 8 Cush. 556. 8 Dearborn v. Kelley, 3 Allen, (Mass.) 436; Nunn «. Q-oodlett, 5 Eng. (Ark.) 89 ; Parker ■». Hall, 55 Me. 363. ■• Houghton V. Ware, 113 Mass. 49. ' Tuck V. Moses, 58 Me. 473; Tripp v. Howe, 45 Vt. 534. « Tripp. B. Howe, 45 Vt. 534; Spencer «. Dickerson, 15 Ind. 368. Wliere bond was with a single security, and an objection to it therefore would have been valid if made in apt time, yet, being allowed to run to a subsequent term, it was too late. Claflin o. Thayer, 13 Gray, 459 ; Simonds v. Parker, 1 Met. 508. It is too late after a verdict. Rich v. Ryder, 105 Mass. 308. ' Clarke ». Bell, 3 Litt. (Ky.) 164. CONDITIONS SEPAEATE AND INDEPENDENT. 231 respect is fatal, and the bond void.^ It ought also to state the court in which the suit is brouglit, and the date or term at which the suit is begun ; but error in this respect is not fatal when the suit and property are so described that they can readily be identified.® Where the condition was to appear at the next term of the county court, and it was objected that there was no such court, it was held that the objection was too technical, and the words were held to mean court of common pleas. ^ § 412. The same. It ought also to describe the goods to be replevied, and to state their value. An omission in this last respect may not be serious, but a failure to describe the goods would lead to great embarrassments, and probably render the bond objectionable.* It must be for a definite. sum, stated in dollars or some denomination of money; a bond in "double the value of the goods about to be replevied" is not sufii- cient.5 The value may be agreed upon by the parties, and such agreement returned by the officer. ^ § 413. The conditions separate and independent of each other. The bond is for the payment of the penalty mentioned therein upon conditions which have already been stated. Each of these conditions is a separate obligation, distinct from all the others, and for a failure to keep any one of them, an action may be sustained for the full penalty of the bond, even though the obligors should keep all the others.' The rule is also well settled that where the conditions of the bond are sever- able, part may be void, while the remainder may be valid. If the valid and void portions were incapable of severance, the > Arter v. The People, 54 111. 238; Matthews v. Storms, 73 111. 331. » Branch v. Branch, 6 Fla. 315; Graves v. Shoefelt, 60 111. 464; Chad wick «, Badger, 9 N. H. 450. ' Arnold v. Allen, 8 Mass. 147. * MoDermott «. Doyle, 11 Mo. 443. Contra, Branch v. Branch, 6 Pla. 315. » Bennett v. Allen, 30 Vt. 684; Case «. Pettee, 5 Gray, 37 ; Clark v. Conn. Eiv. R. R., 6 Gray, 363. » Wolcott ®. Mead, 13 Met. 516. ' Perreau v. Bevan, 5 B. & C. (11 E. C. L.) 384 ; Brown v. Parker, 5 Blackf. 292; Sopris ». Lilley, 3 Colorado, 498; Clark i>. Norton, 6 Minn. 417; Hall v. Smith, 10 Iowa, 47 ; Fullerton v. Miller, 33 Md. 3 ; Persse v. Watrous, 30 Conn. 146; Pettygrove v. Hoyt, 2 Fairfield, (Me.) 66; Lambden ». Conoway, 5 Har. (Del.) 1. 232 THE BOND. bond would be wholly void. But when the conditions are distinct, the obligor is not so injured by what is merely void that he can make use of it to protect him against what is valid. 1 § 414. The condition to prosecute without delay. If the plaintfff delay to prosecute his suit for any unusual or unrea- sonable time, without the defendant's consent, the condition to prosecute without delay will be broken.^ Thus, a failure to prosecute for two years, without good cause shown, was regarded as a forfeiture of this condition, though no judgment of nol pros, was entered.* But when the breach assigned was for a failure to prosecute with eifect, a plea that the suit was still pending was good, as the condition to prosecute with elGfect is not broken by delay, however prolonged. The breach should in such case be upon the condition to prosecute svith- out delay.* § 415. To prosecute with effect. The condition to prosecute with effect is separate and absolute, and requires the plaintiff to prosecute the suit to a successful issue. ' And if, for any cause, the plaintiff fails in his suit, or suffers a non-suit, or ' Newman v. Newman, 4 Maul. & Selw. 70. This question is considered in United States c. Brown, Gilpin 0. C. 155. See Vroom b. Exrs. of Smith, 3 6r. (14 N. J. L.) 480; Anderson v. Foster, 3 Bailey, (S. 0.) 501; Erlinger a. The People, 36 111. 458 ; Balsley v. Hoffman, 13 Pa. St. 607. " The conditions of the bond are disjunctive. Each depends only on itself, and the breach of any one of the separate conditions occasions a forfeiture of the penalty, notwitlistanding all the others may have been kept." Berghoff ®. Heck- wolf, 36 Mo 513; Persse v. "Watrous, 30 Conn. 146; Kimmel v. Kint, 2 "Watts, (Pa.) 483 ; Humphrey «. Taggart, 38 111. 338 ; Gibbs v. Bartlett, 3 W. & 8. (Pa.) 33. " Where one of the conditions is void, it does not affect the others." Chaflfee c. Sangston, 10 Watts, (Pa.) 266. This has been the rule ever since the bond has been used in replevin. Pigot's Case, 11 Co. Eep. 37; Vaughn «. Norris, Ca. t. H. 139 ; Turnor ». Turner, 3 Brod. & Bing. 112; Harrison v. Wardle, 5 Barn. & Adolph, 146; Badlam v. Tucker, 1 Pick. 286; Browne. Parker, 5 Blackf (Ind.) 293. See Dugan «. England, Harper, (S. 0.) 314. 2 Daniels «. Patterson, 3 Comst. (N. T.) 51. » Axford V. Perrett, 4 Bing. 586. See Moore v. Bowmaker, 7 Taunt. 97. * Brackenbury «. Pell, 13 East. 586; Harrison v. Wardle, 5 B. & Adolph, 146. ' Persse v. Watrous, 30 Conn. 144; Tummons v. Ogle, 37 E. L. & Eq. 15; Humphrey ®. Taggart, 38 111. 338; Balsley «. Hoffman, 13 Pa. St, 603. TO PEOSEOUTE WITH EFFECT. 233 judgment, or verdict, against him, it is a breach of this con- dition for which an action may be sustained for the fnll penalty of the bond.i If the action be dismissed, even with the consent of the defendant, it is a clear failure to prosecute with efFect;^ but consent of the defendant to waive any of his rights to damages, or to return, would change the case.^ So when the defendant pleaded non cepit, and the plaintiff afterward was non-suited, there was no failure to prosecute with success.* Failure to prosecute with effect constitutes a breach of condi- tion of the bond, without judgment for a return, ^ and such a judgment is not necessary to entitle the defendant to sustain an action for a failure to keep this condition.* § 416. The same. What is proseeution with eflfeet. Where the defendant pleads non cepit only, and succeeds upon the issue that he did not take the goods, such a verdict in his favor does not constitute a breach of the condition of the plaintiff's bond to prosecute with effect. Instead of entitling him to a judgment for a return, such a result only ratifies his renunci- ation of the property.' The statutory form of the bond under discussion - differed slightly from the ordinary replevin bond, the conditions of the former being, "that in case the plaintiff failed to make good his claim to the property," etc. The court says, " the primary condition of the bond, that which is the basis of liability on it, is, that in case the plaintiff shall fail to make good his claim to the property, he- will re-deliver the goods. Whatever absolves him from this condition discharges him from every liability on his bond." Success by the defend- 'M'Farland v. McNitt, 10 Wend. 330; Langdoc o. Parkinson, 3 Bradw. (in.) 186; Morgan v. Griffiths, 7 Mod. 380; Turnor «. Turner, 3 Brod. & Bing. 107; Perreau v. Bevan, 5 B. & C. 384; Phillip n. Pierce, 3 Maul. & Selw. 183; Gould v. Warner, 3 Wend. 54; Dias «. Freeman, 5 T. R. 195 and 104; Humphrey s.Taggart, 38 111. 338; Doogan v. Tyson, 6 Gill. & J. (Md.) 453; Hansard v. Reed, 39 Mo. 473; Berghoff v. Heckwolf, 36 Mo. 511. ' Stevison v. Earnest, 80 111. 513. ' Hall 8. Smith, 10 Iowa, 46. ' Cooper V. Brown, 7 Dana, (Ey.) 333. » Elliott V. Black, 45 Mo. 373 ; Brown v. Parker, 5 Blackf. (Ind.) 393 ; Diaa «. Freeman, 5 Term. R. 195 and 104. • Sopris «. Lilley, 3 Colorado, 498. ' Ladd e. Prentice, 14 Conn. 116. 334 THE BOND. ant on the simple issue of non cepit, instead of a breach of the bond, is an eflectual defense against all his claims iinder it.i § 417. Proseeution in inferior court not sufficient -when the case is appealed. Prosecution with effect in the inferior court does not satisfy this condition when the suit is removed to a superior court. The plaintiff is bound to follow and prosecute it to a successful issue. This was the common law in cases where the action was removed by a writ of recorda/ri, or by pone,'^ and is the rule in this country when the removal is by appeal from an inferior to a superior court. ^ Where the par- ties stipulated that the replevin suit should be dismissed, and that the plaintiff should pay the defendant, who was the plain- tiff's landlord, a certain sum, and that each should pay his own cost, this stipulation was held sufficient evidence of a failure to prosecute with effect.* § 418. Death of party pending suit. But if the plaintiff die pending suit the condition to prosecute with effect is not broken, the reason assigned being that the death of the party renders the prosecution of the replevin suit impossible, and the performance of the condition rendered impossible by the act of God.s go when the plaintiff prosecutes his suit until abated by the death of the defendant, it will be regarded as a compliance with the conditions to prosecute with effect.' § 419. The condition to return. The condition to return the goods, if return be awarded, is one of the principal — per- haps the principal — condition of the bond. The obligation imposed upon the makers of the bond by this condition is an active, not a passive duty. It requires a return of the goods. ' See, also, Persse «. Watrouse, 30 Conn. 147. 'Lane v. Foulk, Comb. 228; Gwillim v. Hoi brook, 1 Bos. & Pul. 410; Vaughn v. Norris, o. t. H. 137; Blacket ». Cressop, 1 Lutw. 688; Butcher ». Porter, 1 Show, 400. a Balsley «. Hoffman, 13 Pa. St. 603; Gibbs s. Bartlett, 2 W. & S. (Pa.) 34. * Hallett «. Mountstephen, 2 Dow. & Ry. 343. » Persse v. Watrous, 30 Conn. 147 ; Green u. Barker, 14 Conn. 431 ; Par- sons v. Williams, 9 Conn. 236 ; Burkle o. Luce, 1 Comst. (N. Y.) 168; Burkle ■». Luce, 6 Hill, (N. T.) 558; Morris v. Mathews. 2 Ad. & El. (N. s.) 297. « Badlam v. Tucker, 1 Pick. 284. Such was the law in England. Ormand «. Brierly, Garth. 519 ; Bacon Ab. title Replevin, D. OFFEE TO EET0EN NOT A PEEFOEMANCE. 235 The object is to secure a prompt restoration to the defendant of the goods which have been taken from him upon the writ. It is not simply a condition to surrender the goods to an offi- cer upon a writ of return, or that the property may be extorted from the makers of the bond on such process. To a suit for a failure to keep this condition it is no defense to say that the sheriff did not take the property when he could. "• A judg- ment for a return not complied with is a breach of this condi- tion;^ but where the condition is to make return if return be awarded the obligors are not guilty of a breach of this con- dition unless there be a judgment for a return. * The condi- tion to make return is performed if the plaintiff in replevin restore the goods seasonably after the return is awarded;* or if the goods are taken on a writ of return by the officer, it is a compliance with the condition. ^ To an action on a bond the defendant pleaded that one of the defendants forcibly took the possession from him. Meld, no defense, though it might be permitted to go in, in mitigaton of damages.^ § 420. Offer to return unaceom.panieci by a tender not a performance. An offer to return unaccompanied by any ten- der of the goods is not a performance of this condition. When the defendant in a suit on a bond attempted to show that he offered to return the goods to the sheriff, and that the latter refused to accept them because he had been directed not to do so by the attorney; held, no proof of a tender, and-no defense to suit on the bond.' It would seem from this case that an actual tender of the goods was necessary to performance of the con- dition to return. ' Jennison «. Haire, 29 Midi. 209; Burkle d. Luce, 6 Hill, 558; Peck t. Wilson, 23 111. 206. See Carrico v. Taylor, 3 Dana, (Ky.) 33 ; Cooper ®. Brown, 7 Dana, (Ky.) 333 ; Cooper ». Peck, 22 Ala. 406 ; Cushenden v. Har- man, 2 Tyler, (Vt.) 431. ' Smith B. Pries, 31 111. 656 ; Davis «. Harding, 3 Allen, 303. Compare Cowdin «. Stanton, 12 Wend. 120. » Clark 9. Norton, 6 Minn. 415 ; Ladd ■». Prentice, 14 Conn. 117. < Sopris ». Lilley, 3 Col. 498. See Way ». Barnard, 36 Vt. 370 ; Walbridge V. Shaw, 7 Gush. 580 ; Cook c. Lothrop, 18 Me. 360. ' Carrico «. Taylor, 3 Dana (Ky.) 33 ; Harrod o. Hill, 3 lb. 165. " Story 0. O'Dea, 23 Ind. 326. ' Schrader t. "Wolflin, 31 Ind. 238. 236 THE BOND. § 421. The condition to return requires the return of the identical goods. This condition also requires the return of the identical goods taken ; the substitution of other goods of like description and value is not a compliance with the bond. §422. And in as good order as when taken. It is also an implied obligation that the goods shall be in as good order and condition as when taken. "When an express provision of the statute to this effect was ommited in a revision by the legis- lature, it was not regarded as changing the law.i But if the property has in fact been injured while in the plaintiff's pos- session, that fact will not absolve the defendant from the duty of receiving it in its damaged condition. The judgment for a return does not leave it at the option of the defendant to accept or refuse and demand the value. The depreciation is, however, to be made good, and the party may receive full indemnity by suit on the bond.^ § 423. Judgment for a return £v breach of the condition. Judgment for a return having been given, a failure of the plaintiff to make it is a breach of the condition, and suit may be brought at once, without demand. ^ l^either is it necessary, in the absence of statutory requirement, to have a writ of re- turn before suit on the bond. It is sufficient that the return was adjudged and not made.* § 424. The bond only relates to claims in the suit in which it is given. The bond is only for the indemnity of the party for damages occasioned by the replevin suit. A suit in replevin was begun and dismissed. The defendant then brought re- plevin for the property, and recovered judgment and damages 1 Parker «. Simonds, 8 Met. 211 ; Gibbs v. Bartlett, 2 W. & S. (Pa.) 34. = Allen V. Pox, 51 N. Y. 563. But see Douglass «. Douglass, 31. Wall. 98. » Wright V. Quirk, 105 Mass. 45; Cook v. Lothrop, 18 Me. 360; Parkers. Simonds, 8 Met. 205 ; Persse v. Watrous, 30 Conn. 148. * Peck B. Wilson, 22 111. 206. Plaintiff may prove it. Smith v. Pries, 21 111. 656. See Robertson v. Davidson, 14 Minn. 554; M'Farland d. M'Nitt, 10 Wend. 830; Gould v. Warner, 3 Wend. 54; Knapp v. Colburn, 4 Wend. 618 ; Hunter v. Sherman, 2 Scam. 544. Contra, suit on the bond for breach of the condition to return cannot be maintained without a writ of return unsatisfied. Cowden v. Pease, 10 Wend. 334; Cowdin v. Stanton, 13 Wend. 120; Pemble«.CliflFord, 2 McCord, (S. C.) 31; Pemble «. Clifford, 3 McCord, (S. C.) 84; Shaw «. Tobias, 3 Comst. 188. GENERAL PEINCIPLES. 237 to the amount of $270. To satisfy these damages, she bronght suit on the bond given to her in the original suit. Held, the bond was for the special purpose of indemifjing her for such damages as might be adjudged in that suit; not for damages in a subsequent one. The suit in which the bond was given ■was dismissed, with no judgment in her favor, and upon such claim no recovery could be had.i § 425. Actual delivery of the goods on the writ precedes liability on the bond. The law in many States permits the de- fendant to retain the property, upon giving bond to abide the order of the court. In suit on a bond in such a case the plain- tiff must allege and prove a delivery of the property to the plaintiff in replevin. The delivery must precede the liability on the bond. 2 § 426. Actual return in as good order a compliance with this condition. An actual return of the goods in proper time and order is a compliance with this condition. So, also, when property is replevied from the sheriff and comes back into his hands by seizure on another execution, and the plaintiff in replevin requests him to hold it on the first. This is equiva- lent to a return; the condition for a return is fulfilled.* And there are many cases which recognize the continuing lien of an execution, (when goods seized on execution have been replevied,) in case the plaintiff in the replevin has failed in his suit.* ' § 427. General principles governing the eonstruotion of the bond. The principles which govern in the construction of a replevin bond are similar to those which apply to other bonds. When the terms of the instrument render it possible, the court will always adopt a construction which gives to the bond some effect, Tather than one which annuls it.^ The court will ' Boyer v. Fowler, 1 Wash. Ter. 119. ' Nickerson «. Chatterton, 7 Cal. 570. See Clary ». Eolland, 34 Cal. 147. « Hunt «. Robinson, 11 Cal. 262. * Caldwell o. Gans, 1 Blake, (Mon.) 581. See Cook v. Lothrop, 18 Me. 260; Burkle v. Luse, 1 Comst. 163; Evans a. King, 7 Mo. 411 ; Hagan «. Lucas, 10 Pet. (U. S.)400; Lockwooda. Perry, 9 Met. 440; M'Rae v. M'Lean, 3 Port. (Ala.) 138. » a Bla. Com. 179 ; Mitchell ®. Ingram, 88 Ala. 395. So of deeds. Good- 238 THE BOND. also look to the manifest intention of the parties, and carry it out, if that be possible, from the terms of the instrument, i "Words used are to receive their ordinary popular meaning.^ The object of the bond is to provide security to the officer and indemnity to the defendant. The action on the bond ought to be conducted with these ends in view, to best subserve the principles of justice, having due regard to the decision in the replevin suit, and the character and condition of the bond, and the breaches assigned. When the action of replevin was dis- missed, and the defendants in the suit on the bond were defaulted, the court, on a writ of inquiry to assess damages, permitted them to show, in mitigation, that they were the own- ers of the property.* This rule has been engrafted into the statutes of some States, and adopted by construction in others.* § 428. Eight of action accrues upon a failure to keep any of the conditions. The right of action on the bond accrues whenever the plaintiff in the replevin suit fails to keep any of the conditions. Thus, when the conditions of the bond are that the plaintiff shall prosecute his suit with effect, and with- out delay, and return the goods, if return be awarded, the suit on the bond may be sustained when the plaintiff fails in his action, even though there be no award of a return. ^ § 429. Rights of the securities. The securities may, in all cases, stand upon the exact terms of their contract.' They are liable for their express covenants, and no more. They are responsible for the perforniance of what their principal is law- fully bound to do, according to the condition of the bond. The court cannot enlarge or vary the conditions of the contract. title V. Bailey, 2 Cowper, 600; Ajchibald v. Thomas, 2 Cowen, 284; "Wolfe «. McClure, 79 111. 564. 'lb. ' Hawes «. Smith, 3 Fairfield, (Me.) 429. ' Belt V. Worthington, 3 Gill. & .J. (Md.) 247; Stockwell v. Byrne, 32 Ind. 9 ; Doogan v. Tyson, 6 Gill. & J. (Md.) 453 ; Davis v. Harding, 3 Allen, 302. * Statutes of 111. » Brown v. Parker, 5 Blackf. (Ind.) 391 ; Potter v. James, 7 E. 1. 313 ; Eoman ■B. Stratton. 2 Bibb. (Ky.) 199. « Fullerton i>. Miller, 23 Md. 5; Tarpey v. Shillenberger, 10 Cal. 390; Clary v. Rolland, 24 Cal. 147 ; Clark s. Norton, 6 Mian. 412. EIGHTS OF THE SECUKITIES. 239 Thus, where the condition was to prosecute the suit to final judgment, and to pay such damages and costs as the defend- ant should recover, and also restore the property in case that should be the judgment of the court, the defendant omitted to pray for a return, and had judgment for costs only, he after- wards brought suit on the bond for a failure to return, and it was held he could not recover, no return having been adjudged, that condition was not broken. ^ Where a return of the prop- erty is awarded, the securities have a right to make it, if they see fit, in the discharge of their obligation. ^ Where the suit was dismissed before the defendant had an opportunity to claim a return, the fact that one had not been claimed could not be made use of to defeat the suit on the bond.^ The suit, in such case would properly have been on the failure to prosecute with effect. § 430. The same. Illustrations. Where the condition was to pay such damages as should be adjudged, the bondsmen were not liable for those which accrued prior to judgment for a return, unless they were adjudged against their principal in the replevin suit.* The principles which govern in such cases find apt illustrations in cases other than in those on replevin bonds. 5 When the statute under which an appeal was taken required a bond to pay whatever judgment might be rendered upon the dismissal or trial of the appeal, and the bond sued on omitted the words "o?" trial" the court said: "The point is, can the obligors be held responsible by implication beyond the express terms of the bond?" Held, that though not con- forming to the statutory form, the bond was good, as a volun- tary one; that the obligor could not be bound for anything ' Pettygrove fl. Hoyt, 11 Maine, 66; Clark v. Norton, 6 Minn. 413. See Branscombe b. Scarbrough, 6 Adol. & E. (n. s.) 13; Chambers v. "Waters, 7 Cal. 890; Mitchum «. Stanton, 49 Cal. 304; Collins «. Hough, 26 Mo. 150; Balsley «. Hoffman, 13 Pa. St. 606 ; Miller «. Foutz, 3 Yeates, (Pa.) 418 ; Nickerson v. Chatterton, 7 Cal. 568. ^ Kimmel d. Kint, 3 Watts, 433. ' Mills 8. Gleason, 31 Cal. 375. * Sopris V. Lilley, 3 Col. 498 ; Kenley t. Commonwealth, 6 B. Mon. (Ky.) 583. ' Wolfe ». McClure, 79 HI. 564. 240 THE BOND. beyond the letter of the contract. ^ "When the bond was given in a justice court, and the condition was for a return of the property, if return be adjudged by sai'^Z court, etc.: Held^ that under this form the securities had limited their liability, and that unless the return was awarded by the justice, the securi- ties were not liable, even though a return had been awarded by the county court.^ g 431. The same. A judgment irregularly entered for the value of the property replevied, without an order for a return, does not change or affect the liability of the securities upon the condition for a return, though an order for a return may not be essential to entitle the party to an action upon the bond for a breach of other conditions.* § 432. Any material alteration in the bond avoids it. Any material alteration of the bond without the consent of the securities, will avoid it. Thus, when the principal erased his name from a bond to a United States Marshal without the consent of his securities, but with the consent of the marshal, it operated as a release of the securities.* In case a new defendant is substituted in the suit, the securities are under no obligation to him;^ but the substitution by the court of the real defendant (a corporation,) in place of one of its agents, will not release the securities.' The securities are not Uable for a greater sum than the penalty of the bond and costs, even if the damages should exceed that amount,' neither are they liable for costs of the replevin suit unless the bond expressly so provides, or some statutory liability attaches.* § 433. The same. Security bound by acts of the principal. Nevertheless, the securities are bound by all the steps which their principal may take in good faith for the success of his suit in court, and are bound by the result of that suit. If the ' Toung ». Mason, 3 Gilm. (111.) 57. 2 Mitchum b. Stanton, 49 Oal. 304. ' Mason ®. Richards, 13 Iowa, 74. * Martin «. Thomas, 34 How. (U. S.) 316. » Smith B. Roby, 6 Heisk. (Tenn.) 547. 8 Hanna v. International Petroleum Co., 23 O. St. 635. •> Fraser ». Little, 13 Mich. 195 ; Nickerson %. Chatterton, 7 Cal. 571. « Morrow d. Shepherd, 9 Mo. 316. TECHNICAL DEFENSES NOT FATOEED. 241 court have jurisdiction, the securities are bound by such order as it may make in the case, it being the essence of the contract that the security is answerable for his principal's conduct in the suit before judgment, and for his action afterwards within the scope of the bond.i § 434. But a settlement does not bind nor discharge them. A settlement or adjustment of the suit by agreement of the parties, without the consent of the securities, will not bind them, nor will it necessarily release them from their obliga- tions.^ Where it was stipulated of record that all proceedings in replevin should cease, that the plaintiff should pay a cer- tain sum, and that the bond should stand for security, held, that this was sufficient evidence of a failure to prosecute, and that the securities were liable though not bound by the stipu- lation.* § 435. Submission to arbitration does not bind security. So a submission to arbitration by consent of the parties and without the consent of the securities, will release them ; they were bound that the plaintiff should abide all orders of the court properly made, but they were not bound by the orders of another tribunal to which the case is submitted by agree- ment* § 436. Technical defenses to bond not favored The gen- eral rule is well settled that the plaintiff' in replevin who has had the property delivered to him on his writ, cannot dispute the validity of the bond on any mere technical grounds, or for any failure to comply with the statutory process as to the manner of its execution. The rule in all such cases seems to be based on the idea that the party who has obtained delivery of the property by virtue of his suit, and by filing his bond, has had all the benefit which would accrue if the bond had been formal, and is estopped from questioning its validity on tiie > Pirkins a. Rudolph, 86 111. 310; Burrall o. Vanderbilt, 1 Boa. (N. Y.) 637. 2 Moore b. Bowmaker, (1 E. C. L.) 6 Taunt. 379 ; Same «. Same. 7 Tauat. 97; Aldridge «. Harper, 10 Bing. 118; Harrison 't. Wilkin, 69 JST. Y. 413; Coleman «. Wade, 3 Seld. (N. Y.) 44. 2 Hallett ®. Mountstephen, 2 Dow. & Ry. 343. * Pirkins ». Rudolph, 36 111. 307. Compare Leighton -o. Brown, 98 Mass. 516. 16 242 THE BOND, ground of formal or technioal defects. The defendant cannot be allowed to plead that the bond was for ease and favor, and unconstitutional.! In Morse v. Hodsdon, 5 Mass. 314, and in Simo'rvds v. Parker, 1 Met. 614, the rule is strongly laid down that when the bond, under which he has obtained the property, has been voluntarily executed by the plaintiff, he can not avoid it, on the ground that it does not conform to the statutory requirements.® So, error in recital of the date of the commencement of the suit in replevin is immaterial, when the suit and the property are sufEeiently described to indicate the suit which was intended. Where the recital was that the suit was commenced on or about the 3d day of August, while the transcript showed that it was commenced on the 20th day of August, held immaterial.* § 437. The same. The courts have ever been inclined to hold the obligors on the bond to a strict liability. "When it has been given and the property taken, no technical defects not going to the substance of the contract will be permitted to excuse the makers, neither will a failure of the defendant to take advantage of such defects in the replevin suit neces- sarily prevent him from having his remedy upon the bond.* When the bond is given with one security, and the statute requires two, it may, nevertheless, be enforced, though not such a bond as the plaintiif had a right to demand. ^ Where the signature of one of the securities was a forgery, the bond was not for that reason void against the other;' but perhaps he might have shown that the bond was delivered in escrow to ' Compare "Weaver -o. Field, 1 Blackf. 333 ; Magruder «. Marshall, 1 Blackf. 333 ; Strong v. Daniel, 5 Ind. 348. See, also, Parker «. Simonds, 8 Met. 21] ; "Wolfe b. MoClure, 79 111. 564; Gordon t,. Jenney, 16 Mass. 465. Objection that the condition was to appear at county court, when there was no such court, was overrijled; the judges holding that the court of common pleas was intended. Arnold ». Allen, 8 Mass. 149. 5 But, see Purple ». Purple, 5 Pick. 226. 3 Graves v. Shoefelt, 60 111. 464. Bond adjudged void is no bar to an action on the case for the value of the goods. Magill «. Casey, 1 Day, (Conn.) 13. < O'Grady v. Keyes, 1 Allen, (Mass.) 284. « "Wolcott fl. Mead, 12 Met. 518; Shaw ®. Tobias, 3 Comst. (N. T.) 193. * Bigelow «. Comegys, 5 Ohio St. 256. INTENT WILL GOVERN. 243 be signed by the others if such was the fact. "When the bond is for less than double the value of the property, (as required by the statute,) it is not therefore void; defendant may waive the defects and accept it.^ When the securities were excepted to by the defendant under a statute authorizing such excep- tion, and they failed to justify; that fact does not relieve them of their liability, though perhaps the substitution of new securities under such circumstances would. ^ Where the prin- cipal agreeed to give time or to stay execution, such agreement did not release the securities unless the agreement created an absolute disability on the part of the payee to proceed.' Where the plaintiff in the replevin suit has obtained posses- sion of the property under the writ, neither he nor his secur- ities can be permitted to allege in an action on the bond that no suit in replevin was pending, because no summons was issued.* § 438. The liability of a guardian personal. Where a guar- dian sued out a writ of replevin for goods belonging to his ward, and gave bond in his own name, he was held individually liable, and could not set up his guardianship to defeat the suit. 5 § 439. Where the words are ambiguous, the intent will govern. When the words of the bond are not explicit, or, if construed literally, would mean nothing, they must be con- strued with reference to the intent of the parties, ^ and if such intent can be gathered from the terms of the bond and the situation of the parties, it will control. When the bond was that if North, (plaintiff,) prosecute, etc., or in case of failure shall pay such damages as the said North shall recover, etc., held, that this must be regarded as a clerical error, the pre- sumption being that the bond was given in good faith, and such a construction should be given as would render it avail- 1 Rodesbaugh v. Cady, 1 West L. M. (Ohio,) 599. ' Van Duyne o. Coope, 1 Hill, 557 ; Decker «. Anderson, 39 Barb. 347. ' Tousey ». Bishop, 23 Iowa, 178. * Reeves i>. Reeves, 33 Mo. 38 ; 8ammons v. Newman, 37 Ind. 508. ' Oliver v. Townsend, 16 Iov?a, 430. • Teall «. Van Wyck, 10 Barb. 377. 24i THE BOND. able for the purpose for which it was intended. i When the condition of the bond was that it should be void if the obhgor should "not" pay, etc., the palpable error in the introduction of this word was not permitted to defeat what must have been the true intent of the parties. ^ So when the word " pounds " was omitted, Lord Tenteeton said: " The bond was intended to secure various sums stated in the recitals, in pounds sterling, so I cannot doubt the obligor should be held to pay pounds sterling on this bond."* "WJien the bond was signed by plaintiff in replevin after the writ was served, he wiU not be permitted to set that up to defeat his own bond.* All these cases proceed upon the ground that the plaintiff ought not to be suffered to avail himself of the writ to obtain the goods, and then be relieved of the obligation to respond, unless the error be fundamental.^ But when the bond did not contain the name of the defendant in the suit, it was void, and the defect could not be cured by averment or proof. Thus, when suit was brought against the sheriff for a failure to take bond as required by the statute, the defendant pleaded that he did take bond, which he set out at length, but the bond set out failed to show that the defendant's name was inserted therein, or that any language was used from which it could be ascer- tained in what suit the bond was given. Demurrer to the plea was properly sustained. ^ § 440. Proceedings on the bond governed by statute. Pro- vision is made in some of the States for a summary proceeding' • Green ». Walker, 37 Me. 37. See Butler v. Wigge, 1 Saund. 65 ; Waugh ». BuEsel, 5 Taunt. 707. « Bache v. Proctor, Doug. (Eng.) 367. 8 Coles «. Hulrae, 8 Barn. & Cress. 568. » Cady e. Eggleston, 11 Mass. 385; Nunn «. Goodlett, 5 Eng. (Ark.) 100; Reeves v. Beeves, 83 Mo. 88. ' Buck e. Lewis, 9 Minn. 317; Jennison «. Haire, 39 Mich. 314; Decker «. Judson, 16 N. Y. 439 ; Shaw «. Tobias, 3 Comst. 193 ; Moors e. Parker, 3 Mass. 310. 6 Arter ». The People, etc., 54 111. 338. This case was subsequently cited and approved in Matthews v. Storms, 73 111. 321. See Smith v. Roby, 6 Heisk. 549. ' ' Stat. Missouri. Contra, see Gay o. Morgan, 4 Bush. (Ky.) 606; Hurd n. Gallaher, 14 Iowa, 394. ASSIGNMENT OF THE BREACHES. 245 on the bond. In "Wisconsin, the securities are so far regarded as parties to the suit as to authorize judgment against them in the replevin proceedings*/ and the obligee may sue in the name of the sheriff for his use.* These proceedings are gov- erned by the local law, and can only be resorted to when the bond is in strict conformity thereto. ^ § 441. Debt a proper form, of action thereon. Debt is a proper form of action on a replevin bond in States where the distinction between actions is preserved.* The usual form of declaration in debt upon a penal bond will be sufficient with the assignment of such breaches of the conditions as the pleader desires and expects to sustain by proof. The assign- ment of the breaches is simply a statement that the defendant has not performed the conditions which were essential to be kept to excuse the obligors from the payment of the penal sum named in the bond. The breaches need not be assigned in broader terms than the conditions. ^ § 442. Assignment of the breaches. Neither is the assign- ment of the breach required to be in any formal or technical manner. An assignment which sufficiently shows that the obligors have not kept one or more of the conditions is suf- ficient. Thus, when the condition was to prosecute the suit with effect an assignment that the defendant did not prosecute the replevin suit with effect, but failed so to do, in the words of the condition will be sufficient.* § 443. Proceedings in the replevin essential to sustain suit upon the bond. The proceedings in the replevin suit are ' Manning v. Pierce, 2 Scam. 6. See Gould v. "Warner, 3 Wend. 54. Con- tra, in North Carolina, where the remedy is by sei. fa. Summers v. Parker, Taylor's K. C. Term Rep. 147. ^ Hunter v. Sherman, 2 Scam. 544; 3 Oh. Plead. 464. See Keyes ». Mc- Nulty, 14 Iowa, 484. ' Hunter o. Sherman, 3 Scam. 544; 2 Chit. Plead. 460; Perreau «. Bevan, 5 B. & Cress. 284; Axford v. Perrett, 4 Bing. 586; Harvy d. Stokes, Willes, 6; Peck V. Wilson, 33 111. 205; Hopkins «. Ladd, 35 111. 180. * Pratt s. Donovan, 10 Wis. 378. See Hershler v. Reynolds, 22 Iowa, 152 ; Crites . Littleton, 33 Iowa, 305. ' Humphrey «. Taggart, 88 111. 228. ° Wooldridge v. Quinn, 49 Mo. 437 ; Miller v. Commissioners of Mont- gomery Co., 1 Ohio, 271; Humphrey®. Taggart, 38 111. 238. 24:6 THE BOND. essential to sustain suit upon the bond. The record of the replevin suit need not be set out in the declaration on the bond, but the proceeding should be recited, i and the judgment in that suit stated,^ the record in the replevin suit is proper evidence to sustain the averment in the declaration. ^ § 444. The material facts to be set up. The material facts to be alleged in a suit on a replevin bond are manifestly the termination of the replevin suit, judgment for the defendant, and an order for a return of the property, if that be the fact. When the declaration upon the bond alleged concerning the replevin suit, that " said cause coming for trial," it was con- sidered and adjudged by said circuit court, that "the said Stevison take nothing by his said writ, but that he and his pledge to prosecute be in mercy," and further, at the same time the court awarded a return of said goods, etc., and gave judgment for the defendants for one cent damages and costs of suit — the record read in evidence to sustain the averment, after reciting that a previous order had been made requiring the plaintiff to give security for costs, and that a motion to dismiss for non-compliance with that order had been made, proceeded: " It is ordered by the court that said motion be sustained, and that this suit be dismissed at plaintiff's costs, and that a writ of retomo habendo issue herein, and judgment for costs" — it was held, no substantial variation from the declaration.'* When the law permits the defendant to give bond and retain the property, it is essential to aver that the property was delivered, delivery necessarily preceding liability upon the bond;^ even when tliere is no evidence that any, bond was given, it must be presumed the property remained with the defendant, and a finding in his favor will not authorize a judgment for a return without proof that the property was 1 Gould v. Warner, 3 Wend. 57; Eldred v. Bennett, 33 Pa. St. 183; PI. and Ev. 769; McGinnis v. Hart, 6 Iowa, 204; Dias o. Freeman, 5 T. K. 195 and 104. ^ JSTunn v. Goodlett, 5 Eng. (Ark.) 89. « McGinnis v. Hart, 6 Iowa, 208. * Stevison v. Earnest, 80 111. 517. » Nickerson v. Chatterton, 7 Cal. 570. See, also. Bolander e. Gentry, 36 Cal. 110. DEFENSES TO SUIT OK BOND. 247 delivered on the writ.* It need not be averred that the v^rit was directed to the coroner. If it show that the coroner took the goods npon the writ, it is prima facie that the writ was directed to him;^ neither is it necessary to aver that the bond was taken in compliance with the statute,^ but the declaration must state the plaintiff's damages.* § 445. When bond is lost from the files. Where the bond has been lost from the files, it cannot be replaced by a substi- tute without the approval of the court; neither the party nor the clerk, without the sanction of the court, can substitute a paper purporting to be a copy, unless in compliance with an order for that purpose. ^ § 446. Defenses to suit on bond. In an action upon the bond, the defendant who has availed himself of its benefits by obtaining property under it, cannot defeat his liability by plea that the bond was given for ease and favor, or that the law was unconstitutional; 8 neither can he be permitted to plead that he was not indebted,'' nor show a want of jurisdiction in the court before whom the replevin suit was tried.* In Roman v. Stratton, 2 Bibb, (Ky.) 199, the court held that irregularities of the plaintiff in the procurement of the writ or the prosecution of the replevin suit, would not excuse him from liability on his bond; and this case was cited with approval in a leading case in Arkansas.* To permit the party to avail himself of this objection would be to allow him to take advantage of his own wrong. The bond was the plaintiff's voluntary bond, delivered to the oflicer, upon which he obtained possession of the goods, and he and his securities must abide it;' and this rule applies generally to the defense of instru- ' McKeal v. Preeman, 35 Ind. 151. » Shaw V. Tobias, 3 Comst. (N. T.) 191. • Shaw ». Tobias, 3 Comst. (IST. T.) 191. • Arnold v. Allen, 8 Mass. 149. » Farrow e. Orear, 2 Duv. (Ky.) 261. « Magruder b. Marshall, 1 Blackf. 333. ' Warner -o. Matthews, 18 111. 83. 8 McDermott «. Isbell, 4 Cal. 118. • Nunn «. Goodlett, 5 Eng. (Ark.) 90. '» Roman v. Stratton, 2 Bibb, (Ky.) 199 ; Morse «. Hodsdon, 5 Mass. 314. 248 THE BOND. ments of this character.^ The defendant in replevin may waive all defects in the bond which do not go to the substance or defeat his right of action, and enforce the bond against the principal and securities. * So where the securities are excepted to and iail to justify, it will not defeat the plaintiff's right to recover, as though exceptions had not been taken.' The defendant in replevin is in all cases liable to the judgment authorized by law, without any reference to the conditions of the bond. The bond fixes the liability of the securities.* "When the securities are excepted to and fail to justify, such failure does not discharge them. Query, as to whether the substitution of a new bond would be a discharge of the securities on the old.^ • § 447. When ownership of property is settled in the re- plevin suit. When the ownership of the property has been determined in the replevin suit, it is regarded as settled; and in a suit upon the bond in such a case, a plea that the defend- ant, the plaintiff in the replevin suit, is the owner of the property, is bad.* So, also, of a plea of property in a third person;'' and in fact all questions determined in the replevin suit are regarded as res adjudioata, and cannot be inquired into in suit upon the bond.*' § 448. When not so settled, it may be set up in suit on the bond. But when the title and right of possession are not settled in the replevin suit, defendant to suit on bond may plead that fact, and that the ownership and right of possession are in him, and a plea to all but nominal damages would be sufficient* Under the statutes of Illinois, the defendant ' Fant 1). Wilson, 3 Mon. (Ky.) 342. 2 Shaw V. Tobias, 3 Comst. (N. Y.) 188 ; Wolcott v. Mead, 13 Met. (Mass.) 517. 5 Declier v. Anderson, 39 Barb. 347. •" Creamer v. Ford, 1 Heisk. 308. ' Van Duyne v. Coope, 1 Hill, 559. « Sherry v. Foresman, 6 Blackf. 56; Davis «. Crow, 7 Blackf. 130; Wil- liams v. Vail, 9 Mich. 163; Cushenden v. Harman, 2 Tyler, (Vt.) 431. ' Smith V. Lisher, 33 Ind. 504. s Denny v. Reynolds, 24 Ind. 348; Wallace v. Clark, 7 Blackf. 298. 9 Stock well V. Byrne, 33 Ind. 9. See Wiseman «. Lynn, 39 Ind. 250; Davis V. Harding, 3 Allen, 303; Belt «. Worthington, 3 Gill. & J. (Md.) 247 ; Hawley v. Warner, 13 Iowa, 43. MISCELLANEOirS KULES IN SUITS ON BOND. 249 pleaded to an action upon the bond that the property in the replevin suit was his, and that the merits of the case were not tried there, but that the return was awarded only because the plaintiff failed to prove a demand. ^ Such a plea, however, must affirmatively show that the case is within the provisions of the statute by clear and distinct averments; also, that the merits were not determined in the replevin suit; and such a plea, it seems, should admit nominal damages.* § 449. Defenses which should be made in the replevin suit. Plea that one of the defendants had carried away the property and converted it to his iise, is bad. That defense should have been made in the replevin suit, and then no return would have been awarded; or, perhaps the same facts might sustain a plea that the property was returned.* So, also, plea that the judg- ment in the replevin was obtained by fraud;* or, that the suit in replevin was dismissed by agreement, is bad.^ A plea which sets up a return to the sheriff, and does not answer the part which charges failure to prosecute with effect, is bad,* though a return may be pleaded in mitigation of damages. § 450. Miscellaneous rules in suits on bond. It is a gen- eral rule that the defendants to suit on bond caimot set up any irregularities in the replevin suit in order to defeat suit on the bond.' "When the practice act required an affidavit of merits to a plea in an action upon a contract for payment of money, a. plea to suit on a replevin bond was properly iiled without affidavit. 8 "Where the issues in the replevin suit involved title to the property, and a verdict was given for the defendant in a suit upon the bond, the defendant could not ' The plea is set out in full in Chlnn v. McCoy, 19 111. 606. See Laws 111., 1847, p. 63; Rev. Stat. 111. 1874, 853; Warner v. Matthews, 18 111. 83. ^ King V. Ramsay, 13 111. 633. 'Buckmaster v. Beames, 4 Gilm. (111.) 443; Sherry v. Foresman, 6 Blackf. 58. * Hutton ». Denton, 3 Carter, (Ind.) 644. ' O'Neal 0. "Wade, 8 Porter, (Ind.) 410. « Gould V. Warner, 3 Wend. 61. ' Jennison v. Haire, 39 Mich. 307 ; Decker v. Judson, 16 N. Y. 439 ; Shaw «. Tobias, 3 Oomst 193; Moors v. Parker, 3 Mass. 310; Buck d. Lewis, 9 Minn. 317. ' Peck V. Wilson, 33 111. 306. 250 THE BOND. set up a new title acquired after the bond was given ;i but may show that since the judgment for the return, the interest of the plaintiff has ceased in mitigation, but not in bar of damages; or, that the property will at once revert to the defendant; 2 or, he may plead set oft, the suit upon the bond being an action on a contract, subject to set oft' like other actions, though replevin is not subject to set off;' or, may plead performance of the condition of the bond, and require tho plaintiff to state the breaches of the condition upon which he expects to relv;* or, a release of all demands executed by the plaintiff in the suit on the bond, to the prin- cipal obligor thereon, is a release of the bond.^ A judgment for costs only in the replevin suit, and return of execution thereon satisiied, is a discharge of the securities.* To suit on bond the defendant pleaded: 1. Won damificatus. 2. If the plaintiff was injured it was by his own wrong. 3 and 4. That the goods belonged to the principal obligor. 6. That the principal obligor was ready and willing to prosecute his suit with effect, but that the court at the instance of the plaintiff dismissed the suit for want of jurisdiction on account of defects apparent in the affidavit and the writ, and that no damages were recovered in the replevin suit; nor was a return of property awarded. 6. That the bond was executed without consideration. 7. That the consideration was illegal. 8. l&o record of the replevin suit. On demurrer the court held these pleas, except the last, were bad.'' § 451. Variation between the bond and affidavit in descrip- tion, no defense. A yariation in description between the prop- erty in the aftidavit and the bond, will be no defense to suit on bond. That should have been pleaded in the replevin ;8 1 Carr v. Ellis, 37 Ind. 465. " Tuck V. Moses, 58 Maine, 461. 8 Balsley ®, Hoffman, 13 Pa. St. 613; Miller «. Foute, 2 Teates, 418. • Doogan v. Tyson, 6 Gill. & J. (Md.) 453. » Thomas «. Wilson, 6 Blackf. (Ind.) 208; Cocks v. Nash, 9 Bing. 341; Tuttle ». Cooper, 10 Pick. 281. 6 Millett v. Hayford, 1 Wis. 401. ' Sherry «. Foresman, 6 Blackf. 56. • McDermott «. Doyle, 11 Mo. 443. VALUE OF THE PEOPBETY STATED IN BOND. 251 neither can the defendant to suit on bond be permitted to object to the judgment in the replevin suit, on the ground that the writ issued without an affidavit; that the court would in the absence of the affidavit from the record, presume that it was properly filed; or, if not, will not permit a plaintiff in replevin, who managed the case and who obtained the property, to reap all the benefits of his suit and then escape liability in a suit on his bond, on the ground that he procured the writ and obtained delivery of the property without affidavit, or committed other irregularities to defeat it;i neither will the fact that the defendant has collected his costs in the replevin suit. The conditions of the bond are separate, and the col- lection of costs is not a surrender of his right of action. ^ § 452. Submission of the replevin suit to arbitration, a defense. But a submission of the replevin to an arbitration by agreement of the parties without the consent of the secur- ities, will discharge the latter. Had the suit been prosecuted, the court might have awarded a return. This would have enabled the securities to take steps for a deliverance. They did not agree to return without an investigation, and were entitled to have that investigation under the forms of trial by the court ai d jnry.^ § 453. Value of the property stated in bond ; how far bind- ing. The plaintiff in replevin who fixed the value of the property as stated in the bond, is bound by that value, and estopped from questioning it, when sued on the bond;* and as a usual thing, such value also concludes the sureties who sign the bond, but the defendant, in replevin, had no concern in fixing the value, ^ and is not bound by any of the recitals in ' Jennison d. Haire, 29 Mich. 208. * Kafer b. Harlow, 5 Allen, 348. » Plrkins v. Rudolph, 36 111. 312 ; Moore v. Bowmaker, 6 Taunt. 379 ; Aldridge a. Harper, 10 Bing. 118; Coleman ®. Wade, 3 Seld. (N. Y.) 44; Bowmaker v. Moore, 1 Exch. R. 355. * Wiseman «. Lynn, 39 Jnd. 359 ; Trimble v. State, 4 Blackf. 435 ; May v. Johnson, 3 Ind. 449 ; Guard v. Bradley, 7 Ind. 600 ; Sammons v. Newman, 37 Ind, 508; German Ins. Co. v. Grim, 33 Ind. 349; Mattoon v. Pearce, 12 Mass. 406; Gibbs v. Bartlett, 3 W. & S. (Pa.) 34; Clap v. Guild, 8 Mass. 153. ' Howe V. Handley, 38 Me. 351 ; Melvin v. Winslow, 10 Me. 397 ; Parker V. Simonds, 8 Met. 205 ; Thomas v, Spofford, 46 Mo. 410 ; Tuck v. Moses, 58 252 THE BOND. the bond; neither will an appraisment of the value under a statute authorizing it, be binding on the parties. i § 454. Where the value of a number of articles is stated at a gross sum. When, as is sometimes the case, a number of articles are replevied, and the bond sets out the aggregate value, and some are returned and some are not, the recital of the aggregate value in tlie bond affords no information as to the value of separate articles; the plaintiff in the suit must show the actual value, or he can have but nominal damages. ^ § 455. Eflfeet of the destruction of the property. The con- ditions of the bond sometimes become impossible to perform by the death or destruction of the chattel. When domestic animals are the subject.of the action, they are liable to die; in fact, all chattels are liable to be destroyed pending the suit.' If the possession of the defendant be wrongfully acquired, in violation of a trust, or by fraud or force; or, where the claim is characterized by tort and injustice, he can- not shield Himself from payment of value, even though the property may have been destroyed.* § 456. Parties to suit on bond cannot discharge it to the injury of the sheriff. In suit on bond, by the sheriff, he sues for his own protection ; and, if this be pending, the defend- ants cannot release the bond, the sheriff having become responsible for costs. A release of the bond before suit would extinguish it; the sheriff would have no further interest in it, and would stand discharged from his liability. ^ If the suit, however, has been begun by the defendant in replevin in his own name, he may release the bond, as in that case he alone is Me. 477. See in this connection, Leonard v. Whitney, 109 Mass. 265; Wright V. Quirk, 105 Mass. 48; Stevens v. Tuite, 104 Mass. 338. "Tlie sum named in the bond as the value of the goods, is sufficient evidence, thougli not absolutely conclusive on the makers." Clap v. Guild, 8 Mass. 153 ; Mattoon v. Pearoe, 13 Mass. 406 ; Wright v. Quirk, 105 Mass. 48. ' Kafer v. Harlow, 5 Allen, (Mass.) 348; Leighton «. Brown, 98 Mass. 515. 2 Sopris «. Lilley, 2 Col. 498. ^ Carpenter v. Stevens, 13 Wend. 589. * Porter o. Miller, 7 Tex, 480. See title. Damages; post. As to damages for breach of contract occasioned by the act of God, see Sedgwick on Dam., 6 Ed., p. 255, note 3. <■ Armsti-ong v. Burrell, 13 Wend. 303. DAMAGES ON BOND. 253 liable for costs.i The judgment for return cannot be im- peached upon the ground of fraud on the part of the plaintiff in letting the judgment go.^ §457. Damages on bond ; how assessed. In an action on the bond, the damages are assessed on the principle of com- pensation. The sum named in the bond is usually regarded as a penalty, and upon payment of a sum sufficient to com- pensate the obligor for the loss he has sustained, the bond will be discharged. By the common law the makers of the bond were liable for the full amount of the penalty named, but in case of hardship chancery frequently interposed relief; and at length, by the statute,^ it was provided that in actions on bonds with penalties, the defendant might pay the principal debt, with interest and costs, and the penalty might be dis- charged.* The judgment is for the full penalty of the bond, but the judgment is usually accompanied by an order that it be satisfied by the payment of a less sum, which is fixed at the amount of damages the plaintiff has sustained. ^ The bond in replevin is statutory, and is properly classed with other statutory bonds given to secure the defendant against damages resulting from the wrongful use of a provisional remedy. As such, the remedy upon the bond is governed by the same principles substantially as those which govern in the case of injunction and attachment bonds. The sum named as the penalty is for the purpose of indemnity only, not the measure of the injured party's right of recovery, when his actual damage is less than that sum. The value of the goods ' Armstrong v. Burrell, 13 Wend. 303. » "Walls V. Johnson, 16 Ind. 374. " 4 Anne, Chap. 16, ?§ 13 and 13. " See Stat. 8 and 9 Will. 3, Ch. 11, § 8. When the judges refused to grant relief at law, after forfeiture of bonds, upon payment of the principal, in- terest and costs. Sir Thomas Mooeb swore by the body of God he would grant an injunction. Wyllie «. Wilkes, Doug. (Eng.) 523, (505.) The stat- utes in several of the States limit the recovery on the bond to compensation for such damages as have been sustained in consequence of the breach of the conditions. R S. 111. 1874, p. 853, § 25. ' Gould ■». Warner, 3 Wend. 54; Hunter v. Sherman, 3 Scam. 544; Odell «. Hole, 35 111. 308; Frazier d. Laughlin, 1 Gilm. 347; March «. Wright, 14 111. 348; Toles v. Cole, 11 111. 563. 254: THE BOND. which have been ordered to be returned, and have not been restored in compliance with the order, with interest, will usually be the measure of damages in such cases.i § 458. The same; amount of. The amount of damages in an action on a replevin bond must depend materially on the right of the plaintiff (defendant in replevin) to the property. If it is determined in the replevin suit that the property be- longed to him, then in suit on the bond he ought to have a right to recover its value; but if it appear that he had no right to the property, he has sustained no damage by the refusal of the obligor to deliver it to him, and in such case, unless other actual damages are shown, the plaintiff's should be nominal. 2 § 459. The same, in ease of joint owners. When a landlord was joint owner with his tenant, and so defeated the action of replevin, and had judgmfent for a return, yet in a suit on the bond for a failure to comply with the order, the landlord was permitted to recover only the value of his interest in the property; 3 and in this case the defendants in the suit on the bond were permitted, notwithstanding the judgment in re- plevin, to show the character of the possession upon which the plaintiff recovered.* When the defendants in the replevin had a verdict and judgment, but it appeared that the goods ■taken had never been paid for by them, and that they could .not be liable for their price, in suit on the bond they could not recover the value of the goods, but only the value of their interest. 5 § 460. Release of bond by seizure on another writ pending ■suit. When the property is delivered to the plaintiff on the writ, and pending the suit it is taken from him by the order ■of the court, the securities may set up that fact as a discharge.' ' Ormsbee v. Davis, 18 Conn. 555. 2 Wallace «. Clark. 7 Blackf. 299; Belt v. WortMngton, 3 Gill & J. (Md.) 247. 3 Mason v. Sumner, 22 Md. 312. "lb. 5 Seldner v. Smith, 40 Md. 603. « Caldwell v. Gans, 1 Blake, (Mon.) 578. Compare Ackerman v. King, 39 Tex. 291 ; Kercheval v. Harney, Meigs, (Tenn.) 403. LIMITATIONS TO SUIT ON BOND. 255 The foundation for the rule seems to rest on the theory that property seized on a writ of replevin is in the custody of the court. Though in tlie plaintiff's possession, it is always within the power and control of the court, and if taken sub- sequently upon process from the same court, the seizure by the officer is equivalent to a return of the property to him,i and the securities on the bond ought not to be held responsible for property which has been taken from them by order of the court in whose control it was. To what length this doctrine may be carried is a question as yet undecided, so far as the cases examined disclose. ^ § 461. Limitations to suit on bond. The statute of lim- itations to a suit on bond does not begin to run until a judgment for return. A simple delay to prosecute the security for a shorter period than the time limited by law, will not dis- charge them.* § 462. Suit on by sheriff may be in his individual name. Suit by sheriff need not be in the name of his office; his indi- vidual name, with proper words of description, will be sufficient.* ' Hunt V. Kobinson, 11 Cal. 363. ' Consult Burkle v. Luce, 1 Comst. (N. T.) 163 ; Lookwood «. Perry, 9 Met. 444; McRea v. McLean, 3 Port, (Ala.) 188 ; Evans v. King, 7 Mo. 411 ; Hagan v. Lucas, 10 Peters, (U. 8.) 400; Lovejoy v. Bright, 8 Blackf. 306. ' Daniels v. Patterson, 3 Comst. 51. * Caldwell v. West, 1 Zab. (31 N. J.) 411. 256 THE WEIT. OHAPTEE XV. THE WRIT. Section, To -whom addressed, and the mandate 463 Must contain summons to the defendant .... 464 Must describe the particular property 465 Alias writ 466 "Writ lies for property in the ju- risdiction of the court when it issued 467 The return of the writ . . 468 At common law, plaintiff took the property as his own, and might so dispose of it . . 469 Property now regarded as in the custody of the law . . . 470 Section. Injury to goods while in plain- tiff 's possession . . ,471 Eights of the plaintiff to prop- erty taken on the writ . . 472 The same 473 The same. Delivery on the writ does not confer title , 474 The same. "Where the action is for a distress .... 475 The effect of the writ on the rights of the parties pending the suit .... 476 The same 477 The same. Illustrations of the rule 478 The same. Observations upon 479 The same 480 § 463. To whom addressed, and the mandate. The writ i3 usually addressed to the sheriff; but if he is a party, it may be addressed to the coroner. "When the writ was addressed to the sheriff, and was served by the coroner, the plaintifl was permitted to amend it by inserting the word coroner in the directory part.i In its usual form it contains a mandate to the officer to take and deliver the property described ; though by statute, in many of the States, it may issue without the order for delivery. The mandate in the writ for the delivery of the goods is usually upon condition that the plaintiff shall first execute the bond, and upon the neglect of the plain- tiff to do BO, the sheriff cannot take the property. In other States the clerk takes the bond before issuing the writ, and in ' Simcoke v. Frederick, 1 Ind. 54, MUST DESCRIBE THE PARTICULAR PROPERTY. 257 such case the sheriff has no concern but to execute it. These matters depend entirely npon the local statutes. § 464. Must contain summons to the defendant. It must contain a summons to the defendant to appear in court and answer the plaintiff's claim; and the sheriff should serve it by summoning him; but if the defendant appears, an omis- sion of the sheriff to serve it is waived, i It need not show that the affidavit required by the statute has been made,^ nor that the bond has been filed; nor is it essential that it state the value of the property, thongh this is usual and proper. It may be issued for any property within the jurisdiction of the court at the time it is issued, and the subsequent removal of the goods to defeat the writ will not deprive the court of juris- diction, if they are pursued and taken by the sheriff.* § 465. Writ m.ust describe the particular property. The writ must describe the property to be seized and delivered, in such a manner that the sheriff, from the description, or from the description aided by inquiries, can find and deliver it. If, for any defect or uncertainty in the description, it is doubtful what property is to be taken, the sheriff may refuse to serve, it;* and if the writ omit to describe the goods to be taken, it will be quashed, even after appearance;^ but this is not neces- sary, unless the writ commands a delivery of the goods. When it is simply a summons, the articles need not be described.* The description ought to be as full and particular as the cir- cumstances of the case will warrant, so that if the officer can take part, but cannot find, or for any reason cannot take the remainder, he may do so, and make return of his doing under the writ.'' § 466. Alias writ. Where the property has been seized and delivered upon the command of the original Avrit, but the de- ' Swann v. Shemwell, 3 Har. & G. (Md.) 283. " Magee «. Siggerson, 4 Blackf. 70. ' Craft V. Pranks, 34 Iowa, 504. * Smith V. McLean, 24 Iowa, 834 ; Snedeker «. Quick, 6 Halst. (N. J.) 179 ; Magee v. Siggerson, 4 Blackf. 70. " Snedeker n. Quick, 6 Halst. (N. J.) 176 ; De Witt v. Morris, 13 Wend. 495. » FineUout v. Grain, 4 Hill, 537. ' Welch V. Smith, 45 Cal. 230. See anie, § 169, et seq. 17 258 THE WEIT. fendant has not been served or where the defendant was improperly served, an alias writ must issue. ^ So, when part or all of the goods embraced in the first writ were not obtained by the officer, an alias writ was allowed to issue for the pur- pose of obtaining them;® and in such case an alias writ may issue to any other county than that in which the suit was brought and defendant found, the same as in other cases where such writs are proper.* Any other rule would compel the plaintiff to dismiss his suit, and perhaps do great injustice.* The same practice has been recognized in New Tork^ and in Florida. 8 § 467. Writ lies for property in the jurisdiction of the court when it issued. It seems that the writ will lie for property which was within the jurisdiction of the court when it was issued, and that the sheriff may pursue and take it in another county;'' but upon this point the statutes of the different States, as to jurisdiction of the sheriff, may be at variance, and should be the guide to the officer. § 468. The return of the writ. The officer's return must show how he has executed the writ, set out, so that the court can see what has been done, and whether the mandate has been complied with. It ought to show, when such is the con- dition of the writ, that the sheriff has taken bond, and who the securities are.^ § 469. At common law, plaintiff took the property as his own, and might so dispose of it. By the common law, the plain- tiff took the goods delivered to him on his writ of replevin as his own property. He might sell or otherwise dispose of them pending the suit, as he saw fit. In the theory of that law the ' O'Brien «. Haynes, 61 111. 495. « Maxon v. Perrott, 17 Mich, 335. 8 Hiles «. McFarlane, 4 Cliand. (Wis.) 89. < O'Brien v. Haynes, 61 111. 495. ' Ex parte Johnson, 7 Cow. 424; Snow ®. Eoy, 32 "Wend. 603. « Branch ■». Branch, 6 Fla. 815. ' Craft V. Franks, 34 Iowa, 504. " Hays ■». Bouthalier, 1 Mo. 345; Pool d. Loorais, 5 Ark. 110; Mattingly V. Cro-wley, 43 111. 300; Miller «. Moses, 56 Me. 134; Nashville, etc., e. Alexander, 10 Humph. 378. PKOPEETT IN CUSTODY OF THE LAW. 259 property was his, and had been distrained by the defendant. The distrainor set up no claim to the ownership of the prop- erty. All he claimed was a riglit to seize and hold it as a pledge or security for rent, which he insisted was due him.^ Upon replevin, in such cases, the plaintiff, by his writ, took his former title to the property, and gave security that he would show the distress to have been wrongful. The lien of the distrainor was gone, and its place supplied by the bond.^ § 470. Property now regarded as in the custody of the law. In modern practice, cases of distress comprise but a small portion of the cases of replevin, and by the theory of the law in other cases, the ownership is determined by the result of the suit. Pending this, the property is regarded as in the custody of the law, though in the plaintiff's possession. ^ The writ does not confer title to the property;* but it seems, in many cases, that the plaintiff acquires such an interest in the ])roperty delivered to him on the writ as to entitle him to sell or dispose of it, the bond being regarded as sufficient to in- demnify the other party for the value of the property in case latter succeeds. ^ To describe the rights of a plaintiff to property delivered to him pending the suit is one of the most obscure and difficult problems. No general statement can be made without involving numerous exceptions." § 471. Injuries to goods while in plaintiff's possession. If the goods are injured or decay while in plaintiff's jDOSses- sion, it must be at his risk; and in the case of fruit, fresh meat, vegetables, or perishable goods which are valuable only for immediate use or consumption, it would entirely deteat the object and purposes of the action if the plaintiff was ' Gilbert on Replevin, 55. '3Bla. Com. 146; Lowry v. Hall, 2 W. &S. (Pa.) 134; Speers. Skinner, 35 111. 283 ; "Woglam v. Cowperthwaite, 3 Dall. (Pa.) 68 ; Prey v. Leeper, 3 Ball. 131; Bruner v. Dyball, 42 III. 35. ^Bruner v. Dyball, 43 111. 