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NOTE. — The student cannot too soon observe the inseparable connection between substantive rights and the forms of remedies. In most suits which involve rights to personal property, only damages can be recovered. It seems desirable here to see when possession of the property itself may be obtained.

SECTION I.

DETINUE AND REPLEVIN.

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PETERS V. HEYWARD.

COMMON BENCH. 1623. must content

(Reported Cro. Jac. 682.) yourself ERROR of a judgment in the Common Pleas in detinue of a bond.

Upon non detinet pleaded, it was found for the plaintiff, and the damadamages.

agus. ges assessed to seven pounds and costs sixpence; and if the bond canunless

not be restored, then they assessed for damages, besides the seven aff. electro

pounds, twenty pounds more; and it was thereupon adjudged that he otherwise should recover the said seven pounds and sixpence for the costs, and

U the said bond or twenty pounds : et præceptum fuit vicecomiti distrin-
mergere for the said bond or twenty pounds.
ndilinAnd thereupon the error was assigned, for the judgment ought to be

conditional ; viz., the said bond, or if he cannot have the said bond, then
the twenty pounds ; and accordingly the distringas ought to have been
to demand the bond, and if it cannot be delivered, then the twenty

Provision for non deliving in meccang to detine action

hion

pounds; but these words, “ and if it cannot be delivered,” were omitted, — wherefore it was moved to be error.

And although Waller, the prothonotary of the Common Pleas, certified that there were divers precedents there in this manner, and it was said that in the Book of Entries, Co. Ent. 170, judgment is entered in this manner, and alleged that the judgment being that he shall recover the bond or twenty pounds tantamount, and is to be intended conditional that he shall have the bond, and if he cannot have it, then the twenty pounds; yet upon consideration of many other precedents, and the books which mention that the judgment is and ought to be conditional in itself, and not by intendment, the court held that the judgment was erroneous ; for by that judgment and awarding of a distringas the sheriff might distrain for the one or the other at his choice, which ought not to be ; but he ought to distrain for the thing itself, and if he cannot have it, then for the twenty pounds; and although the writ of distringas was well made, and in that manner as it was shown to the court, yet forasmuch as the judgment is otherwise, the awarding upon the roll, which is the warrant of the writ, was not good: wherefore rule was given that the judgment should be reversed.1

MENNIE v. BLAKE.

QUEEN'S BENCH. 1856.

. [Reported 6 E. & B. 842.) REPLEVIN. Plea: Non cepit. Issue thereon.

The cause came on to be tried before Crowder, J., at the last Spring Assizes for Devon. The following account of the facts which then appeared in evidence is taken from the judgment of this court.

“ One Facey was indebted to the plaintiff. He brought him £15 towards payment of the debt, but requested and obtained permission to lay the money out in the purchase of a horse and cart, which were to be the property of the plaintiff, but of which Facey was to have the possession and the use, subject to such occasional use as plaintiff might require to have of them, and to their being given up to plaintiff when he should demand them. Accordingly Facey made the purchase. The possession and the use were substantially with him ; he fed, stabled, and took care of the horse ; there was some evidence that his name was on the front of the cart; certainly plaintiff's was on the side, -

1 In an action of detinue on a judgment that the plaintiff shall recover the goods or the value, there shall issue to the sheriff a distringas to the defendant ad deliberanda bona, and if he will not, the plaintiff shall have the value as it is taxed by the inquest; and so it is in the election of the defendant to deliver to the plaintiff the goods them. selves, or the value, &c. Per Frowyk, C. J., in Anon. (Cam. Scacc.), Keil. 61b, 64 b (1505).

Replevin doronot lie inless there is a Taking out of the possession of the owner

9. for Reflivin..

must be bresfass

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Replevin. Plea: now cefit. so Jalals of circumst Lluce pracy weglas indiblil io feif He brought L 15 Coward hay mert but oblained funussion & fuchase a house and cach, which

were to be froperty of flif, but of which racy was fach use? filet Jacup who owed off a small sune also have he oulfill to dft for his debf, but said hafif seiz. would reinibuse ift. te llock give house up a J Peef. Calrodemanded forse gift but oft refused to give

i t. 01 Held ikat epledin dow not lie unless shire i -laking out a poss Dowwer reif had blir lintas Cole nas in his bacle

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Coned hoflif have maintained brisfass? novot hospass is dange o possession

Dobuliforarbh nant al is dan mantan turiskas Meraniecould not have respass against ansone of for be voluntarily tave up

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نرم و ملهمة

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ل منار انار با

نور -
ا
سیر پر

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under what circumstance placed there, the evidence was contradictory, the plaintiff alleging it to have been placed in the ordinary way as an evidence of property, the defendant insinuating that it was so placed in order to protect it from Facey's other creditors. It is not, however, material, because on the one hand the plaintiff's property we take to be indisputable, and on the other we do not think there is evidence enough to charge the defendant with fraud or collusion in the circumstances under which he obtained possession, and which we now proceed to state.

“ Facey determined to emigrate ; and the defendant knew of his intention, but the plaintiff did not. The horse and cart were used in transporting Facey's effects to the pier at which he was to embark; and the defendant, to whom he owed money for fodder supplied to the horse, went with him to procure payment if he could. At parting, Facey delivered the horse and cart to him, telling him to take them for the debt, but adding that he owed the plaintiff money also, and that if he would discharge the debt due to the defendant, which was much less than their value, he was to give them up to him. In this manner the defendant acquired his possession. The plaintiff for some time remained in ignorance of what had passed, and afterwards, coming to the knowledge of it, demanded them ; but the defendant refused to deliver them unless his debt were paid: whereupon the plaintiff proceeded to replevy the goods, and so brought the present action.”

Upon these facts the learned judge directed a verdict for the plaintiff, with leave to move to enter a verdict for the defendant, or a nonsuit if under such circumstances replevin did not lie.

Montague Smith, in the ensuing term, obtained a rule nisi accordingly.

Collier and Karslake, in last Hilary Term, showed cause.
Montague Smith and Coleridge, contra.

COLERIDGE, J., now delivered judgment. This was a rule to enter a nonsuit or verdict for the plaintiff on a plea of Non cepit to a declaration in replevin; and the facts were in substance these. His Lordship then stated the facts, and proceeded as follows:

Upon these facts the question raised is, Whether there was any taking of the horse and cart from the plaintiff by the defendant? And we are of opinion, looking to the nature and purpose of the action of replevin, that there was no taking in the sense in which that word must be understood in this issue. The whole proceeding of replevin, at common law, is distinguished from that in trespass in this, among other things : that, while the latter is intended to procure a compensation in damages for goods wrongfully taken out of the actual or constructive possession of the plaintiff, the object of the former is to procure the R restitution of the goods themselves; and this it effects by a preliminary ex parte interference by the officer of the law with the possession. This being done, the action of replevin, apart from the replevin itself, is again distinguished from trespass by this, that, at the time of declar.

ation in Tres bass. bis to emer is to procure the Refievin.

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