34; Hardy v. Keeler, 56 111.153; Stevens®. Tuite, 104 Mass. 383 ; Miller v. White, 14 Pla. 435 ; Milliken v. Selye, 6 Hill. 623. Compare Buckley v. Buckley, 9 Nev. 379. ^ Lovett V. Burkhardt, 44 Pa. St. 174; Burkle v. Luce, 6 Hill, 558. ' Cary ». Hewitt, 26 Mich. 329. 'Bee post, §479, et seq. 260 THE WEIT. obliged to keep them, (when from their nature they must perish,) and thus be responsible for their full value;i he can- not be allowed to return them in a damaged condition, without being liable for the damage.^ When the property is valuable only for nse, as, for example, a sewing machine or horse, the plaintiff is liable for the value of the use while it is in his possession, 3 and has an undoubted right to put the property to use without being liable for depreciation resulting from the nse. So where the property was valuable only for consump- tion, the plaintiff in the nature of things must put them to use or bear the loss which their decay or depreciation occasions. § 472. Eights of the plaintifif to property taken on the writ. If the plaintiff is the general owner of property seized on execution or attachment, he may, after the execution of a bond and the delivery of the property to him, sell it and confer upon the purchaser a good title; if he was not such owner, he could not.* The restoration of the plaintiff's property to his possession invests him with full power to dispose of it. The execution of the bond, and delivery of the property under the writ, releases it from the lien of the execu- tion, at least so far as that it may be sold and a good title conveyed to a hona fide purchaser. ^ § 473. The same. When the title and the possession both unite in one person, the fact that he acquired that possession by virtue of a writ of replevin will not debar him of the right to sell and convey a good title.® So, where goods are distrained, the tenant may pay the rent and take his goods, discharged from the landlord's claim, or he may give bond and replevy ' Gordon s. Jenney, 16 Mass. 469; Lockwood «. Perry, 9 Met. 444; Men- nie B. Blake, 6 E. & B. (88 E. 0. L.) 843; Stevens ». Taite, 104 Mass. 333. » Allen D. Fox, 51 K. Y. 563. 3 See Sec. 579, et seq. * Bradyll v. Ball, 1 Bro. Ch. C. 438; Glmble ®. Ackley, 13 Iowa, 81. ' Gimble v. Ackley, 13 Iowa, 31 ; "Woglam «. Cowperthwaite, 8 Dall. (Pa.) 68; Frey v. Leeper, 3 Dall. (Pa.) 131; Burkle ®. Luce, 6 Hill, 558: Jones «. Peasley, 3 Greene, (Iowa,) 53 ; Smith «. McGregor, 10 Ohio St. 467. Gomra, Lockwood V. Perry, 9 Met. (Mass.) 440 ; Burkle v. Luce, 1 Comst. (N. Y.) 168 ; Hunt ®. Robinson, 11 Cal. 362. « Donohoe v. McAleer, 37 Mo. 313; Burkle o. Luce, 1 Comst. (N. Y.) 163. EFFECT OF THE WEIT. 261 the goods undei- a proper offer to show that the distress was wrongful; in the latter case, the lien of the landlord is gone; he mnst look to the security. i § 474r. The same. Delivery on the writ does not confer title. Delivery by virtue of the writ invests the plaintiif with the possession of the property, and pending the suit, the defendant, though he may be the owner, cannot disturb the plaintiff's right of possession. Such delivery, however, does not affect the question of ownership; it does not in any way tend to show title in the plaintiff; it is in fact but a temporary right which may terminate upon the discontinuance or abatement of the suit, or by judgment against the plaintiff.^ So, where the plaintiff wrongfully sues out a writ of replevin and obtains possession of goods, and afterwards dismisses his suit, the defendant is not driven to a suit upon the bond, (unless it be in case of a distress,) but may sustain replevin for the property.* Where goods are replevied from the possession of an agent or bailee of the owner, the latter, if a stranger to the proceeding, may sustain Replevin from the plaintiff in the iirst suit.* § 475. The same. Where the action is for a distress. By replevin of goods distrained the lien of the distrainor is sus- pended, but if a return be awarded, and upon the service of the writ of return they are found in the possession of the defendant, (the plaintiff in replevin,) they may be taken and returned to the defendant.^ § 476. The effect of the writ on the rights of the parties pending the suit. Under the statutes in this country, gener- ally the effect of the writ is not to divest the title or the lien of the defendant; this is affected only by the judgment of ' Bruner o. Dyball, 42 111. 35; Speer v. Skinner, 35 111. 282. 2 Lovett V. Burkhardt, 44 Pa. St. 174; Speer v. Skinner, 35 111. 282; Bru- neru. Dyball, 42111.34. ' Bruner v. Dyball, 42 111. 35. * White V. Dolliver, 113 Mass. 402; Globe, etc., v. Wright, 106 Mass. 207. 5 Burkle v. Luce, 6 Hill, 559; Burkle v. Luce, 1 Comst. (1 N. Y.) 163 and 339; Bradyll v. Ball, Bro. Ch. Rep. 427; Woglam v. Cowperthwaite, 2 Ball. 68; Acker i). White, 25 Wend. 614; Frey v. Leeper, 2 Dall. 131; Anon. Dyer, 2806. 262 THE WEIT. the court after a hearing. If the title could be divested by the execution of the replevin bond and delivery of the goods upon the writ, the primary object of the suit would be defeated — the unsuccessful party could always make his elec- tion to keep the goods or pay the value. This advantage was never intended by the statute to be given to a party clearly in the wrong. The effect of the replevin is simply to give the party the possession of the property pending the suit; the title is not changed. A sale made by the party so in posses- sion, who afterwards turns out to have no title, cannot convey title to the purchaser against the real owner. ^ In California, it was said in arg. the real owner could in such case recover his property even from an innocent purchaser; that the prop- erty was in the custody of the law, and that all parties must take notice. 2 In the case of Hagan v. Lucas, 10 Peters, (U. S.) 400, Mr. Justice McLean said, on giving bond the property is placed in the possession of the claimant; his custody is the custody of the sheriff; the property is not withdrawn from the custody of the law. In the hands of a claimant under bonds to the sheriff for its delivery, it is as far from the reach of other process as it would have been in the hands of the officer. 3 When one replevied colts, and before the suit was determined sold them ; afterwards the suit was decided against him and a return awarded, the defendant in the suit replevied them from the purchaser and was permitted to recover on his antecedent title.* § 477. The same. When the sheriff seizes property upon an execution or attachment, and it is replevied from him, and afterwards he levies on and takes possession of it by virtue of another execution or attachment, it is equivalent to a return of the goods, and operates as a revival of the lien of the first process; in other words, the lien or special property which the officer acquires by virtue of a levy of process and seizure of property, is not divested by a replevin of the property from • Lockwood v. Perry, 9 Met. 440. ' Hunt ». Robinson, 11 Cal. 263. 2 Cited and followed in Rives v. Wilborne, 6 Ala. 46. < Lockwood V. Perry, 9 Met. (Mass.) 440 ; Wliite v. Dolliver, 113 Mass. 402. EFFECT OF THE WEIT. 263 him; he is so far regarded as the owner that the title which the first process conferred on him exists, notwithstanding the replevin. Should the property come again into his possession by the levy of another execution or attachment, the lien of the first process revives, and the effect of this is to discharge the securities.^ § 478. The same. Illustrations of tlie rule. Wliere an exe- cution from the State Court was levied by the sheriff upon property which was afterwards claimed by a stranger to the writ, and he gave bond to try the title, (a statutory proceeding similar in principle to a suit in replevin,) and the goods, while so in the claimant's possession, were levied upon by an execu- tion from the United States Court, the Supreme Court of the United States held that the property, though in the possession of the claimant, was in the custody of the State Court, and that the levy of the marshal was erroneous; that while the property was in the possession of the claimant who had given bond, his custody was the custody of the court where his claim was pending; that the marshal had no more right to levy upon it than if it had been in the actual possession of the sheriff on execution from the State Court. ^ A New York case held that where goods seized upon execution were replevied from the sheriff by a third person, that the lien of the sheriff' was gone; or rather, that the plaintiff in replevin took all tlie property which the sheriff had by his fi. fa., and that the propert}' could not again be taken by the officer on an execu- tion against the defendant in the first execution. ^ But nothing in this case appears to conflict seriously with the doctrine in Ilunt v. Ruhinson, or Ilagan v. Lucas, supra, or the case of Burhle v. Znice, 1 Comst. (N. Y.) 163, which are authority for saying that the right acquired by the plaintiff in replevin is only a temporary right; that when that right has ceased the sheriff may retake the property and sell it, thus ' Hunt V. Robinson, 11 Cal. 273. See and compare Goodheart o. Bowen, 3 Bradw. (111.) 578. ' Hagan v. Lucas, 10 Pet. (U. S.) 400. This principal is followed in Good- heart ». Bowen, 3 Bradw. (111.) 578. Acker «. White, 35 Wend. (N. T.) 614. 264 THE WEIT. clearly recognizing the revival of the lien of the sheriff. ^ The doctrine in Hagan v. Lucas, supra, is clearly recognized in Alabama, where it is held that property taken upon a writ of replevin is in the custody of the law, and not subject to other process pending the suit.^ § 479. The same. Observations upon. In attempting to draw a satisfactory conclusion from these cases the difficulty lies in the fact, that in the early cases the plaintiff in replevin was always regarded as the owner of the jjroperty. The writ did not lie to try title, but to enable a plaintiff whose goods had been wrongfully distrained to recover them. Of course, in all such cases, the owner then, as now, took his own prop- erty. The lien of the distrainer was gone.* The owner might sell and convey a good title as thongh they had never been taken from him. A large majority of the cases, however, now are brought, not for the purpose of recovering a pledge wrongfully distrained, but for the purpose of testing ownership ; this is the principal, if not the only question in dispute; and it does not by any means follow that the plaintiff who acquires possession of goods by means of his writ of replevin has any title to the property,* and if he has no title he can convey none by sale. He is, however, invested with possession and the outward ensignia of ownership, has given bond to his opponent, which in contemplation of law is sufficient to indem- nify the latter against loss, whatever may be the result of the litigation, or whatever may become of the subject of the con- test. The plaintiff is also under obligation to return the prop- erty if he fails in his suit, in as good order as when taken upon his writ, or to pay its value in case of failure to do so; with these responsibilities he has the right to use all reasonable means to protect himself from loss.^ § 480. The same. It would, therefore, seem that in cases ' See M'Rae v. M'Lean, 3 Porter, (A.la.) 138; Evaas «. King, 7 Mo. 411; Lockwwod V. Perry, 9 Met. 444. 2 Hives V. Wilborne, 6 Ala. 45. 8 Speer v. Skinner, 85 111. 290; "Woglam v. CowpertUwaite, 2 Ball. 68; Acker «. White, 25 Wend. 614; Bradyll «. Ball, Bro. Ch. Ca. 427. * Lovett «. Burkhardt, 44 Pa. St. 174. » Gordon ». Jenney, 16 Mass. 469. EKFEOT OF THE WEIT, 265 where the property is of a nature such as will be likely to perish or seriously diminish in value within the time which will probably be required for proper litigation, the plaintiff will be justiiied in selling, consuming or disposing of it. In case he does not do so the fact that the property has perished will not relieve him from his liability on the bond. So in cases where the property in dispute consists of merchandise valuable and useful only for pur])oses of sale, and is subject to constant fluctuations in value, or when it is valuable only for imme- diate consumption, the plaintiff will, without doubt, have the right to put it to the use for which it was properly and nat- urally adapted, even if it should involve its sale or consump- tion. "When the property is valuable chiefly for use, and will not be likely to diminish in value by being kept until the liti- gation can be concluded, the plaintiff ought to be ready to restore it to the defendant, if such be the judgment of the court. While there seems to be no direct authority to sustain this doctrine, it is in entire harmony with the general rules of law governing such questions; and unless the particular case should render some other rule more apparently just, this will doubtless be the holding of the court, i ' Mayberry b. Cliffe, 7 Cold. (Tenn.) 117; Gordon «. Jenney, 16 Mass. 469. In Ohio the statute formerly made no provision for a return ; the plaintiff obtaining possession by means of the writ, took all the title the defendant had. The bond was supposed to protect the defendant from loss. Jennings «. Johnson, 17 Ohio, 154; Smith ». McGregor, 10 Ohio St. 470. This rule, however, is now changed by statute. 266 THE EETUEN. OHAPTEE XVI. THE EETCJRlir. Section. The return. General principles 481 The same. Return must be claimed 483 Plaintiff not liable for, unless so ordered by the court . Duty of plaintiff when return is adjudged Keturn ordered only where it ap- pears just] . Keturn may be adjudged to one of several defendants Adjudged only when the defend- ant claims it . The same. Exceptions to the rule Formal prayer for return not es- sential .... The same in Justine court . Judgment for value rendered only where a return would be proper When a defendant pleads prop- erty in a third person . The same . . . . ' . Judgment for return does not settle the question of title . 494 Such judgment generally fol- lows a verdict for the defend- ant 495 483 484 485 486 487 488 489 490 491 403 493 Section, The rights of the parties at the time the return is asked will govern 496 The same. Illustrations of the rule 497 The same 498 Never ordered unless it appears that the plaintiff obtained de- liverance upon the writ. . 499 Return, of the young of animals born after the suit begun . 500 Where defendant avoids trial upon the merits . . .501 The same 502 The general rule stated . . 503 The same 504 Liquors sold to enable vendee to violate the laws . . . 505 When the parties are joint ten- ants 506 Where the property is lost or destroyed . . . .507 When the question of return should be determined . . 508 Return or delivery in States adopting the code . . .509 The writ of return must de- scribe the goods . • .510 § 481. The return. General principles. As has been stated, both parties in replevin are called actors or plaintiffs. ^ When ' Ante, § 31. NOT LIABLE FOE UNLESS OEDEEED. 267 the aetion was for a distress, the defendant, by avowing and demanding a retnrn, was looked upon as suing for the right to make the distress. In other cases, where he claimed the prop- erty and demanded a return, his claim was regarded as a kind of cross-action for the recovery of the property. Upon the decision of this question depended the possession of the prop- erty. It is therefore one of the most important arising in this proceeding. § 482. The same. Keturn must be claimed. The issue as to whether a return shall be made is not always presented in the pleading; but where it is, the action is not determined until the final judgment of the court upon it.i And to en- able the court to determine the respective rights of parties, the plaintiflF is not allowed to dismiss his suit, so as to prevent a hearing or a decision as to the propriet}' of a return, or as to the value of the property, or as to an assessment of damages.^ When the plaintiff does so dismiss his suit, the defendant may retain it or have it reinstated for the purpose of having these issues determined. In such case the plaintiff is regarded as in default.* § 483. Plaintiff not liable for, unless so ordered by the court. Whatever judgment the court may render, whether against the plaintiff, for costs, or costs and damages, he is under no obli- gation to return the goods delivered to him upon the writ, 1 Broom v. Fox, 3 Teates, (Pa.) 530; Branch v. Branch, 5 Fla. 447; City of Bath V. Miller, 53 Me. 816. ^Berghoflf « Heckwoll, 36 Mo. 513; Raney, Admr., «. Thomas, 45 Mo. 113; Collins v. Hough, 36 Mo. 150; Broom v. Fox, 3 Teates, (Pa.) 530; "Waldman v. Broder, 10 Cal. 379 ; Studdert v. Hassell, 6 Humph. (Tenn.) 137 ; Mikesill v. Chaney, 6 Port. (Ind.) 53; Noble «. Epperly, 6 Port. (Ind.) 415; Hall ». Smith, 10 Iowa, 45. ' Wilkins v. Treynor, 14 Iowa, 893 ; Kimmel v. Kint, 3 Watts. (Pa.) 432. But, see Wiseman v. Lynn, 39 Ind. 354, where it is said, if the suit be dis- missed before hearing, there can he no judgment for return. The bond, however, would be liable. See, also, Sanderson v. Lace, 1 Chand. (Wis.) 331. In Alabama, when the plaintiflf consented to a nonsuit, the court said the remedy was upon the bond, it having no data from which to render judgment beyond the formal one for costs. Savage d. Gunter, 33 Ala. 469. If the suit be dismissed, the order for a return must be made at the same term; otherwise the court cannot, at a subsequent term, change Its records and order a return to the defendant. Lill v. Stookey, 73 111. 495. 268 THE EETUEN. un]ess such be the order of the eourt.^ But it does not follow that the plaintiff may not in some cases find it to his advan- tage to return them without the order of the court; as, for instance, the order for a return may not have been made, although the plaintiif has failed in his action, i. e., has not prosecuted it with success, thus rendering him liable to an action upon the bond. In such case, unless the plaintiff is able to make good his defense to suit upon the bond, it may sometimes be advisable to restore the property, even though he at once replevy it again, as the restoration of the property, and its acceptance by the defendant, would go in mitigation of damages in suit upon the bond. § 484. Duty of plaintiff when return is adjudged. If the court renders judgment for a return, the duty is imposed upon the plaintiff to at once return the goods. This duty is not the passive one of permitting the defendant to take his goods, or to surrender them to the sheriff' upon the writ of retorno, but he is required to redeliver them to the defendant,^ and in as good order as when taken. ^ § 485. Return ordered only where it appears just. The power to order a return is exercised upon the idea that a wrong- ful taking of the goods from the defendant, even though under the authority of legal process, does not deprive the owner of his title or right of possession.* This power is always exer- cised by the court in the furtherance of justice, and to protect the rights of the parties ;5 otherwise, property might be taken, ' Clark v. Norton, 6 Minn. 415; Ladd v. Prentice, 14 Conn. 117; Ways. Barnard, 36 7t. 366. 2 Parker «. Simmonds, 8 Met. 207. ' Berry v. Hoeffner, 56 Me. 171 ; Washington Ice Co. ii. Webster, 63 Me. 363 ; Allen v. Fox, 51 N. Y. 563. The writ of return cannot issue ex- cept to the sheriff of the county wliere judgment is rendered. Kathbun v. Ranney, 14 Mich. 383. The plaintiff cannot complain of the omission to award a return. If the jury find for the defendant, and a return is errone- ously omitted, he is the only party injured, and he alone can complain. Branch v. Wiseman, 51 Ind. 1. ^ See dissenting opinion of Sutliff, J., in Smith v. McGregor, 10 Ohio St. 470; Kerley v. Hume, 3 T. B. Mon. (Ky.) 181. 5 Fowler b. Hoffman, 31 Mich. 331; Bartlett o. Kidder, 14 Gray, 450; Salkold V. Skelton, Cro. Jac. 519; Plant «. Crane, 7 Port. (Ind.) 486; Saffell KETUEN MAY BE ADJUDGED TO ONE. 269 without any process to restore it,^ or the plaintiff might be required to deliver his goods to the defendant, when the de- fendant really had no title or right to possess them, when such delivery would, in fact, amount to a loss of his goods. An- other suit in replevin might be permitted on antecedent title, but a right to another suit is but a meagre award to a siiitor in the right. Even after a general verdict for defendant, or a judgment that the writ be abated, the order for return does not follow as a matter of course. Whether it be rendered or not involves an inquii'y into and a decision upon the merits. It is rendered by the court only as the rights of the parties require.^ Where the verdict is for defendant for a sum of money, such a finding does not entitle him to a judgment for return. All that can be inferred is, that the plaintiff is entitled to the property on paying the sum awarded.* When it ap- pears that the defendant never had a right to the possession, a return will not be awarded. It would be absurd that one should acquire rights by successfully defending a suit, upon the ground that he has no interest in the matter in dispute.* § 486. Return may be adjudged to one of several defendants. Where there are several defendants, the court may adjudge a return to one of them, and refuse it to the others, or the judg- V. Wash, 4 B. Mon. (Ky.) 92; City of Bath v. Miller, 53 Me. 317; Wheeler e. Train, 4 Piclc. 168. ' Mikesill v. Chaney, 6 Port. (Ind.) 53; Lowe ». Brigham, 8 Allen, (Mass.) 430. "Tuck V. Moses, 58 Me. 474: Whitwell v. Wells, 34 Pick. 33; Lowe «. Bi'igham, 3 Allen, 430 ; Goodheart b. Bowen, 3 Brad w. (111.) 578; Bourks. Riggs, 38 111. 320; Smith v. Aurand, 10 S.'& R. (Pa.) 93; S^flell v. Wash, 4 B. Mon. 92. ' Hunt V. Bennett, 4 G. Greene, (Iowa,) 513. See Hanford v. Obrecht, 88 111. 493; Hanford v. Obrecht, 49 111. 146. Judgment may be simply for costs. Wheeler v. Train, 4 Pick. 168; Ingraham v. Martin, 15 Me. 373; Miller v. Moses, 56 Me. 128. * Hall V. White, 106 Mass. 600; Whitwell v. Wells, 24 Pick. 38; Snelgar V. Hewston, Cro. Jao. 611. Goods cannot be returned to a person from ■whom they were never taken. Richardson v. Reed, 4 Gray, 441. "When plaintiff is no^i-suited because tlie defendant never had possession, the de- fendant is not entitled to return a judgment for value." Gallagher v. Bishop, 15 Wis. 277. 270 THE EETUEN. ment may be in favor of all; ^ or the court may award part of the property to one of the defendants, and part to another, or to the plaintiff, as the rights of the parties shall appear. § 487. Adjudged only when the defendant claims it. With- . out repeating what has been said elsewhere, and without dis- cussing the question of pleadings, the reader will understand that a return cannot be awarded unless the pleadings are framed for that purpose. The defendant must set up some alErmative right upon his part to have the goods delivered to him, or a return will not be adjudged. Thus, if the defendant sets up as his only defense that he did not tate the goods, this virtu- ally admits the plaintiff's right to them, and upon a verdict for defendant in such case a return will not be awarded. ^ The prayer for a return is in the nature of a cross action, in which the defendant is suing for a return of the goods and for dam- ages.* The same principles govern the plea of non deiinef, which puts in issue only the detention; upon such plea no return will be awarded.* § 488. The same. Exceptions to the rule. In Indiana it is held that an oiBcer who files general denial only, may prove property in himself as an ofBcer by showing that he holds the property under the levy of process, and that the property is ■ Woodburn v. Chamberlain, 17 Barb. 446 ; "Wells «. Johnson, 16 Barb. 375. ' Chambers v. "Waters, 7 Cal. 390 ; Trotter o. Taylor, 5 Blackf. 431 ; "Wright «. Mathews, 2 Blackf. 187 ; Douglass ■». Garrett, 5 "Wis. 88 ; Moulton v. Bird, 31 Me. 297; Ely v. Ehle, 3 Comst. (N. Y.) 510; Simpson v. M'Parland, 18 Pick. 427; Powell v. Hinsdale, 5 Mass. 348; Seymour v. Billings, 12 "Wend. 286; Pratt ®. Tucker, 67 III. 346; Bourk «. Riggs, 38 111. 321; Mills v. Gleason, 21 Cal. 274; Anstice e. Holmes, 3 Denio, 244; Harrison s. M'ln- tosh, 1 Johns. 380; Rogers e. Arnold, 12 Wend. 30; Prosser v. Woodward, ■21 Wend. 205 ; Coits ». Waples, 1 Minn. 134; Finley «. Quirk, 9 Minn. 194; Cooper V. Brown, 7 Dana, (Ky.) 333. 8 Gould V. Scannell, 13 Cal. 430; Bonner «. Coleman, 3 B. Mon. (Ky.) 464; Smiths. Snyder, 15 Wend. 324; Berghoflf«. Heckwolf, 26 Mo. 512; Brown B. Stanford, 32 Ark. 78. But, see Matlock v. Straughn, 21 Ind. 128 ; Zerley e. Hume, 3 T. B. Mon. (Ky.) 181. ■• See pleading non cepit and non detinet. Bemus ». Beekman, 3 Wend. €67 ; Smith s. Snyder, 15 Wend. 324 ; Pierce v. Van Dyke, 6 Hill, 613 ; "V"ose e. Hart, 12 111. 378; Conner v. Comstock, 17 Ind. 92; Hanford ». Obreoht, 38 111. 493. FORMAL PEAYEK FOB EETtJEN NOT ESSENTIAL. 271 owned by the defendant therein. This rule will probably be followed in States having a similar code of practice. ^ By statutory provisions in some of the States the plea of non cepit or non detinet puts in issue not only the taking and detention, but the right of property. ,In such case a verdict for the defendant ought to entitle him to a judgment for return.* § 489. Formal prayer for return not essential. A simple claim for a return in the answer is not sufficient. It should state facts as to the ownership, or right of possession, which justify an award of return. ^ But a formal prayer for return is not essential. The averment of title by the defendant, or a plea setting up ownership in a third person avering a right of possession, with a formal traverse of the plaintiff's rights, will be sufficient.* When the pleas were: 1st, non cepetj 2d, non detinet; 3d, goods not the property of the plaintiff; 4th, property in the defendant; 5th, property in a third person; and where the verdict was, " We find the issues for the defend- ant," this was equivalent to finding all the issues for the defendant, and a return was properly awarded. ^ When the pleas were: non cepit, plea of property in defendant, and in a third person; the verdict was, "" JSTot guilty;" this was regarded as not responsive to any plea except non cepit; held, a return could not be awarded.* § 490. The same. In justice court. In an appeal from a justice court where the pleadings were oral, and where the jury found this verdict: "We, the jury, find the defendant guilty," it was held equivalent to a finding of property in the plaintiff.' § 491. Judgment for value rendered only where a return would be proper. When the property itself cannot be had, ' Branch v. Wiseman, 51 Ind. 1. » Ford ®. Ford, 3 Wis. 399 ; Sparks o. Heritage, 45 Ind. 66 ; Noble v. Epperly, 6 Ind. 414. ' Lewis B. Buck, 7 Minn. 105. * King B. Ramsay, 13 111. 623; Underwood «. White, 45 111.438; Chan- dler v. Lincoln, 52 111. 76. ' Underwood v. White, 45 111. 438. « Hanford ■b. Obrecht, 38 111. 493. ' Jarrard v. Harper, 42 111. 457. 272 THE EETOEN. judgment for tlie value of the property is sometimes awarded. In such case, the judgment for value is never rendered to a defendant unless he show himself entitled to a return. Unless by his pleadings he has claimed the property, and asked a return, judgment for value would be erroneous.^ § 492. When the defendant pleads property in a third person. The defendant in this action may, and frequently does, plead property in himself, and also in a third person, traversing the plaintiff's right. If the goods, in such case, belong to a third person, the plaintiff being unable to show title in himself, must fail. "When the defendant succeeds upon the pica of property in himself, he is entitled to have the prop- erty restored to him; the judgment is pro retorno hahendo? But when he succeeds upon his plea of property in a third person, it is sometimes a question whether he has a right to have the property returned, without in some way connecting himself with the rights of that person. There are cases upon both sides of this question. A very large number hold that the defendant who is successful upon such a plea is entitled to a return of the property without in any way connecting him- self with the title of such third person,* the theory being that the defendant, from whom the goods were wrongfully taken, ought, in justice, to be put iu as good condition as he was before the taking.* • Gould 0. Scannell, 13 Cal. 430. See Bemus o. Beekman, 3 Wend. 667; Bourk D. Rigijs, 38 111. 320; Vose v. Hart, 12 111. 378; Johnson b. Howe, 2 Gilm. 343; Mills «. Gleason, 21 Cal. 280. ' Landers d. George, 40 Ind. 160; Easton ®. Worthington, 5 S. «&. R (Pa.) 133; Walpole ®. Smith, 4 Blackf. 305; Constantine o. Foster, 57 111. 38; King -0. Ramsay, 13 111. 619; Underwood d. White, 45 111. 438; Quincy d. Hall, 1 Pick. 357; Waldman o. Broder, 10 Cal. 379. ' Ingraham «. Hammond, 1 Hill, (N. Y.) 353, citing many cases; Prosser B. Woodward, 31 Wend. 209; Morss v. Stone, 5 Barb. 516; Andersons. Tai- cott, 1 Gilm. 871 ; Quincy ®. Hall, 1 Pick. 357 ; Hunt s. Chambers, 1 Zab. 627; Johnson c. Carnley, 6 Seld. (N. T.) 576; Rickner ». Dixon, 3 G. Greene, (Iowa,) 592; Hopkins v. Shrole, 1 Bos. & P. 383; Butcher s. Porter, 1 Salk. 94; Anon. 6 Mod. 103; Allen -o. Darby, 1 Show, 97; Hoeffners. Stratton,57 Me. 360. See Tuley n. Mauzey, 4 B. Mon. (Ky.) 5. < Butcher b. Porter, Carth, 242; Same b. Same, Show. 400; Salkold «. Skelton, Cro. Jac. 519; Harrison b. M'Intosh, 1 Johns. 384. DOES NOT SETTLE TITLE. 273 § 493. The same. But a large number of cases hold that return will not be awarded to the defendant upon a plea of property in a stranger, unless he show he is in some way responsible to such stranger, or in some way connect himself with the title of the property. i A proper deduction from these conflicting cases seem to be, that when the defendant is a mere trespasser he cannot set up title in a third person to defeat the right of a plaintiff. The title in such third person which is necessary to defeat a plaintiff showing right to posses- sion must be something that goes to destroy the plaintiff's right to recover, or such as would defeat an action of trespass if brought in place of replevin;^ and this unquestionably was the law at a very early time.* § 494. Judgment for return does not settle the question of title. The action of replevin is frequently brought to try the question of the right to possession only, and in such cases a verdict and judgment are not evidence of title in the success- ful party. But when the title is in issue, and that question heard and determined, the judgment, of course, is conclusive on the parties, and all claiming under them.* The judgment for a return, therefore, does not settle the question of owner- ship, unless that question was presented and tried. When, therefore, the action is dismissed, or where, for any cause, ex- cept a decision upon the merits, a judgment for return is ren- dered, the plaintiff may return the goods, and may replevy again on his original title. ^ The statute of Marlbridge, which prevented such replevins, except upon a writ of second deliv- erance, is local to Great Britain, and does not apply in tliis country.* 'Dozier 1). Joyce, 8 Port. (Ala.) 303; Duncan v. Spear, 11 Wend. 54; Brown v. Webster, 4 N. H. 500 ; Wilkerson v. McDougal, 48 Ala. 518 ; Rogers v. Arnold. 13 Wend. 30. ^ See Van Namee v. Bradley, 69 111. 300, a leading case on this subject. ' Butcher «. Porter, 1 Salk. 93 ; Bro. Abr. title Retorno Av., etc., 28 ; Mitchell V. Alestree, Vent. 349 ; East. Ent. 554. ■■ Seldner v. Smith, 40 Md. 603; Wallace v. Clark, 7 Blackf. 299. ' Walbridge ». Shaw, 7 Cush. 560; Warner v. Matthews, 18 111. 83; Child ». Child, 13 Wis. 20. « Daggett V. Robins, 3 Blackf. 417. 18 274: THE EErUElf, § 495. Sueli judgment generally follows a verdict for the defendant. The principles of the common law incline to tavor a return in all cases when the plaintiff has obtained delivery of the goods npon his writ, and for any cause failed to prose- cute his suit to a successful issue; and these principle obtain generally in all the States. ^ This was on the presumption that when the plaintiff failed in his suit, the defendant was enti- tled to liave the distress. The rule in this country may be stated, that when the plaintiff fails in his suit, the presump- tion is that the goods belong to the defendant, and ought to be returned to him. But the plaintiff may show cause, (if he is able,) why the return should not be made; and unless such cause be shown, the order for return usually follows, as a matter ot course, the burden of proof being iipoii the plaintiff.^ Even the insolvency of the defendant, occurring after suit brought, does not prevent him from having an order for a return. The fact that the title he once had has passed to his assignee cannot be set up by any other person to defeat his rights.^ In Ohio, formerly, the defendant was never entitled to a return; but if successful, was entitled to judgment for the value. The writ of return was unknown to the laws in that State, the bond ' When the defendant claims property, and plaintiff takes a non-suit, re- turn will be awarded. Stat. Westm. 3 0. 3 ; Timp v. Dockham, 33 Wis. 153. When a party brings replevin in a State court to recover property seized from him on execution from a federal court, the replevin should be dis- missed, and an order given for a return of the goods. Booth v. Ableman, 16 Wis. 460; Freeman o. Howe, 34 How. (U. S.) 450; Taylor v. Carryl, 20 How. 584; Peck ». Jenness, 7 How. (U. S.) 613-631; Lowe v. Brigham, 3 Allen, 439. " Barry v. O'Brien, 103 Mass. 531 ; Anderson v. O'Laughlin, 1 Blake, (Mont.) 81 ; Dahler v. Steele, 1 Blake, (Mont.) 390 ; Salkold v. Skelton, Cro. Jac. 519 Presgrave v. Saunders, 3 Ld. Eaym. 984; Clark v. Adair, 3 Har. (Del.) 116 Vernon o. Wyman, 1 H. Bla. 34; Mikeslll ». Chaney, 6 Port. (Ind.) 52 Simpson ■». McFarland, 18 Pick. 431 ; Mason v. Richards, 13 Iowa, 73 Chadwick 0. Miller, 6 Iowa, 38; Jansen v. Effey, 10 Iowa, 337; Quincys. Hall, 1 Pick. 357; Timp v. Dockham, 83 Wis. 154; Dawson «. Wetherbee, 3 Allen, 463; Wheeler v. Train, 4 Pick. 168; Allen «. Darby, 1 Show. 97 Smith V. Aurand, 10 8. & B. (Pa.) 93 ; Phillips d. Harriss, 3 J. J. Marsh. 122 1 Ch. Plea. 163 ; Fleet v. Lockwood, 17 Conn. 333. 8 Hallett V. Fowler, 10 Allen, 37 ; Hallett v. Fowler, 8 Allen, 98. EIGHTS OF THE PAKTIES. 275 being supposed to represent the property, which was regarded as transferred by the writ.' § 496. The rights of the parties at the time the return is asked, will govern. Replevin differs somewhat from other ac- tions, in this, that the court will inquire into the conditions of the title to the property, after t:he suit was begun, down to the time the judgment for possession is asked. This does not change the rule that the facts existing at the time the suit was begun govern the rights of the parties at the trial ;^ but when the property remains to be disposed of, the court will inquire inio the state of facts existing at the time the order for a return is asked. If it appears that a change in ownership or right of possession has occurred since the beginning of the suit, as by the expiration of a lease, or the termination of some lim- ited interest, so that the property or right of possession vests in the defendant, a return will not be awarded, notwithstand- ing the title, as it stood at the commencement of the suit, might have been otherwise.* As to whether a return will be ordered where the plaintiif fails to prove a demand for the goods before bringing suit, and for that reason judgment is against him, is discussed under the head of demand to which the reader is referred.* § 497. The same. Illustration of the rule. Where the defendant was successful, and moved for a i-eturn of the prop- ' erty, the plaintift objected, upon the ground that since the commencement of the suit the defendant's title had expired, it appeared that the facts which the plaintiff relied upon to sustain his objection were known to him at the time of the ' Smith s. McGregor, 10 Ohio St. 470; Williams v. West, 3 Ohio St. 87. The statute, however, has changed this. As to the rule in Pennsylvania, see Gibbs d. Bartlett, 3 W. «& S. 34. And in Alabama, see Savage v Gunter, 32 Ala. 46!). '' Johnson v. Neale, 6 Allen, (Mass.) 329. ' Ingraham v. Martin, 15 Me. 378 ; Davis v. Harding, 3 Allen, 303 ; Mar- tin «, Bayley, 1 Allen, 383 ; Whitwell v. Wells, 34 Pick. 83 ; Walpole v. Smith, 4 Blackf. 806; Dawson v. Wetherbee, 3 Allen, 461; Simpson «. M'Farland, 18 Pick. 430; Collins v. Evans, 15 Pick. 68. * See § 373, et seq. 276 THE EETDEN. trial of the replevin suit, the court said it was to late to inter- pose them for the purpose of defeating a return. ^ § 498. The same. The technical correctness of this rulino- "will not be questioned. The rule is very clear that if at the time the judgment for return is asked, the property has be- come vested in the plaintiff, even though the defendant had a right to the possession when the suit was begun, and though he have a verdict and judgment in his favor for costs, he can- not have a return. ^ When plaintiff had leased the property, and the lease had not expired when the suit was begun, but had expired at the time of the trial, the successful defendant was entitled to costs, but not to a return, as the title at the time the return was asked was in the plaintiff.* § 499. Never ordered unless it appears that the plaintiflF ob- tained deliverance upon the writ. A return- can never be adjudged unless it appear that the plaintiff has obtained deliverance of the property by virtue of his writ. In States where the defendant is permitted by statute to retain posses- sion of the goods upon giving bond, a return does not follow as a matter of course upon a finding of the issues in his favor as to ownership or possession ; such a verdict is no evidence that the goods were delivered to the plaintiff. The presump- tion would be that they remained with the defendant; judgment upon these issues, therefore, should not include a return until it be shown that the plaintiff obtained deliverance of the goods upon his writ.* So, when the judgment was for a return of property described in the writ, and it appeared from the officer's return that all the property was not taken and delivered to the plaintiff upon the writ, the court reversed the judgment, saying plaintiff could not be required to return more than came into his possession upon the writ, and its increase.^ ' McNeal •b. Leonard, 3 Allen, (Mass.) 268. « Simpson d. McFarland, 18 Pick. 431; O'Connor s. Blake, 29 Cal. 313; Wlieeler v. Train, 4 Pick. 168. 8 Collins V. Evans, 15 Pick. 65 ; Alien v. Darby, 1 Show. 99. 4 Schofield B, Ferrers, 46 Pa. St. 439 ; Nickerson v. Chatterton, 7 Cal. 570; Brown v. Stanford, 22 Ark. 78 ; McKeal «. Freeman, 25 Ind. 151 ; MoGinais V. Hart, 6 Clark, (Iowa,) 210 ; Conner ». Comstock, 17 Ind. 90. » Mattingly «. Crowley, 43 111. 300. WHEEE DEFENDANT AVOIDS TEIAL. 277 § 500. Return of tlie young of animals born after suit begun. "Where the property in dispute is living animals, the increase of such animals, born after delivery to the plaintiff, may be ordered to be returned ;i but wool shorn from sheep, or butter made from the milk of cows, would be compensated for in damages, not ordered to be returned. ^ But the children of a slave might be recovered with the mother; the ownership of the mother carries with it the ownership of her children. ^ § 501. Where defendant avoids trial upon tbe merits. When the defendant has an opportunity to contest the plain- tiff's claim upon the merits, and avoids doing so by technical objections which are sustained, for purely technical reasons, the judgment for a return does not necessarily follow.* If the writ abate for the mistake of the clerk, the defendant shall not have return.^ When the defendant pleads in abatement for a variance between the writ and the declaration, and is suc- cessful, no return shall be awarded. If he is justly entitled to a return, he should plead and claim it; but when he avoids the issue upon the merits, and no fact appearing in the plead- ings or the record showing his right to possession, a return will not be ordered." But the plea may show that the defend- ant is entitled to a return; if so, it will be allowed.'' So, where the action is defeated only because it is prematurely brought, there is authority for withholding the order for a return, though defendant be entitled to costs and damages. ^ § 503. The same. Although these cases by no means stand alone, they cannot be said to represent the current of authorities, "When the defendant pleaded in abatement for ' Buckley c. Buckley, 13 Nev. 433 ; Jordan v. Thomas, 31 Miss. 558. " Buckley v. Buckley, 13 Nev. 433. « Seay v. Bacon, 4 Sneed. (Tenn.) 103. < Mcllvain's Admr. v. Holland, 5 Har. (Del.) 338. ' Gilbert on Replevin, 175 ; Gould v. Barnard, 3 Mass. 199, 3 Inst. 340. See Parker v. Mellor, Carth. 398; Allen ®. Darby, 1 Show. 99; Patter v. North, 1 Wm. Saund. 347; Cross v. Bilson, 6 Mod. 103. ' Hartgraves v. Duval, 1 Eng. (Ark.) 508 ; Dickinson v. Noland, 3 Eng. (Ark.) 36; Hill v. Bloomer, 1 Pinney, (Wis.) 463 ; Simpson v. McFarland, 18 Pick. 430; Gould v. Barnard, 3 Mass. 199. ' People ex rel, etc. ■». N. T. Com. Plea, 3 Wend. 644. ' Martin v. Bayley, 1 Allen, (Mass.) 381. 278 THE EETnEN. want of a bond for costs (the plaintiff being a non-resident of the State), and tbe plea was sustained, a retarn of the property was adjudged.^ So, in Maine, when the writ was abated be- cause of a defect in the bond, the defendant had judgment for a return.^ The same rule was announced in a well-considered case in Vermont, where the suit was brought in a county other than that in which the goods were detained. The court dis- missed the case, but ordered a return of the goods to the delendant.3 Where the plaintiff is defeated because of defect in his suit or proceeding, while the court will usually order a return of the property, the judgment is not conclusive as to title; that has not been tried, and the plaintiff may, if he elect, bring another suit for the same property, to determine that question.* § 503. The general rule stated. It is more probable, how- ever, that the cases cited for and against the return for technical errors upon the part of the plaintiff, do not present the real principle which lies at the bottom of all such cases, which is, that the court will, in all cases where a return is demanded, rather favor an investigation of the right of the respective parties, at the time, and award or withhold the judgment for a return, as from such investigation seems proper. Such a course is much better calculated to do justice between the lit- igants than an arbitrary penalty inflicted upon the defendant for asserting and standing upon a legal right, or a substantial reward to a plaintiff who has at least been guilty of a technical error." § 504. The same. When it appeared upon the trial that the plaintiff in replevin had but a limited interest in the goods, and that the defendant was the real owner, the question of return depended upon the nature of the interest shown by each party. Eeplevin of goods attached by defendant as dep- ' Fleet V. Lockwood, 17 Conn. 233. « Greely v. Currier, 39 Me. 516 ; McArthur v. Lane, 15 Me. 245. « Collamer v. Page, 35 Vt. 387. * Collamer v. Page, 35 Vt. 393; Thurber v. Richmond, 46 Vt. 398. » Walbridge v. Shaw, 7 Cush. 561 ; Whitwell v. "Wells, 24 Pick. 33. When the right of property and possession are put in issue, but not passed upon, a return cannot be awarded. Heeron v. Beckwith, 1 Wis. 18. WHERE PEOPEETT IS LOST OE DESTEOTED. 279 uty sheriff, etc.; trial; verdict for defendant, who moved for a return. Plaintiff offered to show that since the verdict the attachment had been dissolved, and that defendant's interest had ceased. On appeal Dewet, J., said the attaching officer may be liable to the debtor; the dissolution of the attachment may have been the effect of proceedings in insolvency, and the officer may be liable to the assignee. A return should be awarded.^ § 505. Liquors sold to enable vendee to violate the law. Where parties sold liquors to enable their vendee to sell them in violation of the law, the vendors could not sustain replevin; having brought their suit against the sheriff who had attached them as the property of the vendee, they could not claim that they should, on dismissal of their suit, be left with them. The law found them in the hands of the sheriff, and whether they were properly or not subject to sale or process in the sheriff's hands, they were to be returned to him. § 506. Wlien the parties are joint tenants. When the prop- erty belonged to the plaintiff and defendant as co-tenants, and the jury so found, the action, of course, could not be sustained; in such case the defendant was entitled to judgment for a return; otherwise, the plaintiff, though not entitled to sue his co-tenant in this action, would derive the same benefit from his suit as if he had rightfully brought the action ;« but dam- ages, in case the property be not returned, can only be for the interest which the defendant has in it. * § 507. Where the property is lost or destroyed. When it appears that the property is hopelessly lost or destroyed, so that a judgment for its return can be of no avail, a failure to render judgment for the return will be at most a technical error, and for which the judgment for value will not be reversed.* When property taken is a living animal, and it dies before return, it is a good plea to say it is dead without ' Dawson v. Wetherbee, 3 Allen, 461 ; Kimball v. Thompson, 4 Cush. 441 ; Johnson v. Neale, 6 Allen, 238. 2 Mason «. Sumner, 22 Md. 313. * Jones V. Lowell, 35 Me. 539 ; Witham v. Witham, 57 Me. 448 ; Bartlett e. Kidder, 14 Gray. 450. * Brown v. Johnson, 45 Cal. 77; Boley v. Griswold, 30 Wall. 486. 280 THE EETOEN. fault of defendant ;i and in such cases the court may render judgment for the value without ordering a return. § 508. When the question of return should be determined. The right to a return should be determined in the replevin suit.2 In Missouri, upon a judgment of non-suit against the plaintiff, a writ of inquiry issues to ascertain the value of the property; also, whether the plaintiff has possession or not, and to assess the damages for the taking and detention.^ The judgment for return must be rendered at the term at which the case is determined. If the fact that the court has at the time of disposing of the suit decided to award a return, but does not do so, does not authorize the entry of such judgment at a subsequent term.* The rules before stated, while they apply generally in practice, have a peculiar application in replevin where the action is in the nature of a tort, and where promptness and exactness are especially required. § 509. Return or delivery in States adopting the code. By legislative changes in many of the States this action has be- come simply one of "claim and delivery." The plaintiff claims the property, but frequently does not ask delivery until after trial. The judgment at the conclusion of the suit awards property to the party entitled to its possession; if it be to the defendant from whom the proj)erty has been taken, the judg- ment is for a return; if to the plaintiff who has not had de- livery before the judgment, it is for a delivery. The judg- ments in such cases are controlled by very similar principles. The court, after due considerations of the rights of the parties, awards the property to the one entitled to it; if that party is not in possession, the court awards a delivery to him, and also a judgment for the value to be collected in case the order for delivery is not complied with. The judgment in such case is not absolute, but is in the alternative for the goods or for the ' Carpenter v. Stevens, 13 Wend. 589, though this is disputed; see post, % 600, et seq. « Harman v. Goodrich, 1 Greene, (Iowa,) 25 ; Mills v. Gleason, 31 Gal. 374. Unless in case of non-suit. Ginaca v. Atwood, 8 Cal. 446. 3 Hohenthal b. Watson, 38 Mo. 360. ^ Lill D. Stookoy, 73 111. 495. WETT OF EBTUEN MUST DESCRIBE THE GOODS. 281 yalue in case delivery cannot be had,^ and in case delivery in compliance witli such judgment is not made, execution issues against the party to collect the value. § 510. The writ of return must describe the goods. It was an old rule that the sheriff, upon a writ of retorno, is not obliged to deliver the goods unless they were " shown to him," or so clearly described in the writ that there can be no ques- tion about their identity. ^ •This rule is general, though in some States the party may elect to take judgment for the value alone. ' East. Ent p. 570 6/ Taylor t>. Wells, 2 Saund. 74 6. It is a good return to say that " none came to show the beasts." Bao. Abr. title Eep. H ; Wil- son D. Gray, 8 Watts, (Pa.) 34. It is also held that if the goods are described in the -writ of return as they were described in the writ, it is sufficient, and a rule that the sheriff must make inquiry, if he cannot find the goods with- out These rules are not intended to encourage loosness in description, which should in all writs be full and accurate DAMAGES. CHAPTEE ZVII. DAMAGES. Section. By common law, damages al- lowed to plaintiflF, not to de- fendant 511 General rule now Is that dam- ages are awarded to the suc- cessful party .... 512 Allowed only as an incident to the proceedings for possession 513 May be allowed to both pai'ties 514 The reasons for the rule . . 515 PlaintiflF cannot dismiss so as to avoid a hearing upon the question of damages or re- turn 516 Where the suit is dismissed for informality . . . 517, 518 The rule in such cases . . 519 The rules applicable to actions of tort generally apply to re- plevin ; distinctions stated . 520 Damages to plaintiflF . . . 521 Damages to defendant . . 523 The same. Not allowed unless a return of the property is claimed .... 523, 524 The rules for estimating dam- ages 525 Nominal damages . . 526, 527 Party claiming damages must show the extent of his inju- ries by proof . . . 528, 529 Compensation the object of the award 530 How the amount of compensa- Ition is aicortained . . . 531 Section. When the goods have changed in value 533 The rule giving compensation applies only to cases where no malice or willful wrong is charged 533 When taking was wrongful, damages estimated from the time of taking, otherwise from the time of conversion . . 534 Depreciation in value a proper element of damages . . 535 The rule not uniform . . 536 Interest as a measure of dam- ages 537 How assessed .... 538 When a part of the goods only are found .... 539 In suit on bond .... 540 When the suit is concerning the validity of a sale . . .541 Where defendant is ■ a stake- holder 543 Value of property when allowed as damages . . . 543, 544 When value is regarded as at- taching 545 Value at the time of conver- sion 546, 547 This rule is applicable when the value of the property is stable; rule when the value varies 5^8 The highest value after taking and before trial . 549 to 552 BY COMMON LAW ALLOWED TO PLAINTIFF. 283 Qualifications of the rule ; suit must be brought ■within a reasonable time . . 553. What is highest market value . Further qualifications of the rule Measure of damages in suit for a note or bill . . 557 to 559 Value of coin sometimes esti- mated in currency - Damages occasioned by party's own act not allowable . The place where the value is considered as attaching The same. General rule is val- ue where the goods were de- tained ; value in another mar- ket may be evidence 563 to 565 The same. Reason for the rules stated . . ... 566 554 555 556 560 561 563 Trespasser ■ cannot recover for his labor in increasing the value 567 Or make a profit out of his wrongful taking . . . 568 Statement of value in the affi- davit usually binds the plain- tiff, but not the defendant . '56& Appraisment does not bind either party .... 570 Special damages must be spec- ially pleaded .... 571 Loss by interruption of busi- ness 572, 573 Loss of real or probable profits 574 Party clajming damages must do what he can to avoid loss 575 Expenses ; counsel fees, etc. 576, 577 Expense of taking and remov- ing the property . . . 578 § 511. By common law, damages allowed to plaintiff, not to defendant. By the common law, the plaintiff m replevin, if successful, was entitled to damages; the defendant or avow- ant was not.i This was because the action would lie only in cases of distress for rent, where the lord distraining had no right to use the cattle,^ and was not damaged ^ by the replevin while the tenant was always damaged by the taking and con- sequent loss of the use of his beasts. The statutes 7 H. V^III. c. 4, and 21 H. YIII. c. 19, gave the defendant a right to damages, the same as the plaintiff was entitled to before the statute was enacted. The governing principle of these stat- utes has obtained the force of law generally in this country — - in some States by direct adoption of the common law and the statutes in aid thereof, and in others the courts have adopted the substantial principles of these statutes to the requirements of more modern jurisprudence. The common law to prevent vexatious suits, required the plaintiff to find pledges to pros- 'Winnard v. Foster, Lutw. 374; Hopewell v. Price, 3 Har. & G. (Md.) 275. » Anon. Dyer, 380. 'The sheriff it seems has no right to use cattle seized. Briggs v. Glea- son, 39 Vt. 80; Lamb v. Day, 8 Vt. 407. 284 DAMAGES. eciite; and he was amerced if he failed to sustain his claim. As that practice fell into disuse, costs were awarded to the successful party, these not being sufficient in all cases to restrain frivolous or vexatious suits, the law gave the success- ful party damages. ^ § 512. General rule now is that damages are awarded to the successful party. Under modern practice, the general rule may be stated, that the successful party in replevin is entitled to damages against his opponent in all cases where damages are claimed in his pleading. The amount may be nominal, or substantial, as circumstances require.* The ques- tion of damages is so far an essential one in replevin, that a failure to claim them in the declaration is a fatal defect.* The successful party in this action may have judgment for the property, or for its value, in case it is not delivered. It is very evident that in many cases the restoration of the goods or the payment of the value falls far short of compensating for the injury plaintiif has sustained.* In such cases dam- ages are awarded to make good the loss.^ § 5 13. Allowed only as an incident to the proceeding for possession. Eeplevin is not the proper action for the recovery ' Savile v. Roberts, 1 Ld. Raymond, 380. ' In Kendall d. Fitts, 3 Foster, (N. H.) 9, it was said, that in replevin damages should always be assessed for the plaintiflf or defendant. In the subsequent case of McKean v. Cutler, 48 N. H. 373, it was said, that a find- ing of damages was not essential to the validity of a judgment in replevin. See, also, as to the general rule. Brown «. Smith, 1 N. H. 38 ; Etter s. Ed- wards, 4 "Watts, (Pa.) 68; Booth o. Ableman, 30 Wis. 24 /Graves v. Sittig, 5 Wis. 319; Creighton v. Newton, 5 Neb. 100; School Dist. e. Shoemaker, 5 Neb. 36; Wright v. Williams, 3 Wend. 636; Buckley v. Buckley, 12 Ner. 423 ; Frey v. Drahos. 7 Neb. 195 ; Seymour v. Billings, 12 Wend. 286 ; Clark V. Keith, 9 Ohio, 73; Hohenthal ®. Watson, 28 Mo. 860; Williams v. Phelps, 16 Wis. 87. The jury should determine whether the plaintiflf had the right of property, or the right of possession only, at the commencement of the suit, and if they find either in his favor, they should assess such damages as are proper. Williams ■». West, 3 Ohio St. 86. Eeplevin sounds in dam- ages like trespass. Herdic ». Young, 55 Pa. St. 1, 76. 2 Paget V. Brayton, 3 Har. & J. (Md.) 350 ; Crosse «. Bilson, 6 Mod. 102 * See cases last cited. ^ Stevens v. Tuite, 104 Mass. 833 ; Hemstead o. Colburii, 5 Cranch. C. C. 655. MAY BE ALLOWED TO BOTH PARTIES. 285 of damages, except as an incident to the proceeding for pos- session.' So when, after a demand and refusal, but before suit brought, the defendant offered to restore the property, the plaintiff on trial insisted that his right to damages was com- plete upon the refusal of the defendant to deliver; that a subsequent voluntary surrender would not defeat the action ; the court held that surrender of the property was a bar to damages,^ though perhaps the party might have been entitled to such damages as accrued after the refusal and before the surrender. When a distress was made of horses and cattle, and one horse and cow not levied upon followed the others to the place where they were impounded, although an effort was made to drive them back, and the next day the tenant was no- tified that he could get them by going for them, replevin would not lie; the defendant never had or claimed the posses- ision. The only action which could be sustained would be an action for damages independent of the possession, and for that : replevin is not adapted.* § 614. May be allowed to botli parties. The verdict and judgment may sometimes be against both parties. That is, the plaintiff may have judgment for a portion of the property, while the remainder may be ordered to be returned to the de- fendant. In such cases each party is entitled to judgment against his opponent, for damages and costs, so far as he is successful.* The general power of the court extends without doubt to set off the damages and costs one against the other, and to give judgment for the balance.^ ' Johnson v. "Weedman, 4 Scam. 495. 5 Savage v. Perkins, 11 How. Pr. R. 17. ' Lindley v. Miller, 67 111. 345. See, also, Williams v. Archer, 5 M. G. & S. 318; Jansen v. Bflfey, 10 Iowa, 237; Whitfield «. Whitfield, 40 Misa. 367; Prazier «, Fredericks, 34 N. J. L. 163 ; Broadwater v. Darne, 10 Mo. 378. * Brown v. Smith, 1 N. H. 36 ; Williams v. Beede, 15 N. H. 483 ; Powell v. Hinsdale, 5 Mass. 843 ; Wright v. Mathews, 3 Blackf. (Ind.) 187 ; Clark ». Keith, 9 Ohio, 73; Seymour v. Billings, 13 Wend. 286. 5 McLarren «. Thompson, 40 Me. 385 ; Poor v. Woodburn, 25 Vt. 339. There were six issues; the jury found three for each party; the court allowed each party all the costs upon the pleadings where he had suc- ceeded, and judgment was accordingly. VoUum v. Simpson, 3 Bos. & Pull. 368. In this replevin differs from other actions. Butcher v. Green, 286 DAMAGES. § 515. The reasons for the rule. It must be kept in mind that in this action the plaintiff's suit is not only for his goods but for the damages he has sustained by reason of their wrong- ful taking or detention, which furnished the foundation of his action; and^ if he succeeds in establishing his claim, he is en- titled not only to his property, or its value, but to such damages as will be just.^ The claim for damages is as much a part of the case as the contest for the possession of the goods,* but if the plaintiff, for any cause, fails or dismisses his suit, or submits to a non-suit, the defendant is entitled to a judgment for a return of the property, or for its value, and to such damages as shall compensate him for the injury he has sustained.* The defendant is suing for a return of the goods and for damages,* and if successful is entitled to judgment, and upon a proper showing to the same damages the plaintiff would have had had he been successful. ^ § 516. Plaintiff cannot dismiss so as to avoid a hearing upon the question of damages or return. The plaintiff cannot dis- miss his suit so as to avoid a hearing as to the value of the property and assessment of damages. In case of a dismissal for that purpose, the court will retain the case and hear and determine the questions as to damages and a return;' and if the plaintiff should dismiss his suit, it would not affect the defendant's right to an action on the bond. ' § 517. Where the suit is dismissed for informality. It hap- pens not unfrequently that the plaintiff is compelled to dismiss his suit for some informality in the proceeding, where no trial Doug. (Eng.) 653; Wright v. Williams, 3 Wend. 633; Porter v. Willet, 14 Abb. Pra. Rep. 319. 1 Messer v. Baily, 11 Foster, (N. H) 9; Bell v. Bartlett, 7 N. H. 178; Dor- sey V. G-assaway, 2 Har. & J. (Md.);403 ; Graves b. Sittig, o Wis. 333 ; Parham ■B. Riley, 4 Cold. (Tenri.) 10; Gray ». Natioas, 1 Arli. 569. " Buckley d. Buokley, 13 Nev. 430. = Fallon v. Manning, 35 Mo. 274; Collins v. Hougb, 36 Mo. 149. * Gould V. Scannel, 13 Cal. 430; Bonner v. Coleman, 3 B. Mon. (Ky.) 464; Smith «. Snyder, 15 Wend. 334. 5 Berghoff «. Heokwolf, 26 Mo. 513; Smith v. Winston, 10 Mo. 399. « Mikesill v. Chaney, 6 Port. (Ind.) 53; Ranney s. Thomas, 45 Mo. 112; Berghoflf v. Heckwolf, 36 Mo. 513. ' Hall v. Smith, 10 Iowa, '15. •WHERE SUIT IS DISMISSED FOR INFORMALITY. 287 upon the merits can be had, but when the court is justified in ordering a return of the property. In such case, the question of assessing damages, in addition to the return of the property, is one of some difficulty. If, for example, the suit is dismissed for some informality in the affidavit, writ or bond, the judg- ment may be for a return; the defendant may also ask for an assessment of his damages for the wrongful taking. In such case no evidence of the plaintiff's title is permitted, when, in case an opportunity had been offered, he might have been abundantly able to show himself to be the owner of the goods, and entitled to their possession. The judgment for return in such case does not affect the question of title to the property, but the judgment for damages, if rendered, would be conclu- sive to that extent, and the plaintiff compelled to pay them without redress, although, according to the equities of the case, the property was his own, and wrongfully taken from him. Oases are not wanting which hold that where the de- fendant sets up some purely technical defense to defeat the plaintiff, and thus avoids a hearing upon the merits, no return will be awarded ;i but the current of authority is doubtless the other way. 2 § 518. The same. In a well considered case in Vermont, the goods were ordered to be returned for informality in bring- ing the suit, without any investigation into the title, defend- ant insisting upon an assessment of damages. The court denied his application, saying, that the disputed questions of title were not determined, and that damages, (beyond nomi- nal,) should not follow the plaintiff's failure to sustain his suit for mere irregularity.' In Maine, after a judgment that the 'Dickinson v. Noland, 2 Eng. (Ark.) 26; Hartgraves v. Duval, 1 Eng. (Ark.) 508 ; Hill v. Bloomer, 1 Pinney, (Wis.) 463 ; Gould v. Barnard, 3 Mass. 199. ' Crosse ®. Bilson, 6 Mod. 102; Salkold v. Skelton, Cro. Jac. 519; Pres- graye v. Saunders, 2 Ld. Raym. 984; Barry «. O'Brien, 103 Mass. 531; Daw- son -0. Wetherbee, 2 Allen, (Mass.) 463; Ranney v. Thomas, 45 Mo. 112; Wilkins «. Treynor, 14 Iowa, 393 ; Mason v. Richards, 13 Iowa, 74 ; Jansen v. Effey, 10 Iowa, 237 ; Fleet d. Lockwood, 17 Conn. 333 ; Gilbert on Replevin, p. 169. ' Collomer v. Page, 35 Vt. 396. See, also, Thurber v. Richmond, 46 Vt. 288 DAMAGES. writ abate, an order for a return was made; but the court refused to assess damages, upon the ground that there was no issue upon which they could be estimated. ^ § 519. The rule in such cases. The true rule seems to be, that judgment for a return is only rendered when the court perceives such a course to be just; it will always hear evidence when a proper case is presented, as to whether the order for return should be made or not. At the same time it will con- sider all such facts as affect the question of damages; and itj from all the facts, it appears that the defendant has avoided a trial upon the merits, and that the plaintiff fails from a simple irregularity, when he otherwise would be likely to succeed, damages beyond nominal will very rarely, if ever, be awarded.* § 620. The rule applicable to actions of tort generally apply to replevin; distinctions stated. The rules for assessing damages in other cases, in the nature of tort, will generally be applicable to replevin. This distinction, however, exists, that in replevin the plaintiff asserts a continuing ownership in himself; he seeks a return of his goods, and damages for the interruption to his possession. In trover the plaintiff asserts that the defendant has converted the property to his own use; he therefore recognizes the transfer of the title to the defendant, and seeks simply a compensation for its value, not its return. It follows, that in trover the party can never recover for the use of the property, while it is equally clear that in replevin the successful party may, in many cases, be entitled to recover the value of the use of the property of which he has been wrongfully deprived.* Again, in trover, the right of property, general or special, is always in question, while in replevin the right of possession may alone be in issue. This does not change the fact, however, that in their sub- stantial features great similarity exists between all actions brought for the conversion of chattels.* ' McA.rthur «. Lane, 15 Maine, 245. ° Pierce ®. Van Dyke, 6 Hill, (N. T.) 613. See anU, Ch. — . » McGavock e. Chamberlain, 20 III. 320; Allen v. Fox, 51 N.T. 564; Wil- liams J). Phelps, 16 "Wis. 87; Scott v. Elliott, 63 N. C. 216. * See ante, § 44, et seq. TO PLAINTIFF AND DEFENDANT. 289 §521. Damages to plaintiflF. If the plaintiff prevails, the judgment is that the property belongs to him, that he right- fully took it by his writ, and that he is entitled to damages and costs, as well as judgment for the property. ^ "Where the property was delivered to him upon the writ, his damages only include such sum as will compensate him for the injury he has sustained by reason of the wrongful taking or subsequent de- tention, together with any depreciation in value it may have suffered^ up to the time when he obtained it by virtue of his writ, and not the value of the property. If the property was not delivered upon the writ, then its value, in addition to the damages for detention, may form a proper element of compensation.* § 522. Damages to defendant. "Where the defendant makes claim to the property, and is successful, he is entitled to have it restored to him, or its value, with damages for the loss he has sustained by the interruption to his possession, estimated by substantially the same rules employed in estimating the plaintiff's damages. Damages to the defendant, however, are but an incident to the judgment for a return. If a return is adjudged, and the property has diminished in value while in plaintiff's possession, this decrease must be allowed to the de- fendant; otherwise, the plaintiff might return it in a depre- ciated condition. If it has increased in value, the increase must be allowed him, as the property is his, and he is entitled to the increase of his own property.* § 623. The same. Wot allowed unless a return of the prop- erty is claimed. The order for a return is in the nature of a cross judgment. There must be some averment in the plead- ' Moore v. Shenk, 3 Barr. (Pa.) 13 ; Stevens e. Tuite, 104 Mass. 333 ; Nicli- olas Ins. Co. ®. Alexander, 10 Humph. (Tenn.) 383 ; Fisher v. Whoolleiy, 25 Pa. St. 198. 2 Young V. Willett, 8 Bosw. (N. T) 486. « Ewing V. Blount, 20 Ala. 694; Russell v. Smith, 14 Kan. 374; Fisher v. Whoollery, 25 Pa. St. 197 ; Barkesdale v. Appleberry, 33 Mo. 389 ; Hohen- thal B. Watson, 28 Mo. 360 ; Suydam «. Jenkins, 3 Sandf. 615; Williams s. Archer, 5 M. G. & 8. (57 E. C. L.) 324. * Mayherry v. Cliffe, 7 Cold. (Tenn.) 125 ; Hooker ■». Hammill, 7 Neb. 231 ; Allen®. Judson, 71 N. T. 76; Pearce v. Twichell, 41 Miss. 345; Neis i). Gillen, 37 Ark. 187; Pierce v. Van Dyke, 6 Hill, (N. T.) 613. 19 290 DAMAGES. ings to sustain it.^ It follows that where the defendant by his pleading disclaims a judgment for a return, as he does by the plea of non cepit or non detinet, etc., without other pleas, he cannot have damages. * § 524. The same. Exceptions. It is provided by statute in some States that the plea of non cepit or non detinet shall put in issue the plaintiffs title as well as the wrongful taking or detention. In such cases the defendant may have a return upon the plea of non cepit or non detinet, and if he have judg- ment for a. return he may also have judgment for damages. The pleader in such case, upon following the forms laid down in the local statute, must be regarded as asserting all the rights which are allowed to that form of plea.* § 525. The rules for estimating damages. The rules for estimating damages in this action are by no means as simple as they at first appear. Any general rule, however well it may be adapted to a particular case, cannot fail to work hardship in others. It is more important, says the court in Hamer v. Hathaway, 33 Gal. 117, that the rule should be certain, than that it should be entirely beyond question on principle. "With this general doctrine of stability all must concur. It must be added, however, that correct principles can alone become cer- tain. In this, as in other actions at law, the case is tried and determined upon the rights of the parties as they existed at the time the suit was begun, but damages may be, and most usually are, assessed up to the time of the rendition of judg- ' Gould V. Soannell, 13 Cal. 430 ; Bonner v. Coleman, 3 B. Mon. (Ky.) 464; Smith B. Snyder, 15 Wend. 324. ^ The defendant is entitled to damages only when he shows by his plead- ings that he is entitled to a judgment for the goods. When by his plead- ing he admits the plaintiff's right to the goods, it would be absurd to award him damages, even though he have a verdict and j udgraent for costs. Hop- kins b. Burney, 2 Fla. 44; Gould «. Scannell, 13 Cal. 430. See People d. Niagara C. P., 4 Wend. 217; Bates t. Buchanan, 3 Bush. (Ky.) 117; Bemus ». Beekman, 3 Wend. 668; Whitwell v. Wells, 24 Pick. 25; Douglass ». Gar- rett, 5 Wis. 85. " If the defendant never had possession he cannot have return, nor is he entitled to damage for the detention of goods he never had." Richardson v. Reed, 4 Gray, (Mass.) 443. » Pickens v. Oliver, 29 Ala. 538. PAKTT CLAIMING MUST SHOW EXTENT OF INJURIES. 291 ment, the same as interest upon a note. Damages to the defendant must be so assessed. ^ § 526. Nominal damages. The rule for estimating dam- ages to the successful party in replevin is similar in principle to that in other cases when there has been an invasion of a right. Nominal damages at least are awarded without proof of actual injury. The general rule is, that when one does an act injurious to another's right, which may be evidence for the wrong-doer in the future, damages may be awarded, even if the evidence predominates that there has been no substantial injury. 3 § 527. The same. This rule is based upon the assumption that any interference with the party's possession, or right of possession, is an injury, even if unaccompanied by actual loss. Its observance is frequently of the utmost importance in set- tling questions of title.* § 528. Party claiming damages must show the extent of his injuries by proof. It is for the injured party to show by proof the nature and extent of the injury he has suffered. He can in no case recover more than nominal damages without proof of the extent of his loss.* Simple proof that the defendant took the goods will not entitle the plaintiff to more than nom- inal damages. 8 The same rule applies in trespass. A trespass ' Washington Ice Co. v. Webster, 63 Me. 341. ' Mellor V. Spateman, 1 Saund. n. 346 6 ; Strong v. Keene, 13 Irish L. R. 98 ; Smith V. Houston, 25 Ark. 184; Cory i). Silcox, 6 Ind. 39. Nominal dam- ages have been called " a peg to hang costs on ; " "A sum of money which has no quantity." Matjle, J., In Beammont v. Greatliead, (2 M. G-. & S.) 53 E. C. L. 498. 3 Munroe d. Stickney, 48 Me. 463 ; Devendorf «. Wert, 43 Barb. 237 ; Sto- well V. Lincoln, 11 Gray, 434; McConnell v. Kibbe, 33 111. 175. Awarded when defendant had no title to property. Champion i). Vincent, 20 Texas, 811; Smith V. Whiting, 100 Mass. 133; Allaire v. Whitney, 1 Hill, 484; Sedgwick on Meas. of Damages, 6 Ed. p. 55, says: "The rule as to nom- inal damages should be limited to cases where a right is Tiecessa/rily liti- gated." A rule of much importance, and which should be more generally enforced. There seems to be a strong tendency in the English courts to discourage suits for nominal damages when no others appear. Williams e. Mostyn, 4 Mees & W. 145 ; Young v. Spencer, 10 B. & C. (31 E. C. L.) 145. * Mann «. Grove, 4 Heisk, (Tenn.) 403. « Phenix b. Clark, 3 Mich. 337. 292 DAMAGES. will not usually warrant substantial damages, unless some cir- cumstances of aggravation or actual injury be shown. i The jury are never aiithorized to assess damages without proof of their extent,^ unless it be in exceptional cases when facts are submitted to their consideration to estimate under the order of the court* § 529. The same. The same rule applies when a return is adjudged to defendant. In the absence of proof of actual damages a judgment will simply be entered for a nominal amount.* When the jury award damages for detention with- out finding the fact of detention, such award is erroneous.^ When the jury omit to find any damages, judgment therefor cannot be rendered. « § 530. Compensation the object of the award. The rule for ascertaining damages in replevin, when no fraud or malice is involved, is usually based upon the idea of compensation; the object being to restore the party, as far as pecuniary compen- sation will do so, to the condition he was in befoi'e the act complained of was committed.' " Eose V. Gallup, 33 Conn. 838. « Phenix v. Clark, 3 Gibbs, (Mich.) 827. 3 Plaintiff proved damages, but not the amount; a judgment for the de- fendant was held qj-ror. Under such proof plaintiff was entitled to nominal damages, at least. Brown o. Emerson, 18 Mo. 108. * Seabury v. Ross, 69 111. 533. ' Swain i). Roys, 4 Wis. 150. « Black i>. Winterstein, 6 Neb. 335. ' Berthold v. Pox, 13 Minn. 504; Bonesteel v. Orvis, 23 Wis, 533; Stevens V. McClure, 56 Ind. 384; Allen v. Fox, 51 N. T. 564; Williams «. Crum, 37 • Ala. 468 ; Dorsey ■». Manlove, 14 Cal. 553. Dicta in Hotchkiss o. Jones, 4 Porter, (Ind.) 360, where court affirmed judgment in a ficticious case with- out looking at record. DeWitt v. Morris, 13 Wend, 497 ; Brizsee v. Maybee, 31 Wend. 144; Dows v. Rush, 38 Barb, 157 ; Dennis v. Barber, 6 S. & R. (Pa.) 420 ; Allison i>. Chandler, 11 Mich. 543 ; Baker v. Drake, 53 N. Y. 211 ; Barnes ■B. Bartlett, 15 Pick. 75: Gillies ». Wofford, 26 Tex. 66; Wood v. Braynard, 9 Pick. 322 ; Woodburn v. Oogdal, 89 Mo. 222. Such damages are equiv- alent for the injury. Dorsey v. Gassaway, 2 Har. & J. (Md.) 403. Enough to compensate party. M'Cabe v. Morehead, 1 Watts & S (Pa.) 513. Exem- plary damages may be given. Taylor v. Morgan, 3 Watts, 334. Damages which canaot be accurately measured should not for that reason be denied, but the amount should be left to the finding of the jury, Gilbert v. Ken- nedy, 22 Mich. 117. In the absence of the elements of fraud, malice, or BULE GOVERNING COMPENSATIOA'. 293 § 531. How the amount of compensation is ascertained. A question, however, at once arises, how is the amount of that compensation to be ascertained? What elements enter into it? Where the value of the property is to be included, how shall it be found? And if the value is fluctuating, what time, between the taking and the final judgment, shall be selected as the time when the value shall be regarded as attaching? When the goods have a fixed and unvarying value, compara- tively little difficulty arises from this source; but when the price is constantly changing, the time which shall be seized upon as the time for fixing the value presents another question. § 532. When the goods have changed in value. It may ap- pear that the goods may have been removed to a distance from the place of taking, and such removal may have enhanced or may have diminished their value. The transfer may have been with a design to deprive the owner of his property, or it may have been in ignorance of his rights. A radical change may have taken place in the condition of the property while in the defendant's possession, before or pending the suit, or while in plaintiff's possession, upon his writ. For example, a colt may have become a horse, or it may have died. Grass may have been cut and stacked, and the rain may have spoiled it; or any other of the changes incident to property may have taken place. These circumstances necessarily enter into the estimate of compensation, and must be carefully considered in all their bearings upon the rights of the parties. § 533. The rule governing com.pensation applies only to cases where no malice or willful wrong is charged. As before stated, the rule which usually governs the assessment of dam- ages in replevin is based on the principle of compensation. The plaintiff, in his declaration, claims not only the goods, but damages for the taking or detention. Upon proof of such facts, he is entitled to such damages as will repair his loss. oppression, damages must be confined strictly to compensation for the injury. City of Chicago v. Martin, 49 111. S41. Consult Bell ®. Cunning- ham, 3 Peters, 69 ; Tracy o. Swartwout, 10 Peters, 81. The common law rule was inflexible. Compensatory damages alone were given. Fidler v. McKinley, 21 111. 325 ;. 3 Bla. Com. 488; Sedgwick on Meas. of Dam. 26; Parsons on Contracts, 5 Ed. 164, et seq. 294 DAMAGES. This rule is applicable in all cases of replevin, where no malice or willful wrong is charged.^ § 534. When taking was wrongful, damages estimated from the time of taking ; otherwise, from the time of conversion. "Where the taking was wrongful, the damages may be estimated from the time of the taking; but where it was rightful in the first instance, the damages can only be estimated from the time of the wrongful conversion. The reasons for this rule are apparent. A rightful possession by the defendant can be no injury to the plaintiff; but a wrongful taking is presumed to be an injury, even when no actual damage is the result. If the taking was rightful, originally, and the defendant refuse to deliver, on request, his detention from that moment is wrong- ful, and damages should be assessed from that time. § 535. Depreciation in value a proper element of damages. Where the property diminishes in value while it is wrongfully detained, the depreciation is usually a proper element of dam- ages.2 This rule applies alike to both parties. The wrongful detainer of property is liable for its depreciation while in his hands.s The party cannot recover for the use, and at the same time have depreciation in value assessed.* But in Nebraska, the diminution in value, with the interest on the entire value, was given." § 536. The rule not uniform. No uniform rule can be given for ascertaining the extent of compensation. Different meas- ' Bonesteel v. Onrls, 33 Wis. 533; Brannin o. Jolinson, 19 Me. 363; Bruce o. Learned, 4 Mass. 614; Whitwell v. Wells, 24 Pick. 33; Allison v. Chand- ler, 11 Mich. 543; Baker ®. Drake, 53 N T. 313; Warner v. Matthews, 18 111.87. Trespass for taking teas; plaintiff entitled to value and interest, after the usual time of credit on such sales. Conard v. Pacific Ins. Co., 6 Pet. (U. S.) 362: Pacific Ins. Co. v. Conard, 1 Baldwin C. C. 138. See Cham- pion ®. Vincent, 30 Tex. 811 ; Bateman v. Goodyear, 13 Conn. 575 ; Ives v. Humphreys, 1 E. D. Smith, 196; ' Hooker d. Hammill, 7 Neb. 381; Prey v. Drahos, 7 Neb. 194; Moore c. Kepner, 7 Neb. 391; Mayberry o. Cliffe, 7 Cold. (Tenn.) 117; Gordons. Jenney, 16 Mass. 465; Young e. Willet, 8 Bosw. (N. T.) 486; Brizsee «. Maybee, 31 Wend. 146. 8 Rowley v. Gibbs, 14 Johns. 385. * Odell «. Hole, 35 111. 304. » Hooker v. Hammill, 7 Neb. 334. HOW ASSESSED. 295 ures of redress may be proper for the same injury suffered under different circumstances. "What will make good the loss which the party has sustained, owing to the situation in which he was placed when the injury was inflicted, is the material question. In determining this, all relevant circumstances ought to be carefully considered. ^ § 537. Interest as a measure of damage. Interest upon the value is frequently regarded as a proper measure of damages. The common rule is to allow it in all cases upon the value of property after the date of the conversion, unless some particu- lar reasons exist to the contrary.^ AVhen the wrong consists merely in the detention of property, (not the subject of daily use,) without waste or depreciation, or in the compulsory post- ponement of the exercise of the party's rights under legal process,* interest is allowed. In fact, in all cases where dam- ages are shown, in the absence of proof of some special dam- ages, or proof that they were more or less than interest, inter- est upon the value during the time the successful party was deprived of his goods will usually be regarded as the only proper measure.* § 538. How assessed. When the jury, in assessing dam- ages for defendant, estimate the value of the property at a time subsequent to the conversion, they cannot add to this value interest from the time of conversion. ^ If interest was added from the time of conversion, such an assessment would 1 Shepherd v. Johnson, 3 East, 311; Berry v. Vantries, 13 S. & R. 94; Backenstoss v. Stabler, 33 Pa. St. 357. ' Hamer v. Hathaway, 33 Cal. 119; McDonald v. North, 47 Barb. 530. ' Beals V. Guernsey, 8 Johns. 446 ; Hyde n. Stone, 7 Wend. 354 ; Bissell v. Hopkins, 4 Cow. 53 ; Ripley ■». Davis, 15 Mich. 75 ; Robinson ■». Barrows, 48 Me. 186 ; Oviatt *. Pond, 39 Conn. 479 ; Jones v. Rahilly, 16 Minn. 333 ; Derby s. Gallup, 5 Minn. 119; Scott «. Elliott, 63 N. C. 315. * Stat., 3, 4, W. IV., Ch. 43, § 39 ; Wood ». Braynard, 9 Pick. 323 ; N. Y. Guarantee Co. ■». Flynn, 65 Barb. 365 ; Twinam d. Swart, 4 Lans. (N. Y.) 363 ; Stevens v. Tuite, 104 Mass. 333 ; Ormsby «. Vermont Copper Co., 56 N.Y. 623; Allen a. Fox, 51 N. Y. 567; Bartlett «. Brickett, 14 Allen, 64; Buydam v. Jenkens, 3 Sandf. (K. Y.) 614; Huggeford v. Ford, 11 Pick. 333 ; - Mattoons. Pearce, 13 Mass. 406; Barnes v. Bartlett, 15 Pick. 78; Caldwell V. West, 1 Zab. (31 N. J.) 411; Bonesteel v. Orvis, 23 Wis. 533; Bigelow v. Doolittle, 36 Wis. 119; Williams v. Phelps, 16 Wis. 80. ' Atherton v. Fowler, 46 Cal. 333. 296 DAMAGES. in effect amount to double damages.^ Where considerable time elapses between the verdict and the rendition of judgment, interest for that time cannot be included in the judgment.^ This will not prevent the judgment from drawing such interest as is allowed by law.^ In some States the officer is authorized to seize the property and hold it for a limited time, to enable tlie plaintiff to give bond. If the plaintiff fails to furnish it, the property must be returned to the defendant; and where such is the case, interest upon the value, with any depreciation or injury it has sustained, is proper, together with the expense of replacing the property.* § 539. Where a part only of the goods are found. Where the plaintiff is successful, and where a part of the goods sued for were not foiind by the officers, and have not been delivered, the plaintiff is entitled to recover the value of such undelivered part ; and interest upon such value from the time of taking may also be added as proper damages.^ § 540. In suit on bond. In an action upon the bond for a failure to make return, when the property could have been returned but was not, and was converted, the value with interest thereon was allowed.^ § 5il. Where the suit is concerning the validity of a sale. Where the contest was about the validity of a sale of personal property, value at the time of seizure, and interest, was re- garded as proper.' § 54-3. Where defendant is a stakeholder. Where the de- fendant was the mere stakeholder of two certified checks for $2,500 each were replevied, the verdict was, "We, the jury, find the defendant guilty, and that the property replevied in ' Freeborn v. Noroross, 49 Cal. 313. See Landers v. George, 49 Ind. 309. « Atherton v. Fowler, 46 Cal. 336. 3 Hamer v. Hathaway, 33 Cal. 119. < Morris B. Baker, 5 Wis. 389. 5 Booth «. Ableman, 20 Wis. 603; Graves t. Sittig, 5 Wis. 223; Pacific Ins. Co. V. Conard, 1 Baldwin, C. C. 143 ; Dana v. Fiedler, 3 Kern, (N. T.) 40; Brizsee v. Maybeo, 31 Wend. 144; Andrews «. Durant, 18 N. Y. 500. " Walls V. Johnson, 16 Ind. 374. ' Miller v. Whitson, 40 Mo. 100. See, also. Wood burn «. Cogdal, 39 Mo. 323; May berry v. Cliffe, 7 Cold. (Tenn.) 118; Blackie v. Cooney, 8 Nev. 44. TALITE OB PEOPEKTY. 297 said cause, and the right of possession of the same is iu the plaintiff, and we assess the plaintiff's damages at $6,275," judgment upon such a verdict was erroneous. The onlj^ dam- age which the defendant could in any event recover for the wrongful detention of the checks was the interest upon the $5,000 from the time of the demand and refusal until they they were replevied. ^ § 643. Value of property, when allowed as damages. When the plaintiff obtains possession of the property by the writ, and retains it until' the trial, he, of course, cannot ask judgment for its value; when the property, however, is not delivered pending the suit, the plaintiff, if successful, is entitled to a judgment for the property or for its value; the value in such case, being one of the elements of damao^es, should be found by the jury.* In like manner, if the plain- tiff has obtained the property upon his writ, and the verdict is for the defendant, the judgment usually is for a return of the goods. The finding in such case should embrace not only the damages for taking and detention, but also the value of the property, and the judgment is for the value in case the plain- tiff fails to make the return as ordered by the court. * § 544. The same. So when the defendant retains the prop- erty by making claim of ownership, and giving bond under the statute, as he may in many States; upon a verdict for the plaintiff, the jury should find the value of the property, as well as the amount of damage for detention, so that the plain- tiff may have judgment for the value in case the property is » Merchants' S. L. & T. Co. ■». Goodrich, 75 111. 559. ' Merrill v. Butler, 18 Mich. 394; Bates v. Buclianan, 5 Bush, (Ky.) 117. See Grordon ads. Williamson, 30 N. J. L. 77. The same results are reached in Illinois and some other States, when the count in trover is permitted to be filed with the declaration in replevin for such goods as the officer can- not find to deliver upon the writ. ' Laborde ^i. Rumpa, 1 M'Cord, 15. At the common law, when the plain- tiff complained that the defenant " still detained " the property, he was entitled to judgment for the value as well as damages /or the taking and detaining. Easton v. Worthington, 5 S. & R. (Pa.) 131 ; Frazier v. Freder- icks, 4 Zab. (34 N. J.) 170 ; Borron v. Landes, 1 Duv. (Ky.) 399 ; F. K B. 69 ; Petre e. Duke, Lutw. 360. 298 DAMAGES. not delivered to him.i "When the plaintiff elects to proceed ■without asking delivery of the goods pending the suit, as he may do under some of our State statutes, in case he succeeds, the judgment is for the delivery of the property to him, or the payment of its value. And where his petition asks for dam- ages for detention, he may prove the value of the property as a proper element of damages to bo awarded him, the action in such case being in the nature of trover.^ In each of these cases the judgment is in the alternative, for the property, or in case it cannot be had, for its value. These rules cannot be said to be universal in their application. In some of the States the judgment is for the property or its value, at the option of the party in whose favor it is rendered. In the absence of local laws or practice to the contrary, the principles stated will apply. § 546. When value is regarded as attaching. The foregoing sections may to some extent be a guide as to when the value is allowed to enter into the question of damages; and that having been settled, the question arises, when shall the value be regarded as attaching. What point in the history of the dispute shall be seized upon as the moment when the value shall be fixed. § 546. Value at the time of conversion. A large number of cases hold that the value at the time of the conversion, or at the time the delivery was refused, together with interest, is the proper rule.* This question is exhaustively discussed in 'Frazier «. Fredericks, 4 Zab. (N. J.) 163; Field v. Post, 9 Vroom, (N. J.) 346. " Pugh V. Calloway, 10 Ohio St. 488. ' Jaooby v. Lanssatt, 6 S. & R. (Pa.) 300; Ormsby ii. Vermont Copper Co., 56 N. Y. 633 ; Otter v. Williams, 31 111. 118 ; Wliitfleld v. Whitfield, 40 Miss. 353; Greer v. Powell, 1 Bush. (Ky.) 489; Keaggy v. Hite, 13 111. 99; Rob- Inson V. Barrows, 48 Me. 186; Kennedy ■». Whitwell, 4 Pick. 466; Green- field Bank ■». Leavitt, 17 Pick. 1; Parsons v. Martin, 11 Gray, (Mass.) HI; Pierce «. Benjamin, 14 Pick. 356; Riply v. Davis, 15 Mich. 75; Kennedy V. Strong, 14 Johns. 138 ; Bell «. Bell, 30 Geo. 350 ; Spieer v. Waters, 65 Barb. 337 ; Hendricks v. Decker, 35 Barb. 398 ; Lillard v. Whitaker, 3 Bibb. (Ky.) 93; Sproule v. Ford, 3 Litt. (Ky.) 36; Baltimore Ins. Co. v. Dalrymple, 25 Md. 369 ; Gushing v. Longfellow, 36 Me. 307 ; Shepherd v. Johnson, 8 East. 311 ; Davies ». Richardson's Ex'rs, 1 Bay. (S. C.) 103 ; Kipp v. Wiles, VALUE AT TIME OF CONTEKSION. 299 Whitfield V. Whitfield, 40 Miss. 352, where all tlie leading authorities on the subject are considered, and the court con- cludes its discussion: "From the examination which we have been able to give to this question, we think that may be safely affirmed: 1. That in actions for taking and detaining personal property, where no question of fraud, malice, oppression (or willful wrong, either in the taking or detention,) intervenes, the measure of damages is the value of the property at the time of the taking, or conversion, or illegal detention, with interest therein to the time of trial ; and this is a rule of law to be decided by the court. 2. That where the trespass, deten- tion or conversion is attended by circumstances of malice, fraud, oppression, or willful wrong, the law abandons the rule of compensation, in a legal sense, and the measure of damages becomes a matter for the consideration of the jury, guided by the evidence before them. That under the first rule stated may be embraced all cases where the defendant, neither in the taking nor in the detention or disposition of the property, has been guilty of any willful wrong, but acts in good faith, and with no intent injuriously to affect plaintiff's rights. That under the second rule above stated may be embraced, 1, all cases where the original act was willful and wrongful; 2, or where the original act was ionafide, but the subsequent deten- tion, sale, or other disposition of the property, after a knowledge of plaintiff's claim, was willful and injurious; 3, or where the original act, and subsequent disposition of the property for a 3 Sandf. 585. The expense of teams, etc., to remove the property, may become part of the damages. Washington Ice Co. «. "Webster, 62 Me. 361. In a suit for damages to a defendant when there was no malice, the value of the property at the time it was replevied was held to be the proper rule. Berthold o. Fox, 13 Minn. 507 ; Garrett v. "Wood, 3 Kan. 231. In trespass, the value at the time the trespass was committed. Gilson v. "Wood, 30 111. 37. "When the form of the action is assumpsit, for money had and received, the plaintiff can only recover the sum received, not the value of the goods. Eand v. Nesmith, 61 Me. Ill ; Rowan «. St. Bank, 45 Vt. 160. "\A'"hen the plaintiff was assignee of goods seized by the sheriff, on execution, and must have sold them if they had come to his hands, the jury could prop- erly ascertain the price at which they were sold by the sheriff at auction, as the true measure of damages. "Whitehouse v. Atkinson, 3 Car. & P. (14 B. 0. L.) 844. " 300 DAMAGES. greater price than its market value, at the time of the original taking, were all in ignorance of the plaintiff's rights, but the defendant seeks to retain the difference, as a speculation result- ing from his original unintentional wrong; 4, or where the property in controversy has some peculiar value to the plain- tiff, and is willfully withheld from the rightful owner, or he has been deprived thereof by the willful and wrongful act of the defendant. 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 discretion." § 547. The same. In England, the statate, 3 and 4 "W. lY. c. 42, § 29, allows interest upon the value of the property at the time of the seizure or conversion, and indicates the con- version as the time at which the value should be fixed. This is the rule laid down in many well considered cases in this country. 1 "Where the plaintiff was non-suited, the defendant was entitled to interest upon the value of the goods from the date of replevin.^ The same principles apply in trover.* § 548. Tills rule applicable wlien tlie value of the property Is stable; rule when the value varies. The rule which esti- mates the value at the time of conversion, with interest from that date, is equitable in cases where the value is stable. But when the value is changing, the rule would work unjustly in many, probably a majority, of cases; for instance, a wrongful taker could select the time when property was low, and derive a profit by seizing and disposing of it; therefore, where the value-is changing, some other more equitable method must be devised. ' Yater v. Mullen, 34 Ind. 377. What it would take to replace the goods was held to be the measure of damages ; in Starky d. Kelly, 50 N. Y. 676. Tlio value of the property at the time it should be restored ; in Swift «. Barnes, 16 Pick. 196. The damages not governed by any fixed rule, but arbitrary, and to be estimated by the jury in view of all the circumstances. Jones «. Allen, 1 Head. (Tenn.) 636. The value with interest from the time of the conversion; Greenfield Bank v. Leavitt, 17 Pick. 3. 2 Wood D. Braynard, 9 Pick. 333 ; Barnes v. Bartlett, 15 Pick. 78. » Barnes v. Bartlett, 15 Pick. 78. HIGHEST VALUE AFTER TAKING AND BEFOEE TBIAL. 301 § 549. The highest value after taking and before trial. Many cases regard the highest value between the time of con- version and trial, as the proper one to be fixed. i MarMam V. Jaudon, 41 N. Y. (Hand.) 235, was a case where the plain- tiff furnished a margin for the purpose of buying stocks, and the defendant, with ten per cent, of plaintiff's money and ninety per cent, of his own, purchased the stocks for plaintiff. Defendant sold the same without orders, and the court fol- lowing the principles laid down in the cases last cited, gave damages at the highest prices after conversion and before judgment. This case has been cited and followed in a num- ber of others. And, although the soundness of the rule has been affirmed as a general principle, its universal application has been denied. § 550. The same. In Matthews v. Coe, 49 N. T. 57, Chukch, Oh. J., said: "An unqnalifled rule, giving the plaintiff the highest price between the conversion and the time of trial, cannot be upheld on any principle of reason or justice." In Baker v. Drake, 53 N. Y. 213, the court said: "The rule laid down in Markham v. Jaudon, has been recog- nized in several cases where the value of the property was fluctuating, but its soundness as a general rule has been seri- ously questioned and denied in various cases."^ The court there reviewed and examined a number of leading cases upon this subject, and concluded that the principles laid down in Markham v. Jaudon, were not to be regarded as settled rules to which the principle of stare decisis should apply. ' § 551. The same. Observations upon the rule. It maj', however, safely be said that this rule, though somewhat cir- cumscribed, continues to be a very general and necessary rule, Matthews v. Ooe, and Baker v. Drake, stopra, only limiting or directing the application, but not superseding the rule.* ■ Cortelyou v. Lansing, 2 Cain's Ca. 200; Barnett v. Thompson, 37 Goo. 335; Burt v. Butcher, 34 N. Y. 493; Markham v. Jaudon, 41 N. T. (Hand.) 239; Morgan «. Gregg, 46 Barb. 183; Wilson o. Mathews, 24 Barb. 295; Romain ». Van Allen, 26 N. Y. 309. 2 Baker v. Drake, 66 K Y. 518. ' See Morgan o. Jaudon, 40 How. Pr. 366 ; Stewart v. Drake, 46 N. Y. 449. * Hamer b. Hathaway, 83 Ckl. 119 ; Douglass v. Kraft, 9 Cal. 563 ; West v. 302 DAMAGES. § 552. The same. In detinue for shares of stock which had been delivered to the plaintiff after suit was brought, the property was worth £3 5s. when demanded, and £1 at the time of delivery. This difference the plaintiff was allowed to recover.! In trover, the jury are not limited to any precise time, but may fix the value at any time between the demand and judgment. 2 If at the time the return is ordered, the property had increased in value, the defendant would be entitled to any increase that occurred, as the goods are his; if it had diminished, the loss ought to fall upon the plaintiff, as he wrongfully interfered with the defendant's possession, and thus occasioned it.* § 553. Qualifleations of the rule; suit must be brought within a reasonable time. This rule allowing the highest market price at any time after the taking and before judgment, is without doubt sustained by a large number of the cases in this country and England, prior to the statute 3 and 4 "W. IV. c. 42, § 29. The rule, however, must be taken with this qual- ification, that the suit must be brought within a reasonable time, and its trial urged with all reasonable diligence. The plaintiff has no right to wait until the period of limitation is about to expire, nor to delay his suit for the purpose of having a longer time within which to compute damages. It is a rule of doubtful justice, said the court, to give the plaintiff the whole period of the statute of limitations within which to select his standard of value.* § 554. The same. This question arose in California upon the replevin of hay taken in 1863, when it was worth three to five dollars per ton. The trial was in 1869. The defendant Wentworth, 3 Cow. 83; Allen v. Dykers, 3 Hill, 598; Blot s. Boiceau, 3 Comst. 85 ; Lobdell s. Stowell, 51 N. T. 77 ; Willard ®. Bridge, 4 Barb. 361 ; Wilson V. Mathews, 34 Barb. 395 ; Commercial Bank ». Kortright, 33 Wend. 348 ; Kortrigbt v. Com. Bank, 30 Wend. 91. ' Williams r>. Archer, 5 M. G. & S. 318. See Archer «. Williams, 3 Car. & K. (61 E. C. L.) 36; Barnett v. Thompson, 37 Geo. 335; Morgan v. Gregg, 46 Barb. 183. " Johnson v. Marshall, 34 Ala. 538. " Washington Ice Co. v. Webster, 63 Me. 341 ; Mayberry ®. Cliffe, 7 Cold. (Tenn.) 134. * Scott V. Eogers, 31 N. T. 678. WHAT IS HIGHEST MAEKET VALUE. 303 proved that in 1864 it was worth thirty-eight to forty dollars per ton. The court, in discussing the case, said: "If a quantity of fruit, strawberries, for instance, 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 by no pos- sibility have realized himself." Under this construction the plaintiff received a verdict for $25,763 for property not worth more than $2,500 when it was taken. "When we consider that the object to be attained is indemnity for losses actually sus- tained, this result is startling. The court then follows the rule laid down in Scott v. Sogers, supra, and says the correct measure of damages is the highest market price within a reasonable time;i and this agrees with the rule in Cannon v. Folsom, 2 Iowa, 101, where many cases were cited, and with Pinkerton v. Railroad, etc., 42 N. H. 424. § 555. What is highest market value. The rule is also subject to the following additional qualification, that the term " highest market value " embraces only such changes in the market as are due to the ordinary commercial causes. A sudden panic, or unusual excitement, or conspiracy among dealers, may give any article of merchandise a speculative but purely fictitious value. Such prices ought not to be taken into consideration by the courts in ascertaining values or damages to bo awarded to contending suitors. ^ By " the high- est market value," as used in this connection, the law also contemplates the range of the entire market and an average of prices running through a reasonable period of time, not any sudden or transient inflation or depression resulting from causes independent of the operation of lawful commerce. ^ § 556. Further qualification of the rule. The rule is sub- ' Page 11. Fowler, 39 Cal. 416. » Mayberry v. Cliffe, 7 Cold. (Tenn.) 124. " Smith 0. Griffiths, 3 Hill, 383; Durst «. Burton, 47 N. T. 175. 304 DAMAGES. ject to the further limitation that the party must show himself to bo the owner of the property for which he claims such damages. For example, the plaintiff put up a margin and directed the defendant to purchase stocks, which the defendant afterwards sold without plaintiff's consent. Here the specula- tion was carried on with the defendant's money. If the plaintiff had had the chance of profit, he was subject also to the chance of a decline, which he avoided ; he was also subject to the chance of his not availing himself of the use of the rise at the proper moment, which is no inconsiderable element, and the fact exists that if the stocks had risen he would, per- haps, have been nnable to make further advances to hold them. The value of the stocks in such case would be improper. The proper course would have been for the plaintiff, on being notified of the sale, to have signified his disapproval and directed the defendant to replace the stocks, and if he had not done so, the plaintiff might have then bought the stock and charged him with the loss in so doing. Tlie circumstances of a case like this will not warrant the transfer of all the chances of loss to the defendant, holding him responsible for all pos- sible chances of gain, and making him an insurer that the plaintiff would have made that gain.i "Where the goods are of a kind that varies in quality, and one party, by any artifice, dej)rives the other from showing the real quality, the pre- sumption as to quality will be against the party who practices the fraud.* § 557. Measure of damages in suit for a note or bill. Tlie measure of damages in a suit for a biU or note seems to be, prima facie, the amount of the bill or note ; the defendant, however, may give in evidence the insolvency of the maker, or any payment made on it, or any other facts showing the real value of the instrument, or that the actual damages were less. 3 If, however, defendant has done any act to diminish ' Baker «. Drake, 53 N. T. 211. See same case, 66 N. T. 518. 2 Bailey d. Shaw, 4 Foster, (N. H.) 301. ' Potter v. Merchants' Bank, 28 N. Y. 641 ; Am. Ex. Co. v. Parsons, 44 111. 318; Keaggy v. Hite, 12 111. 99; Menkens «. Menkens, 23 Mo. 353; Ingalls 0. Lord, 1 Cow. (N. Y.) 240; Robbins v. Packard, 81 Vt. 570. VALUE OF COIN ESTIMATED IN OUEEENCT. 305 the value, if he has mutilated the note or erased a signature from it, such decrease in value, instead of being allowed iu mitigation of damages, must be made good by the party who caused it;i and, as a rule, nothing done by the defendant while the goods are in his wrongful possession can avail him to reduce the damages for which he may be liable. ^ So, if the defendant has received a payment, and endorsed it upon the note, such endorsement is no ground to reduce the value. Bringing the money into court for the plaintiff, or restoring the note, will go to decrease the damages. ^ § 558. The same. Probably the most concise statement of the rule generally applicable in such cases is that the measure of damages is the value of the note, not necessarily the amount due, or purporting to be due upon it.* When the plaintiff put a city order into hand of parties to investigate a fraud in its issue, and then refused to return it, he was entitled to recover from them its full value; as it could not be collected from the city, he was not entitled to its face value. ^ § 559. The same. A bankrupt gave a check to one of his creditors, 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. The action was based upon the fact that the check was drawn by the bankrupt without authority, his property belonging to his assignee. The verdict was set aside. Mansfield, C. J., said, " the plaintiff proceeds on the ground that the check, being drawn by a bankrupt, was worthless. If the position taken be true, how can he recover £300 on it."^ § 560. The value of coin sometimes estimated in currency. Coin may at times be regarded as an article of merchandise, upon which a market value may be placed in ordinary cur- rency. In such a case, it was said that the measure of dam- ages for its non-delivery was properly fixed by estimating its ' McLeod B. McGhie, 3 M. & G. (40 E. 0. L.) 336 ; Am. Ex. Co. «. Parsons, 44 111. 318. ' Carter t. Streator, 4 Jones, (N. C. L.) 63. ' Alsayer b. Close, 10 Mees. & W. 576. < Turner ». Better, 58 111. 364. » Terry «. Allis, 16 Wis. 479 ; Terry «. Allis, SO Wis. 33. • Mathew «. Sherwell, 3 Taunt. 439. 20 306 DAMAGES. value in currency at the highest price between the time of taking and the trial. ^ When the property in controversy was a billiard table, the plaintiff offered proof that it was worth $500 in gold coin, and proved its value in legal tender or green- backs, (to which an objection was made,) at $1,200. The court permitted the evidence, and sustained a verdict for $950. ^ § 561. Damages occasioned by party's own actnot allowed. No one should be permitted to recover damages which are occasioned by his own act, neglect or default. When the plain- tiff failed to give the proper bond, and to take possession of the property described in his writ, he could not recover dam- ages for any deterioration, or for the detention while it was in the hands of the officer, through his neglect to furnish the security required by law.^ § 562. The place where the value is considered as attaching. The place where the value is to be considered as attaching is sometimes a question of considerable importance; as in cases where the property is taken or detained at a point distant from any market for such articles, where, perhaps, it could not be sold at any price, or if sold, it would be at a ruinous sacrifice, while at a neighboring market a fair price might be obtained; or where the property may have been taken at a place where there was no market for it, and by the taker transported at great cost, and sold at a price suihcient to pay not only the cost of transportation, but a fair profit upon the article. In all such cases it becomes a question of no little diflBculty to determine which value shall be regarded as attaching to the property, the value at the place of taking, or at the distant market, and also whether the costs of transporting, when such costs have been incurred by the taker, shall be deducted. A solution of these questions will be best determined by a refer- ence to cases involving such principles. § 563. The same. General rule is, value where the goods were detained ; value in another market may be evidence. As > Taylor v. Ketchum, 35 How. Pr. (N. Y.) 389 ; Taylor v. Ketclium, 5 Rol)t. (N. T.) 507. 3 Tarpy v. Shepherd, 30 Cal. 181. 3 Graves v. Sittig, 5 Wis. 319. See, also, Williams v. Phelps, 16 Wis. 80, where this case was commented on. WHEEE VALUE IS CONSIDEEED. 307 a general rule, it may be stated that the value of the goods at the place where they were detained, that is, at the place where demand was made, or delivery should have been made, is the proper one. The value in an adjacent market may be proved as a fact not establishing the value, but as an aid to assist the court or jury in arriving at the true value at the place where the detention was had; and cases frequently arise where such proof, coupled with testimony of the cost of reaching such market, becomes relevant and proper in the highest degree. Where the property, however, when demanded, is situated at or adjacent to a steady and reliable market for such goods, the value at that place should govern, without reference to a dis- tant, though perhaps more advantageous one.^ In trespass for timber cut and removed, the court said the plaintiff might have recovered his logs, had he chosen to pursue them; but as he elected to sue in trespass, he therefore can recover only the value of the logs at the place where the injury was done.* So, where the action was for coal dug in the mine of another.' § 564. The same. Expense of transportation, etc. When the action was for hay taken in Alameda County, and afterwards transported by the defendant to San Francisco, the plaintiff claimed the highest price at the latter place. The court said the market vahie was to be ascertained at the place where the conver- sion was had.* In Hisler v Carr, the court said: " The value which the plaintiff is entitled to recover under our statute is the value of the property, to be ascertained at the place where it is detained, when the action was commenced." The property in this case was produce, part of which was shipped to San Francisco and sold. The plaintiff claimed the gross products of the sale, while the defendant claimed that a deduction should be made for the expenses in shipping, etc. The court said, in substance, that where, as in the present case, the plain- tiff complains only of the detention of the property, if it is delivered on demand, his claim is satisfied, except damages for ' Fort «, Saunders, 5 Hiesk. (Tenn.) 487. ^ Cusliing v. Longfellow, 36 Me. 306. ' Martin v. Porter, 5 M. & W. 353. * Hamer v. Hathaway, 33 Cal. 130. 308 DAMAGES. detention; if it cannot be had, then the value at the place where the delivery should have been made stands in lieu of the property. Neither the price at San Francisco, nor that price less the freight and commissions, is the true criterion of the value at the place of the alleged detention; but proof of the value at San Francisco, and the cost of transportation there, is admissible to assist the jury in fixing the value at the place of detention.^ The cost of manufacturing an article, and its transportation to market, may properly be given in evidence, not as fixing its value, but as a fact from which its value, at the time and place of conversion, may be arrived at.® § 565. The same. The suit was for the value of cattle which died of disease, through the wrongful act of defendant, as was charged. At the point where the cattle died there was no market, and it did not appear that any market for such cattle was to be found within two hundred miles. The court allowed evidence of the value at this distant market; the price there would necessarily be some guide to the value where the cattle were.* § 566. The same. Beason for the rules stated. This testi- mony, it will be observed, is not permitted as fixing the value, but as furnishing a guide by which the true value may be ascertained, by a process not unlike the computations of value, or interest which has always been allowed. A similar prin- ciple has been recognized in a late case in Illinois. The action was trover for the value of cast steel ingots. The court said there being no testimony as to the value of these ingots at the time of the alleged conversion, for the reason that they had no market value, it was not error to allow proof of what steel made from these ingots was worth per pound in the market, and proof of how much it would cost to convert these ingots into merchantable steel; thus allowing the jury to make a fair approximation of the value of the ingots.* ' Hisler c. Carr, 34 Cal. 645; Swift v. Barnes, 16 Pick. 196; Gushing s. Longfellow, 36 Me. 310. ' Brizsee s. Maybee, 21 Wend. 144. « Sellar «. Clelland, 2 Colorado, 532. * Meeker 9. Chicago Cast Steel Co., 84 111. 377. Consult in this connection TEESPASSEB CANNOT PKOFIT BT •WRONGFUL TAKING. 309 § 567. Trespasser cannot recover for his labor in increasing the value. A party cannot commit a trespass upon his neigh- bor, and then charge him with the expense of the labor. If so, a thief might cut through a wall and charge the owner for mating a new doorway. Where a trespasser ciit wheat, he was not allowed to deduct the cost of cutting, though he performed the whole labor of harvesting if- So where timber is wrong- fully taken and made into shingles, the owner may recover the value as shingles ;2 or if transported to a distant market, the owner may recover the goods or value at that market.^ The rule may be regarded as general and well settled that a wrong- doer cannot sell the goods and compel the owner to accept the price at which they were sold. If there has been a loss, the owner is under no obligation to incur it.* § 568. Or make a profit out of his wrongful taking. Neither is such a taker or detainer permitted to make a profit out of his wrong. If the goods have been sold at a profit, the owner is entitled to it, and the wrongful taker cannot assert any right to it which is not based upon ownership of the property.^ In Suydam v. Jenkins, 3 Sandf. (N. T.) 621, after an exhaustive consideration of this question, the court laid down the rule as follows : " Add to the value of the property when the owner is dispossessed, the damages which he is proved to have sustained from the loss of its possession." It is when the property is wrongfully taken or detained that a right of action accrues to the owner. He is then entitled to demand a compensation for his loss; and if his demand is then complied with, it is plain that the value of the property Savercool v. Farwell, 17 Mich. 308 ; Gregory ». McDowell, 8 Wend. 435. The defendant was not allowed to show what efl'ect the sale of so large a quantity would have on the market. Dana «. Fiedler, 2 Kern. 40; Berry s. Dwinel, 44 Me. 267; Dubois v. Glaub, 53 Pa. St. 338; Doak v. The Exr. of Snapp, 1 Cold. (Tenn.) 181; Durst 'v. Burton, 47 N. T. 175; Smith s. Griffith, 3 Hill, 333 ; Wemple v. Stewart, 23 Barb. 154. ' Bull V. Griswold, 19 111. 631. '' Baker v. Wheeler, 8 Wend. 506. ' Nesbitt V. St. Paul Lumber Co., 31 Minn. 492. * Hamer «. Hathaway, 33 Col. 119 ; Douglass v. Kraft, 9 Cal. 562. ' Whitfield V. Whitfield, 40 Miss. 353 ; Mayberry v. Cliflfe, 7 Coldw. (Tenn.) 124; Suydam «. Jenkins, 3 Sandf. 615. 310 DAMAGES. at that time, by which we mean its market value, the sum for which it could then be sold would constitute at least a portion of the amount that the wrong-doer would be bound to pay. This sum may, therefore, be fairly considered as a debt then due, and consequently interest, until the time of trial or judgment, must in all cases be added to complete the indem- nity. It is not, however, in all cases that the value of the property when the owner is dispossessed is to be determined by a reference to its market price, nor in all that the damages, which are to be added to the value, are to be limited to the mere allowance of interest. In most cases the market value of the property 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 '■'■fretium affectionis" instead of the market price, ought then to be considered by the jury or court in estimating the value. In these cases, however, it is evident that no fixed rule to govern the estimate of value can be laid down, but it must of necessity be left to the sound discretion of a jury. But where an assignee for the benefit of creditors, who must have sold the goods had they come to his hands, brought suit against a sheriff who had seized them upon an execution, the jury might properly allow the amount for which they were sold by the sheriff. ^ § 569. Statement of value in the affidavit usually binds the plaintiflF, but not the defendant. When the value of property is to be assessed, the statement in the affidavit of the plaintiff as to the value is frequently regarded as estopping him from assorting a different value. After fixing the value at a time when he was seeking the delivery of the property on the writ, he should not be heard to complain of the value so fixed by himself; but the defendant, who is in no way concerned in so fixing the value, is, of course, not affected by it.* This rule 1 Whitehouse ®. Atkinson, 3 C. & P. 344. ' Gray -o. Jones, 1 Head. 544; Huggeford v. Ford, It Pick. 235; Swift v. Barnes, 16 Pick. 196 ; Middleton s. Bryan, 3 Maul. & S. 155 ; Tuck «. Moses, APPRAISEMENT DOES HOT BIND EITHER PARTY. 311 may in some cases work injustice, and in exceptional cases the plaintiff may be heard to explain what is in ordinary cases prima facie evidence against him.i But this does not au- thorize the clerk of the court to enter up judgment against the plaintiif for that value, upon a default and order for resti- tution. The right to possession or title to property is the real issue to be tried, and not the value. ^ The value is required to be found in certain States to inform the court what judgment to render or what sum to collect in case return or delivery can- not be had ; otherwise the value is immaterial in the replevin suit.' When the property is expected to diminish in value by lapse of time, the obligor ought to be bound by the value stated by himself.* The enforcement of this rule is calculated to promote a fair and reasonable estimate, in his aifidavit, by • the party seeking the delivery. § 570. Appraisement does not bind either party. An appraisement of the value, under the statute, and a return of that value, does not preclude either party from offering the testimony of competent witnesses so as to show the real value,' as in such ease neither party is called upon to act in making the appraisal. Neither is such an appraisal binding upon the sheriff who caused it to be made. But in case an officer is sued, his return of an appraisement which he caused to be made may be admitted as prima facie evidence against him.* §571. Special damages must be specially pleaded. Special damages not naturally arising from the tortious act complained of, must be especially alleged in the declaration, and proved as alleged.'' The circumstances of the taking need not be set 58 Me. 477 ; Parker v. Simonds, 8 Met. 205 ; Clap «. Guild, 8 Mass. 153 ; Washington Ice Co. ■». Webster, 62 Me. 841. ' Gibbs V. Bartlett, 3 W. & 8. (Pa.) 34. » Thomas v. Spofford, 46 Me. 408. ' Cases last cited. »Howe«. Handley, 38 Me. 251; Swifts. Barnes, 16 Pick. 194; Parker v. Simonds, 8 Met. 205. ' Kafer «. Harlow, 5 Allen, 348 ; Leighton-«. Brown, 98 Mass. 5 1 5 ; Wright v. Quirk, 105 Mass. 48. « Sanborn v. Baker, 1 Allen, 521 ; Kafer v. Harlow, 5 Allen, (Mass.) 348. ' Bodley v. Reynolds, 8 Q. B. 779 ; Park «. McDaniels, 37 Vt. 594 ; Damron «. Roach, 4 Humph. (Tenn.) 134; Slack «. Brown, 13 Wend. 390, 393 ; Scho- 312 DAMAGES. out to entitle the plaintiff to damages commensurate with the injury which the taking occasioned and which are the natural or expected result of such taking;^ and under a general alle- gation of damages, the plaintiff may prove any depreciation in the value of the goods while they were in the defendant's hands, from any naturally expected cause ;^ but any and all special damages from whatever causes arising, such as loss of business where that is proper, unexpected depreciation in value of the property, or damages from any wrongful act of the party subsequent to the taking, should be specially alleged.* § 572. Loss by interruption of business. In replevin, as in all other actions in the nature of tort, the damages should not be less than the amount of loss actually sustained, but the loss must be real, not speculative or probable merely.* Where the landlord wrongfully cut off steam power from his tenant's mill, the tenant had a right to suppose it was permanent, and dispose of his stock, machinery and fixtures, on the best terms he could, and the wrong-doer should be held liable for any loss that might be sustained from such a sale, so far as the same was the natural and probable result of the landlord's wrongful act. In estimating the loss sustained by breaking up his established business, there would seem to be no well founded objection to ascertain the amount of profits which it field I!. Ferrers, 46 Pa. St. 438 ; Armstrong b. Percy, 5 Wend. 535 ; Strang ■». Whitehead, 12 Wend. 64; Bennett v. Lockwood, 20 Wend. 223; Smith v. Sherwood, 2 Tex. 460 ; Bogert ®. Burkhalter, 3 Barb. 525 ; Vanderslice v. Newton, 4 Comst. (N. Y.) 130; Burrage v. Melson, 48 Miss. 237; Stevenson V. Smith, 38 Cal. 102; Smith v. Sherman, 4 Cush. (Mass.) 408 ; Davis s. Oswell, 7 0. & P. 804. See White •». Suttle, 1 Swan. (Tenn.) 174. ' Schofield «. Ferrers, 46 Pa. St. 438 ; Fagen v. Davison, 2 Duer. 153. But see and compare. Woodruff e. Cook, 25 Barb. 505. ' Young V. Willett, 8 Bosw. (N. Y.) 486. Even though the damage did not accrue until some time afterward. Dickinson v. Boyle, 17 Pick. 78; Brown v. Cummings, 7 Allen, 507. The following English cases, though none of them cases in replevin, illustrate the rule requiring special dam- ages to be pleaded specially: Rose v. Groves, 5 M. & Q. 613; Sippora®. Basset, 1 Sid. 225; Lowden v. Goodrick, Peake, (N. P.) 46; Pettit v. Add- ington, Peake, (N. P.) 63; Lindon v. Hooper, 1 Cowper, 418. 3 Stevenson v. Smith, 38 Cal. 108; Strang «. Whitehead, 12 Wend. 64; Djwint V. Wiltsie, 9 Wend. 336. ■• Baker «. Drake, 53 N. Y. 313; Loker v. Damon, 17 Pick. 284. LOSS OF EKAL OB PKOBABLE PROFITS. 313 has yielded for a reasonable period next preceding the time when the injury was inflicted, leaving the other party to show that by depression in trade or other causes they would have been less.^ § 573. The same. Prospective profits. This rule is prob- ably more liberal than that sustained by the current of author- ity, though cases may be found to support it. But as a rule, damages which include the expected profits of the party in business with the hazard attending it, are usually regarded speculative, rather than real.^ For example, profits which are expected from the use of circus horses in the circus busi- ness, cannot be a measure of damages;* and as a rule, purely speculative or contingent damages can never be allowed.* The expected profits of a stock speculation carried on with the defendant's capital, cannot be a proper element of damages in a suit for an unauthorized sale of stocks by the defendant, who was the broker. ^ The profits of an illegal business can- not be an element of damages in any case. The expected profits of a patent machine cannot be allowed.* And as a general thing, loss by a mercantile firm by the seizure of their goods and interruption to their business, and consequent loss of expected profits, is not a proper element in computing damages.'' § 674. Loss of real or probable profits. The jury may ' Chapman ®. Kirby, 49 111. 219. A very similar case, White v. Moseley, 8 Pick. 356. See, also, Davenport s. Ledger, 80 111. 578. "When a party leased a tavern and agreed to keep a certain ferry in good order, and after- ward diverted the travel to another ferry, the lessor was allowed to recover his rent, but not expected profits. Dewint v. Wiltsie, 9 Wend. 326. ■2 Bonesteel v. Orvis, 23 Wis. 524. See Seldner v. Smith, 40 Md. 603 ; Brannin v. Johnson, 19 Me. 361. ^ Butler V. Mehrling, 15 111. 490. See, also, Butler v. Collins, 12 Cal. 457 ; Campbell -o. Woodworth, 26 Barb. 648. ■• Houghton D. Peck, 8 Pa. St. 43. See cases last cited. « Baker v. Drake, 53 N. Y. 211. Houghton V. Peck, 8 Pa. St. 43. Selden v. Cashman, 20 Cal. 57. See Allred v. Bray, 41 Mo. 484. For wrongful attachment, plaintiff was allowed to prove that her business was destroyed and she reduced to poverty. Moore v. Schultz, 31 Md. 418. See Oviatt V. Pond, 29 Conn. 479. 314 DAMAGES. allow for the loss of near and stable or probable profits. ^ So when the 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 damages.^ Of course the jury must take into consideration the degree of probability that the party would have made a profit;* and damages can never, include expected profits, unless it appear aflirmatively that the party was absolutely prevented from realizing them by some act of the party in default;* a party cannot permit his business to lie still or suffer a loss of profit, and collect the damages so occasioned, from the defendant/ § 575. Party claim.ing damages must do what he can ta avoid loss. A party may show that he has done all in his power to avoid the damaging effect of the defendant's act, and such evidence will not diminish the damages.' If a trespasser willfully leaves his neighbor's gate open, and cattle enter and destroy his crop, the trespasser is liable; but if the owner pass it before the cattle enter, and refuse to shut it, he cannot recover.'' The rule may be stated, that a party who suffers injury from the wrongful act of another, must do what he can to render the evil results as light as possible. ^ Where the defendant took the plaintiff's horse, which was useful to him in the way of trade, he was allowed the cost of hiring anotlier horse, less the amount he would have paid for keeping his own while it was taken.* § 576. Expenses, counsel fees, etc. Expenses sometimes form a part of the damage which a party has really sustained, and the question as to how far they can be reimbursed, is one of considerable importance. As a rule, expenses of the party ' Mayberry v. Cliflte, 7 Cold. (Tenn.) 134. Compare Pacific Ins. Co. v. Oonard, 1 Baldw. (C. C.) 138. ' Sewells Falls Bridge v. Fisk, 23 N. H. 171. 8 Mayberry i). Cliffe, 7 Cold. (Tenn.) 124. * Palm i>. The Ohio & Miss. R. R. Co., 18 111. 317; The County of Chris- tian V. Overholt, 18 111. 323. ' Brizsee v. Maybee, 21 Wend. 144. 6 Chandler i). Allison, 10 Mich. 461 ' Loker v. Damon, 17 Pick. 289. 8 Chandler i). Allison, 10 Mich. 461 « Davis V. Oswell, 7 Oar. & P. 804. EXPENSES, COUNSEL FEES, ETC. 315 in endeavoring to recover his property, time spent in getting the writ, attending court, etc., are not allovirable as part of the damages.! Neither are counsel fees and other expenses of the suit, apart from the costs adjudged, strictly recoverable in the way of damages. ^ The only ground on which they should be allowed is in case where the jury, as a matter of discretion with which they may be vested, consider the expenses in order that the plaintiff may not be impoverished by the cost of asserting his right in court. ^ In Connecticut the rule appears to be that, when the injury is wantonly inflicted, the expenses of litigation may be included as a proper part of the dam- ages.* § 577. The same. In Pacific Ins. Co. v. Conard, 1 Bald- win, (U. S. 0. 0.) 138, the court instructed the jury that in cases where the taking was willful, the expenses which the party has been put to, to assert his rights, might properly be taken into consideration by them in making up their estimate of damages. In JSIew York it was said that where the taking was wrongful, the plaintiff may recover a reasonable amount for time and expense incurred in endeavoring to reclaim his property.^ "Where the defendant took the plaintiffs' horse and wagon, by reason of which the plaintiffs were induced to think that the person to whom they let it had absconded, and they expended considerable time and money in search of their property, the value of the time and the amount of the expenses were allowed as a proper element of damages. ^ In an action for false imprisonment, for an illegal arrest of plaintiff, evi- dence of the value of the counsel's fees was not admitted, not ' Blackwell v. Acton, 38 Ind. 436. But, contra, see Bennett e. LockwooU, 20 Wend. 223. 2 Park «. McDaniels, 37 Vt. 594; Earl v. Tupper, 45 Vt. 387; Hoadley v. Watson, 45 Vt. 289 ; Pacific Ins. Co. v. Conard, 1 Baldwin, (0. C.) 138. 'Williams v. Ives, 35 Conn. 568; Parsons v. Harper, 16 Gratt. (Va.) 64; Earl ®. Tupper, 45 Vt. 275; Hoadley v. Watson, lb. 389. *Linsley J). Bushnell, 15 Conn. 335; Welch v. Durand, 86 lb. 183; Piatt 9. Brown, 30 Conn. 336 ; Dibble v. Morris, 36 Conn. 416 ; Ives v. Carter, 24 Oonn. 393 ; Beecher v. Derby Bridge Co., 34 Conn. 491. ' McDonald «. North, 47 Barb. 530. See Yantis «. Burditt, 2 Dana, (Ky.) 254. « Bennett v. Lockwood, 30 Wend. 323. 316 DAMAGES. being specifically laid in the declaration, i In Wisconsin it has been held that counsel fees can no more be allowed in actions where vindictive damages are given than in other actions. If they can be given by the jury it must be on the principle that they are consequential and relate to the amount of the compensation proper to award, rather than that they enter directly into the compensation. * So, in Indiana, in a suit on the bond, it was said the plaintiff cannot recover fees paid his counsel in the replevin case, nor in the suit on the bond, nor is he entitled to any fees for his own attendance in the furthering of his suit.* In Yermont the rule has been stated that counsel fees did not form a proper element of dam- ages.^ So, also, in Michigan. ^ In Ohio the supreme court said in substance, that in cases nominally in tort, where no real malice is complained of, counsel fees ought not to be included ; but when the act complained of involves the ingre- dient of malice, or insult, the jury which has the power to punish has necessarily the right to include counsel fee in their estimate of damages, if they see proper to do so.' § 578. Expense of taking and removing the property. The expenses of taking and moving the property by the officer should not be included in the damages. They constitute a part of the costs of the case and should be so assessed.'' "Where an officer seized horses of A. on an execution against him and A. afterwards replevied the horses from the custodian in whose charge they were left, and afterwards suffered non- suit in the replevin case, the costs of keeping the horses was held a part of the costs on the execution. ** In Illinois, in a suit on a replevin bond, the court said that where the party ' Strang v. "Whitehead, 12 Wend. 64. ' Fairbanks ». "Witter, 18 "Wis. 387. » Davis B. Urow, 7 Blackf. 130 ; Blackwell v. Acton, 38 Ind. 425. « Earl B. Tupper, 45 Vt. 275 ; Hoadley v. "Watson, lb. 289. « Hatch v. Hart, 2 Gibbs, (Mich.) 289 ; Warren ®. Cole, 15 Mich. 269. " Roberta v. Mason, 10 Ohio St. 277. See, contra, Day «. "Woodworth, 18 How. 363. "< Young V. Atwood, 5 Hun. (N. Y.) 234. Compare "Washington Ice Co. «. Webster, 62 Me. 341. 8 Davis V. Crow, 7 Blackf. 131. EXPENSE OF TAKING AND EEMOTING PEOPEETT. 317 was driven to compulsory process to secure tlie property which was ordered to be returned to him in the replevin suit, he could recover the costs of so doing in his action on the bond. The costs of the return were not a part of the costs for which he could have judgment in the replevin suit and were a proper item in the suit on the bond.i • Langdoc «. Parkinson, 8 Bradw. (111.) 186. 318 DAMAGES. OHAPTEE XVIII. DAMAGES. — Continued. Section. Value of the use ; when proper to be allowed .... 579 This applies only to replevin . 580 The same. Not allowed a pledgee or an officer of the law 581, 583 The same. Not allowed unless the property is chiefly valu- able for its use . . . 583 Where the successful party has only a limited interest 584 to 586 The same. As between the owner of a limited interest and an intruder . . . 587 The same. Between the gen- eral owner and the owner of a limited interest . . 588, 589 Damages against officers for wrongful seizure . . . 590 The same. Against officers act- ing in good faith . . . 591 The same. Officer acting with malice 593 The same. Where the suit is by the general owner . . 593 The same. Where the suit is by one without right . . 594 Damages against officer for fail- ure in his duty . . 595, 596 In suits between different offi- cers 597 Damages between joint own- ners 598, 599 Effect of the death or destruc- tion of the property . 600, 601 603 603 . 604 605 Section. The same. Death of slaves pending suit does not affect ■ the right to judgment for value .... The same. Emancipation Judgment when the property is lost or destroyed . Damages allowed only where the defendant is entitled to a return Option of the defendant to pay value or return the goods; when allowed . . . 606 Damages to compel return . 607 When and how assessed . . 608 Generally dependent on local statutes 609 Value and damages should be separately assessed Recovery cannot be for a great- er sum than is claimed Damages for property severed from real estate; value as a chattel . . . 612 to 614 The circumstances under which the severance was made, ma- terial to be considered Trees cut upon the land of another by mistake The general rule stated appli cable to various changes in the property . Vindictive damages; when al- lowed 618 The general principles . . 619 610 611 615 616 617 VALUE OF THE USE, WHEN PKOPEE TO BE ALLOWED. 319 The same. The meaning of the terms " punitive,'' " exem- plary" and "vindictive" 630, 631 The same. Actual malice or gross carelessness must be shown . . . » . . 633 No general rule exists for esti- mating 633 Illustrations of the principles 634 to 636 Party who acts in defiance of another's rights is responsi- ble for all consequences . 637 Vindictive damages against ofli- cers of the law . . 638, 629 Accounts cannot be adjusted in replevin 630 But questions of set off may be investigated in certain cases . 631 Illustrations of the rule . . 633 Set otf to suit upon bond . . 633 § 579. Value of the use, when proper to be allowed. In many cases the property in dispute may possess considerable value for use, and small value, as merchandise, for sale or for consumption. In such cases the value of the use is frequently adopted as the measure of damages. For example, where •work-cattle or horses, tools, or implements of trade or hus- bandry, are taten from the owner, who is thereby deprived of their use, the reasonable value of that use will, in many cases, be the only just compensation for their detention.^ It would be highly unjust to hold that a party might take a span of horses worth, say one hundred and fifty dollars, and detain them a year and then pay six per cent, on the valiie as com- pensation to the owner.^ § 580. This applies only to replevin. This rule, allowing the value of the use, is peculiar to the action of replevin. It grows out of the fact that the plaintiff asserts his continued ownership in the property, and seeks to recover the property and not its value. If, as in trover, the value was sought, of course compensation for the use of the property to the party who, by his action, asserts a transfer of title, would be absurd. ^ It only applies in cases where the party claiming the use is "Allen V. Fox, 51 K. Y. 563; Morgan v. Reynolds, 1 Blake, (Mon.) 164; Carroll v. Pathkiller, 3 Port. (Ala.) 381; Hanauer v. Bartels, 3 Col. 534; Pralick v. Presley, 39 Ala. 463; CJapp ». Walters, 3 Tex. 130; Machette v. Wanless, 3 Col. 180; Clements «. Glass, 33 Geo. 395; Dor- sey V. Gassaway, 3 Har. & J. 403. For a case where the value of the use was not allowable, see Twinam v. Swart, 4 Lans. 363. See, also. Young V. Atwood, 5 Hun, 284. ' Williams v. Phelps, 16 Wis. 85. ' McGavock v. Chamberlain, 30 111. 330; Allen v. Fox, 51 IT. Y. 564. 320 DAMAGES. in a situation to use it, and has a right to use it,* and only ap- plies to cases where the property can be put to use. It is for only 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. §581. The same. Notallowedapledgeeoranofaeer of the law. A mere pledgee of goods has no right to use them. So, when the defendant had a judgment for the return of a sew- ing machine, oil the assessment of damages the defendant claimed to be the owner, and testified as to the monthly value of the use. The plaintiff offered to show that the defendant obtained the machine as a pledge or security for a debt, and this defense was held good, and a judgment for the defendant for the value of the use was reversed;* and, following the analogies of this case, an officer of the law, who has seized property on an execution, has no right to use the property; the value of the use should not be assessed in his favor.* § 582. The same. Where the property was valuable for use, plaintiff may recover the value of the use during the time he was deprived of it, but not the natural depreciation in value during the same time; though when the property is incapable of use, the natural depreciation in value may be given.* Neither can a party be entitled to interest on the value, and at the same time the value of the use. "Where use is allowed it excludes other compensations during the period for which the use is allowed. When a horse was bailed to defendant to feed, and he used it, and it afterwards died, though not in con- sequence of such use, the plaintiff could not recover for the use, in an action of trover. Perhaps assumpsit for the use might have been proper. ^ §583. The same. Not allowed unless the property is chiefly valuable for its use. Where the property is valuable chiefly as merchandise, kept for sale or consumption, and not for use, its ' Barney «. Douglass, 33 Wis. 464. ' McArthur d. Howett, 73 111. 359. » See, in this connection, Twinam «. Swart, 4 Lans. 363. * Odell V. Hole, 35 111. 208; Garrett «. Wood, 3 Kan. 231. ' Johnson v. Weedman, 4 Scam. 496. ■WHERE SUCCESSFUL PAETT HAS LIMITED INTEEEST. 321 value as merchandise, and interest, and not the value of its use, is the proper measure of damages. ^ And generally, the plain- tiff can never recover the value of the use unless he shows the property to be valuable only for its use, and that he is in a sit- uation where its use is a matter of right. § 584. Where the sueeessfiil party has only a limited in- terest. Where the successful party in replevin has only a lim- ited interest in the property in dispute, as, for example, a leasehold interest, or a lien for a limited amount, he' cannot, as against the general owner, recover damages greater in amount than the value of that limited interest. The justice of this rule is apparent. In a contest between the owner of the gen- eral property and the owner of a limited interest in the same property, the rights of each can be defined and protected.* To illustrate: When the interest of the plaintiif was only an execution, and the other party was the general owner, ^ or, where the action was by one who had a life estate in slaves against the remainderman, the value of the life interest, and not the full value of the slaves, was allowed.* § 585. The same. Distress for rent. When the suit was for the replevin of a distress for rent, and the tenant failed to prosecute his suit, and a return of the property was awarded, in a suit on the bond, the suit was regarded as between the owner of a limited interest against the owner of the general title; the measure of damages was only the value of the limited interest; that is, the amount of rent due, and not the full value of the property replevied. ^ So, when the defend- ant in the replevin had not paid for the goods, and could not be held liable to pay for them, he could not recover on the ' Hanauer «. Bartels, 3 Col. 515 ; Machette v. Wanless, 2 Col. 170 ; Shep- herd «. Johnson, 3 East, 211; Clark v. Piuney, 7 Cow. 681 ; Goulet v. Asse- ler, 33 N. T. 335; Bonesteel v. Orvis, 32 Wis. 533; Allen v. Fox, 51 N. Y. 564. '' Townsend v. Bargy, 57 N. Y. 665 ; Weaver v. Darby, 43 Barb. 411 ; War- ner V. Hunt, 30 Wis. 300; Childs v. Chllds, 13 Wis. 19; Lloyd v. Goodwin, 12 8. & M. (Miss.) 333; Williams v. West, 2 Ohio St. 86; Rhoads v. Woods, 41 Barb. 471; Allen «. Judson, 71 N. Y. 77. ' Booth v. Ableman, 30 Wis. 33. * Lloyd «. Goodwin, 13 S. & M. (Miss.) 323, ' David V. Bradley, 79 III. 316. 21 322 DAMAGES. bond any more than the jury may find tliey would have gained by the sale of the goods if he had retained them.i § 586. The same. Where the interest is an execution. "Wliere the interest of the plaintiff was only an execution against the defendant, or a lien on the property, the damages should be limited to the amount of the execution or lien, and the defendant may show that it is paid or discharged in miti- gation of damages, and the burden of showing the amount of the execution, where it is relied upon, is on the party who relies on it.^ §587. The same. As between the owner of a limited inter- est and an intruder. But where the contest is between the owner of a limited interest in a chattel and an intruder, who has no interest in the property, the owner of the- limited in- terest is entitled to recover the property, or its full value; because he may be liable to account to the general owner.^ Where the suit is brought by a bailee, or one holding a special property, against the holder of the general title, he recovers the value of his special interest, and not the value of the property. Thus, if one hire a horse for a term, and it be taken from him by the owner, before the term expires, he could recover the value of his interest, and not the full value of the horse.* The same rule prevails when the party connects himself with the general owner as bailee, or in any way showing himself respon- sible to the general owner, he is entitled to recover the full value as against any one who, without right, interferes with the property. 6 §588. The same. Between the general owner and the owner of a limited interest. The general rule may be stated, that in an action between the general owner and one having a lien or ' Seldner v. Smith, 40 Md. 603. « Booth v. Ableman, 20 Wis. 21 ; Seaman o. Luce, 33 Barb. 340. 3 Frei ®. Vogel, 40 Mo. 150 ; Dilworth ». McKelvy, 30 Mo. 150 ; Falon ». Manniag, 35 Mo. 371 ; Frey v. Drahos. 7 Neb. 194. * White v. Webb, 15 Conn. 305 ; Faulliner v. Brown, 18 Wend. 64; Inger- soll B. Van Bokkelin, 7 Cow. 670; Atliins v. Moore, 83 III. 340; Rhoads v. Woods, 41 Barb. 471; Davidson s. Gunsolly, 1 Mich. 388; Benjamin «. Stremple, 13 111. 468 ; Battis «. Hamlin, 33 Wis. 669. ' Booth V. Ableman, 20 Wis. 21 ; Leonard o. Whitney, 109 Mass. 266, AGAINST OFFICERS FOE WEONGFUL SEIZUEE. 323 a limited interest, when the latter prevails he is entitled to damages the amount of his lien, or value of his special prop- erty; ^ but as agent, a stranger who replevins property without right, the defendant, no matter if his interest be limited, is entitled to a return of the goods, or their full value. This rule is shown to be very ancient in Lyle v. Barker, 5 Binn. (Pa.) 458, which was an action against the sheriff for trespass in breaking the plaintiff 's close and taking pipes of wine. The wine belonged to one Morris, but was held by the plaintiff as collateral for money lent, and the court allowed the full value, for the reason, that upon payment of his claim, the plaintiff was liable to surrender the wine or pay the full value. §589. The same. When the plaintiff's title is legally di- vested after suit brought, and before trial, he can, as against the owner, recover nothing beyond costs, and such damages as he may have sustained up to the time his title was divested ;8 and the court will always hear evidence to show a change of ownership since the suit began, or which makes it improper to award a return, or full value as damages for a failure to make return.^ And where a return has been awarded, and the suit is on the bond, the defendants may show any fact not settled in the replevin suit in mitigation of damages; but as against a trespasser, the defendant is entitled to a return of the goods, or their full value, notwithstanding his title may have terminated before trial. So, when a pawnee of property is liable to the owner for goods, he may recover the full value as damages against a stranger who takes them.* § 590. Damages against oflaoers for wrongful seizure. Re- plevin against sheriffs and other ministerial officers for the wrongful seizure of goods is of frequent occurrence, and the question of damages to be awarded against olBcers in such cases, or in their favor, when they are entitled to the return of the goods, forms an important part of the chapter on damages. The • Seaman s. Luoe, 33 Barb. 240 ; Rhoads ». "Woods, 41 Barb. 471 ; Inger- soU n. Van Bokkelin, 7 Cow. 681, n. a. , » Cole ». Conolly, 16 Ala. 371. ' Leonard o. "Whitney, 109 Mass. 266. * Lyle B. Barker, 5 Binn. 459. 324 DAMAGES. law is well settled, that sheriffs and other ministerial oflBcers are liable in damages for the wrongful seizure of goods under process. The form of the action, however, may be trespass, trover, or replevin, at the election of the party injured. Thus, if the sheriff, with an execution against A., seize the goods of B., B. may sustain an action against the sheriff for the goods, or their value; and if the goods are sold, or are not returned, he may recover the value. The value, and not the amount for which they were sold, is the measure of damages.^ Though when the sheriff seize and sell goods, and the plaintiff is an assignee, who must have sold them had they come to his pos- session, the jury may be induced to find the sum for which the sheriff sold them.^ §591. The same. Against ofllcer acting in good faith. As against a sheriff acting in good faith in the discharge of his official duties, exemplary damages are not allowed. Even though he should seize and sell the goods of the wrong per- son, the value of the interest of the party in the property (not including loss of trade or character,) with interest, and reason- able compensation for any depreciation in the value, or cost of replacing it, is the proper measure of damages.* In Saffell V. Wash, 4 B. Mon. (Ky.) 93, is was said that the sheriff was not liable for costs when he levied on exempt property. That a defendant in execution should not be allowed to resort to this interdicted remedy (replevin,) even for his exempt property, except at the certainty of paying all the costs. But this is contrary to the entire current of the law in other States, and the principle would, if allowed to become established, turn loose upon society a set of licensed trespassers.* § 592. The same. Officer acting with, malice. When, how- ever, the sheriff has acted with malice or fraud, or with design ■ Pozzoni c. Henderson, 3 E. D. Smith, 146 ; King «. Orser, 4 Duer. (K. T.) 431; Livor v. Orser, 5 Duer. 501; Whitaker v. "Wheeler, 44 111.441; Russell «. Smith, 14 Kan. 374. * Whitehouse ». Atkinson, 3 Oar. & P. (14 E. 0. L.) 344. 2 Beveridge B.Welch, 7 Wis. 45; Barney ». Douglass, 32 "Wis. 464; Graves ■». Sittig, 5 Wis. 319 ; Morris d. Baker, 5 Wis. 389 ; Meshke e. Van D6ren, 16 Wis. 330 ; Noxon «. Hill, 3 Allen, 215. * See poit, § 593. AGAINST OFFICEKS FOR WRONGFUL SEIZURE. 825 to annoy or oppress, the process will not protect hira more than if he were a private person. i But malice on the part of the plaintiff whose process the sheriff is executing cannot be given in evidence against the sheriff.^ So, when the sheriff levies an attachment on goods not the property of the defendants,* he acts at his peril, and is answerable, if he makes a mistake;* and in such case it is no ground for new trial that the jury fix the damages at a greater or less sum than any of the witnesses fix them. 5 If the sheriff make an excessive levy, after satis- faction of the debt by sale of part of the goods, and a return of part only of the unsold goods, the value of the goods not returned, and damages for their detention, and for any injury they may have received, is proper. ^ § 593. The same. Where the suit is by the general owner. Where the goods were replevied from an officer, who held them on several attachments, by a party having no right to them, the officer was entitled to the full value and damages (interest) for the detention. Nor should any deduction be made for attachments which were levied after the replevin.' This rule grows out of the fact that the sheriff making a levy is regarded as responsible to the defendant in execution for any surplus there may be after satisfying the execution. Where, therefore, the defendant in the execution rejilevies the goods, he is regarded as the general owner, and as against him the sheriff is not responsible to any other person for any sur- plus after satisfying the execution. The measure of damages, therefore, in such cases, is the amount of the execution, in case it is less than the value of the property, or the value of the property in case the execution is greater, ^ as the damages ' Nightingale v. Scannell, 18 Cal. 315; Noxon «. Hill, 3 Allen, 315; Mc- Daniel v. Fox, 77 111. 345. ' Nightingale ». Scannell, 18 Cal. 315. ' Milburn v. Beach, 14 Mo. 105. * Ayer v. Banlett, 9 Pick. 156 ; Joyal v. Barney, 20 Vt. 155. ' See note to Ayer v. Bartlett, 9 Pick. 156, citing many cases. « Waterbury v. "Westervelt, 5 Sekl. (N. Y.) 598. ' Farnham v. Moor, 31 Me. 508; Lyle ®. Barker, 5 Binn. 459. ' Jennings v. Johnson, 17 Ohio, 154; SutclifiFe v. Dohrman, 18 Ohio, 186; Battls V. Hamlin, 33 Wis. 669. See Coe «. Peacock, 14 Ohio St. 187 ; Nia- gara Elev. Co. i>. McNamara, 3 Hun. 416 ; S. C. 50 N. Y. Ct. Appeals, 653. 326 DAMAGES. should not exceed tlie value of the property, possibly with interest added. § 594. The same. Where the suit is by one without right. But where a party not the defendant in execution replevies the property, and upon trial a return to the sheriff is awarded, in such case the sheriff is regarded as responsible to the gen- eral owner for the surplus, and the measure of damages is the full value of the property and interest, without regard to the amount of the execution.^ § 595. Damages against officer for losing bond. Where the officer has lost the bond, the defendant for whose benefit the bond was given may have his action the same as though no bond had been taken, and may recover the amount for which the securities in the bond would have been liable.^ The principle governing in such case is that the party is entitled to be placed in as good a position as if the sheriff had done his duty, and the damages in such case are measured, not by the amount of the value of the goods or the defendant's inter- est in them, but the amount which could have been recovered if the breach of duty had not happened.* § 596. The same. For other failure in his duty. If the sheriff fail of his duty, whereby a party is injured, he is usually responsible in damages. If on recovering a writ of replevin the officer fail or neglect to serve it, or if in attempt- ing to serve it he is put off with vague information in reply to casual inquiries, he is responsible to the party for such damages as he may have sustained by such misconduct;* but the sheriff may negative the possibility of any advantage t& the creditor from the performance of his duty, and the cred- ' First Nat. Bank n. Crowley, 34 Mich. 499 ; Farnham v. Moor, 31 Me. 508; Buck v. Remsen, 34 N. Y. 883; Dil worth v. McKelvy, 30 Mo. 150; Long «. Cockrell, 55 Mo. 93 ; Fallon v. Manning, 35 Mo. 375. See Battis v. Hamlin, 33 Wis. 669 ; Lyle o. Barker, 5 Binn. 458. * Perreau ®. Bevan, 5 B. & C. 284. ' Aireton ®. Davis, 9 Bing. 740. In an action for not arresting on mesne process, or permitting a debtor to escape, a plea by the officer negatimng any damage is a good plea. Williams v. Mostyn, 4 Mees. & W. 145, over- ruling Barker v. Green, 3 Bing. 317. « Hinman d. Borden, 10 Wend. 867. BETWEEN JOINT OWNERS. 327 iter will not be entitled to damages. i Thus when tlie plaintiff delivered to the sheriff a writ directing him to take certain goods of the party therein named as defendant therein; to a suit for false return for not levying, the sheriff was permitted to show that the goods were not tlie goods of the party against whom the writ issued.^ § 597. In suits between different officers. Suits are some- times brought by one officer against another to test the relative priority of the different processes held by them. In such cases the rule, as laid down in a case in Vermont, is, that damages beyond the actual value of the property should not be given.* § 598. Damages between joint owners. Replevin, as we have seen, cannot be sustained by one joint owner against his co-tenant; but such actions are sometimes brought through mistake or by design, and the question arises, what damage shall be awarded against the plaintiff, who, though he may be a joint owner in the property, and equally entitled to posses- sion with the defendant, must fail in his action. 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 taking upon the writ, and is, therefore, entitled to judg- ment for a return, otherwise the plaintiff would gain all the advantage of a victory where the law compels a defeat. But when in such case the court comes to determine the question of damage, the defendant is not entitled to recover more than the value of his interest in the goods.* §599. Tlie same. Where the plaintiff's claim for delivery .under his writ is based upon the assumption that he is entitled to possession of, and he obtains delivery of, the whole, he must, upon failure, return the whole. Where the action was brought by a stranger against a bailee of one joint owner, to 1 Mayne's Law of Damages, this title, wliere this question is fully and ahly discussed. s Stimson v. Farnham, 1 Moaks, (Eng.) 60. ' Goodman v. Church, 30 Vt. 187. ' Bartlett s. Kidder, 14 Gray, (Mass.) 449 ; Witham v. Witham, 57 Me. 448; Spoor v. Holland, 8 Wend. 445; Jones e. Lowell, 35 Me. 538; Inger- soll V. Van Bokkelin, 7 Cow. 670; Mason v. Buoiner, 33 Md. 318; Sutcliffe «. Dohrman, 18 Ohio, 185. See, also, Reynolds v. McCormick, 63 111. 413. 328 DAMAGES. wLom the defendant is answerable for the return of the goods or their value, the damages must be the full value, and not the value of the interest of the bailor. ^ § 600. EfTect of the death or destruction of the property. Questions frequently arise as to what effect the death, or destruction of the property pending the suit, will have on the rights of the parties; upon this question, the authorities with a few exceptions, can easily be harmonized. It was said in a New York case, that when the property sued for is a living animal, and it dies, it is a good plea to say that it is dead.^ This ruling was based upon the idea that the return had become impossible, by act of God;* but this ruling has been questioned more than once. To permit a defendant who wrongfully takes possession, to claim that he holds it at the risk of the real owner and not at his own, and claim immu- nity for accident, would be unjust, in the extreme. The wrongful taker of property, when called upon to surrender it to the rightful owner or pay the value, cannot defend himself from judgment by showing his inability to deliver through death or otherwise.* If the recovery of the specific thing was the sole object of the action, of course upon its death or destruction the action would terminate; but the object is to recover the thing only in case it can be had, and its alternate value in case it cannot be delivered in specie. The result is, tliat the death or destruction of the thing sued for, does not defeat the action unless it be under circumstances which excuse the party from liability for the value. ^ § 601. The same. If in the action of replevin or detinue, the judgment for the delivery of the property or its alternate value, is to be prevented by its death or destruction pending the suit, it is obvious that that form of action is inadequate to redress the wrong or enforce the right to its full extent. ' Russell !). Allen, 3 Kern. (N. Y.) 178. * Carpenter v. Stevens, 13 Wend. 589. « See Melvln d. Winslow, 1 Fair. (Me.) 397. * Caldwell v. Fenwlck, 3 Dana, 333; Halle b. Hill, 18 Mo. 613; Gibbss. Bartlett, 3 W. & S. (Pa.) 34 ; Austin's Ex'rs ». Jones, 1 Gilmer, (1 Va.) 341 ; Scott D. Hughes, 9 B. Mon. 104. ' Carrel v. Early, 4 Bibb. (Ky.) 370. EFFECT OF DESTEUCTION OF PEOPEETY. 329 The plaintiff must yield his desire to obtain the specific prop- erty, or he must incur the peril of losing not only the prop- erty, but all claim for compensation in case it die in the hands of the wrongful taker. ^ Therefore, in such cases, when the property has been destroyed and cannot be delivered or re- turned, the fact of its destruction does not furnish any excuse for the non-payment of the value. The New York cases referred to were based upon the hypothesis that the party came rightfully into the possession, and was liable only for ordinary care. All the analogies in cases where the taking was wrongful are different.* § 602. The same. Death of slaves pending suit does not aflfect the right to judgment for value. The death of slaves pending the action for them has often been held not to defeat the plaintiff's right to a judgment for them or their value.^ In Carrel v. Early, 4 Bibb. (Ky.) 270, the proposition was that the slaves having died without fraud of defendant after suit begun, defeated plaintiff's right to their value. 0. J. BoTLE said, "this proposition cannot be maintained. Were the recovery of the specified thing the absolute and sole object of the action of detinue, the destruction 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 defendant from responsibility. He who wrongfully detains the property of another does so at his peril, and wiU be responsible to the owner,* though the prop- ' See Suydam «. Jenkins, 3 Sandf. 644; Middleton «. Bryan, 3 Maul. & S. 158. * Garrett «. Wood, 3 Kan. 331 ; Berthold v. Fox, 13 Minn. 501. ' White B. Ross, 5 Stew. & Porter, (Ala.) 133; Lay o. Lawson, 33 Ala. 377; Bettis «. Taylor, 8 For. (Ala.) 564; Bell «. Pharr, 7 Ala. 807; Johnson v. Marshall, 34 Ala. 533; Carrel b. Early, 4 Bibb. 370. Action not proper if slave died before suit began. Caldwell v Penwick, 3 Dana, (Ky.) 333; Barksdale «. Appleberry, 33 Mo. 390. Value of use to the time of death. Haile®. Hill, 13 Mo. 613; Austin ». Jones, 1 Va. 341; Bethea «. McLen- non, 1 Ired. (N. C.) 533; Rose ®. Pearson, 41 Ala. 680. * Barksdale v. Appleberry, 33 Mo. 393; Rose v. Pearson, 41 Ala. 693; Peagin s. Pearson, 43 Ala. 335. 330 DAMAGES. erty should be destroyed by accident, or taken frona him by malice." § 603 The same. Emancipation. It has also been held that where slaves had become emancipated before the trial, that fact furnished no reason why the plaintiff should not have judgment for their value, (suit begun in March, 1852, tried in 1869.)i § 604. Judgment when the property is lost or destroyed. When it appears that the property was hopelessly lost or de- stroyed, so that judgment for its return would be of no avail, a failure to render judgment for the return was regarded as a tech- nical error, and judgment for the value was not disturbed. ^ § 605. Damages allowed only where the defendant is enti- tled to a return. The defendant is never entitled to damages unless he shows himself entitled to the property. Damages are in fact only an incident to judgment for a return, which should not be given unless the defendant plead and show some right or title in himself.^ Damages to a defendant are to com- pensate him for the loss he has sustained by being deprived of his property, and their award involves a prior finding that the property belongs to the defendant. It would be a violation of all the principles of the law to give damages to one who had no right to the property, and coiild not show himself entitled to a return.* § 606. Option of the defendant to pay value or return the goods ; where allowed. In some of the States it is at the option of the defendant in replevin to return the goods or pay the value as assessed by the jury;^ but the contrary is the more common doctrine, but this is a purely local regulation. ^ § 607. Damages to compel return. It not unfrequently hap- pens that the defendant makes some disposition of the property to defeat the writ of return, and contents himself with paying the alternate judgment for the value. In case the goods have ' Wilkerson v. McDougal, 48 Ala. 518. See McElvain c. Mudd, 44 Ala. 48. ' Brown v. Johnson, 45 Cal. 76 ; Wilkerson v. McDougal, 48 Ala. 518. « Whitwell V. Wells, 24 Pick. 35. * Neis V. Gillen, 27 Ark. 184. » Allen V. Fox, 51 N. Y. 569. « Mayberry v. Cliffe, 7 Cold. (Tenn.) 131. WHEN AND HOW ASSKSSEX). 331 an intrinsic value, above the market value, or a value to the parties, or one of them, greater than the market value, the disposition to keep them and pay the value may lead the party to adopt such a course as this; but where the goods have a peculiar value which makes their return important to the' defendant, the jury in a proper case will be warranted in fixing the value at such a sum as will be likely to compel their return.i So where the plaintiff sued for specified chatties, which had a peculiar value to him, the jury, with the view of inducing a surrender of the specific goods, placed a value on them higher than would otherwise have been warranted by the evidence, the verdict was allowed to stand. * This rule, highly advantageoiis where it appears that the party to whom such damages are awarded is clearly in the right, is liable to abuse, and such damages should never be allowed in any case unless it appears that the party has the property and can deliver, and that the increase in damages may result in producing a deliv- ery, which ought to be made, and will otherwise be refused. § 608. When and how assessed. The damages should be assessed in the replevin suit. They are but an incident to the proceeding in replevin, and to prevent a multiplicity of suits, questions touching the damage should be settled in the replevin suit.* In Missouri, when the judgment is against the plain- tiff, it is against him and his securities that they return the property or pay the value, with damages and costs. The jury, therefore, which tries this issue touching the replevin should pass upon the issues as to damages. They should find the value which theplaintifi' and his security must pay in case tliey fail to return the property, and should assess the damages. There is no warrant of law to call a jury to try part of the case and another part of the case.* This rule is, however, by 1 Mayberry v. Cliffe, 7 Cold. (Tenn.) 130; Goodman v. Floyd, 3 Humph. (Tenn.) 60. ^ Cochran v. Winburn, 13 Tex. 143. But see, in this connection, Hoeser «. Kraeka, 39 Tex. 450. " Hohenthal «. Watson, 38 Mo. 360; "White v. Van Houten, 51 Mo. 578; Bower v. Tallman, 5 W. & S. (Pa.) 556 ; Redman ». Hendricks, 1 Sandf. (N. Y.) 33 ; Glann v. Tounglove, 37 Barb. 480. * Hohenthal v. Watson, 38 Mo. 360. 333 DAMAGES, no means universal. In Iowa, the damages might be recov- ered in the replevin suit or in a separate action on the bond. ' In Maine, a similar rule obtained.* §609. Generally dependant on local statute. This question however depends on the statutes of the different States. No general rule can be stated. By the common law, upon an omission to have damages assessed in the replevin suit, the defendant was entitled to have a writ of inquiry, ^ and unless the condition of the bond or some statutory prohibition exists, such course would be permitted now. When the condition of the bond is to pay such damages as shall be adjudged, the only safe course is to have the damages assessed in the replevin suit.* In Indiana, the plaintiff in a suit on the bond is per- mitted to recover even though damages were not assessed in the replevin. 5 In Illinois, the securities are not parties to the replevin suit, and evidence of the assessment of damages in the replevin suit is not admissible against them in suit on the bond.' § 610. Value and damages should toe separately assessed. The value of the property and the damages for detention, etc., should be separately assessed, and in no case should they be amalgamated.'' The force of this will be apparent when it is considered that the claims for value and for damages are based upon entirely different grounds. Yalue is only allowed when the property cannot be had; damages are to compensate the party for being deprived of his property; but by agreement of the parties the value and damages may be assessed in one sum.' § 611. Recovery cannot be for a greater sum than is claimed. The damages stated in the writ or in the narr is not fixed with ' Hall «. Smith, 10 Iowa, 45. » In Washington Ice Co. «. Webster, 63 Me. 363, it was said that in case of a non-suit, without assessment of damages, that they might be assessed in suit on the bond. ' Humfrey d. Misdale, Comb. 11 ; Herbert «. Waters, 1 Salk. 305. * Pettygrove «. Hoyt, 11 Me. 66 ; Sopris «. Lilley, 3 Col. 498. " Whitney v. Lehmar, 26 lud. 506; Hall «. Smith, 10 Iowa, 47. <• Shepard «. Butterfield, 41 111. 78. See this case. ■" Sayers s. Holmes, 3 Coldw. (Tenn.)259. 8 M'Cabe ■». Morehead, 1 W. & 8. (Pa.) 515. PEOPEETT SEVEEED FEOM REAL ESTATE. 333 any very nice attention to the actual value. The pleader will usually take good care to fix it at the outside value, on the suppo- sition that the jury would not give him any greater sum than the value as fixed by himself.^ In California the right to a return must be determined in the first instance in the replevin suit, but if that is dismissed without trial the parties are left to the remedy on the bond.^ The rule in this action, as in trover, does not confine the jury to the damages which were sustained prior to the date of the writ, but the injury may be continued up to the date of the trial, ^ the same as interest is computed upon a promissory note up to the date of the verdict or judgment. § 612. Damages for property severed from real estate. When the owner of real estate sues in replevin for property which has been severed therefrom he can recover only the value of the property after the severance; not its value as forming part of the real estate. The reason for this rule will be apparent when it is considered that the plaintiff sues for his property as his chattel, not as his realty. He had his election to sue in trespass, in which form he might have recovered the damage to the real estate; but having elected to treat it as chattel property he can only recover its value as a chattel. Thus, when a fence was removed from a farm, and the owner replevied it, proof that it was worth $200 as a fence, but the materials when removed were worth only $75, the plaintiff could only recover the- value of the materials.* § 613. The same. When the suit was for rails, and before the service of the writ the defendant built part of them into a fence, the sheriff could not take the fence, and the plaintiff could recover the value of the rails, not the value of the fence. ^ So a tenant who was dispossessed for non-payment of rent, and prevented from taking a chimney which he had the right to take, which could not be removed without taking down, the ' Hoskins v. Robins, 3 Saund. 320, n. 1 ; Huggeford, «. Ford, 11 Pick. 223. The plaintiff cannot recover a greater sum than he has claimed in his declaration. O'Neal v. Wade, 3 Ind. 410. 2 Mills ®. Gleason, 21 Cal. 274; Ginacas. Atwood, 8 Cal. 446. ' Dailey 'O. Dismal Swamp, 2 Ired. (N. C.) 222, * Pennybecker v. McDougal, 48 Cal. 162. » Bower «. Tallman. 5 W. & S. (Pa.) 561. 534 DAMAGES. value of the material unincumbered by any obligation to remove it was proper measure of damages, i § 614. The same. Coal dug or timber cut. Another class ■of cases arises where the property has, by its severance from the realty, been increased instead of diminished in value; of which coal dug from the mine of another, or timber cut from his land, furnish common instances. The severance does not ■change the title to the property. The owner may sustain replevin, but the question of damages to be given him in case he does not recover the property in specie is one of more diffi- •culty. In England when the action was trespass for taking •coal, the value was estimated at the value when severed from the realty, and nOt when in the mine.^ In Illinois, after a full consideration of the authorities, the court followed substantially the rule in Martin v. Porter, 5 Mees. & W. 353, and gave the value at the mouth of the pit, less the cost of carrying it there, allowing nothing for the digging.* § 61,^. The eircum.stanees under which the severance was made, and the form of the action, material to be considered. The circumstances under which the property was taken con- stitute a material element in determining damages in such ■case. In a case of trover the jury were told that if there was fraud or negligence on the part of the defendant they might give the full value of the coal after the removal; but if the de- fendant acted under the honest belief that he had a right to dig as he did, value of the coal in the mine was the proper damages, as an award of the value of the coal before removal will fully compensate the plaintiff for all the damage he has sustained.* This case of Forsyth v. Wells was considered in III. ds St. L. B. B. and Coal Co. v. Ogle, 82 111. 627, but the court fol- lowed Morgan v. Powell, 3 Adolp. & Ellis, 278, (43 Eng. ■Com. Law, B,. 734,) which was trespass for digging plaintiff's 1 Moore v. Wood, 13 Abti. Pr. R. (N. Y.) 393. ' Martin v. Porter, 5 Mees. & W. 353; Wild v. Holt, 9 Mees. & W. 672; Morgan v. Powell, 8 Adolp. & E. (43 E. C. L.) 378. 3 111. & St. L. B. E. and Coal Co. v. Ogle, 83 111. 637; Robertson v. Jones, 71 111. 405; McLean Co. Coal Co. o. Long, 81 111. 359. * Forsyth «. Wells, 41 Pa. St. 291 ; citing Wood ». Morewood, (48 B. C. L.) 3 Adolp. & E. 440. TREES CUT BY MISTAKE. 335 coal, where the court held that the plaintiff might recover the value of the coal when dug, allowing the defendant nothing for the digging, but if the defendant had moved the coal to the mouth of the pit he should be paid for his labor in so doing. But in that case Pattekson, J., said, in substance, if the plaintiff had brought trover or detinue for the coal after it was brought to the pit's mouth he might have recovered the value which it then had without deduction. But this action was trespass for taking and detaching the mineral from the freehold, and the value must be regarded as attaching at the moment the trespass was committed. If the defendant put any expense on the coal after the first trespass it could not be recovered in this action. It would, therefore, seem that when the form of the action is replevin or trover, and not tres- pass, the rule laid down in Forsyth v. Wells, 41 Pa. St. 291, would be proper, rather than the exceedingly technical rule laid down in Morgan v. Pmoell, supra. In trover for the conversion of logs by mistake, the court held the meagre of damages should be a sum sufficient to compensate the party for the injury he had sustained,^ and, except in cases where punitive damages are proper, or where nominal damages are sufficient, this rule is the only just theory. ^ In the case of Winchester v. Craig, above referred to, the court most aptly illustrates the law in this case, by supposing a party cut trees by mistake and ships them a short distance; and another, under similar circumstances, cut timber and ships it to Europe. In separate actions against each the plaintiff claims the value at the place where the timber was sold. It is very evident that though the value of the standing timber was the same in each case, and the actual injury to the plaintiff the same in both cases, the verdict, if this recovery was allowed, would be very different, and he who had spent the most time and money in giving the timber any real value would be punished most, under no pretense of compensating the plaintiff. § 616. Trees cut upon the land of another by mistake. When trees are cut on the land of another by mistake, the ' "Winchester «. Craig, 33 Mich. 306; JSTorthrup «. McGill, 37 Mich. 388. s "Winchester ». Craig, 33 Mich. 206. 336 DAMAGES. value of the trees cut down is given as the measure of dam- ages, as the severance changes the property from real to per- sonal property, but in no way changes the ownership. The value at the time of the severance is regarded as a just com- pensation. ^ In a suit for cutting timber, the form of the action being trespass de bonis asportatis, the logs being hauled to a certain landing; but the court allowed only the value at the place where they were cut, though in trover the value at the place where found might have been allowed. ^ But there are other cases where the court allowed the value less the value of the labor of cutting, wliich was deducted. ^ When the taking was by a willful trespasser, the rule is different; thus, where a tresjjasser cut wheat on another's land, hd cannot deduct for the labor of cutting, but must give the owner the value of the wheat, as though he had harvested it himself* "When A. employed a builder to furnish materials and build a house on his lot, and was to pay for it by conveying another lot, the builder, fearing loss, sold the house to a person, who moved and placed a foundation under it on his own lot. A. sued the purchaser and builder in replevin. Held, that the house had become real estate, and that the plaintiff was entitled to the value.^ § 617. The general rule stated applicable to various changes in the property. The rule has been stated with much force and clearness as follows : When the defendant's conduct, meas- ured by the standard of ordinary morality and care, which is the standard of the law, is not chargeable with fraud, violence, willful negligence or wrong, the value of the property taken and converted is the measure of just compensation. If the raw material has, after appropriation, and without such wrong, been changed by manufacturer into a new species of property, as grain into whisky, grapes into wine, furs into hats, hides into leather, or trees into lumber, the law either refuses the ' Martin t. Porter, 5 Mees. & W. 353; Morgan «. Powell, 3 Adolp. & E. (43 E. C. L.) 378; Winchester ». Craig, 33 Mich. 206. * Cushing ». Longfellow, 36 Me. 307. 3 Hungerford v. Bedford, 39 Wis. 345; Young «. Lloyd, 65 Pa. St. 304; Single v. Schneider, 24 Wis. 299 ; Herdio v. Young, 55 Pa. St. 176. « Bull V. Griswold, 19 111. 631. ' Reese v. Jared, 15 Ind. (Harrison,) 143. GENERAL PEINCIPLES. 337 action, or limits the recovery to the value of the original articles.! But when the defendant has been guilty of any force or fraud to wrongfully deprive the plaintiff, the rule, as stated, does not apply, and the law gives the owner the entire property, without deduction for the increased value which the trespasser's labor has given it.2 The intention of the law, in all these cases, is to do justice to the parties. Where a tres- passer takes the timber of another, and cuts it into wood, and burns it, or where he takes cattle, which the owner prizes highly, and butchers them, the law cannot restore the cattle or the wood; it cannot fully and completely protect, or com- pensate for the injury. It can, however, approximate to it; but 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 defendant. ^ § 618. Vindictive damages; when allowed. In cases where the taking or subsequent detention is accompanied by any act showing malice or fraud, or that it was done for the purpose of oppression, or in willful disregard of the rights of the other party, the law abandons the rule of compensation, and allows exemplary damages, such as will not only compensate the party injured, but such other and additional amount as will serve as a lesson to him in the future, or shall punish him for the wrong committed.* §619. The general principles. The rules governing cases of vindictive or exemplary damages in replevin is ably dis- cussed in the case of Whitfield^. Whitfield, 40 Miss. 367. The ' Silsbury e. McCoon, 6 Hill, (N. Y.) 425. " Silsbury v. McCoon, 3 Comst. 381. ' Warren v. Cole, 15 Mich. 371, citing many cases. ^ Cable ». Dakin, 30 Wend. 173; Brizsee v. Maybee, 31 "Wend. 144; Dor- sey fl. Manlove, 14 Cal. 553 ; Wbitfleld e. Whitfield, 40 Miss. 3l36 ; Daven- port o. Ledger, 80 111. 574; Mitchell ®. Burch, 36 Ind. 535; Bisooe b. Mc- Elween, 43 Miss. 556; Jamison ». Moon, 43 Miss. 598; M'Cabe v. Morehead, 1 W. & S. (Pa.) 516 ; Taylor b. Morgan, 3 Watts. (Pa.) 334 ; Landers «. Ware, 1 Strob. (S. C) 15. For a statement of the distinction between compen- sating and vindictive damages, see Hendrickson u. Kingsbury, 31 lowii, 379 ; Graham «. Roder, 5 Tex. 141 ; Cole v. Tucker, 6 Tex. 366. Timber cut into boards, the enhanced value. Baker «. Wheeler, 8 Wend. 506. 22 338 DAMAGES. rule there laid down is, that where the original taking was wrongful, or where tlie original taking was iona fide, but the subsequent detention, sale or disposition of the property, after a knowledge of the plaintiff's right, was in willful disregard of such right, or when the original taking and subsequent dis- position of the property at a price greater than its market value at the time of taking, were all in ignorance of the plain- tiff's rights, but the defendant, after knowledge, seeks to retain the difference, as a speculation resulting from his orig- inal wrong; or, when the property has some peculiar value to the plaintiff, and is willfully withheld, in all such cases it is the peculiar province of the jury to fix such damages as will be consonant with right, not as a matter of law, but of reme- dial justice, resting with the jury.i § 620. The same. The meaning of the terms "punitive," " exemplary " and " vindictive." This rule of exemplary dam- ages finds illustration in many cases, the general principle being the same in all, that where the taking was accompanied by any evident design to annoy, harrass, oppress or insult, the jury may give such damages as will fully compensate the injured party for his actual losses, and in addition thereto such sum, as from all the circumstances of the case, seems just. • This question is treated at length in Sedgwick on Meas. of Damage, 6th Ed., p. 544. ,See, also, Herdio v. Young, 55 Pa. St. 176 ; Dorsey a. Gas- saway, 2 H. & J. (Md.) 403 ; Bruce t. Learned, 4 Mass. 614 ; Carey «. Bright, 58 Pa. St. 70; McBride v. McLaughlin. 5 Watts. (Pa.) 375; 3 B. Mon. 363. See Far well d. Warren, 51 111. 467; Walker ». Smith, 1 Wash. C. C. 152. The question of punitive damages is exhaustively discussed in Pay v. Parker, 53 N. H. Rep. 343. The conclusion reached in that case is, that in cases when the action is for a tort, punishable by the criminal law, puni. tive damages cannot be assessed, as the defendant is liable to criminal punishment; and if punitive damages were permitted, he might be pun- ished twice for the same offense, which is unconstitutional. Qumre, whether, in any civil action, the plaintiff can recover punitive damages. To the same effect, see Austin v. Wilson, 4 Oush. (Mass.) 373 ; Tabor v. Hutson, 5 Ind. 333; Humphries d. Johnson, 30 Ind. 190. Compare Birchard v. Booth, 4 Wis. 73; Wilson v. Middleton, 3 Cal.54; Cook ». Ellis, 6 Hill, 466; Hoad- ley ■». Watson, 45 Vt. 389; M'Cabe v. Morehead, 1 W. & S. 513; Schofield ■B. Ferrers, 46 Pa. St. 439. The current of authority justifies the assessment of punitive damages in cases of willful wrong. The rule is liable to great abuse, but its necessity has been made apparent. GENERAL PKIN0IPLE8. 339 The terms punitive damages — damages to punish — exem- plary damages — damages for example, or to teach the party a lesson for the future — or vindictive damages — are, I con- ceive, frequently misconstrued. The law does not award any unjust or revengeful damages, but the terms only mean that in such cases compensation for the actual loss of property would not be full compensation for the injury actually sus- tained, and, therefore, as a matter of justice, the law permits fm'ther compensation sufficient not only to make up to the party for all the injury he has sustained, but to prevent the wrong-doer from deriving any profit from his wrongful act at the expense of the other. i The terms "punitive" and "vin- dictive" have become so fixed in the law that they cannot now be got rid of, yet they should never be used without explanation of their true meaning. ^ The law will not attempt to redress a wrong sufiered by the plaintiff by inflicting an- other wrong on the defendant. In some cases the injuries are such that they are susceptible of a full and definite money compensation. "When this is the case the law will not abandon a certain rule which will do complete justice for an uncertain rule which can hardly fail to do injustice.* § 621. The same. This question of punitive is one of the most difficult which the courts have to deal with, involving as it does a wide departure from the plain principles of the com- mon law, often exposing a suitor to the danger of being heavily punished by what amounts to a fine assessed for the benefit of his opponent. The courts should exercise a most vigilant watch over all cases where such damages are claimed, and promptly suppress any attempt to recover them, except in cases clearly within the rule, and should promptly strangle any attempt to increase the amount of such damages by an appeal to the passion or prejudices of the jury. In no case can court or jury be required to exercise cooler judgment or ' Heard ■». James, 49 Miss. 336; Wilson «. Young, 31 Wis. 576; Selden v. Cashman, 30 Cal. 57. Tlie terms "punitive," "vindictive" or "exem- plary" damages have no different signification in. law. Chiles o. Drake, % Met. (Ky.) 146; Brown b. Allen, 35 Iowa, 306. " Detroit Daily Post, etc., v. McArthur, 16 Mich. 453. • Warren v. Cole, 15 Mich. 371 ; Winchester «. Craig, 33 Mich. 305. 340 DAMAGES. sounder discretion than in the assessment of punitive or exem- plary damages. § 622. The same. Actual malice or gross carelessness must toe shown. The principal rule governing such cases is, that malice must appear. The mere doing an unlawful or injuri- ous act is not of itself sufficient to warrant the jury in allow- ing anything beyond compensatory damages. The act must be shown to be prompted by a malicious motive or criminal indiiference to obligations, or done under circumstances or in a manner which indicates such motives. ^ § 623. No general rule exists for estimating. ITo general rule can be laid down to govern eases of this kind; each case must be controlled by the circumstances which surround it. Where a trespass is committed in a wanton and aggressive manner, indicating malice or a desire to injure, a jury ought to be liberal, but not wanton,^ in compensating the party injured in all he has lost in property, and, in some cases, his expense incurred in the assertion of his rights. There is, in such case, no fixed standard as to the amount which should be assessed, the ji^ry being under the law the sole judges, and responsible only for a wise and proper exercise of their judgment. 3 § 624. Illustrations of the principles. The following illus- trations of the rule will, it is believed, be of material aid in determining how far the courts will incline to go in the direc- tion of vindictive damages: When plaintiff's hogs were found in the defendant's possession under circumstances which justify the inference that he wrongfully took them with the intent to ' Brown v. Allen, 35 Iowa, 306; Seeman v. Feeney, 19 Minn. 79; Ousley ■B. Hardin, 23 111. 403; Selden v. Cashman, 20 Oal. 57; Hyatt v. Adams, 15 Mich. 180. Vindictive damages cannot usually be recovered against a master for the act of his servant, unless he authorized or ratify the act. Hagan u. Providence & "W. R. R. Co., 3 R. I. 88 ; Wardrobe v. Calif. Stage Co., 7 Cal. 118; Milwaukee R. R. v. Finney, 10 Wis. 388. Exemplary damages may be found against one of two defendants ; but if one of them be innocent of malice or recklessness, such damages cannot be recovered against him. Becker v. Dupree, 75 111. 167. ^ Detroit Daily Post v. McArthur, 16 Mich. 447. 8 Pacific Ins. Co. ■». Conard, 1 Baldwin, (U. 8. C. C.) 188; Strasburger v. Barber, 38 Md. 103. ILLUSTEATIONS OF THE PEINCIPLES. 341 convert them to his own use. He knew that the plaintiff was hunting them, but did not tell him where they were. The plaintiff testified that he lost two weeks' time and had to stop his team and hired hand from the plow. The plaintiff was allowed pay for his time spent in hunting his hogs and his necessary expenses, in addition to compensation for the de- crease in value which his hogs had suffered while in the defendant's possession. ^ § 625. The same. So when plaintiff's heifer was taken secretly by defendant, he was allowed compensation for the time spent in hunting for her.^ When the defendant took the plaintiff'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 allowed to stand.* 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. The cattle were work-cattle when delivered; but the plaintiff was entitled to the value at the time of the sale.* When 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, as for a willful trespass. ^ § G26. The same. In Suydam v. Jenkins, 3 Sandf. (N. T.) 624, the court stated the general rule for ascertaining damages in cases of trespass, substantially as follows: "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 wrong-doer has obtained, or has it in his power to obtain." This general rule, applied to cases where punitive or vindictive damages would be improper, seems to commend ijself as emi- > Jlitchell V. Burch, 36 Ind. 535. 2 Miller ■». Garling, 13 How. Pr. (N. Y.) 203. To same effect, see Mc Donald v. North, 47 Barb. 530. 2 Bennett t>. Lockwood, 20 Wend. 223. * Otter v. Williams, 21 111. 118. » Brizsee «. Maybee, 31 Wend. 144; M'Cabe v. Morehead, 1 W. & 8. (Pa.) 513; 15 Am. L. Reg. 525. 342 DAMAGES. nently wise and proper. A different conclusion in terms, however, was reached in Wilson v. Mathews, 24 Barb. 295 — in which the highest price of the property, at any time after the conversion and before the trial, was regarded as the proper measure of damages. ^ § 627. Party who acts in defiance of another's rights is responsible for all consequences. The action of replevin is an action in the nature of a tort, and when the act is in fact, as well as theory, a trespass, that is, where the taking was in willful defiance of the other party's rights, the party is sup- posed to act with all the consequences before his eyes, in fuU contemplation of all the damages which may legitimately fol- low his act, and so far as damages are plainly the result of his wrongful interference, he is responsible. ^ § 628. Vindictive damages against ofllcers of the law. The rules governing the assessment of vindictive damages applies to olHcers of the law as well as to individuals, in all cases where the oificer has acted with malice, or in an unjust or oppressive manner. A contrary doctrine would turn loose on society a set of licensed wrong-doers.' But the malicious motives of the party whose process the ofHcer is executing, cannot be given in evidence against the officer.* § 629. The same. "Where an officer in the lona fide dis- charge of his duty seizes the goods of the wrong person, A^ithout any circumstances showing an intent to do a willful injury, the fact of seizure will not authorize exemplary dam- ' This case is cited as overruling Suydam v. Jenkins, 3 Sandf. 634, Big- low overruled cases. While it does not do so in terms, its conclusions are different. See West v. Wentworth, 3 Cow. (N. T.) 83 ; Com. Bank Buffalo «. Kortright, 33 Wend. 348. " Chandler ®. Allison, 10 Mich., 461, where the question is discussed. Fultz V. WyooflF, 35 Ind. 331; Dubois v. Glaub, 53 Pa. St. 338; Douty v. Bird, 60 Pa. §<. 48; Hanover B. R. ®. Coyle, 55 Pa. St. 396; Simmons b. Brown, 5 R. 1. 399. The rule governing cases of willful trespass is the same substantially in all forms of action. See ante, Heard «. James, 49 Miss. 336. 8 Nightingale v. Scannell, 18 Cal. 315; Russell v. Smith, 14 Kan. 374; Noxon v. Hill, 3 Allen, 315. • Nightingale ». Scannell, 18 Cal. 315. EECOUPMENT AND SET-OFF. 343 ages.^ "When the defendant, as sheriff and tax collector, seized ten horses from a cattle drover, and afterwards returned some of them, the drover proved that the cattle could only be driven by the use of his trained horses, etc., and that the tax warrant was void ; but as there were no circumstances showing aft intent to do a willful injury, the value of the property and interest only was allowed. The warrant in this case, though void and properly excluded as a justification or defense, was proper evidence to show the good faith of the officer. » In trespass against a sheriff for wrongfully seizing and selling goods, where no circumstances of aggravation appear, the action is regarded as an action of trover, and value only is allowed. ^ § 630. Recoupment and set-ofiF accounts cannot be ad- justed in replevin. Accounts cannot be adjusted, nor set-off allowed in the action of replevin or trover.* The nature of actions for tort does not allow an examination into counter claims of indebtedness or damages. This is especially the case in replevin. The plaintiff sued for specific articles, and damages for their wrongful detention, and it is contrary to the spirit of the law to allow an off-set to be investigated in cases of a suit for the recovery of chattels wrongfully withheld. § 631. But questions of set-oflF may be investigated in cer- tain cases. It does not follow, however, that the questions of set-off or recoupment cannot be investigated in replevin. When property is distrained for rent, the plaintiff may show that the landlord failed to keep his covenants to furnish lumber for a fence, and so show damage equal to the rent, and thereby defeat the distress ;5 but the law does not permit a wrongful taker to set up an account to justify his taking. § 633. Illustrations of the rule. When a note is sent to ' Beveridge v. Welch, 7 Wis. 465 ; Phelps o. Owens, 11 Cal. 25 ; Selden v. Cashman, 20 Cal. 57 ; Williams v. Ives, 25 Conn. 573. ' Dorsey v. Manlove, 14 Cal. 555. • Phelps V. Owens, 11 Cal. 25 ; Brannin v. Johnson, 19 Me. 361. * Otter V. Williams, 21 111. 120 ; Stow v. Tarwood, 14 111. 427 ; Keaggy v. Hite, 12 111. 101 ; Streeter v. Streeter, 43 111. 155. ' Llndley v. Miller, 67 111. 248; Pairman «. Pluck, 5 Watts, 516; Phillips «. Monges, 4 Whart. 225 ; Peck v. Brewer, 48 111. 55 ; Peterson «. Haight, 3 Whart. (Pa.) 150; Warner c. Caulk, 3 Whart. (Pa.) 193. 344 DAMAGES. an attorney for collection, and he is sued in trover for the value of the note, he may recoup the value of his services in collecting, 1 under plea of general issue.* Replevin for wheat; the defendant justified the detention on the ground that he liad a lien as a warehouseman for storage, and the plaintiff contended that some forty bushels of wheat, equal in value to the storage, were destroyed. Held, proper matter for investi- gation in replevin, and that the damage might off-set or extinguish the lien.* A lien for freight is a proper matter of recoupment when a carrier is sued in trover for goods lost;* and generally whatever demand the defendant has growing out of the same subject matter as the plaintiff's claim, may be recouped. 5 § 633. Set-off to suit upon bond. Suit on the bond is in the -nature of a contract, and set-off or recoupment properly pleaded, may be shown.' ' Turner d. Retter, 58 111. 265. ^ Babcock v. Trice, 18 111. 420. » Babb «. Talcott, 47 Mo. 343. < Saltus «. Everett, 20 "Wend. 267. » Streeter e. Streeter, 43 111. 155 ; Sears e. Wingate, 8 Allen, 103. « Balsley s. Hoflman, 13 Pa. St. 603. PARTIES WHO MAY BE PLAINTIFF AND DEFENDANT. 345 CHAPTEE XIX. PARTIES. Section. Parties who may be plaintiff and defendant .... 634 Owners of distinct interests cannot be joined; joint own- ers must be ... . 635 Trustees, executors and admin- istrators may be plaintiffs . 636 Suit against an executor or ad- ministrator .... 637 A parish or corporation may bring the action . . . 638 Whether au assignee of prop- erty in the possession of an- other can sue .... 639 Section. Sale of property permitted not- withstanding adverse posses- sion of another . . . 640 The same. Purchaser may re- cover 641 The same. Illustrations . . 643 A father may sue for property of his minor child . . . 643 Servant cannot sue for his mas- ter's goods .... 644 Receiptor of an officer . . 645 Attaching creditor not liable jointly with the officer . . 646 Minor cannot sue . . . 647 § 634. Parties who may be plaintiff and defendant. The party whose legal rights have been invaded is the proper party plaintiff in all cases, except when he labors under some per- sonal disqualification, such as infancy, insanity, or the-like. In replevin the person having the right to immediate and exclusive possession is the proper plaintiff, and the person who has the actual possession is the proper defendant. The action is sometimes permitted against one who has had possession of the property and has made way with it. The exceptions to the general rule have been stated, i Where the supervisor of a township is required by law to keep and' preserve all books and papers belonging to his office, he may maintain replevin for such books or papers against any one who assumes to take them.^ There appears to be no authority for allowing a stranger who claims an inter- " Bee ante, §§ 145 and 146. » Phenix v. Clark, 2 Gibbs, (Mich.) 337. 346 PAETIES. est in the property to come in and be made a party, and have his rights litigated, though such course would not violate any principle of the law. An independent replevin suit against the plaintiff in possession has been allowed. This rule has been carried so far that when goods are replevied from an agent or bailee, the owner, if a stranger to the suit, has been allowed an independent replevin suit against the plaintiff in the first suit, and not driven to appear and defend the suit against his agent. ^ § 635. Owners of distinct interests cannot be joined; joint owners must be. The action cannot be sustained by joining several parties owning several and distinct interests. The in- terests of all when aggregated may amount to the entire property, yet they are several and cannot be recovered in a joint judgment.^ But all the joint owners or joint tenants must join; the owner of a part has no exclusive right to pos- sess the whole.* When parties jointly cultivate lands, they may be regarded as joint owners of the crop, and all must join in an action for its recovery or value.* So when mills are worked on shares, the owner and occupant may be considered as tenants in common of the product, and may join in an action. 8 Where a society contributed money for the relief of the members, which was put in a box and entrusted with one member, he was not permitted to bring trover against an- other member who took it from him ;^ but if the box with the funds was, by agreement of all, left with one for safe keeping and to disburse on the order of the society, no reason is per- ceived why he might not have sustained replevin for it against any one who took it.' So the agent of several owners of a whaling vessel, who has, by usage of the port, authority to sell the cargo and distribute the supplies, may sustain replevin ' Wliite v. Dolliver, 113 Mass. 400. Compare Globe Workg «. Wright, 106 Mass. 307. 2 Chambers v. Hunt, 18 N. J. L. 380. ' See ante, Cbap. VI. * Putnam «. "Wise, 1 Hill, 335. " Kicli V. Penfleld, 1 Wend. 379. « Holliday «. Camsell, 1 Durnf. & E. 658. ■> Newton v. Gardner, 34 Wis. 333; Corbett t. Lewis, 53 Pa. St. 333. SUIT AGAINST EXKCUTOE OE ADMINISTEATOE. 347 against any of the joint owners who inaj refuse to deliver it to him;i but in such case his right must be irrevocable. If one of the joint owners may revoke the authority, the refusal to deliver will be a revocation. 2 But trover may be brought by one joint tenant by his co-tenant for joint property which the defendant has destroyed.^ When one tenant in common takes all the chattels, the co-tenant hath no action, but may retake them if he can.* § 636. Trustees, executors and administrators maybe plain- tiffs. The action may be sustained by trustees when they are entitled to the possession of chattels in that capacity -,5 or by one entitled to possession for the use of another ;8 or by an executor or administrator in his capacity as representative of the deceased.' Such a one can also sue in his individual capacity in cases where he is individually liable. ^ Where brought by an executor or administrator, for a taking or de- tention from the deceased in his lifetime, the plaintiff mu3t show the right of possession in the deceased, his death, together with the legal qualiiieation of the plaintiff as such executor or administrator.* § 637. Suit against an executor or adm.inistrator. When the suit is against an executor or administrator, it should be against him individually; his taking or subsequent detention is not the act of the estate, but of himself as an individual. i' An administrator cannot in his official capacity commit a tort. 11 When the taking was by the deceased in his lifetime, ■ Rich V. Rider, 105 Mass. 307. ' See Hunt v. Rousmanier, 8 Wheat. 174; Roberts v. Wyatt, 2 Taunt. 368. » Wilson V. Reid, 3 Johns. 174. * Coke oh Lit., tit. Trover. ' Baker v. Washington, et al., 5 Stewart & P. (Ala.) 144. • Pearce «. Twitchell, 41 Miss. 344. 'Cravath v. Ply mp ton, 13 Mass. 454; Hambly v. Trott, 1 Cowp. 374; Cummings «. Tindall, 4 Stewart & P. (Ala.) 361 ; Allen and wife v. White, Admr., 16 Ala. 181. ' Patchen v. Wilson, 4 Hill, 59 ; Branch 0. Branch, 6 Fla. 315 ; Carlisle v. Burley, 3 Gr. (Me.) 350 ; Hollis v. Smith, 10 East. 293. » Halleck v. Mixer, 16 Cal. 574; Branch v. Branch, 6 Fla. 315. >» Smith «. Wood, 31 Md. 393. " Rose V. Cash, 58 Ind. 378. 348 PARTIES. and the property is detained by the administrator or executor, such facts may be alleged and proved in an action against the latter. 1 § 638. A parish or corporation may bring the action. In Massachusetts, where the parochial system prevailed, the action was permitted in the name of a parish for the recovery of its records.^ It will also lie by or against a corporation ;3 but the corporation must sue in its corporate name and capacity. Indi- vidual members composing the body cannot assert the right of the corporation.* It has been said that replevin would not lie against a corporative aggregate, the reason being that such body could only distrain by bailiff, and the bailiff would be the proper defendant in a replevin suit of the dis- tress. ^ This doubtless was in conformity to the old rule; but in modern jurisprudence a different practice has sprung up. It has been held that trespass for assault and battery would not lie against a corporation, for the reason that such a tort could only be conimitted by some person, while a corpor- ation had no tangible existence;" but this case was subse- quently considered in an Illinois case and its authority denied;'' and the latter case is doubtless the true exponent of the law on this subject. Any other rule would enable a cor- poration to employ a worthless bailiff, and deprive the plaintiff of all the benefit of the remedy.* § 639. Whether an assignee of property in the possession of another can sue. The question as to whether the owner of goods which have been wrongfully taken can transfer the prop- erty, and with it a cause of action, is one upon which the authorities are at variance. By the common law, the right of ' Brewer v. Strong's Exrs., 10 Ala. 965 ; Easly v. Boyd, 13 Ala. 685. 2 Sudbury v. Stearns, 31 Pick. 148. 3 Beech v. Fulton Bank, 7 Cow. (N. T.) 485 ; Maund v. Monmouth Canal, 1 Carr. & Marsh, 606 ; Fayette Ins. Co. v. Rogers, 30 Barb. 491. * Bartlett «. Brlckett, 14 Allen, 62. * Barb, on Parties, 314. * Orr V. Bank of the United States, 1 Ham. (0.) 37 ; Bradley on Distresses, fll. ' C. & A. R. B. V. Dalby, 19 111. 853. * See C. & N. W. Ry. v. Peacock, 48 111. 353, where trespass was sus- tained against a corporation. SALE OF PEOPEKTY PERMITTED. 349 action was not assignable. The owner of property in the pos- session of another who claimed to own it was looked upon as having a right of action which he must proceed upon in his own name, or forego his right. He was not permitted to sell and transfer this right to sue to another, i The term " chose in action" includes all rights to personal property not in pos- session, which may be enforced in an action at law, and is not limited to damages recoverable for breacli of contract. 2, And cAoses in action were not assignable at the common law, and especially the right to sue for a tort was the personal privilege of the party, and not transferable. § 640. Sale of property permitted, notwithstanding adverse possession of another. The right to sue in replevin has there- fore been denied to an assignee of property in the possession of another. This was placed upon the ground that the assign- ment was a mere transfer of a right to sue, or a right to liti- gate, arising out of a tort.* Statutory changes, however, have been made in many of the States, which do away with the common law rule, and permit an assignment in such cases, and allow the assignee to sue in his own name.* Cases are numer- ous in modern practice where the assignment has been regarded, not as a transfer of a cause of action, with the right to litigate, but as a sale of the property. ^ The courts hold, 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 or trespass of a third party shall not be permitted to defeat a contract otherwise valid and complete.® The reasoning of Hallet, C. J., in Hanauer v. Bartels, carries considerable force in sup- port of this doctrine. He says, in substance, that " the taking ' 1 Ch. Plea. 15; O'Keefe v. Kellogg, 15 111. 353; McGoon ®. Ankeny, 11 111. 558; Clapp v. Shepard, 3 Met. 137. ^ Gillet D. Falrchild, 4 Denio, 81. ' Nash V. Fredericks, 13 Abb. Pr. R. 147, cases last cited. * Lazard v. Wheeler, 33 Cal. 140. ' Oummings v. Stewart, 43 Cal. 330 ; McKee v. Judd, 3 Kernan, 633 ; Hoyt «. Thompson, 1 8eld. 347; Hall v. Robinson, 3 Comst. 395; North v. Tur- ner, 9 S. & R. 344; DeWolf v. Harris, 4 Mason, 530; Cass v. N. Y. & N. H. R. R., 1 E. D. Smith, 533. « Webber «. Davis, 44 Me. 147; Morgan a. Bradley, 3 Hawks, (^. 0.) 559. 350 PAETIES. and detention of property by a wrong doer does not deprive the owner of the power of making a valid sale of it. The purchaser, upon giving the holder notice of the transfer, may demand the property, and upon refusal, may maintain an action for the wrongful detention. * * * When the ven- dor and vendee of property are of an agreeing mind, where one intends to sell and deliver, and the other to accept, the object sought to be obtained cannot be defeated by the wrong- ful act of a third person, who has no other title than naked possession. "1 § 641. The same. Purchaser may recover. In addition to the soundness of this reasoning, the rule is supported by many well considered cases.* Lazard v. Wheeler, ~ 22 Oal. 140, was a case where this question was presented, but decided on the authority of the code of that State, though the opinion of the court clearly indicates that, aside from the provisions of the code, the action might be brought by an assignee. In Tome V. Dubois, 6 Wall. (U. S.) 548, the Supreme Court of the United States says, that owners of personal property are not obliged to treat the acts of third persons, who invade their rights of property or possession, as a conversion. They may elect to waive the tort, and in such case may sell the prop- erty, and the purchaser may, after demand, sustain trover or replevin. § 642. The same. Illustrations. The assignee of a note, and chattel mortgage to secure it, may sustain replevin for the mortgaged property upon condition broken. ^ Goods which have been seized by the sheriff on process, may be sold by the owner. This is not regarded as a sale of the cause of action, bat of the goods.* When the plaintiff in replevin delivered the chattel to his bondsman as his security, and was afterwards ' Hanauer v. Battels, 3 Col. 532. 2 Cass V. N. Y. & N. H. R. R., 1 E. D. Smith, 533; McGinn v. Worden, 3 E. D. Smith, 855 ; Hall v. Robinson, 2 Comst. 395 ; Cartland «. Morrison, 33 Me. 190; The Brig Sarah, etc., 3 Sumn. (U. S. C. C.) 311 ; Hall ». Robin- son, 3 Comst. (3 N. Y.) 293 ; Parsons «. Dickinson, 11 Pick. 354; Carpenter e. Hale, 8 Gray, (Mass.) 157 ; Webber «. Davis, 44 Me, 147. » Barbour ®. White, 37 111. 165 ; Hopkins v. Thompson, 3 Port. (Ala.) 434. * CoghiU V. Boring, 15 Cal. 318. EECEIPTOE OF AN OFFICES. 351 declared bankrupt, the security was permitted to recover in tlie bankrupt's name, for liis own benefit. ^ § 643. A father may sue for property of his minor child. A father, being the natural guardian of his minor children, when they have no other . guardian, may sustain replevin for their personal property, ^ or the infant may sue by his guardian or next friend ; but a father would not be liable for a willful tak- ing by his minor child, unless he in some way countenance or encourage it,' the minor himself being liable for his torts.* A guardian may maintain the action for property belonging to his ward, of which he is entitled to possession. ^ § 644. Servant cannot sue for his master's goods. A mere servant who has possession of goods by delivery from his mas- ter, which the master may at any time put an end to, has not such property or right of possession as will enable him to sus- tain this action. 8 But if one deliver goods to his servant as his bailee, and where the latter is responsible for them, he may be plaintiff in an action of trover.' So an officer who has seized goods upon process has sufficient property in them to sustain the action; he is responsible to the plaintiff in his pro- cess. ^ "Where a commission in bankruptcy issues the assignee cannot sue an officer for goods of the bankrupt seized before the appointment of the assignee, though the officer sells afterward.' § 645. Beceiptor of an ofllcer. The question as to whether a receiptor to an officer who has seized goods on execution or attachment has such a property as will enable him to sustain replevin, has given rise to contradictory decisions. This right 1 Sawtelle v. Rollins, 33 Me. 196. ^ Smith ■». Williamstfn, 1 Har. & J. (Md.) 147 ; Newman v. Bennett, 33 111. 427. s Tifft V. Tifft, 4 Denio, 175. < School Dist., etc., v. Bragdon, 33 N. H. 507, cited as Milton v. Bragdon, 33 N. H. 507. ' Deacon v. Powers, 57 Ind. 489 ; Kewman v. Bennett, 33 111. 437. ' Harris v. Smith, 8 8. & R (Pa.) 33 ; Brownell v. Manchester, 1 Pick. 233; Clark v. Skinner, 30 Johns. 465; Ludden «. Leavitt, 9 Mass. 104. ' Harris v. Smith, 3 Serg. & R. 33. = Brownell v. Manchester, 1 Pick. 333. « Smith V. Clark, 4 Duruf. & E. 476. 352 PARTIES. has been denied in many cases. * In Miller v. Adsit, 16 Wend. 335, after an elaborate discussion of the question and the authorities pro and oon., the court held that a receiptor, where he was accountable to the officer, had such possession as would enable him to sue. It is difficult to see any good reason which should deny the right of action to such a person where by the terms of the deposit he has the rightful posses- sion of the goods, and is responsible to the officer for their safe return. His capacity is rather. that of a bailee than a servant; he has an interest in the protection of the goods, and such a right as would justify him in resisting a trespass; he would be liable for the value in case he failed to protect them. § 646. Attaching creditor not liable jointly with the oflScer. An attaching creditor is not liable jointly with the sherijff who serves the attachment and takes possession of the property. The officer is the proper defendant. ^ When the attaching cred- itor bas possession of the goods he may be a defendant; and an attaching creditor cannot be joined as plaintiff with the officer for a taking of goods from the officer's possession unless he had some possession at the time of taking. § 647. Minor cannot sue. A minor cannot sustain the action in his own name. Two partners who were minors joined in a chattel mortgage; one of them became of age and ratified the mortgage; the other could not sustain replevin after dissolution of the firm, though he had acquired the inter- est of the other partner. A minor must sue by his guardian or next friend. ^ The same rules apply to one laboring under any other legal disability. The surviving partner is entitled to the possession of the goods of the firm, and may recover them from one who wrongfully interferes; it is not necessary that he declare as surviving partner; his right to recover is an individual right, and he is not required to state the facts under which he claims title.* In some States local laws vests • Ludden ■». Leavitt, 9 Mass. 104; Warren «. Leland, 9 Mass. 265; Com. monwealth v. Morse, 14 Mass. 317 ; Dillenback o. Jerome, 7 Cow. 294; Nor- ton o. People, 8 Cow. 137. ' Richardson v. Reed, 4 Gray, (Mass.) 443 ; Ladd v. North, 2 Mass. 516. » Keegan v. Cox, 116 Mass. 290. < Smith V. Wood, 81 Md. 298. MINOK CANNOT SUB. 353 the administrator with the interest of the deceased partner in partnership chattels. In such cases the administrator, and not the surviving partner, may sue. 23 354 PI/EADINQ. CHAPTEE XX. PLEADING. Section. Pleading 648 649 650 651 652 Established rules govern . The affidavit .... A prerequisite to delivery. Must not be entitled . Must be drawn to meet the evi- dence Takes the place of the plaint . By whom made. General re- quisites 655 Meaning of the term owner . 656 Defects in, when to be taken advantage of, and how . The truth of the aflldavit not in issue Statement of value of the prop- erty Statement of value in affidavit, how far binding Must state that the property was not taken for any tax, assess- ment or fine .... Or upon execution or attach- ment, etc Or upon writ of replevin against plaintiff .... Strict compliance with these conditions required Must contain a correct descrip- tion of the property ; amend- ments .... 653 654 657 658 659 660 661 663 663 664 665 Section. The declaration ; several counts joined 666 Rights of parties under a single count 667 Count in trover for goods not delivered 668 Value of such goods usually given in damages . . . 669 Form of the declaration ; wrong- ful detention . . . .670 Allegation of wrongful taking; special damages must be spe- cially alleged .... 671 The same. Special require- ments 672 The same. Allegations as to time and place . . .673 The same 674 Averment of wrongful deten- tion essential .... 675 Evidence of title not necessary to be stated . . . .676 The same. An averment of right of possession sufficient. 677 The same. Observations . . 678 Where the complaint follows the statute . . . .679 Declaration should state value of goods 680 Averment of demand . . 681 Must claim damages . . . 682 § 648. Pleading. The pleadings in replevin at common law were complicated and peculiar to this action, i They Robinson v. Calloway, 4 Ark. 100; Southall v. Garner, 2 Leighs, (Va.) ESTABLISHED EULE8 GOTEEN. 355 have, liowever, been greatly simplified bj' modern legislation, aided by the liberal construction of the courts. The limits of this work will not permit the consideration of any of the local statutes; a statement of the general principles is all that can be attempted. § 649. Established rules govern. Established rules and precedents should, in all cases, be followed. Any unnecessary departure from the recognized procedure, whether it arise from love of change, or from carelessness or ignorance, should not be encouraged.! Statutory provisions where they exist, whether they relate to the forms of pleading or mode of pro- cedure, must be strictly followed. ^ Each State has its own peculiar laws which govern its practice. These are constantly being changed, and any attempt to state them would be likely to mislead. § 650. The afladavlt. The first step in the proceeding is the affidavit. This, though not a part of the record,' is one of the most important papers in the case. It is essential in all cases where the plaintiff desires a delivery of the property pending the action. In many of the States the plaintiff may elect to begin and prosecute his suit without asking delivery of the goods prior to judgment. Under such circumstances neither affidavit nor bond is necessary.* § 651. A prerequisite to delivery. In all cases where the 373; Rogers B. Arnold, 13 Wend. 34; Gilb. on Replevin, 119; 1 Ch. Plea, title Replevin; Woodf. on L. & T. 588; Bacon Abr. title Replevin and Avowry. Both parties are plaintifi"; each, may claim judgment. Seymour s. Billings, 13 Wend. 386 ; Persse v. Watrous, 80 Oonn. 146 ; Brown v. Smith, 1 N. H. 36 ; McLarren i>. Thompson, 40 Me, 385 ; Poor «. Woodburn, 35 Vt. 339. ' McPherson v. Melhinch, 20 Wend. 671 ; Anstice v. Holmes, 3 Denio, 245. ' Pirani v. Barden, 5 Ark. 81. When petition complies substantially with the provision of the statute, it is sufficient. The form or words of the statute need not be literally followed. Smith ■». Montgomery, 5 Iowa, 371 ; Auld V. Kimberlin, 7 Kan. 601 ; Busick v. Bumra, 3 Iowa, 63. 3 Town V. Wilson, 8 Ark. (3 Eng.) 465 ; Loomis v. Youle, 1 Minn. 175 ; Cox V. Grace, 5 Eng. (Ark.) 86. Contra, see Newell v. Newell, 34 Miss. 385. < Baker «. Dubois, 32 Mich. 93; Catterlin v. Mitchell, 37 Ind. 298; Hod- son V. Warner, 60 Ind. 314. 356 PLEADING. plaintiff asks a delivery of tlie goods in the first instance, the affidavit is a prerequisite to the issuing of the writ or order for delivery. Without it the writ would be a nullity if issued, and the suit must fail.^ The affidavit is in no way essential to the trial of the case.' It is not evidence and does not prove or tend to prove the plaintiff's title to the property, though its statements as to value of the property may some- times be taken to estop the plaintiff who made it from assert- ing a different value.* Its truth or falsity is not a question at issue on the trial.* § 652. Must not be entitled. The affidavit must not be entitled in the suit. The reason is that at the time of making it there is no suit pending. ^ § 653. Must be drawn to meet the evidence. The affidavit should be framed with a view to the evidence which will be produced at the trial. If the action be for a wrongful deten- tion, proof of a wrongful taking would sustain such an averment without proof of demand.' Proof of a wrongful detention, however, will not sustain an averment of a wrongful taking. If the evidence will sustain an averment of wrong- ful taking, it is advisable, as simplifying the question of damages, that the declaration contain such a count. The aver- •Wilbur v. Flood, 16 Mich. 40; Milliken v. Selye, 6 Hill, 623; S. C, 3 Denio, 57 ; Perking v. Smith, 4 Blackf. 302 ; Bridge v. Layman, 31 Ind. 385 ; Payne v. Bruton, 5 Eug. (Ark.) 57; Cutler ®. Rathbone, 1 Hill, 204; Kehoe «. Rounds, 69 111. 352; McClaughry v. Cratzenberg, 39 111. 123; Stacy v. Farnham, 2 How. Pr. Rep. 26 ; Phenix v. Clark, 2 Mich. 327. Sheriff or coroner cannot administer the oath. Berrien v. Westervelt, 12 Wend. 194. » Town V. Wilson, 8 Ark. (3 Eng.) 464. ' See post, § 658. * Payne «. Bruton, 5 Eng. (Ark.) 57 ; Town v. Wilson, 8 Ark. (8 Eng.) 465. ' Rex V. Jones, 1 Str. 704; Haight v. Turner, 2 John. 371 ; People v. Tioga C. P., 1 Wend. 292; Hollis n. Brandon, 1 Bos. & Pull. 36; KingD. Cole « Term R. 298 and 640; Whitney v. Warner, 2 Cow. 500; Nichols v. Cowics, 3 Cow. 345; Milliken v. Selye, 3 Denio, 57; Stacey v. Farnham, 2 Huw. Pr. Rep. 26. But see and compare in this respect. In re Bronson and Mitchell, 12 Johns. 460, and note. The venue must be stated. Compare Cook v. Staats, 18 Barb. 407. 6 Oleson V. Merrill, 20 Wis. 462; Stillman «. Squire, 1 Denio, 337; Cum- mings ». Vorce, 3 Hill, 282; Pierce v. Van Dyke, 6 Hill, 613; Cox t. Grace, 10 Ark. 87. MEANING OF " OWNER." 357 ments in botli the writ and declaration should follow the plaint or affidavit, i § 654. Takes place of the plaint. The affidavit takes the place of the plaint, or rather it is the plaint, the word ha vino- the same meaning that it had in the Statute of Marlbridge. That statute required that there should be a " plaint," i. e. complaint. This was simply a statement to the sheriff of the wrongful taking, upon which he made the delivery. Tliere appears to be no authority for saying that it was, at that time, required to be in writing. The affidavit of modern practice is the " complaint" of olden time.^ § 655. By whom made. General requisites. The affidavit may be made by the plaintiff, or some one in his behalf; when made by an agent, its averments must be as positive as those required from the principal. ^ It must be in writing, and signed by the plaintiff, or his agent making it.* There are cases, however, which hold that an affidavit purporting to be sworn to by plaintiff, and certified to be sworn to by him, is good without signature. 5 It must state that the plaintiff' is the owner, and entitled to the immediate possession of the goods about to be replevied. The statutory requirements of the different States vary somewhat as to what is necessary to be stated in the affidavit, but they all substantially agree with the common law upon this point.* §656. Meaning of " owner." The term " owner," as used in this connection, does not import absolute ownership; any ' Newell V. Newell, 34 Miss. 386. In Illinois it is not necessary to allege a wrongM taking or even a wrongful detention by the defendant. Whistler e. Roberts, 19 111. 274. But this cannot be stated to be the general rule. « Anderson v. Hapler, 34 111. 439. ^ Frink «. Flanagan, 1 Grilm. (Ill,) 37. See, also, Branch v. Branch, 6 Fla. 315. * Eddy V. Beal, 34 Ind. 161. ' Jackson v. Virgil, 3 Johns. 540; Shclton n. Berry, 19 Tex. 154; Crist v. Parks, 19 Tex. 234; Haff v. Spicer, 3 N. Y. Term, (Ca. Ca.) 190. When affidavit was signed by G W. and R. Hoover, and sworn to by both, held sufficient. Hoover v. Rhoads, 6 Iowa, 506. ' In Arkansas plaintiff must swear that the cause of action occurred within two years. Payne v. Bruton, 5 Eng. (Ark.) 57. See Milliken v. Selye, 3 Denio, 56. 358 PLEADING. special interest in the property will be sufficient. ^ In Ohio this question was directly presented. It was objected that the statute said, " If any person shall wrongfully detain the goods and chattels of another, the ^ owner,'' his agent or attorney, may file, etc., etc.," and the court said in substance: It is the possessory title, and not the general ownership, which must be sworn to. Ownership without a right to immediate pos- session will not enable a man to make the statutory affidavit; but a right to immediate possession, without general owner- ship, will. If the word owner in the statute meant the owner of the general title, then an owner of a special title, such as a lease, even though entitled to possession, could not sustain the action even against a trespasser. To hold that a person with a limited or special title cannot make the affidavit to sustain this action, would destroy the uniform practice, and frequently result in irreparable mischief. The affidavit must be sworn to before the proper officer; in the absence of statutory provisions the sheriff or coroner cannot administer the oath.^ § 657. Defects in ; when to be taken advantage of and how. Formal defects in the affidavit must be taken advantage of before pleading to the merits; if not, they will be considered as waived.* Objections to the affidavit must be taken by mo- tion or by plea in abatement; not by demurrer,* the reason being that demurring will not reach matters outside the record, and the affidavit is not a part of the record. ^ So, where the objections to the affidavit are taken by motion, the ' Johnson v. Carnley, 6 Seld. (N. T.) 578 ; Sprague a. Clark, 41 Vt. 6 ; "Wil- liams V. West, 2 Ohio St. 83; Kogers v. Arnold, 13 Wend. 35. ~ ' Berrien -b. Westervelt, 12 Wend. 194. If a complaint (declaration) con- tains all that is necessary in an affidavit, and is sworn to and filed before the writ issues, the want of a separate affidavit on separate paper cannot be objected to. Minchrod v. Windoes, 29 Ind. 288. See, also, Perkins v. Smith, 4 Blackf. (Ind.) 299. ^ Defects in affidavits are waived if defendants appear and go to trial without objection. Smith v. Emerson, 16 Ind. 355. See Tripp o. Howe, 45 Vt. 523; Eddy v. Beal, 34 Ind. 161 ; Lewis v. Braokenridge, 1 Blackf. 112; Baker ». Dubois, 32 Mich. 93; Perkins v. Smith, 4 Blackf. (Ind.) 399; Fiink s. Flanagan, 1 Gilm. 38. * De Wolf «. Harris, 4 Mason C. 0. 515. » Cox V. Grace, 5 Eng. (Ark.) 86. STATEMENT OF VALTTE OF PEOPEETY. 359 motion ought to set out and crave oyer of it; otherwise tlie court may refuse to examine or pass upon it.^ § 658. The truth of the affidavit not in issue. The truth or falsity of the affidavit is not a question which can be enquired into upon the trial, except so far as the issues may go. It in no way affects the issues; it is not proof for the party making it.2 The want of one may be brought to the knowledge of the court by motion. No reason is perceived why defects in an affidavit may not be taken advantage of by properly point- ing them out by a motion in writing. In many of the States this would be snfficient, though a plea in abatement is more technical and exact. When the motion shows the want of an afiBdavit, the plaintiff may show that it is lost, and ask and obtain leave to supply its place. * This cannot be done by the clerk, or by simply filing a new affidavit with him ; the court must make the order after an examination into the question as to whether it is a copy or not of the instrument offered. § 659. Statement of value of property. The common prac- tice in most of the States is for the affidavit to state the .value of the property.* This is usually accepted as the true value by the sheriff when he comes to take bond. However, this is not obligatory upon him. When no appraisement is required by the statute, he must be the judge as to whether the value stated in the affidavit is sufficient. If he is of opinion it is not, he should require bond in double such sum as he believes" to be the true value. ^ For any failure to take adequate bond, he will be liable. ^ In many of the States the statute requires an appraisement;' and such value so ascertained is to govern the officer in fixing the amount of the bond. > Town v. Wilson, 3 Eng. (Ark.) 464. ' Payne n. Bruton, 5 Eng. (Ark.) 57 ; Dennis v. Crittenden, 3 Hand. (42 N. T.) 544. ' Morgan v. Morgan, 31 Miss. 546. * Deardorff v. TJImer, 34 Ind. 353; Schaffer t. Faldwescli, 16 Mo. 339. * Kimball v. True, 34 Me. 88 ; People, etc. v. Core, 85 111. 348 ; Roach «. Moulton, 1 Chand. ;(Wis.) 187; Pomeroy «. Triraper, 8 Allen, 398; Dear- dorflF 9. Ulmer, 34 Ind. 353; Murdock ». Will, 1 Dall. 341. « People, etc. d. Core, 85 III. 248. 'Watkins o. Page, 2 Wis. 92; Caldwell v. West, 1 Zab. (N. J.) 411. 360 PLEADING. § 660. statement of value in affidavit; how far binding. The statements in the affidavit as to value usually bind the plaintiff in any subsequent suit between the same parties, on the bond, or in the assessment of damages. The sworn state- ment of value made at a time when he is seeking to recover the property will estop him from asserting a different one at another time. The defendant is, of course, in no way bound by it.i § 661. Must state that the property was not taken for any tax, assessment or fine. Another provision, common to the statutes of all tlie States is, the affidavit must state that the property was not taken for any tax, assessment or fine levied by virtue of any law of the State. This requirement is im- perative.' When the affidavit states that the property had not been seized for any legal tax, it was held to imply that it was taken for a tax of some sort, and the court should dismiss the suit, on motion.* "When it stated that the property was not taken in execution for any tax, assessment or fine, the court said this may be true, and still the property may have been distrained, and the affidavit was held insufficient.* § 662. Or upon execution or attachment, etc. The affidavit must also state that the property has not been seized by virtue of any execution or attachment against the goods and chattels of the plaintiff liable to execution or attachment." So, where the plaintiff was a supervison of his township, authorized by law to keep and preserve the books and papers belonging to his office, the fact that the property was not legally subject to seizure on an execution or for a tax did not absolve the super- visor from the necessity of stating in his affidavit that it was not so taken. The requirements of the statute are imperative, and the nature of the property makes no difference.* There are cases, however, where the rule does not apply. In Yer- mont and Connecticut the writ was formerly employed chiefly ' See § 453, and the cases there cited. 2 Phenix v. Clark, 3 Mich. 337 ; Mt. Carbon, etc. v. Andrews, 53 111. 183. 3 McClaughry v. Cratzenberg, 39 111. 133. * Campbell v. Head, 13 111. 126. ' Bridges v. Layman, 31 Ind. 385. » Phenix v. Clark, 3 Mich. 337. MUST CONTAIN COEEECT DESCEIPTION. 361 to recover goods seized on attachment. The proceedino-s in such cases, however, were governed by local statutes. § 663. Or upon any writ of replevin against the plaintiff. In some States the statutes require the affidavit to state that the property for which the suit is brought has not been taken upon any writ of replevin or order for delivery in such action; and it may be said, generally, that the law will not permit cross-replevin. But it has been said this will not prevent the plaintiff from having this action upon a title which accrued to him after the seizure, nor in cases when the execution was void.^ § 664. Strict oomplianoe with this condition required. An affidavit, tiierefore, which stated that the property was not taken on any execution or judgment against tlae plaintiff, or any other mesne or final process whatsoever, will not be suffi- cient.^ A strict compliance with all these statutory requisites is essential ; the object of the law being to prevent the em- ployment of this action in the excepted cases.* The law furnishes other means to control wrongful seizure in these cases, but will not permit the withdrawal of the property pending the inquiry as to the seizure. § 665. It must contain a correct description of the prop- erty. Amendments. The affidavit should contain a correct description of the property which the plaintiff seeks to recover, as it will be shown by the proof.* And although amendments are sometimes permitted to correct mistake, and in the fur- therance of justice,^ caution in the first instance is the safe course.* The affidavit, as has been shown, is the foundation ' ■Williams o. West, 2 Ohio St. 89. Oontra, see Wilson v. Macklin, 7 Neb. 51. 2 Auld ». Kimberlin, 7 Kan. 601. ' Westenberger s. Wheaton, 8 Kan. 169. < Taylor v. Riddle, 35 111. 567. « Perkins 0. Smith, 4 Blackf. 303; Campbell «. Head, 13 111. 1S6; Parks e. Barkham, 1 Mich. 95 ; Applewhite v. Allen, 8 Humph. (Tenn.) 698 ; Baker «. Dubois, 32 Mich. 93 ; Wilson v. Macklin, 7 Neb. 53. ' Affidavit was signed by plaintiff, but had no jurat attached. He filed affidavit that he did swear to it. Held, the court might have permitted it to be verified nunc pro tune. Bergesh v. Keevil, 19 Mo. 128; Anon, 4 How. (N. T. Pr.) 390. The application to amend should be made before the de. 362 PLEADING. of the suit. It is a statement to the officer iipon which the mandate for delivery issues. The description in the writ and in the subsequent proceedings are based upon and follow the description in the affidavit. It should therefore be exact in all respects. § 666. The declaration. Several counts joined. It has been the constant practice to employ as many counts in the declaration as the pleader deems necessary for the proper pre- sentment of his case. Counts for wrongful taking are prop- erly joined with counts for the detention. Counts claiming absolute property in plaintiff may be joined with counts in which he asserts a limited interest only.i But the averments of the declaration with respect to ownership or interest of the plaintiff in the property should not go beyond the claim in the affidavit and writ.^ § 667. Rights of parties under a single count. Where the declaration contains but a single count for several articles, the plaintiff may recover part and the defendant part, the same as though there had been separate counts; each is entitled to judgment for the goods which he recovered, and to costs so far as he is successful.* Under a count charging wrongful detention the plaintiff may prove a wrongful taking, but if the charge be for taking it is not supported by proof of a detention merely. § 668. Count in trover for goods not delivered. In some of the States, in addition to the counts in replevin, the declaration may also contain a count in trover for such goods as the officer has been unable to find and deliver upon the writ.* The count in trover, however, cannot include any other goods than cision upon the motion to quash the writ. If it is quashed, the suit is no longer pending for any purpose, except to assess damages. Campbell ». Head, 13 111. 136 ; Perkins «. Smith, 4 Blackf. 303 ; Smith «. Emerson, 16 Ind. 855 ; Eddy «. Seal, 84 lud. 161. ' Dickinson e. Koland, 3 Eng. (Ark.) 25 ; Cox v. Grace, 10 Ark. 87. » Barnes v. Tannehilt, 7 Blackf. 605; Cox v. Grace, 10 Ark. 87; Nichols e. Nichols, 10 "Wend. 630. ' Seymour i>. Billings, 12 Wend. 386. * Nashville Ins. Co. v. Alexander, 10 Humph. (Tenn.) 383 ; Karr v. Bar- stow, 24 111. 580. FOEM OF THE DEOLAEATION-. 363 those described in the writ, and which are shown by the officer's return not to have been delivered. ^ § 669. Value of such goods usuaUy given in damages. The general practice prevailing in most of the States permits the plaintiff to recover the value of such articles as are not deliv- ered as damages. The count in trover is purely statutory and can be allowed only when the statute so provides. § 670. rorm of the declaration ; wrongful detention. The declaration should be drawn to meet the proof which will be produced at the hearing. 2 The gist of the action is the wrongful detention. The plaintiff must allege the right or title in himself as it exists, the right to immediate pos- session, and the detention by the defendant. ^ This allega- tion of wrongful detention is essential, and the proof to sus- tain it is equally essential.* If the goods were restored be- fore suit brought, the plaintiff cannot succeed on this action. An allegation that the defendant was about to take possession ^ will not sustain replevin. « If the declaration allege that the defendant " detained," it would imply that he had detained them but that were delivered to the plaintiff on the writ. Under this charge he could not recover damages subsequent t6 return of the writ. If the allegation be "he detains," this implies that the goods are still detained, and the plaintiff may prove and recover damages down to the time of the trial, and may also have as judgment for the value, in case the goods are not delivered, which he could not have under a charge of " he detained."' When the facts warrant such a charge it is best to allege a " wrongful taking," ^ as well as detention, as simplify- ing the question of damages. A declaration for taking (in tlae " Dart V. Horn, 20 111. 313. ' Newell V. Newell, 34 Miss. 385. 3 Wilson ®. Fuller, 9 Kan. 177; Paul v. Luttrell, 1 Col. 317; Tandle «. Crane, 13 Kan. 347. * Brown v. Holmes, 13 Kan. 483. ' Paul «. Luttrell, 1 Col. 317. ' Herron v. Hughes, 35 Cal. 555. ' Petre «. Duke, Lutw. 360 ; Potter v. North, 1 Wm. Saurd. 347 6 n. 3 ; Fox e. Prickett, 5 Vroom, (N. J.) 13. ' Reynolds v. Lounsbury, 6 Hill, 534 364 PLEADING. " cepit,^^) should allege a " wrongful " taking, but an omission in this respect is cured by verdict.^ Proof of a wrongful taking is not admissible under an allegation of wrongful deten- tion unless it be for the purpose of excusing the plaintiff from the necessity of proving a demand and refusal.^ "Where the action is against two or more for a joint wrongful taking it may, perhaps, be necessary to show a combination, or joint act, in order to secure a recovery against both, but it need not be alleged in the declaration.^ § 671. Allegation of wrongful taking; specia.1 damages must be specially alleged. If there was wrongful taking, attended with any acts of willful wrong or insult, the declara- tion should sojcharge; the plaintiff may have the opportunity of enhancing his claim for damages by means of such proof.* If there are any special causes of damages the plaintiff should aver them in his declaration. There is room for misunder- standing on this subject, and considerable care should be used to avoid error. Damages which are the natural and expected result of the defendant's act, that is, all such damages as the law presumes to have accrued from the wrongful act, need not be specially alleged. ^ But the real or actual damages sometimes would not fall under this presumption, and in such cases they must be specially stated, to prevent surprise.' Where the action was for destroying a barn the plaintiff could not show the cost of boarding his horses elsewhere unless under some special allegation.'' When the action was trover for a note which the defendant wrongfully claimed to hold as a valid note of the plaintiff", under a special allegation the plaintiff could recover such damages as the wrongful act ' Reynolds ». Lonnsbury, 6 Hill, 534. See Ohllds v. Hart, 7 Barb. 370, where it was held that an allegation that the defendant took and unjustly detained would imply a wrongful taking. » Eldred ». The Ooconto Co., 33 Wis. 141 ; Newell v. Newell, 34 Miss. 385 ; Coit V. Waples, 1 Minn. 134. 8 Herron v. Hughes, 25 Gal. 560. ^ Newell V. Newell, 34 Miss. 385. ' Ch. PI. 438. " De Forest v. Lute, 16 Johns. 132 ; Nunan v. City and Co. of San Fran- Cisco, 38 Cal. 689 ; Burrage v. Melson, 48 Miss. 339. ' Shaw ®. Hoffman, 31 Mich. 155. ALLEGATION 01" "WEONGFUL TAKING. 365 occasioned.! Viokshurg <& Merden B. R. Co. v. Ragsdale, is a case where this question is ably and extensively discussed. ^ Damages beyond the value of the property may be given when the taking was accompanied by acts of outrage, if such dam- ages were the natural result of the taking; but consequential damages, not the natural result of the taking, must be specially claimed in the declaration. ^ § 672. The same. Special requirements. It must allege that the goods are the goods and chattels of the plaintiff; it is not sufficient to say that the goods were taken out of the plaintiff's possession,* or to charge that defendant agreed to transfer the property to plaintiff, s or to simply allege that the plaintiff was entitled to possession." The declaration must expressly allege that the goods are the property of the plain- tiff.' That this is material will appear when it is considered that the defendant's plea is only to put in issue the property in the plaintiff.* In Iowa, it appears that the right to pos- session may alone be put in issue and determined,* and the averment of ownership does not require proof of absolute title to support it, but a right of present dominion or control over it, is sufficient.^" Ownership without a right to immediate possession will not enable the party to make the affidavit, but right of present exclusive possession will, irrespective of the general title. ^ i The evidence of title must not be set up, but the fact must be stated; the declaration should state positive " Park V. McDaniela, 37 Vt. 595. ' v. & M. R. R. Co. V. Ragsdale, 46 Mifss. 459. « Schofleld v. Ferrers, 46 Pa. St. 438. ^Bond B. Mitchell, 3 Barb. 304; Vandenburgh !). Van Valkenburgh, 8 Barb. 217; Johnson v. Neale, 6 Allen, (Mass.) 237; Prosser v. Woodward, 21 Wend. 205 ; Robinson «. Calloway, 4 Ai'k. 101. » Bailey v. Troxell, 43 Ind. 433. • Patiison d. Adams, 7 Hill, (N. T.) 126; Webb ®. Fox, 7 Durnf. & East. 392. ' Fontleroy v. Aylmer, 1 Ld. Raym. 239. ' Bond v. Mitchell, 3 Barb. 304. » Cassel «. Western Stage Co., 13 Iowa, 47. "Johnson t. Carnley, 6 Seld. (IT. Y.) 570; Sprague e. CJlark, 41 Vt. 6; Qeaves v. Herbert, 61 111. 137. " Williams v. West, 2 Ohio St. 83. 366 PLEADING. issuable facts, not a rehearsal of argument.^ An allegation of fraud in a horse trade is not sufficient, without showing a rescission of the contract; such a contract may be voidable, but until avoided is valid. ^ An allegation that the plaintiff on a certain day owned and possessed certain property, and that the defendant on that day took and wrongfully detained it, is sufficient.* It must show a right to the property in dis- pute in the plaintiff at the time suit was begun.* § 673. The same. Allegation as to time and place. It should state that the defendant, upon a time stated, which must be prior to the issuing of the writ,^ at a place which must be indicated, such as within a certain village or town,' wrongfully took, and unjustly detains;' or, if the action be for detention only, the count may state that the defendant took, and "unjustly detains "^ the plaintiff's goods.' § 674. The same. Formerly the plaintiff was required to ■state the close, i" This was because distress could only be ' Fidler v. Delavan, 30 "Wend. 5T. > McCoy 0. Reck, 50 Ind. 283. 8 Adams v. Corriston, 7 Minn. 456 ; Hard v. Simonton, 10 Minn. 433. * Loomis V. Youle, 1 Minn. 175. ' It is a good defense that the writ issued before the cause of action accrued. Wingate v. Smith, 20 Me. 287. The date of the writ is not con- clusive as to the time when the suit was begun. Federhen d. Smith, 3 Allen, 119. « Johnson o. "Woolyer, 1 Stra. 507 ; Muck ■». Folkroad, 1 Browne, (Pa.) 60 ; Gardner b. Humphrey, 10 Johns. 53 ; Williams «. Welch, 5 Wend. 290. The action is local to the place of taking. Sleeper o. Osgood, 50 N. H. 335. And it has been said a change of venue is not usually granted. Atkinson ®. Holcomb, 4 Cow. 45. ' Reynold! v. Lounsbury, 6 Hill, 534. Compare Childs v. Hart, 7 Barb. 370. 8 Childs V. Hart, 7 Barb. (N. T.) 370; Hurd v. Simonton, 10 Minn. 423; Adams v. Corriston, 7 Minn. 456; Coit v. Waples, 1 Minn. 184; Kichols v. Nichols, 10 Wend. 630. 3 Vandenburgh v. Van Valkenburgh, 8 Barb. 317 ; Pattison v. Adams, 7 Hill, 126; Bond v. Mitchell, 3 Barb. 304; Robinson ®. Calloway, 4 Ark. 101. Goods which the plaintiff was entitled to the possession of, substan- tially sufficient. Prosser v. Woodward, 31 Wend. 305 ; Stickney v. Smith, 5 Minn. 486. It is sufficient to allege that the defendant took the goods of the plaintiff and unjustly detains the same. Childs v. Hart, 7 Barb. 370 ; Simmons v. Lyons, 3 Jones & Spencer, (N. T.) 554 ; Bond «. Mitchell, 8 Barb. 304. '» Gardner v. Humphrey, 10 Johns. 53. EVIDENCE OF TITLE NOT NECESSAET TO BE STATED. 367 made upon the land out Of which the writ issued, i This rule has been so changed that in cases other than for a distress for rent, a statement of the town will suffice.* So, when the declaration stated that the property was taken from the dwell- ing of the plaintiff, on Gay street, proof that the taking was on Gay street, sufficed.* , § 675. Averment of wrongful detention essential. What- ever may be the facts in the case concerning the wrongful taking, and whatever be the allegations in the declaration upon that question, it is imperative that the declaration contain an averment of a wrongful detention by the defendant at the time the suit was begun; without this the plaintiff does not state a cause of action.* This question was squarely pre- sented in Colorado, where the plaintiff declared for the taking, and the defendant pleaded non detinuet, and the court held the issue material. ^ A very similar rule was followed in Kansas.^ As an omission to charge a wrongful detention, which is the gist of the action, is therefore fatal.'' § 676. Evidence of title not necessary to be stated. The plaintiff is not at liberty to state the evidence of his title, but must simply aver title by direct and traversable averment. ^ In support of this averment, proof that the plaintiff was in actual undisputed possession, claiming to own the goods, is sufficient ' Steph. Nisi Prim, vol. 3, p. 1333. 5 Muck V. Folkroad, 1 Browne, (Pa.) 60; Ely o. Ehle, 3 Comst. (N. T.) 510; "Williams B.Welch, 5 Wend. 390. 8 Faget V. Brayton, 3 Har. & J. (Md.) 350. * Childs i). Hart, 7 Barb. 370 ; Hurd v. Simonton, 10 Minn. 433 ; Adams «. Corriston, 7 Minn. 456; Coit «. Waples, 1 Minn. 134. ' Paul «. Luttrell, 1 Col. 318. « Wilson «. Fuller, 9 Kan. 177. ' Draper v. Ellis, 13 Iowa, 316 ; Brown «. Holmes, 13 Kan. 483 ; Leroy «. McConnell, 8 Kan. 373. * Bond ®. Michell, 3 Barb. 304; Prosser v. Woodward, 31 Wend. 305 ; Rob- inson «. Calloway, 4 Ark. 101; Alwood «. Ruckman, 31 111. 300; Pattison a. Adams, 7 Hill. (N. T.) 136 ; Vandenburgh ®. Van Valkenburgh, 8 Barb. 317 ; Martin •». Watson, 8 Wis. 315; Johnson ». Neale, 6 Allen, (Mass.) 337; Vogle V. Badcock, 1 Abb. Pr. (N. T.) 176. See Ice v. Lockridge, 31 Tex. 461. It would seem that in Iowa, where a party claims under chattel mort- gage, that the declaration should contain a copy of the mortgage and notes. Smith v. McLean, 34 Iowa, 833, 368 PLEADING. to entitle him to judgment, unless a better title be shown.* "When the party claims and undertakes to show title, and shows possession only as an incident to title, evidence upon the question of title must control.* § 677. The same. An averment of rigM of possession suf- ficient. The allegation of ownership, as has been shown, does not require for its support proof of ownership of absolute title. 3 Where the complainant alleged that the plaintiffs were possessed of the goods, described " as of their own proper goods," it was said to be suflBcient.* §678. The same. Observations. Title by possession, with- out other right to the property, will, where the possession is rightful, be sufficient to sustain replevin as against a wrong- doer; such title being regarded as sufficient to hold the prop- erty against all persons not showing a better title, and to recover it from one who wrongfully seizes it.^ The possession ' Ely V. Ehle, 3 Comst. 507. When the plaintiflf has the right to the pos- session, and can sustain trespass, replevin will lie. See, also, Dunham v. Wyckoflf, 3 Wend. 280 ; Stickney v. Smith, 5 Minn. 486 ; Marshall v. Davis, 1 Wend. 109 ; Hunter ®. Hudson Eiv. Iron Co., 30 Barb. 493 ; Brockway i>. Burnap, 12 Barb. 347; Brockway v. Burnap, 16 Barb. 309; Hendricks «. Decker, 35 Barb. 298. One who has the general or special property in the goods, accompanied by actual or constructive possession, can maintain replevin. Wilson v. Royston, 3 Ark. 315. Party without title, except to right of possession, may replevy against a wrong-doer. Prater v. Prazier, 11 Ark. 349. ' Hatch B. Fowler, 28 Mich. 210. ' See ante, % 96. * Stickney v. Smith, 5 Minn. 486. See Prosser o. Woodward, 21 Wend. 206 ; Marshall v. Davis, 1 Wend. 109 ; Hunter ®. Hudson Riv. etc., 20 Barb. 493. When the plaintiff has the right to possession, and can sustain tres- pass, replevin is a concurrent remedy. Dunham v. Wyckhoff, 3 Wend. 280 ; Brockway v. Burnap, 12 Barb. 347; Brockway v. Burnap, 16 Barb. 309; Hendricks «. Decker, 85 Barb. 298; Rucker o. Donovan, 13 Kan. 251. One who has a general or special property in the goods, accompanied by pos- session, actual or constructive, can maintain the action. Wilson v. Royston, 2 Ark. 315. Party without title, if entitled to the possession, may sustain the action against a wrong-doer. Prater v. Prazier, 11 Ark. 249. 5 Moorman B. Quick, 20 Ind. 68; Miller v. Jones, Admr., 26 Ala. 260; Shomo D. Caldwell, 21 Ala. 448 ; Prater v. Frazier, 6 Eng. (Ark.) 249. Proof of title recently before the taking would raise a presumption of continued ownership, and unless contradicted, would be sufficient. Smith o. Graves, 25 Ark. 461. See, also, Tison's Admr. v. Bowden, 8 Fla. 69. A mere WHBEE THE COMPLAINT FOLLOWS THE STATUTE. 369 must be a lawful one, acquired without force or fraud. The taker up of an estray, without any proceeding under the law, is a trespasser. His possession is not sufficient. But if one take up an estray, and duly comply with the law in such cases, his possession is rightful.^ § 679. Where the complaint follows the statute. "Where the complaint follows the form laid down in the code for the recovery of chattels in specie, it must be understood as assert- ing such a title and claiming such an interest in the goods as may be recovered in that form of action. ^ So where the stat- ute provides that the plea of Tion cepit shall put in issue the property in the plaintiff, as well as the taking, the plaintiff may have a return of the goods under that plea. The charges in the declaration must follow the writ. Thus when the writ charges an unlawful detention, and the declaration an unlaw- ful taking, there will a variance.* The description of the property should be the same in the affidavit, writ and declara- tion ; each must describe the property as it will appear in the proof.* When the complaint described only part of the prop- erty in the affidavit, and it appeared that the other part had been taken from the defendant on an attachment ^ before the receiptor, who has received the goods from an oflBcer for safekeeping, can- not sustain replevin. "Warren v. Leland, 9 Mass. 365; Ludden v. Leavitt, 9 Mass. 104; Dillenback •». Jerome, 7 Cow. 394; Norton v. The People, 8 Cow. 137. But, see, Miller «. Adsit, 16 Wend. 335 ; Thayer v. Hutchinson, 13 Vt. 504; Mitchell v. Hinman, 8 Wend. 668. So of a servant, who has only a right to possession by virtue of a delivery from his master, which the latter may put an end to at any time; but a bailee may sustain the action. Harris ti. Smith, 3 S. & R. 38 ; Brownell «. Manchester, 1 Pick. 333 ; Stanley B. Gaylord, 1 Cush. 536 ; Bond v. Paddelford, 18 Mass. 895 ; Weld v. Hadley, 1 N. H. 398. ' Bayless v. Lefaivre, 37 Mo. 123. 'Pickens v. Oliver, 39 Ala. 538. See Halleck v. Mixer, 16 Cal. 574; Smith B. Montgomery, 5 Iowa, 370. ' Barnes «. Tannehill, 7 Blackf 604; Nichols c. Nichols, 10 Wend. 630. < Snedeker v. Quick, 6 Halst. (N. J.) 179 ; Cronly ». Brown, 13 Wend. 371 ; Stevens v. Osman, 1 Mich. 93; Stevison v. Earnest, 80 111. 517. ' Kerrigan v. Ray, 10 How. Pr. Rep. 313. When the declaration was for two bay horses, and the proof showed that one was a sorrel, the variance was fatal. Taylor v. Riddle, 35 111. 567. See Root v. Woodruff, 6 Hill, (N. T.; 418. 24 370 PLEADING. writ could be served, it was allowed to stand. Parties may litigate, however, concerning property not included in the writ when they agree to do so. Thus, where property not em- braced in the writ was described in the pleading, and the parties stipulated that the right thereto should be determined in the suit, it was regarded as sufiBcient to give the court jurisdiction.^ § 680. Declaration should state value of goods. The declara- tion should state the value of the goods, though the statement of the value of the whole, and not of each article, has been held sufficient. 2 The statement of value is but a form of plead- ing. Even where it is not denied in the pleadings,, it is not admitted, nor is the defendant precluded from showing the true value to be in excess of the sum stated by the plaintiff.* § 681. Averment of demand. The declaration at common law need not aver a demand. In Wisconsin, it need not aver demand and refusal. Under a charge of wrongful detention, plaintiff may prove a demand and refusal, or such a taking as will obviate the necessity of a demand.* Local laws will con- trol this question, and no general rule can be stated. § 682. Must claim damages. The declaration must claim damages. An omission in this respect is a defect which has been held fatal. ^ The general claim of damages at the con- clusion of the declaration will be sufficient to entitle the party to all such damages as are the natural and immediate conse- quence of the defendant's acts, of which the declaration com- plains. Thus the plaintiff may prove any depreciation of the goods arising from any natural and expected causes, while ' Sanger v. Kinkade, 16 111. 44. " Boot V. "Woodruff, 6 Hill, (N. Y.) 418; Gillies «. Wofford, 36 Tex. 76; , Ward ®. Masterson, 10 Kan. 78 ; Woodruff v. Cook, 25 Barb. 505. s Chicago & S. W. Ry. Co. v. N. W. Packet Co., 38 Iowa, 377; Baileys. Ellis, 31 Ark. 489. But, see Tulley e. Harloe, 35 Cal. 306. The objection that the complaint does not allege the value is cured after verdict for dam- ages for the detention. Bales v. Scott, 36 Ind. 203. See Hawkins v. Johnson, 3 Blackf. 46. ■• Oleson V. Merrill, 30 Wis. 462. But in some States such averments are necessary. See Campbell v. Jones, 38 Cal. 507; Hurd «. Simonton, 10 Minn. 423. ' Faget V. Brayton, 3 H. & J. (Md.) 350. MUST CLAIM DAMAGES. 371 they were in the defendant's hands. ^ Special damages must be specially claimed. ^ In an action to recover possession of a mare, the damage resulting from a loss of flesh, and detention during the breeding season, should be specially alleged.* • Young o. Willet, 8 Bosw. (N. Y.) 486. > Damron v. Koach, 4 Humph. (Tenn.) 134 s Stevenson «. Smith, 28 Cal. 103. 372 PLEADING BY DEFEHDAHT. CHAPTEE XXI. PLEADING BY DEFENDANT. Section General rules; each defendant may plead separately . Separate defenses Plea of title; must show title when the suit began Plea to title or right of posses- sion Plea by an officer Plea of property in defendant , Property in third person . . 689 Form of plea does not amount to an admission of the taking 690 684 685 687 688 Section. The same 691 The same. Right of defendant to a return under this plea . 693 Observations upon this rule . 693 The same 694 The same. Illustrations . . 695 The traverse . . . .696 Exceptions to this rule . . 697 Replication .... 698 Surrender to a third party by order of court . . . 699 § 683. General rules ; each defendant may plead separately. The action of replevin is in the nature of a tort. The defend- ant, or if there be more than one, each may set up as many separate defenses as he judges necessary for his protection. It was said by the Supreme Court of Kentucky in 1838, that the defendant in replevin had no legal right to file more than one plea. Formerly special pleas were pleaded unddr leave of the court, but the leave was always granted as a matter of course; and now the defendant may, as a matter of right under the general rules of practice, plead as many separate proper defenses as are necessary.' Proof of one sufficient defense, without reference to the others, will constitute a bar to the action. 2 Where the action is against two, each may ' Gaines b. Tibbs, 6 Dana, 147. » Rogers «. Arnold, 13 Wend. 34 ; Mt. Carbon, etc. v. Andrews, 53 111. 184 ; Amos V. Sinnott, 4 Scam. 441 ; Chambers v. Hunt, 18 N. J. 389. See and compare Gaines ®. Tibbs, 6 Dana, (Ky.) 146 ; Holton v. Lewis, 1 McCord, (S. C.) 13; Knowles v. Lord, 4 Whart. (Pa) 500. FLEA OF TITLE. 373 claim title to the property in himself, i or each and both may plead any proper matter without reference to the statement in the pleading of the other. ^ It should be observed that where there are two defendants, they must plead the same facts in justification, or they cannot have return. For example, if two defendants set up separate pleas justifying the taking and demanding a return, and they should both be true, the court could not adjudge a return, though each might plead non cepit to part of the justifying the taking as to other different, separate parts, and have judgment for a return of that part. But if a joint return is wanted, the defendants must plead or avow the same facts in justification;* but upon a joint plea of property in one of two defendants, the return may be adjudged to both. 4 § 684. Separate defenses. It is not material that separate pleas should be consistent with each other; each one is re- garded as a separate defense, in no way dependent upon any other, but each must be consistent with itself. Thus non cepit, which denies the taking, may be pleaded with an avowry which acknowledges and justifies the taking; or non cepit and plea of property in defendant, or in a stranger; or pleas of joint property in the plaintiff and the defendant may, any of them, be joined with any or all of the others without objec- tion, and the party pleading may prove any one of these defenses without the others. ^ § 685. Plea of title ; must show title when the suit began. Pleas w^ich set up title in the defendant, or which rely upon title in any other person than the plaintiff, must allege it as existing at the time suit was begun. A plea claiming title on a certain day before the commencement of the suit is bad.8 1 Boyd t. McAdams, 16 111. 146. 2 Martin o Ray, 1 Blackf. 291. ' Gaiaes «. Tibbs, 6 Dana, (Ky.) 144. * White ■». Lloyd, 3 Blackf. 390. Compare Gotloff v. Henry, 14 111. 384. ' Shuter v. Page, 11 Johns. 196; Simpson v. McFarland, 18 Pick. 483; WMtwell B.Wells, 34 Pick. 37; Parsley v. Huston, 3 Blackf. 348; Har- wood v. Smethurst, 5 Dutch, (39 N. J.) 195; Edelen ». Thompson, 3 Har. & G. (Md.) 33. ' Patton o. Hamner, 38 Ala. 618. 374 PLEADING BY DEFENDANT. The plea must also contain a direct and issuable statement of the facts on which the defendant relies. It must not state the evidence by which facts are proved. If the defendant relies on title, he must state that he is and was owner, not that he bought it.i § 686. Plea to title, or right of possession. Where the defendant desires to put the title in issue he must do so by plea of property in himself or in a stranger, accompanied by a traverse of the plaintiff's rights and a denial of the taking. 2 Under such pleas the defendant may prove title in himself, no matter how derived,' or anything that shows that at the time the suit was begun he had the right to possession as against the plaintiff.* Plea of property in defendant must be under- stood to be a claim to all the property, or entire property in the goods, and under such a plea proof of property in the defendant and another is not admissible. ^ When the plea averred that at the time of the supposed taking the defendant was, and now is, the lawful owner, denying the plaintiff's title, it was regarded in substance as an admission of the taking and detention, with an avowry of title in defendant." But a plea of non cepit, as we shall see, admits the property to be in the plaintiff,'' and denies the taking only. § 687. Plea by an oflacer. When an officer defends the seizure of goods by virtue of process it need not be set out, but must be pleaded with sufficient certainty to show that it authorized the seizure. ^ Where the officer justifies the seizure of goods upon fi. fa., he must produce a valid judgment as well as execution. The execution may be a defense to the offi- cer when sued for trespass, but if he claim property in the ' McTaggart ■o. Rose, 14 Ind. 330; Martin ». Watson, 8 Wis. 315; Robin- son «. Calloway, 4 Ark. 101. 'Mackinley B. M'Gregor, 3 Whart. 368; Rowland v. Mann, 6 Ired. (N. C.) 38. 3 O'Connor «. Union Line, 31 111. 236. * Dixon B. Thatcher, 14 Ark. 141 ; Van Namee 11. Bradley, 69 111. 300. » Mcllvaine «. Holland, 5 Har. (Del.) 10. « Chase v. Allen, 5 Allen, 599. ' Van Namee v. Bradley, 69 111. 300. " Mt. Carbon, etc. ■». Andrews, 53 111. 184. PLEA OF PKOPEETT tN DEPENDANT, 375 goods as against a stranger he mnst produce a valid judgment in support of his execution. i But the prior possession of the officer nnder his writ may be sufficient to sustain trover or trespass against a stranger who takes the goods,^ and upon the authority of this case a plea setting up his prior possession would be sufficient to entitle the sheriff to a return of the goods taken on execution without showing the judgment.^ If the process be mesne, as, for example, an attachment, a plea setting up the writ will be sufficient without showing the grounds upon which it issued.* But it ought to aver a debt due from the defendant to the plaintiff. § 688. Plea of property in defendant. The defendant may always set up ownership of the property as a defense. The usual form of this plea is to deny the plaintiff's right to the property, and assert ownership and a right to possession in himself If the defendant is successful upon this issue the judgment must be for a return of the goods, when they have been delivered to the plaintiff upon the writ, and for damages and costs.^ The action, however, is a possessory one, and either party may claim and show a right to the possession at the time the suit was begun. Upon such showing he may recover even as against the owner. « An averment and proof of title, no matter how derived, will not constitute a defense where the plaintiff claims and shown himself entitled to possession.'' Where there are two defendants and one of them owns, or has a right to possession of the property, they may so plead; and a judgment for a return will be sustained whether the other has any right or not.* ' High V. Wilson, 3 Johns. 45. See and compare Holmes v. Nuncaster, 12 Johns. 395. ' Barker v. Miller, 6 Johns. 199. s Thayer v. Hutchinson, 13 Vt. 503. " McGraw v. Welch, 2 Col. 288. See Mann ». Perkins, 4 Blackf. 271. » Rogers v. Arnold. 12 Wend. 34; Quincy «. Hall, 1 Pick. 359. ' Darter v. Brown, 48 Ind. 395; Heeron «. Beck with, 1 Wis. 20; Hunt v. Chambers, 1 Zab. (31 N. J.) 624; Seldner v. Smith, 40 Md. 603; Smith v. Williamson, 1 Har. & J. (Md.) 147. ' Corbitt V. Heisey, 15 Iowa, 296. « White V. Lloyd, 3 Blackf. 390; Gotloff v. Henry, 14 111. 385; Waldman V. Broder, 10 Cal. 379. 376 PLEADING BT DEFENDANT. § 689. Property in tMrd person. Plea of property in a third person, a stranger to the suit, with a traverse of plain- tiff's right, is always good.^ This plea is permitted on the obvious principle that the plaintiff must show title or right of possession in himself. The burden of proof is on him, and the object of the plea is to show title out of the plaintiff. Non cepit, as we shall see, admits the title to be in the plain- tiff; it simply denies the taking, and to enable the defendant to contest the plaintiff 's title, and ask a return of the goods, he must plead property in himself or some other person, and deny the plaintiff's right as well to property as to possession. The traverse or denial of the plaintiff's right is the material part of the plea; the allegation of title in another is merely inducement.^ §690. Form of the plea ; does not admit the taking. This plea must aver the goods to be the property of some third person, who must be named ;3 or, perhaps it may be in a ficti- tious person,* and should contain traverse or denial of the plaintiff's right, which is the material part of the plea. The plaintiff would not be permitted to reply, denying the prop- erty in such third person, as that would present an immaterial issue. This plea, even alone, does not amount to an admission of the taking, nor does it shift the burden of proof to the defendant. It denies that the plaintiff had the right to deliv- erance, and upon this issue the burden of proof is upon the plaintiff. 5 But if the plaintiff show, under such plea, that ' Hall v. Henline, 9 Ind. 256 ; Parker b. Mellor, 1 Ld. Raym. 217 ; John- son v. Carnley, 6 Seld. (N. Y.) 576 ; McCurry v. Hooper, 13 Ala. 823 ; Ingra- ham V. Hammond, 1 Hill. 353; Harrison v. M'lntosh, 1 John. 380; Prosser ■». Woodward, 31 Wend. 209 ; Schermerhorn v. Van Valkenburgh, 11 Johns. 529 ; MiQ-tin v. Ray, 1 Blackf. (Ind.) 292 ; Noble v. Bpperly, 6 Ind. 415 Schulenberg v. Harriman, 31 Wall. (U. S ) 44; Shuter s. Page, 11 John. 196 Marsh u. Pier, 4 Rawle, 283 ; Cullum v. Bevans, 6 Har. & J. (Md.) 469 Thompson v. Sweetser, 43 Ind. 312; Loomis ®. Youle, 1 Minn. 175; Scott «. Hughes, 9 B. Mon. (Ky.) 104. 2 Rogers B. Arnold, 13 Wend? 33; Chambers d. Hunt, 18 N. J. L. 389; Chambers «. Hunt, 22 N. J. L. 553 ; Van Namee v. Bradley, 69 111. 300. ' Anstioe v. Holmes, 3 Deoio, 344. ■• Anderson «. Dunn, 19 Ark. 650. ' Crosse v. Bilson, 2 Ld. Raym. 1016; Marsh v. Pier, 4 Rawle, 282; Mac- FOEM OF THE PLEA. 377 the defendant had possession of his proj)erty, the burden of proof would be shifted on the defendant to show how he came by it.i If the plea merely assert title in a stranger, without a traverse of the plaintiif 's right, the burden of proof would be on the defendant to show the title as pleaded. § 691. The same. "Where the defendant pleads property in a third person named, he cannot, upon the trial, be permitted to shQW title in another person not named. He has no right to mislead the plaintiff by pleading cne state of facts and attempting to prove another. 2 It is not necessary that such third person should be a party to the suit;^ and neither the plea nor the finding thereon binds the third party, unless he is in some way connected with the party filing it.* § 692. The same. Bight of defendant to a return under this plea. Upon the sufficiency of this plea as a defense no ques- tion has ever been raised. But as to whether proof of property in a third person in no way connected with the suit will entitle the defendant to judgment for a return of the goods, without connecting himself with the title of such third person, is a question upon which the cases differ. Many of them hold that the defendant may plead property in a stranger to the suit, and upon this plea may have return of the goods without connecting himself with the title of such stranger. The de- fendant, it is said, ought to have return, because the possession was illegally taken from him.^ Upon a plea in abatement kinley 8. M'Gregor, 3 Whart. 368; Gentry v. Bargis, 6 Blackf. 263 ; John- son B. Plowman, 49 Barb. 473. ' Morris B. Danielson, 3 Hill, 168. ' McCIung V. Bergfeld, 4 Minn. 148. « Thompson «. Sweetser, 43 Ind. 313. * Edwards «. McCurdy, 13 111. 496. ' Parker s. Mellor, 1 Ld. Raym. 317 ; Salkold v. Skelton, Cro. Jac. 519 ; Wildman d. North, 8 Lev. 93; Presgrove v. Saunders, 6 Mod. 81 ; Presgrave «. Saunders, 3 Ld. Raym. 984; Crosse v. Bilson, 3 Ld. Raym. 1016. And this rule has been followed in a number of modern cases. Harrison v. Mc- intosh, 1 John. 384; Walpole v. Smith, 4 Blackf. 305. " It is not necessary for the defendant, under this plea, to connect himself with the title of the stranger. It is enough for him that the plaintiff does not own it." An- derson e. Talcott, 1 Gilm. 371 ; Ingraham «. Hammond, 1 Hill, 353. Con- sult Constantine v. Foster, 57 111. 38; Gotloff 0. Henry, 14 111. 384; Hunt v. 378 PLEADING BY DEFENDANT. sustained, the action is suspended for the time. A plea in bar, if successful, destroys the action. * It must also be observed that upon judgment on a plea in abatement that the writ be quashed, the return of the goods does not necessarily follow. Return, in fact, is not ordered unless the defendant show that the goods were delivered to the plaintiff on the writ, and that they ought to be returned ; and by the old authorities it seems that there is no reason why the defendant cannot assert title in himself and ask return in a plea in abatement. ^ § 693. Observations upon this rule. But this cannot be said to be a general rule. A mere trespasser, or one who has obtained possession of goods by his own wrongful act, cannot set up the title of a stranger, and thereby obtain a return of goods wrongfully taken, without in some way connecting him- self with the title of the stranger.* § 694. The same. This point was clearly stated by Schol- FiELD, J., in a recent Illinois case: "The property, whether in the defendant or a third person, sufficient to sustain a defense, must be such as goes to destroy the interest of the plaintiff in the property in dispute, and which, if existing, would sustain the action; or, in other words, such as would defeat an action of trespass if brought for a wrongful taking, or trover if brought for a wrongful detention." As against a wrong-doer prior rightful possession is sufficient to enable the plaintiff to maintain the action. If the right of the plaintiff is better Chambers, 1 Zab. 637 ; Noble v. Epperly, 6 Ind. 414 ; Prosser v. Woodward, 31 Wend. 305 ; . Johnson v. Neale, 6 Allen, 329 ; Seibert v. M'Henry, 6 Watts. 303. " When any part of the goods belong to a third person, the defendant is entitled to a verdict for those goods or their value.'' Morss v. Stone, 5 Barb. 516; Snow v. Roy, 33 Wend. 603; Finehout v. Grain, 4 Hill, 537 ; Seymour v. Billings, 13 Wend. 385 ; Williams d. Beede, 15 N. H. 485. Prop- erty in defendant, or in a third person, may be pleaded in bar or in abate- ment. Boies V. Witherall, 7 Me. 163. Wilson v. Gray, 8 Watts. (Pa.) 35, and cases cited. But the plea in bar, and a defense under it, is the more common. ' Wallis «. Savil, Lutw. 16. * Gilbert on Replevin, 136, citing many old cases. ^ Duncan v. Spear, 11 Wend. 54; Rogers v. Arnold, 13 Wend. 30; Brown ®. Webster, 4 N. H. 500 ; Reed «. Reed, 13 Iowa, 5 ; Dozier v. Joyce, 8 Por- ter, (Ala) 303; Stowell v. Otis, 71 N. T. 36; Gerber«. Monie, 56 Barb. 653; Hoyt v. Van Alstyne, 15 Barb. 568. See Wilkerson v. McDougal, 48 Ala. 618. OBSEEVATIONS UPON THIS EULE. 379 than that of the defendant, whatever it may be with regard to the rest of the world, he will recover. If the action can be sustained by one whose title rests in the simple possession of the goods, unquestionably in similar cases the same title would justify a judgment in his favor for a return of the goods, where he occupied the position of defendant. i This decision is abundantly sustained by the authorities. It follows the leading cases wherever this question has been raised, 2 and is in harmony with the rule in trover, which is in this respect substantially like replevin; the defendant, a wrong-doer, can- not set up title in a third person to defeat the plaintiff's suit, without connecting his title with that of the stranger. ^ § 695. The same. Illustrations. In detinue, when the plaintiff has shown a prior possession and made out a prima facie case, the defendant cannot defeat his recovery by simply showing an outstanding title in a stranger, with which he in no way connects himself.* In some of the cases cited, the right to possession was alone put in issue. When the plaintiff claims possession, and the right of possession is alone put in issue, the defendant cannot show title in a third party, because that may be consistent with the plaintiff's right of possession. A stranger may have title, while the plaintiff may have the right to present possession. ^ The defendant cannot set up title in a third person who is shown to acquiesce in the plaintiff's claim.* ' Van Namee ®. Bradley, 69 111. 300, closely following Presgrave v. Saunders, 1 Salk. 5. Compare, on this point, Chambers v. Hunt, 23 N. J. L. 553. » Eogers 10. Arnold, 13 Wend. 37 ; Duncan v. Spear, 11 "Wend. 54; Miller «. Jones, Admr., 36 Ala. 348 ; Gerber v. Monie, 56 Barb. 653 ; Hoyt v. Van Alstyne, 15 Barb. 568; Stowell v. Otis, 71 N. Y. 36. 8 Dozier b. Joyce, 8 Porter, (Ala.) 315 ; O'Brien v. Hilburn, 23 Tex. 634 ; Schermerhorn «. Van Valkenburgh, 11 Johns. 539; Rotan B.Fletcher, 15 Johns. 308. But see Hurst v. Cook, 19 Wend. 463, examining all the early authorities, and holding that in trover plea of property in third person is bad. * Sims «. Boynton, 33 Ala. 354 ; Lowremore ■». Berry, 19 Ala. 130 ; McGuire n. Shelby, 20 Ala. 456 ; Harker v. Dement, 9 Gill. (Md.) 7. ' Reese s. Harris, 27 Ala. 301 ; Corbitt v. Heisey, 15 Iowa, 296. ' Frost B. Mott, 34 N. T. 253. 380 PLEADING BY DEFENDANT. § 696. The traverse. When the defendant pleads property in himself, or in a third person, the plea should contain a "traverse," as it is called. ^ This is simply a denial of the plaintiff's right. It puts him upon proof of his title; to sus- tain the issues tendered by this plea he is bound to prove his rights as alleged. The traverse, in fact, is the material part of the plea. 2 This plea should also contain a statement that the property is in the defendant, or in some third person named; this latter averment is regarded only as an induce- ment to the main issue, which is the denial of the plaintiff's right.* It is the denial of his right that the plaintiff must answer. He cannot be permitted to waive the denial of his own rights, contained in the plea, and content himself with a denial of the rights asserted by the defendant.* § 697. Exceptions to this rule. There are cases, however, which seem to hold that a plea denying the plaintiff's right may be good without a traverse. ^ Where a plea contains simply an alErmative allegation that the property is the prop- erty of the defendant, or a stranger to the suit, without a denial of the plaintiff's title, the burden of proof will be upon the defendant, who asserts the title ;^ and this is in harmony with the general rule of pleading in other cases. The burden 'Rogers v. Arnold, 12 Wend. 34; Anstice «. Holmes, 3 Denio, 344; Prin- gle V. Phillips, 1 Sandf. 393 ; Prosser v. Woodward, 31 Wend. 308 ; Hunt v. Chambers, 1 Zab. (21 N. J.) 635 ; Robinson b. Calloway, 4 Ark. 101. ^ Anderson v. Talcott, 1 Gilm. 371 ; Johnson «. Neale, 6 Allen, (Mass.) 228 ; Seibert ®. McHenry, 6 Watts, (Pa.) 303 ; Hunt «. Chambers, 1 Zab. (21 N. J.) 637; Noble b. Eppeily, 6 Ind. 414; Dickinson o. Lovell, 35 N. H. 9. » Qotloff v. Henry, 14 111. 384; Anderson v. Talcott, 1 Gilm. 371 ; Chandler V. Lincoln, 53 111. 74; Landers c. George, 40 Ind 160; Parsley v. Huston, 3 Blackf. 348; Gentry v. Bargis, 6 Blackf. 363; Robinson «. Colloway, 4 Ark. 101 ; Hunt v. Bennett, 4 G. Greene, (la.) 513. * Robinson v, Calloway, 4 Ark. 101; Constantine ®. Foster, 57 111.36; Chambers v. Hunt, 3 Zab. (33 N. J.) 553; Same v. Same, 18 N. J. L. 339; Brown ». Bissett, 1 Zab. 367; Reynolds v. McCormick, 63 111. 415; Rich- ardson v. Smith, 39 Cal. 539. ' Johnson v. Neale, 6 Allen, 338; Whitwell v. Wells, 24 Pick. 25; Love- day V. Mitchell, Comyns, 348. « Chandler o. Lincoln, 52 111. 76 ; Harwood t. Smethurst, 5 Dutch. (N. J.) 196. 6UKKENDEE TO A THIRD PAETT. 381 of proof is on him who asserts or holds the affirmative of the issue, and if the defendant choose to assert title in himself, without denial of plaintiff's right, he may do so, at the risk of making out the title he asserts.^ § 698. Replication. In a replication to plea of property in stranger, the plaintiff must simply reaffirm his own title; he is under no obligation to notice the inducement or intro- ductory part of the plea, or the claim that the property belongs to the defendant.^ Keplication that the goods were delivered to plaintiff by A. for safe keeping, without alleging property in A., is not sufficient. The deposit may have been by one who had no authority or title.* § 699. Surrender to a third party by order of court. When, during the pendency of the action, and before trial, the defendant has been legally required to deliver the property in dispute to a third person, who is the owner as against both the parties to the suit, such delivery may be pleaded, and will constitute a good defense to the replevin suit. Thus, when the sheriff was sued, by an assignee of the debtor, for goods which he had attached, he filed aflswer that the assignment was made to hinder, delay and defraud creditors; that the debtor had been adjudged a bankrupt, and that the assignee in bankruptcy had demanded and taken the goods, such answer was regarded a sufficient defense to the replevin suit.* This rule is based upon the idea that, pending the suit, the property is in the custody of the law, and the court has a right to make such disposal of it as it sees proper. ■ As to evidence to show property in a third person, see Edmunds «. Leavitt, 21 N. H. 198. » Chambers v. Hunt, 2 Zab. (23 N. J, L.) 552. ' Harrison «. M'Intosh, 1 Johns. 384. ' Bolander v. Gentry, 36 Cal. '109 ; Hunt v. Robinson, 11 Cal. 262; Colo v. Conally, 16 Ala. 274; O'Connor v. Blake, 29 Cal. 313. 882 PLEA OF NOH CEPIT AND NOM DETIHET. CHAPTER XXII. PLEA OF NON CEPIT AND NON DETINET. Section. Plea of Twn cepit or non detinet 700 Admissions in the pleadings not . evidence as to matters previ- ously put in issue . . . 701 Issues admitted cannot be de- nied 703 Special statutory rules . , 703 Effect of a plea of non cepit . 704 Form of plea of non cepit . 705 Other pleas may be joined ■with ■lOQ Plea of cepit in alio loco . . 707 Won detinet similar to non cepit 708 Section. Illustrations of the use of this plea 709 The same. Observations . . 710 Disclaimer of interest in prop- erty no defense . . .711 Plea of justification; the bur- den is upon the party alleg- ing it 713 General rules governing plea of non detinet .... 713 If the defendant claims the property or damages, he must so allege it in his plea . . 714 § 700. Plea of non cepit or non detinet. By the common law, this action was for the purpose of recovering a distress, and the plaintiff always charges a wrongful taking and de- taining. The general issue in such case was, "non cepit."^ Strictly speaking, there is no general issue to the action as usually brought in modern practice; for the reason that the action in almost all cases involves title to the goods, or some- thing more than a simple taking and detaining.^ Won cepit, however, is unquestionably a good plea, and is the general issue when the charge is for a wrongful taking, only.* ]!fon detinet is the general issue to a charge of wrongful detention, ' Bac. Abr. title Replevin and Avowry ; Vin. Abr. s Dole i>. Kennedy, 38 111. 284 ; Amos v. Sinnott, 4 Scam. 445 ; Anderson V. Talcott, 1 Gilm. 871 ; Gibson v. Mozier, 9 Mo. 258. See Ashby «. West, 3 Porter, (Ind.) 170. ' In Massachusetts, special pleas in replevin were prohibited. All mat- ters of defense were permitted under plea of not guilty. Miller v. Sleeper, 4 Gush. 370. SPECIAL STAT0TOET EULES. 383 but the plea of non cepit is no reply to any other charge than that of taking, and Tion detinet is not a proper plea to any charge except for the detention of the goods. These pleas are of the same substantial nature as the plea of not guilty, in trespass. Statutory provisions exist in some of the States by which non cepit or non detinet puts in issue all material facts, not only the taking and detention, but the right of property.^ And these decisions will probably be followed in all States having similar statutes.^ § 701. Admissions in tlie pleadings not evidence as to m.at- ters previously put in issue. It is a general rule of pleading, which applies with peculiar force in replevin, where both parties are plaintiffs, that when any particular fact is affirmed upon one side and formally denied upon the other, that fact is in issue; no subsequent admission in the pleading can be used as evidence of the truth of it.* § 702. Issues admitted cannot be denied. It is also a rule that facts which are formally admitted in the pleading cannot be subsequently denied. The plaintiff having based his cause of action upon an alleged possession in the defendant, cannot afterwards deny such possession, and seek a recovery upon the ground that the defendant never had possession.'* § 703. Special statutory rules. There is a provision incor- porated into many of the codes, requiring a full statement of all the plaintiff's claim in the complaint, and compelling the defendant to specially deny such matters as he wishes to dis- pute upon the trial. A provision of the common law system has also been introduced, by which the defendant is regarded as admitting all such matters as he does not in his answer, 1 Plainfleld r>. Batchelder, 44 Vt. 9 ; Loop v. Williams, 47 Vt. 415 ; Wal- pole V. Smith, 4 Blackf. (Ind.) 304; Noble v. Epperly, 6 Ind. 415; Timp n. Dockham, 33 Wis. 151; Yates b. Fassett, 5 Denio, (N. T.) 36; Loomis v. Poster, 1 Mich. 165. See, also, Dillingham v. Smith, 30 Me. 370. 2 Campbell v. Quinlan, 3 Scam. 288. In this connection, consult Little «. Smith, 4 Scam. 400; Rigg v. Wilton, 13 111. 15 8 Harington v. Macmorris, 5 Taunt. 338 ; Edmonds v. Groves, 2 Mees. & W. 643; Pearn ■». Filica, 7 M. & G. 513. See Whitaker «. Freeman, 1 Dev. (N. C.) 371; Kirk v. Nowell, 1 Term R. 261. * Kingsbury s. Buchanan, 11 Iowa, 388. 384 PLEA OF HON CEPIT AND NON DETINET. deny. Where such provisions exist, the pleader must be careful to set out all such matters as he relies upon. § 704. Eflfect of a plea of non cepit. The plea of non cepit is a proper plea of general issue to a charge of wrongful taking. Its office is to deny the taking, i It does not assert title in the defendant; its legal effect is to admit title to the property to be in the plaintiff.* It admits every fact neces- gary to sustain the plaintiff's action, except the single one of taking. 3 Under this plea the defendant cannot prove prop- erty in himself;* nor in a stranger;^ nor give evidence of a justification;" nor ask a return of the goods;'' or, for dam- ages.* But while this plea admits the property to be in the ' Ely V. Ehle, 3 Comst. 510; Marshall «. Davis, 1 Wend. 115; Kogers v. Arnold, 12 Wend. 34; Seymour v. Billings, 12 Wend. 286; Trotter v. Tay- lor, 5 Blackf. 431; Carroll v. Harris, 19 Ark. 338; Wilson b. Royston, 2 Ark. 315 ; D'Wolf «. Harris, 4 Mason, (C. C.) 528 ; Hunt «. Chambers, 1 Zab. (31 N. J.) 624; Sanfd. Mf. Co. v. Wiggln, 14 N. H. 446; Anderson b. Taloott, 1 Gilin. 365; Whitwell «. Wells, 34 Pick. 38; Miller v. Sleeper, 4 Cush, 370; McFarland v. Barker, 1 Mass. 153. " Coit V. Waples, 1 Minn. 134; Ringo v. Field, 1 Eng. (6 Ark.) 43; Trotter «. Taylor, 5 Blackf. 431; Douglas v. Garrett, 5 Wis. 88; Hopkins ». Burney, 3 Fla. 46 ; Galusha «. Butterfield, 2 Scam. 227 ; Sanfd. Mf. Co. ■». Wiggin, 14 N. H. 446; Green v. Dingley, 24 Me. 137; Sawyer v. Huff, 25 Me. 465; Moulton B. Bird, 31 Me. 397 ; Van Namee v. Bradley, 69 111. 299 ; Johnson «. Woolyer, 1 Str. 507; Bemus v. Beckman, 3 Wend. 672; Bourk v. Riggs, 38 ni. 331; Vose v. Hart, 13 111. 378; Warner v. Matthews, 18 111. 83; Chandler v. Lincoln, 53 111. 74; Amos ®. Sinnott, 4 Scam. 445; Hanford ®. Obrecht, 49 111. 151 ; Mitchell v. Roberts, 50 N. H. 490. > Ely ®. Ehle, 8 Comst. (N. Y.) 510. * Smith «. Snyder, 15 Wend. 327 ; Miller v. Sleeper, 4 Cush. (Mass.) 870. ' Vickery v. Sherburne, 3D Me. 35. * McFarland v. Barker, 1 Mass. 158. 'Butcher ». Porter, 1 Salk. 94; Simpson «. McFarland, 18 Pick. 427; Holmes v. Wood, 6 Mass. 1 ; Bourk v. Riggs, 38 111. 331 ; Seymour v. Bil- lings, 12 Wend. 386 ; Vose v. Hart, 13 111. 378 ; Hopkins «. Burney, 2 Fla. 47; Moulton v. Bird, 31 Me. 297. * Douglass V. Garrett, 5 Wis. 88. Where the issue is upon the plea of non cepii alone, if found for the defendant, he is not entitled to a return. Underwood v. White, 45 111. 438. "If the defendant claim a return, he must add an avowry.'' Hopkins v. Burney, 2 Fla. 47. " It puts in issue nothing but the caption and the place, where, etc. Under this plea, the defendant cannot show property out of the plaintiff." Wilson v. Royston, 3 Ark. 315; D'Wolf «. Harris, 4 Mason, 528; Pangburn v. Patridge, 7 John. 143. OTHER PLEAS MAT BE JOINED WITH. 385 plaintiff, it denies his right to damages ;i and under this plea the defendant cannot ask damages. It would be absurd to renounce all claim to the property, and then claim damages.^ If the defendant desires to claim damages, he must add a plea setting up a right in himself. s Under this issue, the plaintiff must prove an unlawful taking substantially at the time and place laid in the declaration.* § 705. Form of plea of non eepit. The usual form of the plea of non cepit is, non cepit modo et forma. This puts in issue not only the taking, but the taking at the time and place mentioned in the declaration. If the defendant desires to present this issue, and to have a return of the goods, he should avow and justify the taking, or in some way set up a right to the goods and ask a return. § 706. Other pleas may be joined with. The defendant may join as many other pleas with non cepit as he deems proper. They are not required to be consistent with each other. Thus, he may plead non cepit, set up his right to distrain, claim ownership of the premises where the distress was made, or title in himself or in a stranger. ^ This rule, permitting the defendant to file several pleas was originally given by statute ' Hopkins v. Burney, 3 Fla. 45. ' Hopkins v. Burney, 2 Fla. 45 ; Douglass «. Garrett, 5 Wis. 88. ' Smith «. Snyder, 15 Wend. 324. " The plea only involves the taking and the place, not the title to the property." Seymour s. Billings, 13 Wend. 286. " This plea admits every fact necessary to maintain the action except the taking; that fact being proven, the plaintiff maintains the issue. If the defendant has any justification or excuse, he must plead it." Ely v. Elile, 3 Comst. 510; People v. Niagara C. P., 4 Wend. 217. Neither non cepit nor non detinet denies the property in the plaintiff. Chandler v. Lin- coln, 53 111. 76. * Simpson «. McFarland, 18 Pick. 429 ; Badger v. Phinny, 15 Mass. 859 ; Baker v. Fales, 16 Mass. 147; 'Marston ■». Baldwin, 17 Mass. 606. A wrong- ful possession is regarded as equivalent to a wrongful taking; so, also, is obtaining possession from one who had no authority. Gray v. Nations, 1 Ark. 566. And, see Sawyer ». Huff, 25 Me. 465 ; Marshall v. Davis, 1 Wend. 115, Barrett v. Warren, 3 Hill, 848. " McPherfeon «. Melhinch, 20 Wend. 671 ; Simpson v. McFarland, 18 Pick. 437; WhitwelU. Wells, 34 Pick. 39; Mt. Carbon, etc. •». Andrews, 58 111. 184; McFarland «. Barker, 1 Mass. 153; Shuter v. Page, 11 Johns. 196; Paul e. Luttrell, 1 Col. 319. 25 386 PLEA OF NON CEPIT AND HON DETINET. 4 Anne, 0. 16, A. D. 1706, and has been the constant practice since that time. The approved doctrine is, that an admission of a state of facts in one plea cannot be taken as evidence of the existence or non-existence of those facts, if denied in any other. ^ § 707. Plea of cepit in alio loco. The plea of cepit in alio loco, (took, but in another place,) is proper in justification for a distress for damage feasant, or for rent, but is not applicable to other cases.^ If the defendant ever had the cattle at the place named in the declaration, even if only in leading them to the pound, he should avow accordingly. ^ It must be fol- lowed by an avowry or cognizance, or by some justification of the taking, or it is no defense, as the plea admits the taking, and must justify, or admit that it was wrongful.* § 708. Non detinet similar to non cepit. The plea of nan detinet is exceedingly like non cepit. It is governed by the same general rules and principles, and puts in issue simply the charge of wrongful detention.^ It has been said, with much force, that non detinet is a proper plea to a charge of wrongful taking; that the plaintifi^ mnst establish a detention, even when his charge was for taking; that the detention is a material fact to be shown, and that this plea is proper.* § 709. The same. Illustrations. In Indiana, where the complaint alleged that the plaintiff was the owner, and enti- tled to the possession of the property " which the defendant has possession of without right, and unlawfully detained from the plaintiff," the defendant replied, denying the unlawful de- tention. The denial of the detention was held to tender a proper issue.' In Illinois this same point was decided the other way. The declaration contained but one count; that was for the ' Edmonds v. Groves, 3 Mees. & W. 643 ; Harington ». Macmorris, 5 Taunt. 333. « Lougee o. Colton, 9 Dana, (Ky.) 133. » Ch. Plea, Vol. 1, p. 499; Snow v. Como, Str. Rep. 507; Sawyer s. Huff, 35 Me. 465 ; Amos v. Sinnott, 4 Scam. 445. <■ Gilbert on Rep. p. 139. ' Chandler v. Lincoln, 53 III. 74; Simmons v. Jenkins, 76 111. 497; Fer- rell v. Humphrey, 13 Ohio, 113 ; Oaks v. Wyatt, 10 Ohio, 841. « Paul «. Luttrell, 1 Col. 317. ' Riddle «. Parke, 13 Ind. 89. DISCLAIMEK OF INTEREST NO DEFENSE. 387 wrongful taking and detention. The defendant pleaded non detinet and other pleas. The court said, the wrongful taking alleged in the declaration was traversable, and the defendant admitted it by denying the wrongful detention only. ' §710. The same. Observations. The statutes under which these cases arose are in substance the same, but the conflict is not so serious as may at first appear, ^n the Illinois case the court followed the apprbved doctrine that the averment of tak- ing was not answered by the plea of non detinet, and was therefore admitted. It does not follow, however, from any- thing appearing in that case, that the defendant would not have been permitted, under the plea of non detinet, to have shown that he had returned the goods before suit brought, had he chosen to take upon himself the burden of such proof. The Colorado case holds, in substance, that the burden of proof of the detention would have been upon the plaintiff. ^ The declaration, in that ease, charged simply the taking, and not the detention. The conclusions drawn from these cases may not be warranted, but no other mode is perceived of harmoniz- ing the seeming differences they present. § 711. Diselaim.er of interest in property no defense. The defendant cannot avoid an action of replevin by a disclaimer of any interest in the property. This is no answer to the declaration, and is no reason for dismissing the suit. He may be guilty of a wrongful taking, or wrongfully detaining, not- withstanding his disclaimer. Such an instrument was properly stricken from the files. ^ § 712. Plea of justification ; the burden is upon the party- alleging it. Where the defendant justifies the taking under process, filing no other plea, the burden is upon him to sustain his plea.* ' Simmons v. Jenkins, 76 111. 480. ' Where the declaratian was for the wrongful taking and detention, there was no plea of non cepit, but pleas of property in a third person, upon which issue was taken. The pleading was considered as admitting the taking and detention. The burden of proof was then upon the defendant to estab- lish the truth of his pleas. Kern v. Potter, 71 111. 19. * Smith ■». Emerson, 16 Ind. 355. * Hobbs ®. Myres, 1 B. Mon. (Ky.) 341. 388 PLEA OF NON CEPIT AND HON DETINET. § 713. General rules governing plea of non detinet. The rules governing pleas of Twn detinet are similar in principle to those applicable to pleas of non oepit. Under the issue formed by this plea, the plaintiff must prove his right to im- mediate and exclusive possession of the goods and the wrongful detention by the defendant. ^ "While the defendant may show that he had returned the goods' before suit, or that he never had them, he cannot, under this plea alone, if successful, have a return of the goods. ^ N-on detinet admi ts the right of property to be in the plaintiff.^ Under it the plaintiff must prove a wrongful detention by defendant, and his right to immediate possession.^ The plea of non detinet, by statute, in soineof the States, puts in issue the property in the plaintiff, as well as the wrongful detention, and under such plea the defendant is presumed to assert all the rights which the statute confers upon such plea. 5 A return may therefore be awarded under such a statute upon a plea of non detinet.^ In "Wisconsin, under this plea, defendant may prove his right to the possession or his title to the property.'' § 714. Writ not dismissed for neglect of officer, "Within certain limitations, failure of an officer to do his duty will not defeat the rights of a party not in fault. The wrongful levy by an officer, as we have seen, does not deprive the owner of his goods. 8 "When the writ is technically defective by mistake of the clerk, a return is not usually ordered, but the plaintiff may retain possession,* though this would not settle the ques- tion of title. So, where the sheriff was by law required to have the goods appraised, and allowed the defendant to give ' Amos V. Sinnott, 4 Scam. 445 ; Rogers «. Arnold, 13 Wend. 30. 2 Johnson v. Howe, 2 Gilm. 345. 8 Ingalls V. Bulkley, 15 111. 225. Contra, by statute, in some States, Wal- pole ». Smith, 4 Blackf. 304; Kennedy v. Shaw, 38 Ind. 474; Timp v. Dock- ham, 32 Wis. 151; Yates v. Fassett, 5 Denio, 36. * Amos V. Sinnott, 4 Scam. 445. It admits the property to be in plaintiff, and defendant cannot claim return. Wells s. McClenning, 23 III. 410. s Walpole V. Smith, 4 Blackf. 304; Yates v. Fassett, 5 Denio, 26. 6 McKnight v. Dunlop, 4 Barb. 36. See Loop ®. Williams, 47 Vt. 415. ' Dimond v. Downing, 3 Wis. 498; Emmons «. Dowe, 2 Wis. 333. 8 See, ante, § 260, et seq. » See, ante, § 501. WKIT-NOT DISMISSED FOE NEGLECT OF OFFICEE. 389 bond and have a return of them if he wished, and the officer did not have the goods appraised, and no opportunity was given to the defendant to give the statutory bond and have return, this does not authorize a dismissal of the writ. The officer may be liable in such case, but the plaintiif should not be made to suffer. ^ So, when an officer makes an unauthor- ized levy and sale of goodo, the owner does not lose his goods, but may replevy them from the purchaser.^ ' Parlin v. Austin, 3 Col. 337. ' Samuel v. Agnew, 80 111. 554; Combs «. Gorden, 59 Me. Ill; Pierce v. Benjamine, 14 Pick. 356. 390 EEPLEVIN OF A DISIKESS. CHAPTEE XXIII. REPLEVIN OF A DISTRESS. Section. The right of distress . . . 715 Origin of the right . . . 716 The right to replevy the dis- tress 717 Right of distress in this coun- try 718 Distress not a suit at law . . 719 Replevin of a distress . . 720 Rights of the landlord . - 721 Sublessor's liability . . - 722 Payment to landlord ; who is a joint tenant .... 733 Rights of the tenant . . . 724 The avowry and cognizance . 725 Distinction between an avowry and cognizance . . . 726 The exactness required in these pleas 727 Section. The same. Substance of these pleas 728 The rent, how payable ; must be certain 729 The terms of the lease . . 730 The usual plea to replevin of a distress 731 Form of avowry or cognizance 732 Plea to an avowry or cognizance 733 Plea of set off to an avowry . 734 Plea to an avowry ; averments in 735 Plea to cognizance; denying authority of bailiff . . 736 Plea of "non-tenure " or "noth- ing in arrear ". . . . 787 Same rules apply to cognizance 738 Effect of replevin on landlord's lien 739 § 715. The right of distress. Keplevin is the ancieat remedy for the recovery of goods wi'ongfuUy seized by way of distress. It does not fall within the scope of this work to discuss at length the law of distress or the rights of the land- lord and tenant. Such a discussion more properly belongs to a treatise upon that subject. Mere mention of the law of distress as showing the foundation upon which to base the replevin, must suffice. § 716. Origin of the right. The power of distress was given to the lord in lieu of a forfeiture of the land. This was done for the purpose of compelling the tenant to pay the rent or perform the services due. Lands, originally, were occupied by bondsmen, who were themselves the property of the lord, EIGHT OF DISTRESS IN THIS COUNTRY. 391 and not capable of owning real estate. As these serfs became enfranchised, the right to the use of the soil became the right of the tenant, but the rents were the property of the landlord, and he continued to collect them by his own authority, for in theory of the law in olden time no man needed the aid of a judge to take what was his own.^ In process of time the goods came to be regarded as the property of the tenant. The landlord, however, had the right to seize and hold them as a pledge or security to compel the tenant to perform the services or pay the rent. By common law the landlord had no right to sell the distress; he could only hold it as a pledge or security. The statute, 2 W. & M. C. 5, gave the lord author- ity, under certain conditions, to sell the distress. This remedy was very mild compared with the severity of the older law, which allowed a forfeiture by which the lord would seize the land and turn the tenant out, thus stripping him of the entire fruits of his labor.^ This power of distress extended not only to the crops, but everything on the land was equally liable. This right became an instrument of great oppression and many statutes were enacted to remedy the evils, until at length the tenant was permitted to show that the taking was wrongful and to give bonds to make that appear, upon which he was allowed to have his goods restored to him ; that is, he was permitted to take back the pledge. This was replegari or replevin. Eeplevin would originally lie in no other case than to recover a distress wrongfully taken.* § 717. The right to replevy the distress. When the dis- tress was for any cause wrongful, the action of replevin was given to the tenant, to enable him to recover it. § 718. Right of distress in this country. The law of dis- tress has been very generally adopted in this country.* It never existed in North Carolina. ^ In Georgia it can only issue upon the oath of the landlord ; the oath of an agent is ' Taylor on Landlord and Tenant, § 557, and the cases cited. ' Bradby on Distresses, 6. ' See, ante, § 41, et seq. The reason for this is found in the fact that originally the rent was the property of the lord. His rights were supe- rior to the tenant's in all the property until his rent was paid in full. The distress was a taking by the lord or by his authority; and this idea so far continues to invest this pro- ceeding, that the courts only interfere to ascertain that the relation of landlord and tenant actually exists, and the amount of rent due. § 720. Eeplevin of a distress. Eeplevin was a suit at law, ' Howard v. Dill, 7 Ga. 52. Oontra, in Kentucky, Mitchill v. Franklin, 3 J. J. Marsh. 477. 2 Guild «. Kogers, 8 Barb. 503. " Crocker v. Mann, 3 Mo. 472. * Powers V. Florance, 7 La. Ann. 534; Gray v. Rawson, 11 111. 537; Owen V. Boyle, 33 Me. 47; Hall v. Amos, 5 T. B. Mon. (Ky.) 89. See Allen v. Agnew, 4 Zab. (N. J.) 443; Briggs v. Large, 80 Pa. St. 387; Riddle v. Wel- don, 5 Whart. 9. But, contra, see and compare Coburn v. Harvey, 18 Wis. 147; Laws of "Wis., 1866; Trieber ». Knabe, 13 Md. 149. >■ Bull N. P. 181 ; Sketoe v. Ellis, 14 III. 75. « Towns V. Boarman, 33 Miss. 186; Richardson v. Vice, i Blackf. 13; Ferguson v. Moore, 3 Wash. (Va.) 54. ' Sketoe v. Ellis, 14 111. 75. EIGHTS OF THE LANDLOED. 393 to test the right of distress. If the tenant had offered se- curity/ or if, for any cause, the distress was wrongful, the tenant might, upon this writ, have his goods restored to him, upon giving bond to show the taking was illegal. » The plain- tiff was under no obligation to bring the rent tendered into court, as the question was not upon the tender, but whether the defendant was a trespasser. Bringing the money into court would have no bearing upon the question as to whether the defendant acted rightfully in making the distress, or was a trespasser, s Proof of the tender was sufficient. A tender of rent before distress makes the taking unlawful.* A tender after distress, and before impounding, makes the subsequent detention unlawful.^ In either of these cases, the tenant may sustain replevin for the goods distrained. So, where there was no rent due, or when the distress was for services which the tenant was not bound to render, or when the distress was of beasts of the plow, when other goods could be found, and in some other cases, the distress was wrongful ;8 or, in modern times, where the distress is of goods by law exempt from seiz- ure, in all these cases the tenant may sustain replevin. § 721. Bights of the landlord. Where any part of the rent is due and unpaid, the landlord has a right to distrain.' The fact that the distress was excessive or oppressive will not de- feat his action, nor authorize the tenant to recover in replevin; though, for a grossly excessive distress, trespass might lie.s Where the property distrained is exempt by statute, the ten- ant may replevy; but he must make that the ground of his suit; and where the distress is for more rent than is due the ' Hilson ®. Blain, 3 Bailey, (S. 0.) 168; Ante, § 5, et seq. ^ Kimball «. Adams, 3 N. H. 183 ; Gilbert ou Replevin. ' Hunter v. La Conte, 6 Cow. 730; Home v. Lewin, 1 Ld. Raym. 639; S. C, 3 Salk. 583. * Gilbert on Replevin, 61. ' Firth B, Purvis, 5 T. Rep. 337 and 433; Six Carpenters' Case, 8 Coke R. 146; 8. C, 1 Smith's Ld. Cases, 63; Browne v. Powell, 4 Bing. 330; Hunter 0. La Conte, 6 Cow. (N. T.) 738. ' Bradby on Distress, 359. ' Hare v. Stegall, 60 111. 380 ; Lindley v. Miller, 67 111. 348 ; Smith v. Fyler, 2 Hill. (N. T.) 648; Bates v. Nellis, 5 Hill, (N. T.) 651. » lb. See Smith a. Colson, 10 Johns. 91 ; Bowser «. Scott, 8 Blackf. 86. 394 EEPLEVIN OF A DISTBESS. landlord, or the officer who executes the warrant, he is liable to the tenant in an action.^ The taking of other security does not defeat the landlord's right of distress.^ N'or is a previous demand for the rent usually necessary. ^ § 722. Sub-lessor's liability. Where a sub-lessor has his goods distrained by the landlord of his landlord, he cannot sustain replevin by proving payment to the party from whom he leased.* This rule, however, is not universal in its appli- cation. Any one of several joint tenants may distrain for the whole rent, or appoint a bailiff for the others; but the avowry in such case must lie for all.^ § 723. Paym.ent to landlord who is a joint tenant. Where the tenant leases from tenants in common, payment of rent to one is not necessarily a discharge of the rent; the others may distrain for their share. ^ § 724. Eights of the tenant. The landlord cannot distrain twice for the same rent, where the first distress was upon goods sufficient to pay the rent, even when the first distress was vol- entarily abandoned;'' nor where he might have taken sufficient at first. 8 The law will not suffer the tenant to be needlessly vexed. The landlord cannot distrain fixtures of the tenant,* or chattels in the actual use of the tenant or other person, or goods delivered to the tenant to be worked up in his trade for another;!" nor goods which are by law exempt; nor articles worn upon the person of the defendant ;! i nor can a distress be permitted to take chattels after they have been actually levied 1 McElroy v. Dice, 17 Pa. St. 163. = Bates V. Nellis, 5 Hill, (N. Y.) 651. 8 Mallam v. Arden, 10 Blng. 299 ; Giles i>. Elsworth, 10 Md. 333. * Quinn v. Wallace, 6 Whart. (Pa.) 453. » Taylor, L. & T. 419. See Robinson v. Hofman, 4 Bing. 563. « Decker v. Livingston, 15 Johns. 479. See Robinson v. Hofman, 4 Bing. 563. ' Dawson v. Cropp, 1 Man. G. & S. 963. See Ridge v. Wilson, 1 Blackf. (Ind.) 409. « Wallls V. Savill, 3 Lutw. 498. « Gorton «. Palkner, 4 Durnf. & E. 567. '« Gisbourne v. Hurst, 1 Salk. 249 ; Thompson v. Mashiter, 1 Bing. 283 ; Gibson «. Ireson, 43 E. 0. L. 631. " Maxham v. Day, 16 Gray, (Mass.) 313. DISTINCTION BETWEEN AN AVOWRY AND COGNIZANCE. 395 on and taken by an oiBeer with valid execution against the tenant. But the right of distress is not lost by a receipt in fall for all rent due, when the only payment for which the receipt was given was an order on a third person, who had no funds of the person ordering, i Neither can distress be made on the day the rent falls due; the tenant has the whole of that day in which to pay.* § 725. The avowry and eognizanoe. Where the distress is for any cause wrongful, the tenant may replevy the goods. If the landlord wishes to contest the replevin and to secure a return of the goods, he must avow; or if the distress was made by a baililf, he must make cognizance, and so set up the justness of the taking. These were originally tlie most important, and, in fact, almost the only pleadings of the defendant in replevin. They are still common in cases of replevin of a distress. ^ But the comparative infrequency of such cases has reduced the use, as well as the importance of these pleas. There seems to be a distinction between an avowry by joint tenants and tenants in common. Joint tenants must join in an avowry; tenants in common must sever. Each should avow for his share.* If one tenant in common should release, it is no discharge as to the others. ^ § 726. Distinction between an avowry and cognizance. An avowry was where the defendant admitted the taking and justi- fied under some right of distress, as for rent due, and demanded a return of the goods. When the defendant sets up a taking by distress in his own right it is called an avowry. When he justifies under the right of another, by whose authority he acted, it is called cognizance; the former is called an avowant; the latter a cognizor. The difference between them is formal only. When by mistake a party avowed when he should have I Printems v. Helfried, 1 Nott & McC. (S. C.) 187. » Gano V. Hart, Hardin, (Ky.) 397 ; Johnson v. Owens, 3 Cranch. C. C. 160. 8 Howard v. Black, 49 Vt. 10; Lindley v. Miller, 67 111. 244; Simpson v. McFarland, 18 Pick. 430; Quincy«. Hall, 1 Pick. 361. *Stedman v. Bates, 1 Ld. Raym. 64; Harrison v. Barnby, 5 Term, 246; Cully V. Spearman, 2 H. Bla. 386. ' Decker s. Livingston, 15 Johns. 480. EEPLEVIN OF A DISTRESS. made cognizance, the niistake was immaterial and amendable without delay. 1 § 727. The exactness required in these pleas. By an avowry or by making cognizance the defendant becomes a plaintiff, that is, he sues for the right to distrain; his pleading is in the nature of a declaration; and, therefore, as much strictness is required in such pleading as in a declaration; it must be good in every-particular.^ The right to distrain was an extra- ordinary power; the authority upon which it was made was required to be specifically shown in the pleading which at- tempted to justify it,3 and required to be sustained by proof.* An avowry or cognizance must admit the taking in express terms, though if it contain an implied admission it will be good after verdict without an admission in terms.* §728. The same. Substance of these pleas. By this plead- ing the avowant must state sufficient to make good his right of seizure against the plaintiff who is admitted to be the real owner of the goods. The avowant asserts and defends upon his right to seize the goods, and states the grounds of the right in his avowry.^ Formerly the avowry was required to show that the avowant, or some one from whom he inherited the estate out of which the rent of the land arose was seized, and also to show the lease under which the plaintiff in replevin held from the avowant, as well as rent due and in arrear. But after alienations became frequent, and of small parcels of land, the fines to the lord therefor were not always paid; conse- quently the lord did not always know who his tenants were. By Statute 21 Henry VIII., Ch. 19, § 3, the lord was per- mitted to avow for a distress taken within his fee, and by 11 ' Brown «. Bissett, 1 Zab. (31 N. J.) 46 ; Wheadon v. Sugg, Cro. Jac. 373. 2 Pike V. Gandell, 9 Wend. 149; Wright v. Williams, 2 Wend. 683; Yates c. Fassett, 5 Denio, 31 ; Crosse v. Bilson, 6 Mod. 103 ; Coan «. Bowles, 1 Show. 165. 3 Goodman v. Aylin, Telv. 148; Hawkins «. Eckles, 3 Bos. & Pul, 359; Weeks v. Peach, 1 Balk. 179 ; Same i>. Same, 1 Ld. Raym. 679 ; Gilbert on Rep. 133, 144; McPherson v. Melhinch, 30 Wend. 671. « Lavigne v. Russ, 36 Miss. 336 ; Waltman v. Allison, 10 Pa. St. 465. 5 Gaines v. Tibbs, 6 Dana, (Ky.) 144. « Hellings v. Wright, 14 Pa. St. 375; Simcoke o. Frederick, 1 Ind, 54; Tru- lock V. Rigsby, Yelv. 185 ; Godfrey ». BuUin, Yelv. 180. TEEMS OF THE LEASE. 397 George II., CL 19, § 22, to avow generally, without setting up his title; still he was required to aver title and seizure.^ It was still necessary, also, to set out the lease, and to state amount of rent reserved and when payable, ^ and to show that the landlord was seized of the premises, and that the relation of landlord and tenant existed ;S so an avowry by three and proof of a demise by one of them, is not sufficient.* § 729. The rent ; how payable ; must be certain. The rent was not necessarily payable in money, ^ but might be payable in services,* or anything susceptible of valuation'' which was certain, or which might be reduced to a certainty ;8 but unless there was a certain rent there was no right to distrain. » The time for payment must also be fixed, unless the rent was fixed and in amount, and unless the time for payment was certain the tenant couid never know how much or when to pay, and so could not be in default, i" § 730. The terms of the lease. An avowry for rent should state the terms of the lease as they will appear in proof, ii the amount of rent, and when it was due.^^ It must set out the holding from the plaintiff; it need not state the plaintiff's title,' ^ but it must show that there was a tenancy and the avow- ' Harrison v. M'lntosh, 1 Johns. 384; Franciscus v. Reigart, 4 Watts, 117; Taylor v. Moore, 3 Har. (Del.) 6. ' Forty V. Imber, 6 East. 434 ; Caldwell v. Cleadon, 3 Har. (Del.) 430 ; Scott i>. Puller, 3 Pa. 55; Gilbert on Bep., 183, et seq.; Helser v. Pott, 3 Barr. (Pa.) 179; Valentine «. Jackson, 9 Wend. 303; Steele «. Thompson, 3 Penn. 34; Philpott V. Dobbinson, 6 Bing. 104. 1 Bain c. Clark, 10 Johns. 434. * Swing V. Vanarsdale, 1 S. & R. (Pa.) 370. » Myers o. Mayfleld, 7 Bush, (Ky.) 312. « Valentine*. Jackson, 9 Wend. 303; Smith, v. Colson, 10 John. 91. ' Fraser «. Davie, 5 Rich. (S. C ) Law, 59. ' Valentine ■». Jackson, 9 Wend. 303. 9 Griers. Cowan, Addis, (Pa.) 347; Myers a. Mayfleld, 7 Bush. (Ky.) 313; Smith V. Pyler, 3 Hill, 648. '» Wells V. Hornish, 3 Pen. & W. (Pa.) 30. " Phipps V. Boyd. 54 Pa. St. 343; Taylor v. Moore, 3 Har. (Del.) 6; Tice «. Norton, 4 Wend. 667. " Wells V. Hornish, 3 Pen. & W. (Pa.) 30. " Decker v. Livingston, 15 Johns. 479 ; Wright v. Mathews, 3 Blackf. 187. 398 EEPLEVIN OF A DISTRESS ant was the landlord.' It must also show the amount of rent and that it is due and in arrear.^ It need not state the exact amount due, as that is not necessary to a certain and definite description of the contract,* the object of this certainty being to state the contract with certainty, so that it may be intro- duced in proof. § 731. The usual plea to replevin of a distress. In cases where the replevin is for a distress for rent, avowry seems to be the proper and regular mode of pleading* at the present time; and the rules substantially as before stated apply. It has been said that the avowry should state that the goods seized were those of the plaintiif, but in point of fact this is immaterial and need not be proved, as the landlord has the right in many cases to distrain goods of persons other than the tenant, provided they are found upon the premises. ^ It is, however, necessary to allege that the goods were seized upon the premises, or within the limits where distress is per- mitted, and that they are liable to distress. « Joint tenants must join in an avowry,'' but tenants in common must avow severally.* § 732. Term of avowry or cognizance. An avowry or cognizance need not show that the distress was made by an ' Nicholas v. Dusenbury, 3 Comst. 287. s Smith V. Aurand, 10 S. & R. 93; Wright v. Williams, 5 Cow. 345; Lan- der V. Ware, 1 Strobh. (S. 0.) 15. ' Barr v. Hughes, 44. Pa. St. 517. ♦ Williams v. Smith, 10 S. & R. (Pa.) 303; Weidel v. Roseberry, 13 S. & R. 178; Hill v. Stocking, 6 Hill, 377; Lindley v. Miller, 67 111. 344. The defendant sought to justify his taking a distress for rent; instead of the usual form of avowry he has adopted the form of a plea in bar, and seeks by this departure from the precedents to deprive the plaintiff'of more than one answer to each justification. The experiment cannot succceed. Mc- Pherson v. Melhinch, 30 Wend. 671. ' Muaprat «. Gregory, 3 Mees. & W. 677 ; Spencer v. M'Gowen, 13 Wend. 356 ; Blanche «. Bradford, 88 Pa. St. 344. This was the common law, but it has been thought necessary to repeal or modify it in most of the States of the Union. 6 Asbell ». Tipton, 1 B. Mon. (Ky.) 300. ' Stedman v. Bates, 1 Ld. Raym. 64. * Bradby on Distress, 63 ; Harrison v. Barnby, 5 Term R. 346. See Jonea V. Gundrim, 3 W. & S. (Pa.) 531. PLEAS TO AN AVOWEY. 399 oflBcer, or that any affidavit was attached to the warrant of distress; even when such affidavit is required by statute, it does not form any part of the pleadings. ^ § 733. Pleas to an avowry or cognizance. An avowry or cognizance partakes of the nature of a declaration, as well as' a plea. So far as it is an answer to the plaintiff's claim it is a plea; so far as it demands a return it is in the nature of a declaration: the plaintiff may plead as many separate defenses to it as he deems proper,* and to an avowry he may plead an abuse of the defendant's proceedings, or that they have been irregular.* Plea to an avowry is governed by the rules appli- cable to other pleas to declaration; it must answer all it professes to; each plea should only answer one avowry.* The pleas may deny the tenancy set up in the avowry, or may show that the rent is not due; or that the goods are privileged, or exempt from distress ; or that the goods are the property of a stranger. § 734. Plea of set-ofiE" to an avowry. The plaintiff in re- plevin cannot off-set accounts against the distrainor unless it be such matters as grow out of the contract of leasing. ^ The action is in form an action ex-delicto, and seeks damages for the unlawful taking of personal property, and it is no justifi- cation for such taking that the defendant is indebted to the plaintiff. The landlord's indebtedness to the tenant would not take away his right to distrain for rent. But this will not prevent the tenant from showing anything which goes to prove that the rent was not due. So, when the landlord leased a tavern and wagon yard, and agreed to put cinders on the yard, and did not do so, it was held the rent was conditioned in part upon the agreement to put the premises in better order, and the damage was allowed to reduce the rent.* But ' Webber v. Shearman, 6 Hill. 33. ' Webber ». Shearman, 6 Hill. (N. T.) 31 ; McPherson o. Melhincli, 20 Wend. 671. s Osgood «. Green, 10 Fost. (IST. H.) 210. " Nichols n. Dusenbury, 3 Comst. 387 ; Roberts v. Tennell, 4 Litt. (Ky.) 286. ' Beyer o. Fenstermacher, 3 Wharfc. (Pa.) 95. « Fairman v. Fluck, 5 Watts, (Pa.) 516. 400 EEPLEVm OF A DISTRESS. he may claim damages against the landlord on account of a breach of the contract of leasing, i or payment or part pay- ment of the rent;2 or may offset any demand against the landlord arising out of the contract of leasing, and properly the subject of I'ecoupment;^ or may plead and show nothing in arrears. But he cannot set off another claim against the landlord ; the only questions to be decided in this action relate to tenancy and the rent due.* § 735. Pleas to an avowry; averments in. Plea to an avowry need not allege any place of taking, when the avowry justifies the taking at the place alleged in the declaration. ^ Plea that the defendant drove the cattle three miles to a public pound, but does not allege a nearer place, is bad.' So a plea to an avowry must show that nothing is in arrear for rent, or it will be defective. When the plea claimed that the land- lord had neglected to keep his covenants for repairs, and that the damages resulting therefrom more than equaled the rent, the plea should have so stated; a mere claim of damages, though in several sums, will not be sufficient unless it be followed by an averment that the sums so due equal or exceed the rent claimed; otherwise it will not appear affirmatively but some rent is due.' Defendant avowed and justified the de- tention under his right of lien as the manufacturer; it was not denied but this was well avowed, but the plea to the avowry set up new matter that the work was done under a contract which precluded a lien; held, proper.* Such plea, however, must set up the agreement with certainty. § 736. Plea to cognizance, denying authority of bailiflF. Where the defendant made cognizance as bailiff to J., the plaintiff pleaded that he was not Bailiff J. The plea was held ' Lindley ». Miller, 67 111. 344. ' Sapsford ». Fletclier, 4 Term. R. 512; Wolgamot s. Bruner, 4 Har. & McH. (Md.) 70 and 89. 8 Streeter o. Streeter, 43 111. 155. < Anderson B. Reynolds, 14 S. & R. 439. « Judd «. Fox, 9 Cow. 263. ' Adams t. Adams, 13 Pick. 885. ' Lindley ». Miller, 67 111. 248. • Curtis J). Jones, 3 Denio, 590. EFFECT OF REPLEVIN ON LANDLOED's LIEN. 401 good ; for though it may be that J. had a right to distrain, yet a stranger without his authority could not.i § 737. Plea of " non-tenure," or " nothing in arrear." To an avowry for rent, the defendant (the plaintiff in replevin,) may plead non tenure, or nothing in arrear. The former of these pleas denies the tenancy; the latter admits the tenancy, but denies that rent is due.^ § 738. Same rules apply to cognizance. Substantially the same rules apply to making cognizance as to an avowry, ex- cept in the latter case the cognizor sets up the title of the landlord and claims to act as his bailiff, and not in his own right.* § 739. Efifect of replevin on landlord's lien. "We have seen that by distraining the landlord acquires a lien to satisfy the amount of rent due. By replevin the lien of the landlord so acquired is gone; i. e., the tenant, by replevying, retakes his former title, and the landlord must look to the security upon the bond.* The landlord may, however, have judgment for a return of the goods, and under a writ of return he may regain possession ; in such case he may sell them to satisfy his lien. As against the plaintiff his lien or right to return may be good, but not as against strangers acquiring title in good faith. 5 1 Trevilian v. Pyne, 1 Salk. 107. 2 Bloomer v. Juhel, 8 Wend. 448. s Webber v. Shearman, 6 Hill, (N. T.) 31 ; Ch. PL ; Steph. PI. 333, 376. ■• Speer v. Skinner, 35 111. 303; Bruner «. Dyball, 43 111. 37; Burkle v. Luce, 6 Hill, 559 ; Woglam v. Cowperthwaite, 3 Dall. 68, 131 ; ^cker v. White, 25 Wend. 614. ' Biirkle v. Luce, 6 Hill, 558; Acker v. White, 25 Wend. 614. 26 402 VEEDIOT AND JUDGMENT. OHAPTEE XXIV. THE VERDICT AND JUDGMENT. Section. The verdict . . . .740 Court may correct tlie form, but cannot change the substance . 741 The same 743 The jury must pass upon all questions at issue . . . 743 May find for both parties . - 744 Each party may submit issues to the jury .... 745 " Not guilty," what responsive to 746 Statutory exceptions . . - 747 In justice courts . . . 748 Illustrations of the exactness required in the verdict . . 749 The same 750 Finding need not be in express words 751 The same. Illustrations . . 753 The verdict may be general if it cover all the issues . . 753 The same. Illustrations . . 754 Verdict should not merge dif- ferent issues .... 755 Separate defendants may have separate verdicts . . . 756 Verdict must be certain . . 757 The same. Illustrations . . 758 Must be consistent . . . 759 Value of property; when must be found 760 Value of separate articles . 761 Conditional verdict . . . 763 Value where the party's interest is limited . . . .763 Verdict for damages; when es- sential 764 The same 765 Section. The judgment . . . .766 Should embrace all parties and all issues 767 The same 768 Must be certain .... 769 Judgment upon default . . 770 When property has been deliv- ered plaintiff cannot have value 771 Judgment for value or delivery 773 Judgment in the alternative for the goods or for their value . 773 Exceptions to this rule . . 774 Judgment for each party, for difi'erent parts of the goods . 775 Separate judgment as to sepa- rate defendents . . . 776 Order for delivery part of the judgment . . . .777 Defendant entitled to reasona- ble time to comply with the judgment for return . . 778 Effect of payment of judgment for value ...".. 779 The same 780 Judgment of non-suit does not affect title . . . ' . 781 Judgment of dismissal . . 783 Illustrations of the effect of judgment . . . .783 Judgment for value of limited interest 784 Judgment for value on count in trover . ... 785 When property is lost, judg- , ment for return immaterial . 786 Judgment for value in such cases 787 COUET MAT COEEEOT THE FOEM. 403 § 740. The verdict. There is probably no form of action where more exactness is required in the verdict than in replevin. In other actions the issues are usually few and simple, while in replevin they may be numerous and some- times complex. The verdict, therefore, requires the most careful attention. § 741. Court may correct the form, taut cannot change the substance. The court is authorized, and will, in all cases, when it is necessary, correct mere formal mistakes in the ver- dict, so as to make it correspond with the true finding of the jury and the form required by law;^ but cannot correct a verdict so as to change in any way the intention of the jury. Each party has a right to the verdict of the jury upon the, issues presented, and if it is not relevant to the issues or erroneous, the court may set it aside, but cannot change it.^ Thus the court would have no right to add nominal damages, ^ or a statement of the value of the property, after the verdict was rendered.* So, where the verdict is for the plaintiff with- out finding the sum due, judgment for the sum demanded is error 6 § 742. The game. It is in the power of the court, after the verdict has been presented, and before the jury is dis- charged, to direct them to put it into form, or the court may instruct them to render a more specific verdict, or to pass upon issues duly presented which they have failed to pass upon. Such course is proper, and in many cases necessary. « § 743. The jury must pass upon all questions at issue. The jury are not required to pass upon any questions which are 'Donaldson v. Johnson, 3 Chand. (Wis.) 160; O'Brien v. Palmer, 49 111. 73; Osgood V. McConnell, 32 111. 75; Patterson «. United States, 3 Wheat. 231; Thompson v. Button, 14 John's R. 86; O'Keefe v. Kellogg, 15 111. 351. ^ Colt ■». Waples, 1 Minn. 134; Frazier v. Laughlin, 1 Gilm. 347 ; Moore v. Devol, 14 Iowa, 113; Hinckley v. West, 4 Gilm. 136; Wallace v. Hilliard, 7 Wis. 637 ; Ford v. Ford, 3 Wis. 399 ; Dunbar «. Bittle, 7 Wis. 144. ' Bemus i). Beekman, 3 Wend. 671. Wallace v. Hilliard, 7 Wis. 627; Taylor «. Hathaway, 29 Ark. 597; Eaton D. Caldwell, 3 Minn. 134. -' Taylor v. Hathaway, 39 Ark. 597. Compare Burhans «. Tibbitts, 7 How. Pr. Rep. 31, 74. 8 Hunt «. Bennett, 4 G. Greene, (Iowa,) 515. 404 VEEDIOT AND JUDGMENT. not in issue, nor which are admitted by the pleading ; but simpiy upon those which are submitted for their determination. ' § 744. May find for both parties. "Where the plaintiff 's claim is for several articles, it may be, and usually is, divisible. The defendant may set up as many separate defenses, material to the issues, as he judges proper, and the verdict may be in favor of the plaintiff for a portion of the property and for the defendant for the remainder,^ as the facts and the rights of the several parties require.^ § 745. Each party may submit issues to the jury. The verdict must be responsive to all the issues presented by the pleadings. Each party has a right to submit such material issues by proper pleading as he shall think necessary for the protection of his interests, and has the right to have the jury pass upon them. A failure of the jury to do so will justify the court in setting aside the verdict and granting a new trial. When the plea was non cepit and the verdict was " guilty of unjust detention," it did not dispose of the issue tendered in the plea.'* "When a plea of general issue and plea of property are interposed, a simple finding of " not guilty " is not respon- sive to the issue. In such cases a venire de novo will be ordered. 5 The proper practice in case the verdict omits to ' Patterson ». United States, 3 Wheat. 221 ; Wilcoxon ». Annesley, 23 Ind. 287; Woodburn n. Chamberlin, 17 Barb. 446; Dana c. Bryant, 1 Gilm. 104; Briggs ■». Dorr, 19 Johns. 95; Jack b. Martin, 13 Wend. 316; Machette s. Wanless, 1 Col. 235. * Hotchkiss n. Ashley, 44 Vt. 195 ; Edelen v. Thompson, 3 Har. & 6. (Md.) 32; Powell ». Hinsdale, 5 Mass. 343; Poor ». Woodburn, 25 Vt. 235; Brown v. Smith, 1 N. H. 36; Wright b. Mathews, 3 Black, (Ind.) 187; Dowell v. Richardson, 10 Ind. 573; O'Keefe v. Kellogg, 15 111. 351; Wil- liams «. Beede, 15 N. H. 483. 3 Pratt «. Tucker, 67 111. 346. * Bemus v. Beekman, 3 Wend. 667 ; Smith v. Phelps, 7 Wis. 211 ; Heeron o. Beckwith, 1 Wis. 32; Ronge ®. Dawson, 9 Wis. 246; Childa ■o. Childs, 13 Wis. 17; Hanford «. Obrecht, 38 111. 493; Patterson «. United States, 2 Wheat. 235. * Wallace t. Hilliard, 7 Wis. 637; Bemis b. Wylie, 19 Wis. 318; Ronge o. Dawson, 9 Wis. 346; Smith «. Phelps, 7 Wis. 211; Johnson «. Howe, 2 Gilm. 346; Rose ®. Hart, 13 111. 378; Smith b. Wood, 31 Md. 293. A ver- dict of no cause of action, is not responsive to the issues of taking, deten- tion, and property in defendant. Ford o. Ford, 8 Wis. 399. "not guilty." 405 pass upon all the issues is by a motion for a veni^'e de novo, not by a motion for a new trial. A venire de novo is granted for a defect appearing upon the reeord ; a new trial for some matter outside of it.i § 746. " Not guilty ; " -what responsive to. There is, strictly speaking, no plea of general issue in replevin. Where the charge is for taking only, a plea of non cepit is equivalent to a general issue; if the charge is for detaining, the plea of non detinet has the same effect. A verdict of not guilty would be responsive to either. ^ When the pleas were, 1, non cepit, 2, property in defendant, and, 3, in a stranger, verdict of not guilty was responsive to non cepit only, and did not authorize any judgment upon the other pleas.* § 747. Statutory exceptions. In some of the States, by statute, the plea of non detinet or non cepit puts in issue not only the detention, but the right of property in the plaintiff;* while, by the common law, non cepit and non detinet admit the property to be in the plaintiff, but deny the taking and detention respectively. ^ Where the statute makes the plea of non detinet a denial of property in the plaintiff, a verdict of not guilty upon that plea must be regarded, it would seem, not only as responsive to the issue upon the detention, but upon the question of property as well. §748. Injustice court. In a justice court, where the plead- ings are oral, the same strictness is not required; and where the case was an appeal from such court, a verdict finding the ' Bosseker t. Cramer, 18 Ind. 45. When the verdict did not pass upon the whole issue, but left part of the facts denied by the plea unnoticed, it was bad, and judgment was reversed. Miller ». Trets, 1 Ld. Raym. 324. A verdict is bad if it vary from the issue submitted in any substantial matter, or if it find only part of the issues submitted. Patterson b. United States, 3 Wheat. 225. 2 Dole B. Kennedy, 38 111. 284; Bourk v. Kiggs, 38 111. 321. 2 Hanford ■». Obrecht, 49 111. 151 ; Hanford v. Obrecht, 38 111. 493. See, also, BemusD. Beekman, 3 Wend. 667; Sprague v. Kneeland, 12 Wend. 164; Boynton «. Page, 13 Wend. 432 ; Machette v. Wanless, 1 Col. 335. * Ford D. Ford, 8 Wis. 399; Timp «. Dockham, 33 Wis. 151; Walpole w. Smith, 4 Blackf. (Ind.) 304; Noble «. Epperly, 6 Port. (Ind.) 411; Plain- field ■». Batchelder, 44 Vt. 9; Loop ». Williams, 47 Vt. 415. ' See plea of non cepit. Ante, Chap. 33. 406 VEEDICT AND JUDGMENT. defendant guilty, though not strictly in form, was regarded as equivalent to finding property in plaintiflF.^ § 749. lUustrations of the exactness required in the verdict. The defendant pleaded that he had not taken or detained the property; also, property in a stranger, and property in defend- aat; the plaintiff joined issue upon the first, and replied to the second and third pleas. The jury returned a verdict, " we find the property to be in the plaintiff." Held, the verdict did not authorize a judgment. It omitted to find whether the property had been taken or detained by the defendant.^ A verdict of non detinet only establishes the question of deten- tion. It does not find the right of property. The finding may be true, and yet the property may be some other person's than the plaintiff. ^ So, upon the issue of non cepit, a finding for the defendant only determines the fact that the defendant did not take the property as charged. It does not in any way settle the title. Upon this issiie a finding by the jury of an actual wrongful taking by defendant will necessarily entitle the plaintiff to a judgment, because an actual wrongful taking may occur, and yet the taker be the owner of the property.'* § 750. The same. "Where the title, as well as the right to the possession, is in issue, and the verdict is only as to the right of possession, the issue as to title is not determined, and a new trial should be granted. The title may be in one, and the right of possession in another, and these questions, when sub- mitted, should be passed upon.^ When the defendant claimed only a lien upon the goods, and the verdict was silent upon this subject, a new trial was granted.^ §751. Finding need not be in express words. The finding ' Jarrard «. Harper, 43 111. 457. " Huff V. Gilbert, 4 Blackf. (Ind.) 19; Smith o. Houston, 25 Ark. 184. 3 Bemus b. Beekman, 3 Wend. 668; Emmons v. Do we, 2 Wis. 322. * Heeion e. Beckwith, 1 Wis. 22; Moulton «. Smith, 33 Me. 406. ' Appleton «. Barrett, 22 Wis. 568. Pleas were, did not take or detain. Verdict, '• we find the right of property to be in plaintiff, and assess his damages as one cent." Held, insuflScient to authorize judgment in his favor. It was not responsive to the issues. Richardson ». Adkins, 6 Blackf. 143. « Warner t. Hunt, 30 Wis. 200. VERDICT MAT BE GENERAL. 407 need not be in express words when the intention of the jury is clear. Thus, where the plaintiff, in his declaration, sets up several distinct causes of action, and general issue is pleaded, and the jurj allow him certain specified causes, and say nothing about the others, the verdict may be sufficient to authorize a judgment for him to the extent to which it finds for him ; and such verdict, and judgment thereon, will be a bar to a second action on the causes not named in express words, i § 752. The same. Illustrations. When the suit was for two slaves, " Ben " and " Joe," the verdict was, we find for the plaintiff for " Ben," and was silent about " Joe," the court said, we do not suppose any one would regard this as a verdict upon part of the issues. The silence of the verdict as to " Joe " is equivalent to an express finding as to him for the defeud- ant.2 Yerdict, that the " defendant had a special property in the goods to an amount of an execution," stating it, and that the "plaintiff had unjustly taken and detained it," and assess- ing damages is suificient, though it ouglit to determine the general ownership.* § 753. The verdict may be general if it cover all the issues. When the verdict, by its terms, necessarily disposes of all the material issues in the case, an express finding upon all the separate issues may not be essential. When the defendant pleads property in himself, and propert}^ in A., and in a stranger, a finding of property in the defendant, upon the first plea, is sufficient, though the others are disregarded.* The jury may sometimes deliver a general verdict, embracing all the issues submitted, and such verdict is clear and explicit upon them all. Thus, when the pleas are noru cepit, non detinet, property in defendant, and property in third person, a general verdict, ' Brockway ■». Kinney, 3 John. 210; Freas v. Lake, 3 Col. 480; Irwin v. Knox, 10 John. 365 ; Markham «. Middleton, 3 Strange, 1359 ; Lewis i;. Lewis, Minor, (1st Ala.) 95 ; Ward v. Masterson, 10 Kan. 78. 2 Wittick v. Traun, 37 Ala. 566. To same effect, see Stoltz v. The People, 4 Scam. (111.) 168; Clark v. Keith, 9 Ohio, 73; Hotchkiss v. Ashley, 44 Vt. 198; Brown s. Smith, 1 N. H. 36. « Single «. Barnard, 39 "Wis. 463; White v. Jones, 88 111. 161. *■ Eamsey «. Waters, 1 Mo. 406 ; Faulkner v. Meyers, 6 Neb. 415. See Freas v. Lake, 3 Col. 480. 408 VEEDICT AND JUDGMENT. " we, the jury, find the issues for the defendant," is equivalent to a finding of all the issues for the defendant. It is not simply equivalent to a verdict of not guilty. The verdict of not guilty would be responsive^ only to the pleas of non cepii and non detinet.^ Where the answer was, first, general denial; second, property in defendant; and third, property in a stranger, the verdict was, " we find for the plaintiff, that he is entitled to possession, and find value to be $125. " Held, sufficient to cover all the issues. ^ When the verdict was for the defendant, $28.75, on a plea of property, it was, in effect, a verdict for the defendant generally, and a judgment for return, with costs, was correct. 3 A contrary conclusion, however, on a similar finding, was reached in Iowa. It was for the defendant, for $50, and was said to be a verdict that the plaintiff was enti- tled to the property upon paying the defendant that sum.* § 754. The same. Illustrations. When the plaintiff alleged that he was the absolute owner, and entitled to the immediate possession of the property, and the verdict was, " we, the jury, find for the plaintiff," it was held sufficient to warrant judg- ment for the plaintiff. The verdict was to the effect that the plaintiff was the absolute owner, and entitled to the imme- diate possession; 5 but a general verdict cannot be sustained when the issues are conflicting, and when all cannot be truly found for one party or the other.* When those issues are sub- mitted, the jury should find whether the party has title to the property on the right of possession only.' 1 Preas «. Lake, 3 Col. 480 ; Underwood «. White, 45 111. 438. We find for the plaintifi", and against the defendant, was sufficient. Krause ». Cut- ting, 38 Wis. 655 ; 8. C, 33 Wis. 688 ; Ehodes v. Bunts, SlWend. 19 ; Wheat V. Catterlin, 33 Ind. 85. ■^ Clark V. Heck, 17 Ind. (Harr.) 381. " Huston V. Wilson, 3 Watts. 387. * Hunt «. Bennett, 4 Greene, (Iowa,) 512. ' Kowan s. Teague, 34 Ind. 304. « Hewson b. Baffin, 7 Ohio, Pt. 3, 334; Johnson v. Howe, 3 Gilm. 346. ' Wolf V. Meyer, 12 Ohio St. 483 ; Verdict that the plaintiff is the owner, and lawfully entitled to possession of the logs described in the complaint, and that their value is $ — , and the plaintiff's damages are $ — , is a gen- eral verdict for the plaintiff, and is equivalent to a special finding that the logs were detained by the defendant. Eldred v. The Oconto Co., 33 Wis. VEEDICT. 409 §755. Verdict should not merge different issues. The ver- dict should not amalgamate different issues, unless it be clear that such a verdict will be responsive to all of them, and that it will give the court clear and unmistakable information of what the jury intended to find upon each. Thus, the jury should not amalgamate damages for the taking or detention of property with the value of the property taken. Each should be found separately ;i otherwise, the court cannot tell from the verdict what judgment to render.^ Where the declaration contains a sufficient cause of action properly stated, with other matter not actionable, and damages are awarded, it will be pre- sumed that the damages were given on the actionable part only. Thus, the declaration was for one table, chest and other articles specified, and for one-third of four stacks of fodder. The verdict was for the plaintiff, and damages assessed at $91. The court refused to disturb the verdict, presuming that the damages were assessed on the articles specified and not on the two- thirds part of the fodder.* § 756. Separate defendants may have separate verdicts. When there are several defendants, it is error to assume that all of them are guilty of the acts charged in the declaration ; the jury should be left to say whether all were engaged in the acts complained of or not,* and they may find one or more of the defendants guilty and acquit others -j^ or may find one guilty as to a portion and not guilty as to other portions of the property.' § 757. Verdict must be certain. The verdict must be cer- tain. When four hogs were replevied, and the jury found two of them to be the property of the plaintiff, without stating 137. To same effect, see Stephens v. Scott, 13 Ind. 515. Compare Swain «. Roys, 4 Wis. 150. 1 Nashville Ins. Co. v. Alexander, 10 Humph. 383 ; Sayers v. Holmes, 3 Cold. (Tenn.) 259. ' Carson v. Applegarth, 6 Nev. 188. » Ellis V. Culver, 1 Har. (Del.) 76. * Dart V. Horn, 20 111. 213. » Carothers v. Van Hagan, 2 G. Greene, (Iowa,) 481 ; Hotchkiss v. Ashley, 44 Vt. 199; Wilderman b. Sandusky, 15 111. 60. • Simpson v. Perry, 9 Geo. 508; Walker v. Hunter, 5 Oranch. 0. C. 463, 410 VERDICT AND JUDGMENT. which two, the verdict was regarded as uncertain and insnfS- cient.i Yerdict describing the property as "said property," if the goods are sufficiently described in the declaration, is good.* "When 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 uncertain, and no judgment could be rendered on it.* "When the issue was non detinet and title to the property in the defendant, a verdict for defendant when the jury assessed value of prop- erty and nominal damages, did not warrant a general judgment for the defendant, though it was doubtless proper for the court to put it in form.* § 758. The same. Illustrations. "When but one issue is presented in the pleadings, a general verdict for plaintiff, as- sessing damages and value of the property separately, is sufficient, s So a verdict that the property belonged to the plaintiff, and that he should recover one cent damages for detention was a sufficient finding that the plaintiff was entitled to possession.* § 759. Must be consistent. The verdict must not be incon- sistent with itself; the findings upon^ the separate issues presented must be such as will be consistent with each other, and such as can be carried into effect in a judgment. There was a complaint against A. and B. A. pleaded property in a stranger; B. pleaded it in himself. The jury found a verdict as follows: ""We, the jury, find for the defendants." The verdict, being general, was regarded as inconsistent and repug- nant; the property, according to the letter of the finding, was in a stranger, and at the same time in one of the defendants; this 1 Machette «.Wanless, 1 Col. 325; Campbell «. Jones, 38 Cal. 507; Dowell V. Richardson, 10 Ind. 573. 2 Anderson v>. Lane, 32 Ind. 103. 8 Wood V. Orser, 11 Smith, (35 N. T.) 348. See, also, Donaldson v. John- son, 2 Chand. (Wis.) 160. " Donaldson «. Johnson, 2 Chand. (Wis.) 160. " Everit ». Walworth Co. Bank, 18 Wis. 419 ; Fitzer o. McCannan, 14 Wis. 63 ; Wheat v. Catterlin, 23 Ind. 88. • Stephens v. Scott, 18 Ind. 515; Gotloff v. Henry, 14 111. 384. VALUE OF PEOPEETT. 411 ■was impossible. The court intimated, however, that if the parties were to treat it as a general finding for the defendants upon the question of wrongful taking only, it might be suffi- cient upon that issue, but it would not authorize judgment for a return. 1 If there be a material repugnancy in the verdict, it is not competent for the court to decide which is true and which is false; if it were the court could substitute its judg- ment for that of the jury; in such cases it can only set the verdict aside. ^ § 760. Value of property ; when must be found. The rules in some of the States require the jury to find the value of the property;* but the fact that they did not so find should be taken advantage of at the first opportunity.'* The verdict must find both the value and the damages for detention, or it is doubtful if any judgment can be rendered upon it;^ even when the defendant waives a return, the value should be found.8 In other States, and by the common law, the value is immaterial. § 761. Value of separate articles. In many of the States the jury are required to find the value of each separate article, so that upon a return of part of the entire lot the defendant may be discharged from the payment of the value of that part.' This provision is intended for the benefit of the party who is adjudged to deliver the goods, so that he may not be compelled 1 Tardy D. Howard, 13 Ind. 404; Hewson v. SafiBn, 7 Ohio, pt. II. 234; Contra, Edelen v. Thompson, 3 Har. & G-. (Md.) 31. 2 Hewson v. Saffln, 7 Ham. (Ohio,) pt. II. 333; Barrett v. Hall, 1 Mas. 447. ' Everit v. Walworth Co. Bank, 13 Wis. 419 ; Fitzer «. McCannan, 14 Wis. 63 ; Wallace v. Hilliard, 7 Wis. 637 ; Farmers' L. & T. Co. v. Com. Bank, 15 Wis. 434. Even though not denied. Jenkins i). Steanka, 19 Wis. 136; Carson v. Applegarth, 6 Nev. 188; Lambert v. McFarland, 3 Nev. 58; Pickett V. Bridges, 10 Humph. (Tenn.) 175 ; Bates i>. Buchanan, 3 Bush. (Ky.) 117 ; Young v. Parsons, 3 Met. (Ky.) 499. * Watts V. Green, 30 Ind. 99. 5 Wallace v. Hilliard, 7 Wis. 637. « Farmers' L. & T. Co. v. Com. Bank, 15 Wis. 434. ' Whitfield V. Whitfield, 40 Miss. 369 ; Hoeser v. Kraeka, 39 Tex. 451 ; Eslava v. Dillihunt, 46 Ala. 698; Drane v. Hilzheim, 13 S. & M. (Miss.) 837; Caldwell «. Bruggerman, 4 Minn. 370; Pickett v. Bridges, 10 Humph. (Tenn.) 175. Oontra, Ward v. Masterson, 10 Kan. 78. 412 VBEDIOT AND JUDGMENT. to deliver goods and at the same time pay the vahie; and objection to a verdict, when the value of several articles is assessed in one gross siim, must be taken at the earliest prac- ticable moment. This rule is in force in many States, but is not universal. § 702. Conditional verdict. A verdict that is conditional upon some subsequent act of the party is not warranted, i So one which expresses an opinion of law without deciding questions of fact cannot be sustained. ^ § 763. Value where the party's interest is limited. The amount which the defendant may recover is not necessarily the full value of the property; when the defendant has only a limited interest, the value of that, and not the full vahie, will be awarded him. Thus, with an execution upon property less than its value, there would only be a claim to the extent of the sum for which the execution issued, and interest.^ Where property is taken from an officer by the defendant in the execution, verdict for the officer should be for the amount of the execution; but when replevied by one who is a stranger to the process, the officer may be liable over to the defendant from whom it was taken ; in such case the finding for the officer should be the full value. § 764. Verdict for damages ; when essential. In McKean v. Cutler, 48 1&. H. 372, it was said that a verdict for plaintiff upon a question of title will not be set aside because the jury did not find damages; the judgment for damages is not a necessary ingredient in replevin. This case is entitled to the more weight because it considers and differs from Kendall v. Flits, 2 Foster, (N. H.) 9, and because in this way the ques- tion was directly and forcibly presented, as to whether a judgment for damages is an essential one in replevin. It is • Verdict that tlie plaintiff was entitled to the property provided a chat- tel mortgage was not paid in ten days. Kose ». Tolly, 15 Wis. 443. ' Verdict was: "We find the plaintiff had a right to replevy the mill." Held, to amount only to a conclusion of law, which the jury had no au- thority to decide; judgment could not be rendered upon it. Keller v. Boatman, 49 Ind. 108. » Booth v. Ableman, 20 Wis. 31 ; 8. C, 30 Wis. 603; Single v. Barnard, 39 Wis. 463. VERDICT SHOULD EMBEAOE ALL PARTIES AND ISSUES. 413 probable, however, that the courts will not extend the doctrine laid down in McKean v. Cutler. It must be borne in mind that damage is one of the principal questions in replevin; that it is always claimed in the declaration. ^ And when with this, is considered the fact that all the issues presented must be passed upon, it will seem the better course to insist upon a verdict and final judgment for damages (nominal in amount, if no more), in all cases. § 765. The same. Wlien damages other than nominal are awarded, they must, in all cases, be assessed by a jury,^ unless by consent of parties a jury is waived. § 766. The judgment. The judgment in replevin, when the court has jurisdiction ol the persons and subject matter, is conclusive upon all parties.* It may determine the prop- erty, the special property, or the right of possession; and when so determined the parties cannot set up or claim different rights or interests as against the judgment.* The parties may have separate interests; if so the judgment should not be joint.s When the court has no jurisdiction, it cannot render a judgment against the defendant, even for costs. « § 767. Should embrace all parties and all issues. The judg- ment should be for, or against all parties; final judgment against part of the defendants will not dispose of the case as to others, and will be erroneous. It is equally important that all the parties should be disposed of as that all the issues should be.' The judgment, therefore, should determine all the issues, *'. e., all the rights of all the parties to all the prop- erty.8 It may be good as to some defendants, and bad as ' Buckley o. Buckley, 13 Nev. 423; Faget s. Brayton, 3 H. & J. (Md.) 350. ^ Pearsons v. Eaton, 18 Mich. 80. ' Maids c. Watson, 13 Mo. 544; Pomeroy v. Cocker, 4 Cliand. (Wis.) 174; Lutes B. Alpaugh, 33 N. J. L. 165 ; Penrose «. Green, 1 Mo. 774. * Carlton v. Davis, 8 Allen, 94; Witter ». Fisher, 37 Iowa, 10; Lowe v. Lowry, 4 Ohio, 78 ; Perry ». Lewis, 49 Miss. 443. ' Sweetzer t. Mead, 5 Mich. 107. « Collamer d. Page, 35 Vt. 387. ' Barbour u. White, 37 111. 164. * Dow B. Battle, 13 111. 373; Rose ®. Tolly, 15 Wis. 444; Perry «. Lewis, 49 Miss. 443. 414: VEEDIOT AND JUDGMENT. to others;! b^t ^Jien a writ of replevin against two defend- ants is served upon one, a judgment against both is wholly void. 2 § 768. The same. Where the court without a jury passes upon the issues the judgment should determine all the issues submitted, the same as required with a jury. If the judg- ment is for the plaintiff the court should find the value of the property, where that is necessary, and that the plaintiff is the owner or entitled to its possession ; it should assess damages and order a delivery, if that has not been had upon the writ. Each of these steps are essential to a valid judgment. ^ § 769. Must be certain. Where a justice entered judgment as follows: " A trial was had and a judgment rendered against the defendant for one cow," it was held not sufficient. It did not find the value of the property, or that the plaintiff was entitled to possession; nor did it assess the damages. It could not be read in evidence in another case for the same cow.* § 770. Judgment upon default. When the plaintiff failed to appear the defendant, at common law, had judgment for a return and damages. ^ § 771. When property has been delivered plaintiff cannot have value. When the property has been replevied and deliv- ered to the plaintiff, of course he cannot have judgment for the value. He must take judgment for the property in his possession and such damages and costs as he can obtain.* § 772. Judgment for value or delivery. Where the plain- tiff has not already obtained the possession of the property by his writ or order for delivery, and has judgment in his favor, the form of the judgment is for the delivery of the goods, or for ' Mercer «. James, 6 Neb. 406. 2 Ouly v. Dickinson, 5 Cold. (Tenn.) 486. 8 Beemis «. Wylie, 19 Wis. 319; Bates v. Wilbur, 10 Wis. 416; Heeron «. Beckwitli, 1 Wis. 17; Beokwitli «. Philleo, 15 Wis. 224. < Beemis ». Wylie, 19 Wis, 319. « Stat. 7 H. VIII. Oil. 4; Wilk. on Rep. 73. • Rockwell v. Saunders, 19 Barb. 473 ; Seaman v. Luce, 23 Barb. 240 ; Merrill o. Butler, 18 Mich. 294; Blackwell e. Acton, 38 Ind. 426; McNa- mara ®. Eisenleff, 14 Abb. Pr. (n. s.) 25 ; Rowark «. Lee, 14 Ark. 426 ; Gar- rett V. Wood, 3 Kan. 231. JUDGMENT IN THE ALTEENATIVE. 415 the value in case a delivery cannot be had.i The judgment in such eases is usually required to be in the alternative. In Min- nesota there can be no judgment for value if the property can be delivered. A judgment for value not in the alternative is not necessarily erroneous if the court perceive that the delivery is impossible.^ It does not follow from an omission of the court to ascertain the value and render the judgment therefor that the property had no value, or that such value cannot be ascer- tained in suit upon the bond.* Therefore, where judgment for value or in the alternative is not imperative under the stat- ute, the judgment may be for a return of the goods; in such case the value may be ascertained and recovered in suit upon the bond, if the return is not made.* § 773. Judgment in the alternative for the goods or for their value. When the judgment is for the defendant, and he is entitled to a return, the judgment should be in the alternative, i. e., for the delivery of the property, or in case that cannot be had then the value of the property as found by the jury;^ upon such judgment he is entitled to all the processes of the court which are issuable upon other judgments. § 774. Exceptions to this rule. There are cases which hold that the defendant may waive the return and take judgment for the value alone if he so elect. ^ This rule, liowever, varies in different States; the statute controls, and upon this subject ' Ward v. Masterson, 10 Kan. 77 ; Marix v. Franke, 9 Kan. 133 ; Clary v. Boland, 24 Cal. 149, and cases last cited. See, also, Fitzhugh. v. Wiman, 9 N. Y. 559; Glann v. Tounglove, 37 Barb. 480; Gallarati v. Orser, 4 Bosw. (N. T.) 94; Smith v. Coolbaugh, 19 Wis. 107. " Boley V. Griswold. 30 Wall. 486. Cases last cited. ' Kafer«. Harlow, 5 Allen, 348; Hawley v. Warner, 13 Iowa, 43; Mason «. Ricbards, 13 Iowa, 73; Nickerson ■». Chatterton, 7 Cal. 568; Clary v. Hol- land, 24 Cal. 147. * Hall V. Smith, 10 Iowa, 45. 5 Mason b. Bichards, 13 Iowa, 73 ; Eslava v. Dillihunt, 46 Ala. 702 ; Smith «. Coolbaugh, 19 Wis. 107; Jansen v. Effey, 10 Iowa, 227; Marix b. Franke, 9 Kan. 132; Chissom u Lamcool, 9 Ind. 531; Bales v. Scott, 36 Ind. 202; Easton v. Worthington, 5 S. & R. 133; Dwight v. Enos, 9 N. Y. (5 Seld.) 470; Hall v. Jenness, 6 Kan. 365; Copeland v. Majors, 9 Kan. 104; Nick- erson ». Chatterton, 7 Cal. 568; Pratt ®. Donovan, 10 Wis. 379. « See Smith v. Coolbaugh, 19 Wis. 107; People o. Tripp, 15 Mich. 518; Williams v. Vail, 9 Mich. 162. 416 VEEDIOT AND JUDGMENT. it is the only guide. In Illinois the judgment is for the return and not in the alternative, except where the property was held as security for the payment of money; in such case the judg- ment may be in the alternative for the payment of the amount for which it was rightfully held, with damages within a given time to be fixed by the court, or make return of the property. * In California a judgment which left the defendant at liberty to pay the amount or deliver the property, as he might elect, was held erroneous; it must be for the delivery of the prop- erty, if delivery can be had, or for the value in case it cannot.* In Wisconsin the defendant may waive a return and take judg- ment for the value of the property. ^ The same rule prevails in Michigan* and in Arkansas, where an acceptance of a ver- dict for the value will be sufficient without a formal waive of a return on record.^ In I^ew York the defendant cannot elect to take judgment for the value, but it must be in the alterna- tive.* In Mississippi the value of each separate article must be found; judgment should be for the delivery of each, or the payment of its value; upon the delivery of any one or more of the articles the defendant stands discharged from the jjay- ment of its value.' This is also the rule in Texas.s The code of Alabama requires the jury to assess the value of each separate article where it is practicable. When the articles were a large number of house goods of small value, and neither the plaintiff nor defendant objected to the verdict when returned, an assessment of the value in gross was held sufficient. 8 In Tennessee, with reference to such articles as ' Rev. Stat. 111. Ch. 119, § 33. ' Cummings v. Stewart, 43 Cal. 233. ' Pratt V. Donovan, 10 Wis. 378; Morrison v. Austin, 14 Wis. 603; Farm- ers' L. & T. Co. 1). Com. Bank of Racine, 15 Wis. 435. * Adams «. Champion, 31 Mich. 335; Wheeler «. Wilkins, 10 Mich. 78; People ». Tripp, 15 Mich. 518. ' Hill D. Fellows, 35 Ark. 13. ' Seaman v. Luce, 33 Barb. 240 ; Fitzhugh v. Wiman, 5 Seld. (N. T.) 559. ' Whitfield «. Whitfield, 40 Miss. 869. See, also, Caldwell v. Bruggerman, 4 Minn. 270 ; Hoeser v. Kraeka, 39 Texas, 451 ; Pickett ®. Bridges, 10 Humph. (Tenn.) 175. » Hoeser v. Kraeka, 39 Texas, 451. ° Eslava v. Dillihunt, 46 A.la, 702. SEPARATE JUDGMENTS. 4:17 are in their nature distinct, the jury must iind the value of each separately.! So in Mississippi, the jury must assess the vahie of each separate article; but what in common under- standing is considered as parts of one whole may be so in law. In replevin for a barouche and harness and two horses, the barouche and harness may be regarded as parts of one whole, and but one value placed upon them ; but the horses should be valued separately.^ Where the defendant gives bond under the statute and retains the property the judgment for the plaintiff should be in the alternative for the property or its value.* § 775. Judgment for each party for diflferent parts of the goods. It sometimes happens that the plaintiff recovers a verdict for a portion only of the property, while the defendant has a verdict for the remainder. In such cases, each is entitled to judgment for the portion so found for him, together with damages and costs in so far as he is successful. When the action was for merchandise, and the jury found the defendant "guilty" as to all the property mentioned, except two pieces of satin, and that the plaintiff recover all the goods except those, and that he also recover one cent damages, and that the defendant recover the satin and four dollars and twenty cents damages, it was held that the judgment must follow the ver- dict, and that the costs must be apportioned equitably. In such case the court, under its general powers, could set off the damages and costs and award execution for the balance, when no reason for a contrary course appeared to exist.* § 776. Separate judgments as to separate defendants. Where there are several defendants, a verdict as to one need not embrace the others. One may be guilty of the taking or of detention and the others not. - The rules which apply in 1 Pickett v. Bridges, 10 Humph. (Tenn.) 171 ; Rowland v. Mann, 6 Ired. (N. C.) 38; Sayers v. Holmes, 3 Cold. (Tenn.) 259. •> Drane v. Hilzlielm, 13 8. & M. (Miss.) 387. ' Anderson ». Tyson, 6 S. & M. (Miss.) 244. * Poor v. "Woodburn, 25 Vt. 239. See, also. Brown v. Smith, 1 N. H. 36 ; Powell V. Hinsdale, 5 Mass. 343 ; Clark v. Keith, 9 Ohio, 73 ; O'Keefe v. Kellosg, 15 111. 358; McLarren «. Thompson, 40 Me. 285; Wright «. Mathews, 2 Blackf. (Ind.) 187. "27 418 _ TEEDIOT AHIJ JDDGMEHT. cases of trespass govern the judgment in replevin. The con- stant practice is to render judgment against one who may be found guilty and at the same time discharge those not guilty. i So, when the action is against joint defendants, the court may adjudge a return of the goods to one of several, while as to the others no return is allowed. ^ Where there is more than one defendant, when judgment is against all, it must be a joint judgment for joint damages; each of the defendants is jointly liable for all the damages which the plaintiff has sus- tained without regard to the fact that one may have been more or less guilty than the others.* But the plaintiff may, before verdict, enter nolle prosequi as to one and take judg- ment as to the others, and when the jury erroneously assess several damages, the plaintiff may enter a nolle as to all but one and take judgment against him.* § 777. Order for delivery part of the judgment. The order of delivery is part of the judgment. ^ It must be made at the same time, or at least while the court has its record before it; it cannot be made at a subsequent term, even upon notice to the other party. The court has no power to correct its records at a subsequent term.^ § 778. Defendant entitled to reasonable time to comply with, the judgment for return. When the judgment is for a return or payment of the value, the defendant is entitled to a reasonable time within which to make the return, and so excuse himself from the payment of the value. Thus, where ' Carothers v. Van Hagan, 3 Gr. Greene, (Iowa,) 481 ; Church ». DeWolf, 2 Root, (Conn.) 383; Wakeman v. Lindsay, 19 L. J. Q. B. 166; Addison ». Ovorend, 6 Term R. 357 and 767 ; Only ». Dickinson, 5 Cold. (Tenn.) 486. ^ Woodburu v. Chamberlin, 17 Barb. 452. 3 Clark V. Bales, 15 Ark. 453 ; Layman v. Hondrix, 1 Ala. 313 ; Simpson «. Perry, 9 Geo. 508; Fuller v. Chamberlain, 11 Met. 503. ^ Crawford v. Morris, 5 Gratt. 90 ; Wallace v. Brown, 5 Fost. 316 ; Holley «!. Mix, 3 Wend. 350; Cahoon ». Bank of Utica, 3 Seld. (N. T.) 490; Pearce v. Twichell, 41 Miss. 346. ' Weizen o. McKinney, 3 "Wis. 388; Nickerson v. Chatterton, 7 Gal. 573; Kates «. Thomas, 14 Minn. 461; Dwight ». Bnos, 5 Seld. (N. T.) 470; Wil- kins «. Treynor, 14 Iowa, 393 : Clark ». Warner, 83 Iowa, 219 ; Punk ». Israel, 5 Iowa, 454; Fitzhugh v. Wiman, 9 N. Y. 559. « Lill v. Stookey, 73 111. 495. JUDGMENT. 419 the judgment was for a return of the mare and colt in dis- pute, or in lieu thereof one hundred and sixty dollars, a few- days thereafter the plaintiff tendered the mare and colt to the defendant, who refused to receive them and demanded the money value as assessed by the jury, a tender within thirty days was held to be within a reasonable time.^ § 779. Effect of payment of judgment for value. Where the judgment is against the defendant for value, and that value is paid, the effect of the judgment and payment is to transfer the title to the party against whom the judgment is rendered.2 So in trover judgment for plaintiff changes the ownership, so that as against the defendant this plaintiff can- not again claim title.* But in replevin the right to possession may be the only issue to be tried, and in such case the judg- ment is no evidence of title. When the title is in issue and determined, the judgment will, ot course, be conclusive upon the parties until reversed in a legal manner,* and this rule applies as well where the property is not delivered upon the writ as where it is.^ § 780. The same. When plaintiff sued for rails, and the defendant had used part of them in building a fence before the service of the writ, judgment for damages in replevin was a bar to subsequent suit in trover for the value.' The record of an ineffectual suit in replevin for money is not a bar to another action for the same money.'' § 781. Judgment of non-suit does not affect title. Judg- ment of non-suit or discontinuance does not bar the plaintiff' from another action for the same cause. ^ This was the com- ' MoClellan v. Marshall, 19 Iowa, 563. ' Marix v. Franke, 9 Kan. 133. ' Adams v. Broughton, Andrews, 18. See Hoag v. Breman, 3 Mich. 163. * Seldner y. Smith, 40 Md. 603 ; Wallace d. Clark, 7 Blackf. 399 ; Warner «. Matthews, 18 111. 83. See Judgment for Return, ante, Ch. XVI. ' Parmalee v. Loomis, 34 Mich. 343. ' Bower v. Tallman, 5 W. & 8. (Pa.) 556. See, also, Osterhout «. Eoberts, 8 Cow. (N. Y.)43; Livingston v. Bishop, 1 Johns. 390; Sharp v. Gray, 5 B. Mon. (Ky.) 4; Jones v. McNeil, 3 Bailey, (S. C.) 466. ' Sager ■». Blain, 5 Hand, (44 N. T.) 448. « Hackett v. Bonnell, 16 Wis. 471 ; Daggett v. Robins, 3 Blackf. 415 ; Westcott V. Bock, 3 Col. 335. 420 VEEDICT AND JUDGMENT. mon law. The statute in England, Stat. "Westm. 2d, 13 E. 1 C. 2, which restrains the plaintiff from a second replevin, but permits him to proceed by a writ of second deliverance, is applicable onlj to actions founded upon a distress, and is local to that kingdom.! § 782. Judgment of dismissal. When the suit is dismissed for informality the plaintiff may maintain another action upon the original unlawful taking. Such judgment for return con- stitutes no bar to this action because the case was not heard upon its merits. Nor is it a valid objection that the defendant has not in fact taken out any writ of return or actually taken the property into his possession. The judgment for a return was ordered upon the defendant's motion to dismiss the writ; the plaintiff yielded to it and returned the property to the place from which he had taken it under his defective proceeding; this left the plaintiff's case where it was when he instituted his first action. 2 § 783. niustrations of the eflfeet of judgment. When the plaintiff in replevin who had obtained delivery of the goods upon his writ sold them and afterwards died and the snit was abated, the defendant in the suit brought replevin from the purchaser and was permitted to set up his prior title to sus- tain his action against the purchaser; the record of the first suit, which was abated, constituting no bar.^ So judgment by default does not always settle the rights to the property; there should be a finding by the court.* But parties sued in tres- pass cannot set up the fact that they sold the property to one from whom the owner has recovered it in replevin. Ine recovery in replevin from a purchaser from a trespasser is no defense for the trespasser. ^ § 784. Judgment for value of limited interest. When the interest of the defendant is less than the value of the property a judgment in his favor should not be for full amount, but ' Daggett V. Eobins, 3 Blackf. 418. 2 Walbridge v. Shaw, 7 Cush. 560; Wilbur o. Gilmore, 31 Pick. 250; Mor- ton V. Sweetser, 13 Allen (Mass.) 134. ' Lockwood V. Perry, 9 Met. 446. * Studdert v. Hassell, 6 Humph. (Tenn.) 137. ' McGee v. Overly, 7 Eng. (Ark.) 164. JUDGMENT rOE VALUE. 4:21 only for the value of his interest, unless he is in some way liable to the general owner. "When the suit is for mortgaged property, defendant succeeding is entitled to a return; but in such cases he only takes the lien of his mortgage ; if he ask for judgment for the full amount he must take the value of his interest. 1 § 785. Judgment for value on count in trover. In Illinois, where the officer's return shows that the property or any part of it was not delivered, the plaintiff may add a count in trover, and upon proper proof take judgment for the value of the property not delivered.^ The rule in Tennessee and Florida is similar to that of Illinois in this respect, and was so in Col- orado until changed by statute. § 786. Wlien property is lost judgment for return imma- terial. Where it appears upon trial that the property is hope- lessly lost or destroyed so that a judgment for a return would be of no avail, a failure to render a judgment for its return would be at most a technical error, for which judgment for the value would not be reversed. ^ § 787. Judgment for value in such cases. The death or destruction of the property does not necessarily do away with the necessity of judgment for the value. By the ancient law the property was presumed to belong to the plaintiff, and the only interest which the defendant claimed in it was the right to hold it as security or a pledge for the rent claimed to be due. Property so seized or impounded was, even while in pound, at the owner's risk if it died.* If replevied by the owner the landlord lost his lien and was required to look to the security upon the bond; if the animal died pending the replevin suit the rights of the landlord were not affected. But under the present practice the controversy is more fre- quently concerning the title or right of possession than of distraint. The common law, therefore, furnishes no rules to determine what the judgment should be in such cases. In ' Fowler v. Hoffman, 31 Mich. 321 ; Russell v. Butterfleld, 31 Wend. 300. = Kehoe v. Rounds, 69 111. 353; Dart v. Horn, 30 111. 313. ' Brown «. Johnson, 45 Cal 77; Boley v. Griswold, 30 Wall. 486. * See ante, % 8 ; Gilbert on Rep. ; 3 Bla. Com. 145. 422 TEEDIOT AND JUDGMENT. New York it was held that when the property was an animal that died before a return, plea showing that fact, and that it died without the fault of the defendant, was good.^ But where the property is wrongfully taken out of the owner's pos- session upon a writ of replevin the taker cannot, upon judg- ment against him, excuse his liability for the payment of the value by showing its death or destruction. Property so taken is not at the risk of the rightful owner while in possession of the wrongful taker. This question, however, more properly arises in another place. ^ ' Carpenter v. Steveps, 12 Wend. 589. ' See Damages, § 600, et seq. CONTESTING CKEDITOKS. 423 CHAPTEE XXV. MISCELLANEOUS. Section. Contesting creditors cannot in- voke the aid of the insolvent law against each other . . 788 Nor set up forfeiture under usury laws .... 789 Right to begin and conclude . 790 Trial upon the facts existing when the suit began . . 791 Date of writ, not conclusive as to commencement of suit . 792 All matters in dispute should be settled in the replevin suit 793 Section. Defense by bailee . . . 794 Effect of a submission to arbi- tration 795 Plea in abatement, another suit pending 796 The same, to the affidavit . . 797 Limitations .... 798 Amendments .... 799 Amendment of affidavit . . 800 Death of party to the suit . . 801 § 788. Contesting oreditors cannot invoke tlie aid of the in- solvent laws against each other. In replevin by an attaching creditor, from one who claims nnder purchase from the debtor, the attaching creditor cannot invoke the aid of the insolvent laws of the State to set aside a sale or transfer to the other, i The insolvent laws are only for the benefit of those who claim under them. The assignee may have recourse to such law in some cases to defeat a sale to a creditor, but the rights of con- testing creditors, who do not claim under the assignee, are not affected by the insolvent laws. § 789. Nor set up a forfeiture under usury laws. In a suit where the plaintiff claimed from an assignee in insolvency, and the defendant claimed under a mortgage made by the in- solvent, the mortgage debt was not paid, but the plaintiff offered to show that it was for usury; that if statutory penalty of threefold the usurious interest was deducted from it, the ' Gardner v. Lane, 9 Allen, (Mass.) 497. 424 MISCELLANEOUS. debt would be canceled. He therefore claimed the right to regard the mortgage as paid. Held, that the forfeiture for usury must be judicially determined upon an issue on that question before it could be applied to reduce the' debt so as to affect the lender's title to his security, and judgment was for the defendant.! The right to deduct the forfeiture in a suit to enforce the contract is by no means payment of the debt.^ §790. Eight to begin and conclude. While the defendant is an actor, and so far a plaintiff, it does not follow that he has the right to begin and conclude. In determining which party has the right, the court should consider, not so much the form ol the issue as the substance and effect of it. The question is, on whom is the burden of proving the issue? The obligation rests upon him to make it out by a preponderence of proof; he therefore has the right to begin andconclude.^ Where the defendant pleads property in himself, with a traverse of the plaintiff's rights, there is still such a burden of proof npon the plaintiff as to entitle him to begin and conclude.* But when the defendant pleads property without traverse, he as- sumes the burden of proving the property to be his. If no proof be offered, the judgment upon such plea would be for the plaintiff. In such case the defendant may begin. Such plea is regarded as admitting the plaintiff 's claim, and asserting a superior right in the defendant. § 791. Trial upon the facts existing when the suit began. According to the general rule, the suit is tried on the state of fact as they existed at the commencement of the suit.^ This rule must prevail, unless there be some peculiar reasons exist- ing to the contrary.* Where the defendant justified as an oflS- cer, under an attachment, evidence to show that it was dissolved ' MoNeal ». Leonard, 1 Allen, 399. See same case, 3 Allen, 368. 2 lb. 8 Bills B. Vose, 7 Foster, (N. H.) 315 ; Belknap v. Wendell, 1 Foster, (21 N. H.) 181. « Marsh o. Pier, 4 Eawle, (Pa.) 373. ' Currier d. Ford, 36 111. 493 ; Belden ». Laing, 8 Mich. 500 ; Cassell b. Western, etc., Co., 12 Iowa, 47; Hickey». Hinsdale, 13 Mich. 99; Loomis«. Youle, 1 Minn. 175 ; Clark v. West, 33 Mich. 243. « Gary ®. Hewitt, 36 Mich. 338. MATTERS IN DISPUTE. 425 after the property was replevied was immaterial, as the rights of the parties depend upon the facts existing at the time the suit was begun. 1 So in suit on bond, when the issue in re- plevin was title to the property, and that was found for the defendant, he was not allowed, in the suit upon the bond, to set up a subsequently acquired title as a defense.^ But this rule will not prevent the consideration of damages to the time of the judgment, as interest is computed on a note; neither will the court refuse to consider the rights of the defendant to a return at the time return is asked. § 792. Date of writ not conclusive as to commencement of stiit. The date of the writ is not necessarily conclusive as to the time the suit was begun. If the action had not accrued on the day of the date of the writ, but did accrue before the date of the service, and there is no evidence of the date when the writ was issued or used, in any way, the presumption would be that the action was brought after it had accrued.* § 793. AH matters in dispute should be settled in the replevin suit. The legal interests of the parties should, as far as pos- sible, be determined in the replevin suit; that should be final. By this is meant all the legal rights of the parties at at issue, or which may properly be determined in the suit should be finally settled. But where the plaintifi" dismisses the suit, and the court awards a return, the security may plead limited interest or want of title, in reply to the suit upon the bond.* Where the plaintiff claims property, and the defendant claims a lien, as poundmaster, the jury should find whether the plaintiff was the owner, and whether the property was subject to this lien.s § 794. Defense by bailee. A bailee of goods, when sued, may show that his bailor did not own them. He is not bound to retain possession at all hazards, and is under no obligation to resist an apparently good claim made by another person, at ' McCraw v. Welch, 2 Col. 387. i^CarrB. Ellis, 37 Ind. 467. 8 Federhen v. Smith, 3 Allen, 119. See, also, Swift t. Crocker, 21 Pick. 241 ; Seaver n. Lincoln, 21 Pick. 267. * Hayden v. Anderson, 17 Iowa, 158. « "Warner «. Hunt, 30 Wis. 203. 426 MISCELLANEOUS. the expense of a lawsuit,^ though fair dealing in this respect would require him to notify the bailor, if practicable, so that he might resist, if he saw lit. The rule in ejectment requires the tenant to notify the landlord of any suit to dispossess him. The same reasons would apply where the bailee was sued for a chattel by a stranger. The bailor might determine for himself whether to yield to the claimant, or contest his right; or he might notify his bailee, which would be the preferable course. § 795. Effect of a submission to arbitration. An uncondi- tional submission of the suit in replevin to the award of arbitration, is a discontinuance of it. The parties have agreed to resort to another and different forum. In such case the liability of the security is at an end. The bond was conditioned to secure the due prosecution of the suit; the prosecution was dispensed with by agreement of the defendant for whose benefit the bond was made.^ But if the submission contains the agreement that a judgment of court shall be entered upon the award, such an entry will be equivalent to a judgment after trial.* § 796. Plea in abatement, another suit pending. Plea in abatement, setting up a prior replevin, which did not allege any affidavit for the issue of first writ, or that the writ com- manded the sheriff to take this property, was insufiicient.'* § 797. The same to the affidavit. The statute is that no plea in abatement other than to the jurisdiction, or when the matter relied upon shall appear of record, shall be admitted unless sworn to. But a plea in abatement to the afiidavit which is not a part of the record must be sworn to.^ § 798. Limitations. Plea of non cepit infra sex annos is ' Learned v. Bryant, 13 Mass. 224. ' Reeve v. Mitchell, 15 111. 297; Perigo v. Grimes, 2 Col. 656; Perkins ». Rudolpli, 36 111. 307; Smith «. Barse, 2 Hill, 387; Archer ». Hale, 4 Bing. (13 E. 0. L.) 464 ; Larkin «. Robbing, 2 Wend. 505 ; Towns «. Wilcox, 12 Wend. 503 ; Wells v. Lane, 15 Wend. 99 ; Moore v. Bowmaker, 1 E. C. L. Rep. 663 ; Bowmaker v. Moore, 1 Exch. Rep. 355. 3 Thorpe v. Starr, 17 111. 19!) ; Camp v. Root, 18 Johns. 22 ; Green «. Patchin, 13 Wend. 293 ; Ex parte Wright, 6 Cow. 399 ; Yates «. Russell, 17 Johns. 461 ; Merritt v. Thompson, 27 N. Y. 232 ; Hills e. Passage, 21 Wis. 298. " Belden v. Laing, 8 Mich. 501. ' Town ®. Wilson, 8 Aik. 405. AMENDMENTS 427 bad; it should be actio non accrevit infra sex annos.^ The plea of non cepit infra sex awnos is no answer to the charge of wrongful detention ; the defendant may not have taken the beasts; as, for instance, where a colt was foaled while the mother was in the pound, the plea might be true, but would be no answer to the plaintiff's action. 2 Where the goods in dispute are wrongfully taken, the statute of limitations begins to run from the time of taking; but where the taking was rightful, the statute does not begin to run until demand and refusal, or until the defendant shall have actually converted the goods, or done some act from which the law will imply a conversion. Thus, when goods were taken by an officer on an execution which was afterwards set aside for irregularity, which rendered it void, the statute was considered as beginning to run from the time of the taking.* Where the suit was for notes deposited with the defendant, which were afterwards demanded of him and delivery refused, it was held that the statute began to run from the demand and refusal; and a sub- sequent demand and subsequent refusal, after the defendant had parted with the property, would not take the case out of the statute ;4 but if the defendant had had the property in his hands at the time of the second demand, the statute would undoubtedly have commenced to run from such second delivery. § 799. Amendments. In replevin, as at present adminis- tered, liberal amendments are allowed for the furtherance of justice; 5 or upon a variance between the pleadings and the proof, the former may be amended or disregarded upon the trial, if not calculated to prejudice or surprise the opposite party.* Where the avowry was for rent due at the end of the year, and the proof showed rent due half yearly, amendment was permitted without costs.'' When the plaintiff's writ by > Arundel d. Trevin, 1 Keble, 379. 2 Gilbert on Replevin, 131. ' Read v. Markle, 3 Johns. 534. ^ Kelsey «. Griswold, 6 Barb. 436. ' 5 Applewhite ■». Allen, 8 Humph. 698. Clerical mistakes in the form of the writ. Cutler v. Rathbone, 1 Hill, 305. 8 East Boston Co. «. Persons, 3 Hill, 136 'lb. 428 MISCELLANEOUS. mistake stated that the defendant " has taken " and detains, and the intention was to sue for the detention only, amend- ment, by striking out the words "has taken," was permitted.* So when the statute required sufficient securities, and the writ contained instructions to the sheriff to take " surety or sureties," the striking out the words " surety or " was allowed on motion. 2 Where the writ was addressed to'l;he sheriff, but was served by the coroner, upon a motion to quash and a cross-motion to amend by addressing it to the coroner, the cross-motion was allowed.* § 800. Amendment of affidavit. The affidavit may be amended in furtherance of justice; this, however, can usually be done only by a new affidavit, supplying what was omitted in the first.* Where affidavit was signed by plaintiff, but no jurat, and he filed affidavit that it was sworn to; held,\h&t the affidavit might have been verified nuno pro tuno.^ In an In- diana case, it was said in a suit upon the bond that the court could revise and correct the proceeding in the replevin suit; that the plaintiff in the suit upon the bond might file supple- mental pleadings to conform his suit to the amendment.' This carries the rule much further than the current of au- thority in other States warrants. The plaintiff may be allowed to file an amended bond,'' or affidavit,^ in cases where the court judges proper; but such amendments are in the discretion of the court, and when it appears that the question raised upon the bond or affidavit will be the validity of a tax levy, the leave will be refused.* Reasonable amendments to the plead- ings are permitted whenever the ends ot justice wiU be ■ Anon., 4 Hill, 603. ' Poyen «. McNeill, 10 Met. 291. ' Simcoke «. Frederick, 1 Carter, (Ind.) 54. * Applewhite v. Allen, 8 Humph. 698. 6 Bergesch ®. Keevil, 19 Mo. 128. 6 Wheat v. Catterlin, 23 Ind. 85. ' Whaling v. Shales, 20 Wend. 673 ; Smith o. Howard, 23 Ark. 203. 8 Frink v. Flanagan, 1 Gilm. 88; Parks «. Barkham, 1 Mich. 95; Phenix ». Clark, 2 Mich. 327; Jackson «. Virgil, 3 Johns. 540; Shelton v. Berry, 19 Tex. 154; Crist ». Parks, 19 Tex. 234; Eddy e. Boal, 34 Ind. 161. » McClaughry v. Cratzenberg, 39 111. 123. DEATH OF PA.ETY TO THE SUIT. 429 promoted; in case either party is taken by surprise, he is entitled to a continuance, or reasonable time to prepare.^ § 801. Death of party to the suit. It remains to be con- sidered what effect the death of a party will have upon the suit. Replevin has ever been regarded as in the nature of tort, and such actions die with the person, in the absence of statu- tory provisions to continue them.^ So replevin has in many cases been held to abate with the death of the defendant,* and judgment for return, which could only be made upon some investigation into the merits, was refused.* In Miller v. Langton, Harper, (S. C.) 131, the court says, in substance: There is nothing in the nature ot this action, nor in the doc- trine on the subject of replevin under the various statutes or the common law, which will make this action an exception to the general rule in such cases, that where the plaintiff dies the suit abates. The merits of the case have nothing to do with the question of abatement. The defendant loses no right; he is only in the situation of any other person prosecuting a right. The writ oiretornu cannot issue, because that would be unjust; because the return could only be made upon a determination of the merits, and here no determination on the merits can be had. In a case in trover which arose in Pennsylvania the court said in substance : If by possibility a case should arise in which there was originally no other remedy than trover, we should be sorry to say that by the death of the defendant there should be a failure of justice. But there is no question that trover dies with the defendant; and if the plaintiff might have chosen another remedy, and chose to adopt this perishable one,5 he ' Hellings v. Wright, 2 Har. (14 Pa. St.) 874 ' Kingsbury v. Lane, 21 Mo. 115. 3 Webber v. Underbill, 19 Wend. 447 ; Burkle v. Luce, 6 Hill. 558 ; Burkle B. Luce, 1 N. T. 163 ; Hopkins ». Adams, 5 Abb. Pr. R. 351 ; Same v. Same, 6Duer, 685; Mellen v. Baldwin, 4 Mass. 480; Foster v. Chamberlain, 41 Ala. 15b ; Rector -o. Chevalier, 1 Mo. 345 ; Lockwood v. Perry, 9 Met. 440. * Miller ■». Langdon, Harper, (S C.) 181; Merritt v. Lumbert, 8 Gr. (Me.) 128. Death of plaintiff does not abate the suit. Reist t. Heilbrenner, 11 8. & R. (Pa.) 132. ■> Hench v. Metzer, 6 8. & R. 273. See Ld. Mansfield in Hambly «. Trott, Cowp. 374. 430 MISCELLANEOTTS. has no ground of complaint if his "action perish. But these cases do not stand alone. In an able case in Pennsylvania it was said: "Eeplevin does not abate by the death of a defend- ant while the suit is pending; where one man has property of another in his possession, his fortune ought to answer it."i The reason for the rule which abated such suits was, that an action for tort was purely personal. When the tort feasor retains the property, all reasons seem to point to the justice of making his representations answer for its delivery. In Maryland it is held that the suit does not abate by the death of the plaintiff; his executor or administrator may be made party and prosecute.^ So in New York; it survives the death of the plaintiff, and is continued in the name of his repre- sentatives; the sureties continue to be liable; but it does not survive the death of the defendant. ^ ' Keite ». Boyd, 16 S. & R. 301. " Fister v. Beall, 1 Har. & J. (Md.) 31. " Lahley s. Brady, 1 Daly, 443. See Heinmuller v. Gray, 44 How. Pr. 360; Emerson v. Bleakley, 3 Abb. Dec. 33. INDEX. BEFERENCES ARE TO SECTIONS. A V SECTION. AJBATEMENT, of suit by death of party 801 effect of, on conditions of bond 418 of writ — where bond is not given 391 where bond is defective 391 return does not necessarily follow 485 for mistake of clerk return not adjudged 501 plea of. (See Plea in Abatement.) ACCIDENT, confusion of goods of different owners caused by ; rights of each 196etseq. ACC0UKT8, cannot be adjusted in replevin 630 ACTION, replevin a proceeding partly in rem and partly in personam 34 form of, in different States 36 cepit detinet and detinuet 53 similar to trespass and trover 45, 47 peculiarities, privileges to plaintiff 37 formerly would lie only for distress 41-43 title and right to possession investigated 39 actual detection necessary to sustain _ 52 scope of the investigation 55-57 lies only for chattels ....58 et seq. what is or is not real estate, may be investigated. 64 et seq. for what it lies 59 et seq. ACTOR, meaning of the term 21 when and how defendant becomes 481 (431) 432 INDEX BECTION. ACT OF GOD, effect of, on condition of bond 418 affecting questions of damages ' 600 ADVERSE POSSESION OP CHATTELS, owner may sell, notwithstanding 640 ADVERSE POSSESSION OF REAL ESTATE, chattels severed under, replevin does not lie 82 et seq. ADVERSE TITLE TO REAL ESTATE, when a defense in a suit for chattels severed 81 AFFIDAVIT, by whom must be made 655 must not be entitled 653 takes the place of the plaint 654 not a pai't of the record 650 Oontra, see note 3 this section. is the foundation of the suit 665 a prerequisite to the issuance of the writ or order for delivery 651 strict compliance with the statute required in 663, 664 general requisites of 655 must state — that the plaintiff is owner of the goods 655 meaning of "owner" 656 that the plaintiff is entitled to immediate possession 655 that the property has not been taken for any tax assessment, etc 228, 661 that the property has not been seized on execution, etc., against plaintiff 663 or taken on a writ of replevin or order for delivery 663 must describe the property accurately 665 must state the value 659 must be framed to meet the evidence 653 not evidence for plaintiff 651 not essential to the trial 651 truth of cannot be questioned on trial of the issue 651, 658 statement of value in, how far binding on the parties 659, 660 statement of value in, does not bind sheriff in fixing penalty in bond 400 ■writ must follow — in description of property 665 in statement of action 653 statement of wrongful taking not sustained by proof of wrongful detention 653 amendments to, how made 665, 800 when defects in must be taken advantage of.. 657 loss of, how supplied J 658 variance in description from bond no defense to suit on bond 451 INDEX. 433 "AGAINST SURETIES AND PLEDGES," '^™°''' origin and meaning of. ■ 20 AGENT, demanding goods must produce liis autliority , 380 wlien he may sustain replevin 132 not a proper defendant for goods of principal 144 express or railroad, when demand upon sufficient 879 when may be sued in replevin 144 AGREEMENT, to take or convert will not sustain replevin 137 ALIAS WRIT, formerly issued with the original 13 of replevin, when may issue 466 may issue to another county 466 ALTERATION OP BOND, material will avoid it 433 AMENDMENT, rules concerning 665, 799 not allowed where it will raise question of validity of a tax levy 228 of affidavit, how made 665, 800 of writ by addressing it to coroner 463 ANIMALS, young of, born pending suit, follow judgment 136, 600 APPRAISEMENT OP VALUE, to fix penalty in bond 400 sheriff may take goods to make 391, 401 not binding on parties - 453 goods taken for purpose of, must be returned unless bond is given - — 391 not evidence of value in assessment of damages 570 APPEAL, effect of on condition to prosecute with effect 417 by defendant, plaintiff bound to follow - 417 ARBITRATION, submission of suit to, effect on security 795 submission to, does not bind security 435 by consent of the parties^eleases securities 453 ARREST OP DEPENDANT, when allowed for concealing property to avoid writ 185 ASSESSMENT OP DAMAGES, when and how made 608 after dismissal of suit by plaintiff 616 generally dependent on local statute 609 See DAMAaas. made to time of rendition of judgment 525 28 434 raDEX. BECTIOH. ASSIGNEE, of property in adverse possession of another, when can sue in replevin 639 ASSIGNEE .IN BANKRUPTCY, entitled to goods of bankrupt. 106 ASSIGNEE OF FRAUDULENT PURCHASER, replevin hy defrauded vendor 325 ASSIGNEE FOR BENEFIT OF CREDITOR, damages to, against a sheriff 568 ASSIGNMENT, of replevin bond by sheriff 387 ATTACHMENT, sheriff levying has a special property 130, 300 defendant in, cannot replevy property 348 sheriff defending under must aver a debt to the plaintiff.. 303, 687 ATTACHING CREDITOR, not jointly liable with ofllcer for taking 646 of fraudulent purchaser, replevin by defrauded vendee 324 AUCTIONEER, selling stolen goods, when liable 364 when he may sustain replevin 132 AUTHORITY OF BAILEE, purchaser from, must take notice 813 AVOWANT, j udgmeut in favor of, under English statutes 385 AVOWRY AND COGNIZANCE, defined 32,725 distinction between these pleas 726 defendant may make 23 by avowry or making cognizance defendant becomes an actor or plaintiff 21, 481 form of these pleas ... 732 in the nature of a declaration 727 exactness required 727 must state a tenancy 730 must admit taking 727 must sufiaciently justify taking 728 pleas to, like pleas to a declaration 733 plea of set-off not allowed 734 B. BAILEE, rights and authority of 98,313 may have right of possession against owner 122 has an interest which may be sold on execution 98 when he may sustain replevin 97 et ««g., 644 INDEX. 435 ,,.^^„„ „ BBOTION. BAILEE — Continued. ■when may sustain replevin against owner 131 sale by, without authority, void 313 pledging goods without authority, void„ 316 selling goods in payment of his own debt , 314 general business of — when notice of his authority 313 wrongful sale by, conveys no title 314 selling for less price than authorized does not avoid sale... 317 setting up ownership forfeits his right to demand 873 converting property not entitled to demand 358 refusal to deliver by, must state the true grounds 381 for a particular purpose cannot use for another 313 when not bound to incur hazard of a suit 794 of goods wrongfully taken, may surrender to true owner .. 314 should notify owner of an adverse claim 794 BAJSTKRUPT, assignee of, entitled to goods.-... 106 has title against all but his assignee 106 BILL OF LADING, transfer of, when sufficient to transfer title to goods 193 accompanied by draft, consignor must pay draft . 194 transfer by, may be explained 194 BONDS. which can be identified may be recovered in replevin 59, 177 BOND, no bond required by common law. 384 first appearance of, in our laws 37 Eflglish Statutes basis of law concerning, in this country.. 385 a prerequisite to delivery. 388 wealth of defendant no excuse for not giving 390 permission to sue as a pauper does not excuse giving 889 deposit of money cannot be accepted in lieu of. 408 writ quashed when, is not given 388 characteristics of the contract ..398,411 object to secure sheriff. 437 objects and purposes under present practice 398 must conform to statute 393 executed on Sunday, when void. ^ 4(3& Sunday not counted in computing time to give 409 how executed • - 408 by whom, must be executed 406 by stranger to suit, for plaintiflf 407 should state the court where suit is pending 411 must describe the suit - 411 must describe the goods 413 must name parties 411 must contain name of defendant in suit 439 436 INDEX. BECTION. BO'RD — Oontinued. omission to name defendant a fatal defect in 411 penalty must be double the value of the goods 390, 393, 400 suit dismissed when the penalty is insufScient 393 must be for a definite sum i 413 must state value of goods 413 value of various articles stated in gross in 454 two securities required 385 to whom payable . 403 made to sheriflF or defendant. 385 when right of action accrues upon 428 construction of, in suit upon 404,405 intent of parties will control 427 clerical errors in, will not vitiate 439 defendant cannot plead that it was for ease and favor 436 ambiguous words, how construed 439 suit on — irregularities in issuing the writ will not defeat.. 446 variance in description from affidavit no defense to suit on. 461 non-conformance to the statute does not vitiate 436 failure of defendant to take advantage of defects in, does not defeat him in suit on 437 valid, though given after the writ was served... 439 conditioned to be void, if the obligor should not pay, will not defeat 439 in less than double the value of the property, not therefore void 437 error in recitals does not vitiate ,436 when the signature of one of the securities is a forgery, may be enforced against the other 437 with one security, may be enforced. — 437 defective as a statutory, may be good as a voluntary obliga- tion - 404 defendant may waive defects in, and accept.. 487,446 failure to take, does not affect jurisdiction of the court 410 duty of plaintiff to prepare and tender 402 officer not required to make out ^ 402 duty of officer to take. 289,384 coroner must take, when 394 clerk, not sheriff, takes in some States 390 officer must see it properly executed 410 officer liable for delivering goods without 391 liable for the sufficiency of the securities 385 defendant may except to form of securities 399 not necessary to trial 393 not necessary, unless plaintiff asks delivery . 396 supplies the place of property disti'ained 470 conditions of..... 29, 385, 396 INDEX. 437 BOND -Continued. ^'"^°''- condition of separate and independent 413 failure to keep all, a breach of.. 413 part of the conditions may be void, and others valid 413 condition to prosecute without delay, how broken 414 condition to prosecute with effect 415 breach of condition to prosecute with effect 416 condition to pay such damages as shall be adjudged 430 condition to return, effect of 419 failure to return when ordered, a breach of 423 requires the return of the identical goods 421 requires return of goods in as good order as whpn taken... 423 award of return not necessary to a breach of other condi- tions 428 actual return a compliance with that condition ^.. 426 what is a breach of 419 effect of death of party on conditions 418 rights of securities on 429 securities liable only for the letter of their contract 430 securities in, not discharged by settlement 434 securities on, not liable for costs, unless so provided 432 securities bound by the result of the suit 483 intent of makers will govern 439 securities on, have a right to return the goods . 439 substitution of new, will discharge securities in old 446 assignable to defendant 385 parties to suit on, cannot discharge it to the injury of sheriff 456 suit on, where the merits are not tried in replevin suit 448 judgment for return not essential to create liability on 430 ownership of property cannot be questioned in suit on, when settled in replevin suit 447,448 only relates to claims in the suit in which it is given 434 summary proceedings upon 440 release of, discharges sheriff 456 proceedings in replevin suit essential to suit upon 443 securities in not bound by submissions to arbitration with- out their consent 435 security in bound by acts of principal 433 securities liable for what their principal is lawfully adjudged to do 439 suit on, value and interest allowed on 540 suit on, when value is given as damages 458 effect on, of submission to arbitration 795 actual delivery of goods precedes liability on 435 any material alteration avoids it 433 court cannot vary or enlarge conditions 439 assignment of breaches in suit on ^ 441 438 INDEX. BEonon. BOND — Continued. what is a siifBcient assignment of breaches 443 defenses in suit on, -which should be made in replevin suit.. 449 debt a proper form of action on 441 ■what facts material to be set up in suit on 444 defenses to suit on 404, 405, 450 damages on, how assessed - 457 compensation the rule for damages on 457 value stated in, how far binding 453 defects in, how and when taken advantage of 393, 410 technical defenses to, not favored .^liw.-.. 436 ■writ issuing without affidavit no defense to suit on .fl..... 451 proceedings in replevin suit essential to suit on 443 right of action accrues upon failure to keep any of the con- ditions .- 428 judgment on, form of 457 sheriff's return must show taking of 46S limitation to suit on - - 461 partner cannot sign his co-partner's name 409 amended, may be filed.. 409 lost from files, how supplied 445 lost by officer, damages for 595 guardian executing liable personally. 43i> by defendant — when defendant may give, and retain the property . 395 sheriff should allow reasonable time for 298 BORROWER, cannot set up title against lender 103, 858 demand on, -when necessary.. 358 claiming in defiance of lender is a conversion 358 BREACH, assignment of in suiton bond 441 ■what is a sufficient assignment of 442 to prosecute with effect. 415, 416 to prosecute without delay.. 414 to make return if return be ordered 419 identical goods must be returned 431 actual delivery precedes breach of 435 judgment for return is 483 BUILDINGS, prima faaie real estate 61 placed on another's land by mistake.. 77 ■when replevin lies for 76 BURDEN OF PROOF, on plaintiff upon question of return 495, 689 ■where defendant does not traverse plaintiff''s right upon a plea of justification 697 INDEX. 439 0. CARRIER. ^='^*"'- cannot show title in a third party against consignee 104 goods taken from on writ against owner 104 liable for goods wrongfully taken and committed to his care 315 goods taken from, owner may sustain replevin 128 has lien on goods transported 370 has no lien on goods wrongfully in his care 315 CASTLE, does not protect goods of another 387 CEPIT, replevin in 53 CEPIT IN ALIO LOCO, plea of form and effect of 707 CHANGE OF FORM OF GOODS, effect of on parties' rights 210 et seq. rule of the civil law in such case 211 by agreement 220 does not change title 213 destroying identity, replevin does not lie 214 by taker in good faith, how affecting question of damages. 617 trespasser enhancing value, effectof 215 wrought by an innocent holder 213 owner must reclaim before greatly enhanced 217 by trespasser, effect of on question of damages 567, 617 CHANGING MARKS TO PRODUCE CONFUSION, effect of, innocent party may take all '. 202 CHATTELS, what are chattels 58 recoverable in replevin 31 title to, tried in replevin 39 severed from real estate, after ejectment 78 attached to real estate — when they become real estate 77 replevin does not lie fur 63 trade fixtures may be 67 actual severance from realty not necessary to constitute 69, 70 fixed to land of another ''"^ of another taken and fixed to land 77 timber taken and built into a house 331 crops harvested after ejectment S,^etseq. severed from real estate — by a trespasser, owner can recover 81, 82 by one in possession, holding color of title 83 et seq. title to real estate evidence of title 79, 80 440 INDEX. BEOTIOH. CHATTELS — Oontinued. Severed from real estate — Continued. when a mortgagee may recover dO et seq. holder of colorable titles cannot recover 81, 82 when finder of can sustain replevin 115 et seq. writ does not authorize severance of from real estate 293 when sheriff may sever from real estate 64 whether articles are, tried in replevin 64 et seq. CHATTEL MORTGAGE, distinction between, and pledge 2226 an absolute conveyance of title 222o mortgageor has an interest which may be seized and sold.. 222 6 insecurity clause in, effect of. 2226 rights of mortgagee under 223 sale by mortgageor, mortgagee may replevin 223 CIVIL LAW", rule of with respect to effect of change of form of another's goods , 311 CLAIM AND DELIVERY, form of this action in many States ... 509 distinction between, and replevin 509 CLAIM OF LIEN, when a conversion 868 CLAIM OF OWNERSHIP, waiver of demand, when ..... 374 CLAIM OF PROPERTY BOND, by defendant, effect of 298 CLOTHING, worn on the person not subject to writ of replevin 59, 148 COAL, dug on land of another, when value estimated 614 COGNIZANCE, defined 23 CONFUSION, of goods of different owners, what is 196, 198 fraudulent, all belongs to innocent party 197 when it does not change owner's rights 201 in case of grain 203 et seq. CONSIGNOR, replevin by against consignee when latter refuses to pay draft _ 194 CONSENT OF VENDOR, what is, to a sale Z20 et seq. CORONER, writ may be addressed to 463 must take bond, when. 394 COST, of moving property not included in damages 578 INDEX, 441 BEOTIOK. COMMENCEMENT OF SUIT, date of writ not conclusive 792 COMPENSATION, the object in awarding damages 457, 530 rule does not apply when taking was with malice 533, 546 how fixed 531,532 CONDITIONS OF BOND, ' separate and independent 413 court cannot vary or enlarge 429 failure to keep all, occasions forfeiture 413, 428 if broken, suit on bond for 385 to prosecute with effect — what is a breach of 415, 416 dismissal by consent a breach of.' 417 judgment for return not necessary to constitute a breach of. 415 prosecution in inferior court not sufficient where case is appealed 417 to prosecute without delay — how broken 414 CONDITION TO RETURN, actual delivery precedes liability 425 what is a breach of 419 if return be awarded — no breach of this condition unless there is a judgment for a return 419 judgment for return a breach of. 423 actual return a compliance with 426 securities may return if they see fit 429 requires the return of the identical goods 421 fulfilled if sheriff seize same property 426 duty imposed by this condition -. 419 performance of 419 effect of death of party pending suit 418 effect of death or destruction of property upon 455 COLORABLE TITLE TO REAL ESTATE, holder of cannot recover chattels severed 81, 82 CONDITIONAL SALE, non-compliance with, replevin lies 841 CONVERSION, meaning of the term 349, 351 what is - 349.362,365 demand and refusal not a conversion. 349 presumption of, from refusal to deliver 351 neglect to deliver, when not 138, 139 an agreement to take is not - 137 actual control necessary to constitute 858 presumed from refusal to deliver 873 442 INDEX. SZCXIOH, CONVERSIOlSr — Continued. taking with owner's consent is not 140 offer to deliver atanotlier place is not 383 when presumed to take place 372 demand not necessary after 846, 373 what is, by innocent receiver of stolen ^oods 364 by bailee, of chattels, for a particular purpose 313 damages estimated from time of. 534 wrongful use of hired property is ... 363 CONFUSION, of grain of different owners 196, 303 et seq. by accident or mistake, tenancy in (iommdn arises 197 et seq. does not produce tenancy in common unless separation is impossible 301 willful, all belong to innocent party 197 etseq. CONCEALING, removing property to avoid writ, effect of. , 135 CONSTRUCTION, of bond „ 404, 405, 437 "'I' promise to pay " 410 CONTINUANCE, anciently not allowed defendant 31 CONTRACT OF SALE, , does not vest title in the buyer unless the goods are sepa- rated, or can be distinguished ^ 186 CORONER, writ may be adJressed to, when. 463 must take bond, when 394 CORPORATION, may bring replevin 638 COSTS, of moving property not damages. 578 COUNT IN TROVER, purely statutory 669 CREDITOR, in execution or attachment not jointly liable with officer, unless he takes possession 143 CREDITORS, attaching goods fraudulently purchased 334 CROPS, GROWING, replevin lies for 74 CROSS-REPLEVIN, defined. 258 et seq. not permitted ^6 et seq. CUSTODY OF THE LAW, goods in, not repleviable 343, 344, 353, 376 wrongful seizure does not amount to 345 INDEX. 443 CUSTODY OF THE -LAM— Continued. ^''™°''" goods taken on writ of replevin in 470, 476 et aeq. power of the court over goods in 460 D. DAM^qES, recoveralile in replevin 31 33 English statutes the origin of the law in this country 511, reasons for the rule awarding 515 question an essential one in replevin 511 to plaintiff 23,531 at common law, not allowed to defendant 511 allowed to defendant by statute 23 to defendant, in modern practice 532 not allowed to defendant unless he had the property 513 not allowed to defendant unless he claims return 523 only 'allowed to defendant where he is entitled to return 605 rules in actions of tort usually apply 530 ^ allowed only as an incident to judgment for the property.. 513 must be claimed in declaration 683 failure to claim a fatal defect. 511 usually awarded to successful party 5,12 may be awarded to both parties 514 when and how assessed 608 no uniform rule 525, 526, 536 rule in Suydam v. Jenkins 568 compensation the object 530 compensation the rule when no malice exists . 533 double not allowed — 538 in a suit for detention, proof of wrongful taking not proper to affect - 348 party claiming must do what he can to avoid loss 575 nominal where suit is dismissed for informality 517, 518 •when taking was wrongful, estimated from the time of taking 534 when taking was rightful, from time of conversion 534 plaintiff cannot dismiss to avoid a hearing on question of.483, 516 special must be specially alleged 571, 671 only nominal allowed, unless proof of actual injury 536, 538 where plaintiff's title is divested after suit brought 589 right of plaintiff at the time of judgment controls 589 distinction between replevin and trover 530 highest market value, when allowed 549 qualifications of rule allowing highest value 553, 554 suit must be brought within reasonable time 553, 554 market value, how ascertained 555,556 444 INDEX. SBcnoK. DAMAGES — Continued. place where value is considered as attaching... 562 et seq. value of goods not obtained on the writ 539 value allowed in case return cannot be had 543 et seq. where value of property is stable 54S where value of property is fluctuating 531, 532 value, when regarded as attaching 545 party claiming value must show himself to be owner 556 value and, must be separately assessed 610 when value is not allowed 543 et seq. plaintiff cannot have value when he has the goods 543 et seq. as between joint owners 598 between general owner and a trespasser 587 between general owner and owner of a limited interest 588 against officer for failing in his duty 596 between officer and stranger to the process 593 pledgee may recover full value against a stranger 589 between the general owner and a stranger to the suit 588 between the holder of a limited interest and the holder of the general property . 588 assignee for creditors against sheriff 590 between bailee and general owner 587 between general owner and holder of lien 584 pledgee not entitled to value of use as 581 as between owner of a limited interest and a stranger, full value allowed 587 between officer and general owner 593 as between officers holding different processes 597 officer acting in good faith, exemplary not allowed 591 officer for wrongful seizure 590 officer acting with malice 592 for seizure, exempt property on execution 371 officer losing bond 595 where defendant puts it out of officer's power to serve writ. 146 statement of value in affidavit, how far binding 569 depreciation in value, when an element 535 increase in value, how allowed 522 interest on value, when a measure of damages 537 interest, from what time computed 538 from time of conversion, when allowed „ 547 not allowed when value of use is given . 582 when part only of the goods are found 539 allowed in suit on bond ■. 540 when defendant is a stakeholder 542 perishable goods pending suit 471 change of form affecting — by agreement of parties .... .. 320 INDEX. 445 DAMAGES — Cmvtinued. ""^"^ Change of form aflfecting — Continued. ■when it does not change title 319 ■where the change is by mistake 319 ■where the change is by a trespasser 319 chattels annexed to real estate 331 coal dug, or timber cut 613, 614 timber converted into boards 567 trespasser cannot make a profit by 56S description to be employed 333 loss of business, how far compensated in 573 interruption to business 57g prospective profits not allowed 573 near or probable profits, ■when allowed 574 profits of illegal business not allowed 573 counsel fees, when allowed 576 barred Uy surrender of goods before suit begins 513 expenses of moving property, costs not 578 in a suit for note or bill 557 et seq. when jury allowed to estimate 546 verdict must find.. ^ 764 ■when suit is dismissed for informality, court will hear evi- dence upon 519 assessed to the time of judgment 535 party claiming must show 538 •where goods are delivered without bond 388 wool shorn from sheep pending suit compensated in 600 when one deprives the other of power to show real quality, best quality will be presumed 556 how awarded to one joint owner 459 sales of property by factor without orders 549 et seq. to compel return of property 607 pretium affecUonis family pictures 568 trespasser not excused by destruction of property 600 cannot be greater than claimed 611 against innocent holder who enhances value 217 coin, when a measure of 660 return of property in mitigation of 483 ■when defendant may show he owned the property in miti- gation of 437 where defendant retakes the property by force 146 on bond — when right of action accrues 438 securities liable only for their express covenants.. 439 securities may return the property 439 how assessed 45" nominal unless actual shown . 458 446 DTOEX. 0EOTIOK. DAMAGES — Continued. On bond — Continued. when only tho'se " adjudged " in the replevin suit. 430 no liability unless delivery of goods on the writ... 435 not for, in another suit 424 where the p arties are j oint owners 459 amount of 458 effect of seizure on another writ 460 destruction of property pending suit 455 value of use — rule allowing peculiar to replevin 530, 580 allowed only where property is chiefly valuable for use 583 illustrations of the rule 579 only allowed to party who has a right to use 580 and is in a situation to use it 580 not allowed an ofBcer 581 or pledgee 581 depreciation in value not allowed with use .. 583 interest not allowed with use -. 583 vindictive — meaning of the term j 630 rule for the assessment of 618 et seq. revengeful, not allowed 630 no general rule governing 633 actual malice or wanton carelessness must be shown 633 care to be exercised in assessing 631 illustrations of the rule 634 et seq. where the taking was with malice 546 when party acts in defiance of another's right 637 against officers of the law 638 not allowed against officer for mistake .. 639 DEATH OF PAETT, effect upon bond 418 effect of on suit 801 DEATH OR DESTRUCTION OF PROPERTY, replevin does not lie after 136 wrongful taker not permitted to set up as a defense 455, 600 judgment for value notwithstanding 601, 602 emancipation of slaves 603 effect of on bond 455 on question of damages 600 goods pending suit, at whose risk 471 perishable goods 471 judgment in such cases 787 DEBT, a proper form of action on replevin bond 441 INDEX. M7 DECLARATION, '^°"°''- when averment of demand necessary in. 681 ■whether averment of right of possession is suflBcient 677 must allege property in plaintiff 673 count in trover for goods not delivered 668 must follow the writ 679 must state time and place .' 673 must aver title by traversable averment 676 may contain several counts 666 rights of parties under a single count 667 should state value of property 680 description of property in 679 omission to claim damages fatal 513, 683 when must allege special damages 671 averm ent of wrongful detention essential 675 ■wrongful detention does not sustain charge of wrongful taking 670 when it should aver wrongful taking. 670 DEFENSE, separate for separate parties 684 title as, must be shown when suit began 685 right of possession as 99, 107 ownership not necessary 103 legal title superior to equitable 105 to suit on bond — technical not favored 436 should be made in replevin suit 449 general rule 450 DEFENDANT, claim ing property, sheriff could not proceed 12 when an actor or plaintiff - - 21 who may be.... 634 servant not usually proper 644 agreement to take, will not sustain replevin 137 about to take possession not sufficient 137 miTSt be one in possession of the goods 134, 139, 145 one able to comply with mandate 134 making way with or concealing goods to avoid writ..... .135, 145 liable when he puts it out of officer's power to serve the writ 146 each may plead separate defenses 683 each may file several pleas 683 surrender of property by order of court a good defense 699 damages awarded to 532 damages against -- ^'^'- wrongfully disposing of property 146 alias writ against ^66 name of, must appear in bond 411, 439 448 INDEX. ssonoK. B^FENDAHT—Oontinued. ■when may have judgment for return 372, 493 succeeding not always entitled to return 485 return not awarded unless asked 483 insol vency of does not prevent return 495 avoiding trial on merits, when entitled to return 501 when may give bond and retain the possession 40, 395 pretending he has the goods, estopped 375 when must plead jointly to obtain joint return 683 bound to know sheriff 288 goods on person of, cannot be taken 148 must receive property tendered, even if damaged 433 in execution cannot replevy goods seizedon 248 in replevin cannot replevy the goods 258, "SSS when entitled to demand 345 grounds of demand must be explained to 377 DEFINITION, of distress 6 of replevin 81 by Britton 5 by Blackstone 10 DELIVERY OF PROPERTY, mandate for, in the writ 463 to plaintiff on writ of replevin 292 where part only obtained alias writ may issue .,.. 466 execution of bond precedes 885, 463 sheriff cannot deliver without bond 401 precedes liability on bond 425 to complete a sale 186, 191 of gift 192 suit may proceed without 896 to plaintiff on writ, rights conferred by 469, 473 et seq. does not confer title 474, 476 upon the writ always precedes judgment for a return 499 after trial, judgment for 509 symbolic when sufficient to sustain replevin 194 DEMAND. object of 344 general rules governing 344 necessary where defendant's possession is rightful 345 on finder of property 359 taker up 01 estrays. 360 purchaser of goods payable in installments 361 innkeeper or carrier 370 innocent holder 364 what is rightful possession 365 possession taken to preserve not a conversion 357 INDEX. 449 DEMAND - OonUnvM. B^cynoi^. purchaser at sheriff 's sale 856 reason for the rule " g^g not necessary — \ •where defendant's possession is wrongful 345 acquired through force or fraud 345 proof of wrongful taking sufl5cient 348 from thief or trespasser 35O where the goods have been converted 351 meaning of "conversion" 353 fraudulent purchaser 366 when from officer 369 when defendant refuses to listen 373 when he has parted with possession 371 when must be made 344 gt jg« 37]^ before suit is begun 37I after suit .._ _ 372 effect of failure to prove 373 waiver of — claim of ownership by defendant 374 plea setting up ownership 372, 374 when admitted in pleadings to _ 373 upon whom must be made — upon one who can deliver. 375 upon defendant's wife or servant 375 upon express or railroad agent 379 on servant, when sufficient 381, 382 by whom must be made — by father or guardian 379 by agent 379,380 refusal to deliver .346, 349 true ground must be stated 380 to agent for want of authority 380 what is sufficient excuse for 381 by servant of master's goods 383 refusal to listen to.. 373 effect of 349 offer to deliver in another place 371 should be made on all several defendants 375 form of 376 • grounds for, should be explained when 377 et seq. defend ant offering to deliver at another pi ace 371 refusal to deliver, the true ground must be stated 380 when averment of in declaration necessary — 681 failure to prove, effect of.. 373 DEPRECIATION, when a proper element of damages . 635 29 460 INDEX. BBOTIOK. DEPUTY, sheriff required to have 18, note 1 authority to serve process 388 act of, act of sheriff , 394, 395 defendant must know.. 388 special, must show authority i 388 when must take bond 394 disputes between, sheriff must settle 396 sheriff responsible for acts of 395 DESCRIPTION, of goods 169 when goods cannot be identified replevin does not lie. .186 et seq. general, when sufiScient 179, 183 synonymous when allowed, illustrations of 176 strictness of required 169, 171, 185, 465 "store and contents," when sufficient 179 quantity described as "about" not suflScient 181 variance in, between writ and declaration 183 may refer to kind or quantity 180 writ, affidavit and declaration must correspond 183 objection to insufficiency of, when must be taken 185 omission of words of 183 of goods purchased in bulk, selection by purchaser 190 et seq. correctness of, when a question for the jury ... 175 in writ and in return . 184 bond must contain 413 affidavit must contain 665 to be employed when goods have undergone a change 233 DETENTION, wrongful, necessary to sustain replevin 53, 134 charge of, sustained by proof of taking 54, 348 distinction between, and trespass 53 allegation of, the gist of the action. 670 DESTRUCTION OF PROPERTY, replevin does not lie after 135 trespasser cannot set up as a defense 455, 600 pending suit, at whose risk 471 judgment for value 455, 787 in hands of sheriff 393 effect of on bond . 455 DETINET AND DETINUET, forms explained 53 DILIGENCE, in bringing suit, as affecting question of damages 553, 554 in rescinding a sale for fraud 331 DISMISSAL, question of damages in such case 517 INDEX. 451 SECTION. DISMISSAL — Continued. nominal damages awarded 518 not allowed to prevent hearing as to damages 483, 516 defendant may replevin property after 474 a breach of condition to prosecute with effect 417 DISTRAINOR, lien of, lost by the replevin of the goods 469, 475 DISTRESS, defined 6 origin of the right 716 how talien 7, 716 wrongful when security was offered 30 originally could not be sold 8 a pledge or security only 8 allied to the law of replevin 3 usually for rent 7 the wrongful detention of little better than robbery 21 at the risk of the owner 8 abuses of the right of, and the remedies for. 9 cannot be made the day rent is due 724 rights of landlord 721 fixtures not liable to 724 landlord cannot distrain twice for same rent 724 ai'ticles worn on the person not liable 724 right of, generally in force in this country 718 not a suit at law - 719 proceeding in case of . 719 right to replevy - 41, 473 replevin, ancient remedy for ~- 715 goods delivered to tenant to be worked up in his trade for another not liable to 724 damages in case of 585 DURESS, goods obtained by replevin for - 338, 367 DWELLING OF DEFENDANT, does not protect goods of another 387 E. ENGLISH STATUTES, the basis of the law of damages in this country 386, 511 EMANCIPATION OF SLAVES, affecting the question of damages 603 ESSOIN, defendant not allowed ^'■ ESTRATS, .„^ „„^ taker up, conforming to law, has a lien on the property... 134, 6W 452 INDEX. „ BBCTIOK. ESTRAYS — Oontinued. must comply strictly with law 126 taker up, when entitled to maintain replevin 678 taker up complying with the law entitled to demand and tender. 36(> taken up when a trespasser 360 ESTOPPEL, party estopped by sale with his consent 150 defendant pretending he has the goods 375 EVIDENCE, scope of, admissible in replevin 55 what suflScient to sustain claim of ownership 96 et seq. meaning of the term " owner" 656 meaning of the term "property in plaintiff" 96 et seq. of actual detention necessary - 53 that defendant was about to take possession not sufficient.. 187 proof of wrongful taking, when sufficient 54 proof of forcible taking not necessary 95 prior rightful possession, when sufficient 109, 113 plaintiff must show a right to immediate and exclusive pos- session . 94 title to land, when in replevin 79 as to what is or is not realty 64 ei seq. of colorable title to land, when defense in replevin 81 mortgage how far evidence of title to chattels severed from real estate 90 et seq. chattel mortgage, how far evidence of title 123 of legal title will prevail over equitable 105 affidavit must be framed to meet 653 of value at a distant market to ascertain true value 563 to sustain vindictive damages 622 special deputy must show his authority 288 what a demand and refusal is evidence of 349 proof of demand and refusal, when necessary 344 et seq. of value of use, when evidence of damage 583 judgment in replevin not necessarily evidence of ownership 103 as to the identity of the property 168, 171 jury to determine identity from 175 as to description must correspond with writ and declaration 182 of title must not be stated in pleading 676 of a selection of property by a purchaser 190 of the value of goods, for fixing amount of bond 400 affidavit when, of value 569, 659 of value and damages must be separate 610 contract for purchase not, of title 129 carrier cannot prove title in a third person 104 ■what is sufficient to show the goods were seized for a tax.. 236 IMDEX. 453 EXECUTION OR ATTACHMENT, shotios. goods seized on, defendant cannot replevy , 343 distinction between, and writ of replevin ]"357 28I officer must take tlie goods of the defendantnamed 'at his , Pf'--- - - 260 levy ot, confers a special property on officer 130, 300 lien of, continuing _ "" ' aqr property taken on and replevied, and again taken on another execution, is a return 47g will protect officer when sued in trespass 263 effect of a replevy of goods seized ".".'."399, 473 goods wrongfully seized on.. "''.'".'. . ' 345 owner may retake, when 34Q levied on goods of a stranger by his procurement....^!!' 208 goods wrongfully taken on, what court has jurisdiction.... 373 on interest of mortgageor of chattels 333 j directs the seizure of defendant's goods 360 et seg. goods taken on, when not repleviable 343 345 against one of a firm,' officer may seize partnership goods.166 et seq. sale on wrongful, does not divest title I33 transfers no title, except what defendant had 303 conveys all the title the defendant had 300 damages to party holding under.. 686 EXCEPTIONS, to bond waived by plea to merits 410 to securities on bond 4IO to defects in affidavit 657 EXECUTORS AND ADMINISTRATORS, ' may bring replevin 636 not officially guilty of tort 637 EXEMPT PROPERTY, replevin lies for when seized 368 EXEMPTION, a personal privilege 370 aid of statute must be invpked 359 waiver of, by one creditor cannot be taken advantage of by another 369 damages for seizing 371 EXPENSES, of suit not allowed as damages 576 et seq. of taking and moving property allowed as cost, not damages 578 EXPRESS AGENT, demand upon, sufficient 379 EXPRESS COMPANY, agent of, proper defendant 144 454 INDEX. p. BScnoN. FAMILY PICTURES, damages in case of taking 568 FATHER, may sustain replevin for property of minor child 643 demand by, when suflBcient 379 FENCE, onland of another 76 FINDER, of note has no right to collect it 119 of goods entitled to demand 859 ■when he can sustain replevin 115 et seg. cannot claim lien for expenses 118 or for services gratuitously bestowed 359 setting up a lien not entitled to demand 359 has lien for reward offered 118 FINE, goods seized for fine not repleviable 241 FIRM, when responsible for taking by one member 141 FORCIBLE TAKING, of one's own goods, replevin does not lie for 51 proof of not necessary to sustain replevin 95 always wrongful 367 FORCE OR FRAUD, goods acquired by, demand not necessary 345 FRAUDULENT TAKER, acquires no title 310 no demand necessary 366, 367 goods obtained by, replevin for 328 FRAUDULENT PURCHASE, what is -.: 320 et seg. must be some positive fraudulent representations.. 330 innocent vendor may rescind or may affirm.. 318, 366 distinction between, and theft 334 FRAUDULENT PURCHASER, takes voidable title.. 318 takes a title good until avoided 334,366 cannot avoid the sale 818 replevin against, by vendor 319 diligence required of one to rescind 331 vendor can replevy from attaching creditors of. 324 vendor can replevy from assignee of.. 325 transfer of goods obtained by, to pay creditors 147 FRAUDULENT REPRESENTATIONS, as to credit, replevin lies 366 INDEX. ■ 4,55 FRAUDULENT. REPRESENTATIONS - Oontinued. '"'°'"*'' as to solvency, avoids sale aoi FRAUDULENT SALE, to avoid writ -^^ FRAUDULENT MIXTURE OF GOODS,' all belong to innocent party 197 et sea FREEMAN «. HOWE, rule in, discussed 2^3 et seq. Q. GENERAL DESCRIPTION, what is a suflBcient ........ 179 GENERAL DENIAL, evidence under plea of 301 GENERAL ISSUE, strictly speaking, none in replevin.. 700 GIFT, not sufficient to sustain replevin without delivery 192 GOOD FAITH OF AN OFFICER, no protection against illegal acts 276 et seq when no defense 364, 365 GOOD ORDER, goods returned must he in as, as when taken 432 GOODS, lost at sea, lien of salvors 127 sold on condition, execution against 343 wrongfully seized on execution, owner may replevin .. 245 when returned must be in as good order as when taken 422 purchased from bulk, replevin does not lie for unless sepa. rated or distinguished 186 et seq. injured in defendant's possession he is responsible 423 GRAIN, mixed with similar grain belonging to another 203 et seq. GROWING CROPS, replevin for 74, 143 harvested after ejectment 85 et seq. GUARDIAN, may sue for property of his ward 643 demand by, when sufficient 379, liability of on bond personal..... 438 HOTEL KEEPER. See Inn Keeper. HOUSE, when replevin lies for . .. 68 mortgagee may recover . 90 456 INDEX. SEOTION. HIRER, for a special purpose, cannot use it for another 363 when his interest may be sold on execution — 98 See BATLEii. I. IDENTIPICATION, of the goods sued for, strictness of the rule 171 et »eq. replevin does not lie unless goods can be identified 186 et seq. IDENTICAL GOODS, must be returned 431 writ of return must show 510 after a change of form — 318 et seq. INDEMNITY, officer may demand 29S et seq. INFANT, avoiding payment, replevin lies for goods 837 INJURY, to goods while in defendant's possession, who responsible.. 433 INJURIES, to property pending suit, efiect of 471 INN KEEPER, has a lien on goods of guests 134 as to lien of, on horse stolen and left with 315 INNOCENT PURCHASER, replevin against 366 ignorance does not excuse 864 of stolen goods cannot resist the owner ..807, 864 from plaintiff in replevin pending suit ^ 476 of goods taken by trespass 309 from fraudulent taker, cannot resist the owner 310 distinction between, and one who takes goods in payment for debt 338 from fraudulent purchaser, replevin does not lie against. .318, 333 of goods bought with counterfeit money. 833 pledgee, or mortgagee, not so regarded 338 of mortgaged goods, mortgagee may replevin. 313 from bailee without authority 313 et seq. from one who took goods of principal from an agent for debt 314 from thief, may affirm the contract against the thief 311 of goods sold on condition, replevin lies for 341 who changes form of chattels may hold 316 from wrongful taker, demand, when necessary 347 of stolen goods, not entitled to demand 847 when liable for value 311 INDEX. 457 INTEREST, '^''^""'- judgment draws 538 as a measure of damages 637 ■when only part of the goods are obtained 539 from what time computed 538 on value from time of conversion, under English statutes.547 etseq. not allowed with value of use 583 and not value of use, when allowed 583 when the contest is on the validity of sale 541 where the defendant is a stakeholder 543 when plaintifif fails to furnish bond 538 allowed in an action on bond 540 INSECURITY CLAUSE, in chattel mortgage, effect of. 333 6 INSOLVENT PURCHASER, may return goods to veudor 830 INSOLVENCY, of securities, court may order new 409 fraudulent representation as to solvency avoids sale 331 will not avoid purchase made in good faith 330 believing himself solvent 830 omission to disclose will not avoid a sale 830 INSOLVENT LAWS, contesting creditors cannot claim under 788 INTOXICATING LIQUORS, seized, not repleviable 353 contra, when ordinance is void 353 sold to violate law, replevin does not lie for 836 J. JEWELS, replevin lies for, if identified 177 JOINT OWNERS, must join in a suit for joint property 155, 685 et seq. owners of different interests cannot join 685 must join in avowry "25 JOINT TENANCY, appearing in the wi'it, the court will abate it 158 pleaded in abatement or in bar 160 as a matter of defense 153 an issue to be tried. 1^3 owners of different interests cannot join in replevin 635 of grain, when replevin by lies 203 etseq. one may have exclusive right to possession - 161 one cannot sustain replevin against another 153 or against a stranger 156 458 IHDEX. JOINT TE^A-NC^ — Continued. one may recover on former possession 156 severance of 162 et seq. must have joint judgments 635 damages as between 598 damages, how awarded to one 459, 598, 599 return adjudged when parties are 506 payment of rent to one of two 723 JUDGMENT, in replevin 34 by default 770 must be certain 768,769 ■what it must determine 766 must determine all issues as to all parties „. 767 form of, in several States 774 may be good as to some, bad as to other defendants 767 may be for separate parties 775 or separate articles 776 for different parts of property, for each party 667 efifect of in particular cases 783 for value when rendered 548 effect of, for value 779 ■when it does not affect title 781 for dismissal does not affect title 783 for sum demanded, error unless found 741 for value of limited interest 784 only rendered ■where return would be proper 491 in alternative for goods or value 772, 773 exceptions to this rule .. 774 defendant entitled to alternative, for return or value 548 et seq. as in favor of joint owners must be found 635 for damages cannot be rendered unless found 529 •where property is lost or destroyed 604, 786 cannot be for value when party has property 543, 771 •where plaintiff does not ask delivery 151 on a count in trover 785 where goods are delivered without bond 387 order for delivery in 777 for delivery after trial 509 for return — no arbitrary rule governing 503 only rendered after investigation 485 •when should be rendered 508 never given unless the plaintiff obtained the prop- erty on the -writ 499 controlled by rights of parties when rendered 496, 497 not a bar to another action of replevin 494 IHDBX. 459 JUDGMENT — Gontinued. beotion. For return — Continued. does not affect title r^82 when not evidence of title "[" 494 defendant has no optica to pay value 423 may be to one of several defendants 486 defendant entitled to reasonable time to comply with __ i^rjQ may be for part of the property 486 may be for part of property to one defendant and part to another. 486 where property is lost or destroyed 506 of property not delivered erroneous 499 not rendered unless defendant show a right to 487 not rendered unless the' goods were delivered 499 when parties aj'e joint tenants 506 not necessary to constitute a breach of other condi- tions __ 415 is a breach of the condition to return 423 for young of animals born pending suit 500 on bond, form of _ 457 in suit on bond for penalty 457 how satisfied 457 not rendered in proceeding of distress 719 JUSTIFICATION, plea of by officer must show, the command of his writ 301 JUEISDICTION, what court has, for property levied on 273 as to property in the county when writ issued 467 not affected by want of bond 893 L. LAND, title to, when evidence in replevin 79 et seq. LANDLORD, cannot sustain replevin for undivided share of crop 157 lien of, gone by replevin of the goods detained 473 measure of damages awarded to — - 459 cannot distrain twice for same rent 734 LARCENY. See Theft. LEGAL TITLE, will prevail over equitable - 105 LENDER, when he must demand goods 358 LEVY, by an officer confers right to possession -. 130 460 INDEX. SZOTION. LEVY — Oontinued. confers special property. 300 replevin lies where it is wrongful 251 when not a conversion 353 in bulky articles 143 on goods of a third person by his procurement 208 does not confer possession on ci'editor 143 of tax warrant, irregular cannot be contested in replevin.225 et seq. LIBERTY, what is a 17 sheriff could not enter 14 sheriff authorized to enter without writ 17 non omiitas, authorized the sheriff to enter 14 LIABILITY, on bond, delivery on writ must precede 425 LIEN, of execution, a continuing lien 426 of distrainor, lost by replevin of the goods 475 of the taker up of an estray 124, 126 finder has no, for expenses voluntarily incurred 118 of oflBcer on goods levied on 130 of innkeeper 124 carrier or innkeeper cannot assert against owner of stolen goods 370 holder of, entitled to possession may sustain replevin 182, 125 finder of lost property has, for reward 118 defendant claiming, must specifically assert 381 of landlord, effect of replevin upon 739 lost by replevin of the goods 473 of factor on goods 124 damages when successful party had only 684 of salvors .' ^ 127 LIMITED INTEREST, verdict in such eases 763 judgment for amount of 784 value of, as damages allowed 459, 584 LIMITATIONS, form of plea 798 to suit on bond 461 when statute commences to run 798 against ofBcer 798 LIQUORS, sold to violate law returned to sheriff 505 LOST BOND, how supplied 445 INDEX. 461 M. MALICE, ^'"'"°''- as affecting the question of damages 623 illustration of the rule 624 officer acting with, how liable 692, 628 of party does not affect officer 593 actual must be shown 622 MARKS AND BRANDS, sufficient to distinguish goods sold 195 changing, to produce confusion, innocent party takes all... 202 MARKET OVERT, sale of goods in 306 unknown in this country 807 MARKET VALUE, how ascertained 555, 556 value at a distant market, when may be shown 563 et seq. MASTER, may sustain replevin for goods taken from his servant 644 may instruct servant not to deliver except on his order 382 demand on servant for goods of, not sufficient 382 MEASURE OF DAMAGES, rules for estimating. 525, 546 nominal when allowed 526 compensation the object 530 except where malice is shown 583 how compensation is ascertained.. 531 when property is stable in value 548 when value is fluctuating 532, 548 in a stock speculation 556 "market value," how ascertained 555, 556 in case of wrongful detention 546 highest value between conversion and judgment, when allowed 549 party claiming must show extent of loss 528 time from which damages are estimated when taking was wrongful 534 same, when taking was rightful 584 as between joint owners.. 459, 598 between general owner and a trespasser 587 as between officer and stranger... 593 pretitum affecHonis, when allowed to enter into damages ... 568 between bailee and general owner 587 when goods are sold by broker without orders 549 et seq. price at which goods sold, when allowed to govern 568 price at which goods were sold is not 567 between general owner and a stranger — 587 when the party had only a limited interest in the property .459, 584 462 INDEX. SZOTION. MEASUEE OF DKM.k.G'E,^ — Continued. where title has terminated before judgment ... 589 rule in Suydam «. Jenkins 568 in a suit for note or bill 557 et seq. interest not allowed with value of use 583 interest as a measure of damages 537 from what time assessed 538 when one deprives the other of power of showing real quality, best quality presumed 556 against sheriflf for wrongful seizure 590 as between ofBcer and general owner 593 against officer acting in good faith 591 for neglect of duty 596 acting with malice 593 as between officers 597 diminution in value a proper element 635 loss of business, how far 573 expenses of suit, counsel fees 576, 577 loss of profits of an illegal, never allowed ' 573 conduct of suit as afl'ecting 553, 554 when party acts in defiance of right 637 when malice is shown 633 value of property when not allowed 543 et acq. value of use when allowed 579 value of use when not allowed 583 for coal dug, or timber cut . 614 special damages must be specially alleged 571 when defendant has wrought a change in the goods 567 et seq. value stated in affidavit how far binding 569 where goods have been removed, cost of transportation.563 et seq. coin, when a 560 in suit on bond 457 in suit on bond, interest on value 540 MERCHANDISE EEPT FOR SALE, disposal of, pending suit 480 MINOR, cannot sustain replevin . 643, 647 MIXTURE. See Confusion. MONET, when replevin lies for . 59, 177 deposit of cannot be accepted in lieu of bond 408 MORTGAGEOR, rights of to chattels mortgaged 3336 has an interest which may be sold 332 sale of chattels by, will not defeat mortgagee 833, 313 MORTGAGE, on real estate how far title to chattels, severed tlierefiom.90 et seq. INDEX. 463 N. ,T_„-._,„„ BEOTION. NEGLECT, when not a conversion 138, 139, 353 NEGLIGENCE IN PROSECUTING SUIT, as affecting question of damages 553,554 NOMINAL DAMAGES, only allowed unless proof of actual damage 528 awarded without proof of actual injury 526 NON CEPIT, when proper plea 700 form of plea of 705 effect of this plea 704 defendant not entitled to return on 487, 704 exceptions to this rule 488 defendant not entitled to damages on 704 admits every fact except taking 704 NON CEPIT AND NON DETINET, statutory effect given to these pleas substantially same as general issue 488, 700 NON DETINET, when proper in replevin 700 general rules governing - 713 defendant not entitled to return on 487 exceptions to this rule 488 admits plaintiff right - 713 whether plea of tender proper issue to charge of taking... 709 effect of, similar to n&n cepit, only denies the detention 708 NON-PAYMENT, does not warrant rescission of sale — 840 NOTE OR BILL, damages in a suit for - 557 et »eq. finder of has not right to collect - 119 NOT GUILTY, verdict of, what responsive to 746, 747 NON-SUIT, effect of 26 judgment for, does not affect title 781 " NULLA BONA," return of, as to securities not conclusive 387 O. OBJECTIONS TO BOND, waived by plea to merits - 410 OFFICER, duty on receiving a writ of replevin 393 464 INDEX. SBOTION. OFFICER — Continued. power, and of serving a writ 382 he must see that his writ is in form 284 that the description is sufficient 285 that the court had jurisdiction to issue such a writ. 285 that the writ is valid on its face 298 he must talie bond 289,290 serve promptly 292 search for the goods 392 employ force if necessary 385 deliver the goods to plaintiff 393 penalty for failure to discharge liis duty 596 may refuse to serve when description is uncertain 181, 182 neglect of, suit not dismissed for . 714 seizing goods without authority a trespasser 276 when may break and enter dwelling 287 must execute process in a legal manner 284 serving writ of replevin cannot sever real estate 293 liability of, for refusing to take chattels, under pretense that they are real estate 293 defendant bound to know 288 may demand indemnity, when 298 et seq. cannot take clothing worn on the person 148 how far protected in serving writ of replevin 264 cannot take goods from possession of a stranger to his writ 1 265 et seq. good faith of, no protection against illegal acts 276 et seq. taking by, what is sufficient 142 special property of, acquired by levy of process 130, 300, 644 levy on bulky articles 143 levying on goods of wrong person, latter cannot replevy if by his procurement 208 wrongfully seizing goods, replevin lies against 245 wrongful levy by, owner may retake his goods peaceably.. 246 seizing goods for tax cannot go outside his bailiwick 239 et seq. not an insurer of goods 293 liable for ordinary care 293 liable for value of goods left with debtor 393 defense by, to suit of replevin 303 plea of justification, must show his process 301 must show a valid judgment in addition to execu- tion 130 must ask a return 303 defending in attachment, must show a debt due 303 with writ of retorno cannot take goods from person not named 267 mixing goods loses his lien 199 ESDEX. 465 OFFICER - Continued. ^'"^°^' ■with writ of replevin not liable for taking the goods from the defendant named 364 et seq. seizes goods from defendant named in his process, demand necessary 368 when entitled to demand 368 sale by, on execution transfers no better title than defendant had 303 wrongful seizure and sale by, does not aflfect owner's rights. 133 return of process 297 must state his acts 297 the property taken 297 how far conclusive.. 297 act of deputy is act of the superior 294, 295 must settle disputes of his deputies 296 liable for act of deputy 294, 295 damages against, for seizing exempt property 271 measure of damages between 597 receiptor to, rights of 131 whether permitted to sustain replevin 645 attaching creditor not jointly liable with 646 acting with malice, damages against 592, 628 removal or resignation does not relieve him of responsibility 294 liability of, personal 294 limitations against 798 extent of his liability in taking security 390 liable in case of failure to take bond 290 liability for solvency of securities 289 et seq. liable for taking bond in less than double the value of the goods - -- 290 may take goods to appraise without bond 391 neglect to take bond not a contempt 393 cannot deliver goods without bond. 387 liable as a trespasser for delivering goods without bond ..390, 391 or on insufBcient bond — 391 with execution, must act at his peril 276, 592 execution, when no protection to 283 ORIGIN, of replevin unknown - -- 1 OWNERSHIP, absolute, not necessary to sustain 96 change in, pending suit, effect of..... 496, 497 bailee claiming, forfeits his right to demand -. 373 question of, not affected by delivery on writ . . 474, 476 determined by result of suit, not by delivery on writ of replevin - *™ question of, not settled by judgment for return 494 30 466 DSTDEX. SEOTIOH. OWNERSHIP — Continued. when settled in replevin suit cannot be questioned in suit on bond 447,448 OWNER, meaning of the term in this action 656 usually entitled to possession 39, 123 of goods fraudulently purchased cannot replevy from an innocent purchaser - 334 et seg. taking with consent of, not a conversion 140 of real estate cannot recover chattels severed by holder of adverse title in possession 83 et seq. when may recover chattels severed 81 receipting to an officer cannot deny officer's right 103 may be estopped to assert title - 339 taking forcible possession of his own goods, replevin does not lie 51 P. PARTIES, who may be 634 owners of separate interests cannot join 635 joint tenants must join 635 agent, when may be 635 of express or railroad company 144 trustees, executors, etc 636 parish or corporation 638 assignee of goods in adverse possession of another 639 father or guardian may be 643 servant not a proper party 644 officer may replevy goods seized on process 300, 644 levying on bulky goods, may be sued 139, 143 receiptor to officer. 645 attaching creditor, when 646 minor cannot be 647 plaintiff must be one who has a right to immediate and exclusive possession 94 defendant must be one who has possession 134 right of at time suit begun will control 496 each has a right to submit proper issues 745 right to return determined by right at the time of judg- ment : 496,497 death of, effect on suit 418, 801 sheriff may sue bond 463 assignee of sheriff may sue bond 385, 387 PARTNER, one cannot maintain replevin against another for firm goods 153 INDEX. 467 PARTNER - Continued. '"'"""'• sale of one partner's interest 165 survivor or administrator entitled to possession may sustain replevin _ 159 when responsible for taking by one member 141 one cannot bind firm on a replevin bond 409 accounts cannot be settled in replevin 166 ei seg. interest of one may be seized on execution 166 PAUPER, » taking oath of, does not excuse giving bond 389 PENALTY IN BOND, mode of ascertaining . 400 judgment for, how discharged _ 457 not the measure of the parties' right of recovery 457 PERISHABLE PROPERTY, disposition of, pending suit 480 rule concerning 471 PERSONAL ACTION, how far replevin is a 34 PERSONAL PROPERTY, what is, tried in replevin 64 PERSON OF DEPENDANT, goods on, cannot be taken 148, 286 PLAINT, afladavit of, modern practice 654 PLAINTIFF, who may be, in replevin, 634 must have an entire interest 154 owners of separate interests cannot j oin 155 entitled to possession pending suit 37, 470 duty of, concerning the property pending suit 480 must show right to present and exclusive possession. 94, 97, 107, 108 ownership in the identical goods sued for 168 duty of as to keeping the property until suit is decided .... 480 rights of, to property pending suit 470,476 when, may sell property pending suit .469, 470, 473 rights acquired'by, under the writ 469 injuries to goods pending suit at his risk 470, 471 need not show title by absolute ownership 96 et seq. "property in," meaning of the term. 96 need not show title against the world 97 et seq. asserting title must show good title 130 a right to possession as against defendant 97 et seq. not required to return unless he had delivery 499 not liable to return unless so ordered by the court 483 may return property without order and save damages 483 damages allowed to - 521 468 INDEX, SBOTIOir. PLAINTIFF — Oontinued. must give security 37,400 PLEADINGS, established rules must govern 648, 649 statutory rules 703 declaration must state value of property 680 issues formally admitted cannot be denied 703 description of property sliould follow affidavit 665 declaration may contain several counts 666 count in trover, when permitted 668 averment of demand, when necessary 681 special damages must be specially pleaded 571 disclaimer of interest in property no defense 711 by sheriff 687 whether non detinet is proper to charge of taking 708 joinder of pleas allowed 706 several pleas allowed, Stat. Anne 706 matters in issue not admitted by subsequent pleadings 701 proof of one of several defenses sufficient 684 traverse denies plaintiff's right 696 traverse the material part of the plea 689 ■without traverse, burden of proof on defendant 697 to affidavit.. 657 affidavit not a part of the record 650 avowry and cognizance substance of these pleas 728 statutory forms sufficient 679 justification alcme burden of proof 712 statutory effect given to non detinet 713 cepit in alio loco 707 non cepit, or non detinet 700 effect of non cepit 704 non detinet, T\>Xe& governing 713 PLEAS IN ABATEMENT, of joint tenancy 160 prior replevin, necessary allegations in 796,797 PLEAS, joinder of 684 separate, need not be consistent with each other. 684 to merits, waiver of objection to bond 410 description 185 of property in defendant, how construed 686 not sufficient against right of possession . 688 necessary to obtain return 491 what will sustain this plea 686 must traverse plaintiff's right 686 to obtain order of return 491 of noneepit, simply denies taking.. 689 INDEX. 469 PLEAS — Continued. Of non cepit — Continued. admits the property in the defendant 686 return not ordered upon 487 damages not allowed to defendant on 533 exceptions to this rule 534 non detinet, return not ordered on 487 of title, must show where suit began 685 of justification by an olHcer 301 must showprocess 687 of property in third person 689 does not admit the taking 690 third person must be named 690 not sufficient, where plaintiff claims only right of possession 694 not binding on said third person unless a party ... 691 form of this plea 690 right of defendant to return under 693 defendant must connect himself with that third person 695 what sufficient to sustain this plea 492 burden of proof 690 when defendant may have return on.. 493 trespasser cannot have return under. .i 493, 698 defendant cannot show property in another 690 what sufficient to authorize return under 693 without traverse, burden of proof ondefendant 690 evidence to sustain must be sufficient to destroy plaintiff 's interest... 694 with traverse 689 proper replication to 690 to avowry, or cognizance, like plea to declaration 788 what it must show 735 to suit on bond, that defendant converted the property, is bad 449 PLEDGES, meaning of 36 PLEDGEE, not entitled to value of use as damages 581 of stolen goods, when liable for 364 of goods obtained by fraud, replevin lies against 338 PLUMES, returnable, and the reason 18 PONE, writ of. 34 POSSESSION, plaintiff must show a right to 33,94 right of, in replevin, always in Issue 103 470 INDEX. SEOTioir. POSSESSION — Oontinued. right of, sufficient to entitle the party to recover 107, 115, 688 temporary right to, will sustain replevin 131 to sustain replevin, must be rightful 678 prior rightful, sufficient title against all but the owner ..110 et seq. must be under a claim of right 115 need not be under a claim of title i 115 by finder of goods 116 right to, does not depend on former 167 right of, may alone be put in issue 67^ obtained by force or fraud confers no right 310 prior rightful, prima facie title 109 et seq. chief question at issue in replevin 39 owner usually entitled to 133 ownership right to, may be indifferent persons 97 prior rightful 114r when sufficient to sustain replevin 109 et seq. by an officer, is not possession by the creditor in the process 143 after dismissal.. 149- neglect to deliver, when not a conversion 138, 139 by defendant, parting with to avoid writ. 135 taken as an act of charity, no conversion 857 does not authorize a sale 313 if rightful,, in defendant, demand necessary ; if wrongful, not necessary 343 et seq. actual, by defendant, necessary to sustain replevin 137 defendant must be party who has, when suit brought 134 exception 135 contract to purchaser does not confer right to 129 of property, pending suit 37 under writ of replevin, does not confer title 476 when defendant allowed to retain 40 conflicting claims to 114 PRESUMPTIONS, in favor of an officer .. 294 as to quality of goods converted 556 PROPERTY IN PLAINTIFF, declaration must allege ■ 673 meaning of the term in this action 96 must be in existence, subject to manual delivery 136 destroyed before suit, action does not lie 136 sold to defraud creditor, purchaser cannot recover 328 injuries to while in plaintiff 's possession 471 sale of, pending suit in replevin 469 taken on writ, is in custody of the law 470 rights of plaintiff to, pending suit ^t'H et seq. acquired by the plaintiff by the writ 469 ESDEX. 471 PROPERTY IN PLAINTIFF - Continued. '^"^'™- rights of determined in the replevin suit cannot be ques- tioned in suit on bond 447 plea of, necessary to return 491 PROFITS, real or probable, when may be allowed as damages 573 how far expected, enter into damages 573 expected, of illegal business not allowed as damages 573 PROCESS, no protection to officer where the levy is wrongful 251 PROSECUTION WITH EFFECT, what is 4ig PURCHASE, contract for does not give right of possession 139 of interest of one joint tenant 164 et aeq. of property in adverse possession of another 689 by insolvent, on credit, believing himself solvent 380 at sheriff's sale, if sale wrongful, no title passes 183 of chattels at tax sale, must show title through valid judg- ment 243 PURCHASER, from agent must know extent of his authority .. 313 R. RAILROAD AGENT, demand upon sufficient ... 379 REAL ESTATE, replevin does not lie for 58 title to cannot be tried in replevin 79, 80 title to, when evidence in replevin 79, 80 what is may be investigated 64, 393 et aeq. writ does not authorize a severance of chattels from 293 mortgagee of, when he may recover chattels severed 90 et seq. chattels taken and annexed to 331 property severed from, replevin lies 76 property severed from, value as chattel only recovery 613 RECEIVER OF COURT, goods lawfully in custody of, not repleviable 347 RECEIPTOR TO OFFICER, rights of. - 131 RECOUPMENT, plea of, to an avowry of cognizance 734 cannot be had in replevin 630 RECORD, of judgment in replevin, not evidence of title . 103 472 INDEX. SEcnoH. RECORD — Continued. of replevin suit, how far material to suit on bond 444 RECORDARI, writ of 24 REFUSAL TO DELIVER, reason for must be stated ..380,381 proof of raises presumption of conversion 351, 364, 373 bow interpreted ..346, 349 by servant, when proper 381, 383 to agent, when justified 380 what sufficient excuse for 381 qualified, when proper., 380 otter to deliver at another place 383 RELEASE OF SECURITIES, by delivery of the goods to another on order of the court.. 460 a release of the sheriflf... , 387 REMOVAL OP PROPERTY, after writ issued, effect of. 467 RENT, how payable 738 was the property of the landlord. 716 payable in anything which was certain 738 distress for non-payment of 719 REPLICATION, to plea of property in third person 690 to plea of property in a stranger 698 REPLEVIN, origin of, unknown 1 a mixed action 34 by writ before the Statute of Marlbridge 3 defined in the Mirror 1 by Britton. 1 by Blackstone 10 ascribed to Glanvil 1 %st appearance of among lex scripta. 3 IB- infinitum, statute against 26,37 for the recovery of distresses 5 allied to the law of distress 3 ancient writ of, authorized the sheriff to act as judge. ..10, 18, 19 writ of, issued only at Westminster ^_ 15 a writ of right 35 ancient writof, not returnable 10 writ alias and pluries issued at one time 13 sheriff's duty in case of resistance 18 by plaint 17 defects remedied by Statute of Marlbridge 3 growth of the law of 6 INDEX. 473 REPLEVIN - Continued. '''°™''- existed before chancery was known 1 damages anciently 23 ancient mode of trial 20 ancient writ of, did not lie to try title. 12 no delivery where defendant claimed title 12 ancient writ of, did not contain summons to the defendant. 10 under modern practice — definition _ 31 primary and secondary object of. 33 importance of the action 38 peculiarities of the action 37 a favorite of the law 21 called a violent remedy 38 when the only available I'emedy 38 a proceeding partly m rem 34 forms of in different States 36 for what it lies — only for chattels 53, 60 what are chattels 58 for domestic animals 59 when for buildings 61 bonds which can be identified... 59 money in a bag or box 59 records of a parish or corporation 59 wool shorn from animals 59 young of animals born after suit 59 after change of form, if goods can be identified... 310 in case of willful confusion 197 where grain or logs are mixed 203 where form is changed by consent 220 for what it does not lie — an apprentice who is a freeman 59 clothing worn on the person.. 59 commission to office 59 real estate 58, 60, 79, 80 trade fixtures 67 money, unless in box or bag 59 goods in custody of the law 243 by defendant in execution 249 liquors seized to prevent sale 252, 253 for an undivided interest 154 when it lies 33,43,59,365 Bcopeof the investigation 55 conflicting titles may be settled in 39 for specific chattels and damages 31,38 right to present possession the chief question 89 474 INDEX. ssonoK. REPLEVIN — Continued. distinguished from trespass and trover 46, 47 in eepit, detinet and detimiet.. 53 trespass and trover concurrent with 44,45 for cattle illegally impounded 254 lies only for chattels 58 formerly would lie only for distress 41 prior rightful possession, when suflScient to sustain 109 et aeq. what is wrongful taking 54 lies only for goods capable of delivery 170 " title " or " property " to sustain 96 detention necessary to sustain 53 possession in defendant necessary 50,134 when, after defendant has parted with goods to avoid the writ 135, 146 plaintiff must show a right to immediate and exclusive pos- session 94 plaintiff must show that he is the owner of the identical goods sued for 168 for a distress was wrongfully taken 717, 720 for intoxicating liquors seized under a void ordinance 258 for powder seized under an ordinance 255 against a receiver for goods wrongfully held by him 247 for goods wrongfully sold on execution 133 when bailee pledges goods without right. 816 wrongful taker cannot question title of one in possession.. 121 for goods wrongfully seized by officer 245, 253, 382, 868 for goods seized for tax — bare assertion of defendant that he holds property on a tax warrant not sufficient 236 when no tax can legally be levied. 238 where the warrant on its face shows no authority.. 337 et aeq. permitted when plaintiff does not ask delivery 234 after the levy has been properly set aside 388 when the officer goes outside his bailiwick 339 ^seq. lies from a purchaser at tax sale 243 lies for goods seized under pretense of tax warrant whore no tax can legally be levied 288 lies against purchaser at tax sale. 235 for goods seized for tax due from another 231 lies against purchase of goods sold for fine 343 lies against a purchase at sheriff's sale 263 in cases of fraud or trespass — for stolen goods 804, 350 does not depend on conviction of the thief 308 fraudulent purchaser 818, 819, 366 INDEX. 475 ^PL-EVm-OonUnued. ''"=''"*'• In cases of fraud or trespass — Gontinued. attaching creditor of fraudulent purchaser 324 for goods taken by a trespasser 309, 310, 846, 367 ■when goods are fraudulently obtained and transferred to a trustee for the benefit of creditors 147 against innocent purchaser from bailee who sells without authority 312 etseq. against " assignee" of fraudulent purchaser 324 for goods fraudulently purchased — and ti-ansferred to pay debt 338 return of consideration. 331 diligence required 331 for corn converted into whisky 218 for goods which have undergone a change of form 210 et seq. for goods sold to an infant when he avoids payment 327 against inkeeper for stolen horse left with 315, 370 for estrays, not posted 360 goods sold by servant without authority 313 for goods paid for in counterfeit money or in a worthless note 323 against carrier for goods wrongfully taken and delivered to. 815 when an agent sells goods in payment for his own debt 314 for goods obtained by duress 328, 367 by owner of goods lost at sea and sold by salvors 127 by ofllcer — officer holding on process may sustain 130, 300, 644 no lien unless actual levy 130 levy on bulky articles 148 by vendor against creditor of insolvent vendee 330 goods taken from servant or carrier 128 ■what is necessary to sustain — a possessory action 688 goods restored before suit, plaintiflF cannot succeed 670 detention the gist of the action 670 for goods transferred by transfer of bill of lading 194 lies after change of form, but should be brought before goods are greatly enhanced 217 by consignor when consignee refuses to pay draft 194 borrower cannot setup title 108 proof of forcible taking not necessary 94 suit dismissed defendant may show he owned the prop. erty 427 by taker up of estray 678 by surviving partner, when permitted 647 plaintiff must show a right to immediate possession.. 96, 107, 108 for ■wrongful use of hired property 363 476 INDEX. SECnON. EEPLEVIN— CoJiimued. when agent sells goods of principal without authority... 313, 314 by an agent, when 132 servant not a proper defendant 144 by an auctioneer, when 183 bailee may sustain, against the owner.. 97, 121, 122 servant cannot sustain 115, 644 lies for goods sold when vendor bought on condition 341 lies for goods purchased only where they are separated or distinguished from others 186 et seq. lies for bonds which can bo identified 177 lies for goods sold by marks or brands 193, 195 description in writ — writ particularly describes the goods 169 variance between writ and narr 182 when it may refer to kind or quantity 180 omission of words in description 182 strictness of the rule as to ,, 171 et seq. store and contents, when suflacient 179 writ of return... 184 goods mixed with those of another 197 et seq. selection by purchaser, when sufficient .190 et seq. general, when sufficient 179 when that of diflferent owners is mixed 203 et seq. plaintiff asserts continuing ownership 520 in State court from U. S. Marshal 278 et seq. from sheriflF, of goods taken on execution, when suit ended, sheriff may retake and sell. 299, 477 et seq. from an officer, of goods seized on execution, seiz- ure on second execution is a revival of the lien on the first 477 et seq. does not lie — against innocent holder who changes form of goods so as to destroy identity 216 against innocent purchaser from fraudulent pur- chaser .^ S34:etseq. for grain, after mixture with similar grain of oth- ers MSetseq. for goods seized for a tax 228, 229 cross, not allowed 245 et seq. for an undivided interest 154, 155 against a receiver of court. 247 for goods taken on execution ; qualifications of the rule; execution must be valid, and Issued by court of competent jurisdiction 251 after change of form destroying identity 214 for goods, after mixture of those of other owners, 198 et seq. INDEX. 477 REPLEVIN - Continned. ^'""""'■ Does not lie — Continued. for goods in the custody of law 243, 253, 35& for goods bought by insolvent, believing himselt to be solvent 330 for colt expected to be foaled, nor for a slave dead. 170 for property not in esse 59, 136, 170 for property destroyed before suit brought 13(5, 170 ■when plaintiff consented to sale.. 150 for goods taken with owner's consent 140 to settle partnership accounts 166 for money, unless in a box or bag 177 for goods purchased, unless they are separated, or can be distinguished 186, 191 by divorced husband against wife, for goods in her house 139 after dismissal of suit agains,t same defendant, un- less the goods have come to his possession 149 for an undivided interest 154 by landlord, for share of the crop 156 et seg. for goods sold on condition 341 upon a contract of purchase 129 against innocent purchaser, when 366 against innocent purchaser from fraudulent pur- chaser 318, 333 for property seized for non-payment of tax -.224, 227 for goods seized for fine .- 241 for clothing or ornaments worn on the person 148 at suit of defendant in execution 248 nor by a grantee of such defendant after suit 249 reason for the rule 250 for liquors seized under, to permit sale 252 against one for taking his own property 51, 246 for clothing worn on the person 59 for papers in public offices 59 for a commission 59 for goods sold to enable purchaser to violate law .. 336 for taking, unless there is a detention or conversion 355 for non-payment for goods sold on credit 840 upon proof that the defendants were about to take possession 13T after sale in good faith or destruction of property . 135 for building fixed to land 76, 77 of property severed from real estate 612 crops harvested after ejectment 85 et seg. by mortgagee of land, when he may recover chat- tels severed .90 et aeg. 4:78 ESTDEX. . BEOnON. REPLEVIN — Continued. Does not lie — Uontinued. for chattels fixed to land of another 77 for chattels severed from real estate by a trespas- ser .81, 82, 84 e« ««g. for chattels severed from real estate by one holding color of title 81,83 for chattels severed from real estate by one in pos- session holding color of title 83«<8ej. for chattels annexed to real estate 63, 76, 331 for chattels removed after ejectment 78 after goods have become part of another thing which is the principal- 213 disposition of property pending suit 480 rule concerning perishable goods pending suit 471 pending suit, plaintiff's rights only temporary 477 et seq. damages and value in— damages in — compensation the object 530 value of use, as damag.is, peculiar to replevin 580 suit cannot be dlsmised to avoid a hearing on ques- tion of damages 516 damage must be claimed in declaration 513 damages in, only an incident 513 ■when defendant puts it out of power to serve the writ 146 value recoverable in 33 damages recoverable in.. 31 damages settled in replevin suit. 608 for leased property does not lie by owner pending the lease 98 plaintiffs owning separate interests cannot join 155 does not lie at suit of one joint tenant against his co-tenant 153 et seq. for goods taken by oflScer, what is a sufficient taking. 143 legal title will prevail over equitable 105 effect of on landlord's lien 739 not dismissed for officer's neglect. .■ 714 by surviving partner 159 effect of death of party on suit 801 defense by sheriff 303 against executor and administrator must be against him personally 637 parish or corporation may bring 638 proceedings in suit essential to suit on bond 443 ■VfTit of — without bond quashed 389 INDEX. 479 ■KEFLEYm -Oontinued. '^™°*'- Writ of— Continued. for an undivided interest quashed 153, 154 must contain summons to defendant 464 mandate for delivery 463 must describe the goods. 465 lies for goods in jurisdiction of court when it is- sued 467 rights which it confers on plaintiff 469, 472 does not divert title pending suit 470, 476 et seq. set aside, effect on property 359 may issue without order for delivery of goods 151, 396 must appear to be valid 398 how far a protection to officer serving it 264 return to, how far conclusive 297 what return must show.. 468 how far a protection to officer 298 sei-vice of writ 364, 365 officer must serve writ promptly. 392 does not authorize seizure from defendant's person 386 officer cannot take the goods from a stranger to it. 265 et seq. when authority to enter adwelling 287 points out the identical goods 298 duty of officer serving 283, 398 RESCINDING A SALE, for fraud 366 return of the consideration 331 diligence required 331 RESTORATION OP GOODS, a bar to replevin, reason 134, 135 no bar in trespass 135 exceptions to rule 135 RESISTANCE, to sheriff, his duty - 18 RETURN, defendant may claim 37 bond with security for 27, 39, 385 condition in bond to make 419 where bond is not given 391 ordered only when it appears just. _ 485 pleadings mustclaim 483 adjudged only where defendant claims it 483, 487 formal prayer for not essential 489 prayer for should state facts 487 defendant asking must show affirmatively a right to 303, 487 prayer for in the nature of a cross-action 481, 487 480 INDEX. BEonoN. RETURN — Continued. defendant suing for is an actor 481 rights of parties at the time of judgment controls 496, 497 judgment for usually follows verdict for defendant 494, 495 what is -- 149 defendant entitled to reasonable time to comply with judg- ment for - 778 no arbitrary rule governing award 503 plaintiff cannot dismiss to avoid a decision on the ques- tion of. 482 when question should be determined 508 ordered only after an investigation.. ..373, 485, 503 order does not follow a verdict as a matter of course 485 not awarded to one who had no right to possession 485 part of property may be ordered returned 486 may be adjudged to one of several defendants. 486 part of property ordered to one, part to another defendant.. 486 never ordered unless property was delivered on the writ 499 where plaintiff had a limited interest in the property 504 when defendant avoids trial on merits 501 insolvency of defendant not a bar to 495 when awarded upon plea of non detinuet 714 where goods are delivered without bond.. 391 plaintiff not liable for, unless ordered 483 trespasser cannot have, on plea of property in third person _ 493 defendant cannot have, under plea of non cepit or n