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. 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 espass. damages for goods wrongfully taken out of the actual or constructive possession of the plaintiff, the object of the former is to procure the 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 Refievin. 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. 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 espass. damages for goods wrongfully taken out of the actual or constructive possession of the plaintiff, the object of the former is to procure the 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. Refievin. Reflevia ing, the supposed wrongful possession has been put an end to, and the There is no doubt that passages, such as those referred to, may be found stating the definition very broadly; yet we believe that when the authorities on which some of them rest are examined, and when due attention has been paid to the context in others, it will appear in the result questionable, at the least, whether the commentator's more qualified definition was not correct, at least that replevin was instituted as a peculiar remedy, and under the Statute of Marlbridge by plaint as a festinum remedium for the injury of an unlawful distress. Thus in 2 Roll. Abr. 430, Replevin (B) 2, it is said, if trespasser takes beasts, replevin lies of this taking at election; the authority for this is Yearb. Mich. 7 H. IV. fol. 28 B, where, the counsel or another judge alleging the contrary, Gascoigne, C. J. of K. B., says: "He may elect to have replevin or writ of trespass;" but he adds, or the reporter adds, "and some understand that he cannot,". - for which last a reason is given. Again, Com. Dig. Replevin (A): "Replevin lies of all goods and chattels unlawfully taken." For this no authority is cited; but the context shows that the Chief Baron was thinking, not so much of the circumstances under which taken, as of the things themselves, for he adds, "whether they be live cattle or dead chattels," or "a swarm of bees," or "iron of his mill," citing Fitzherbert's Natura Brevium, in whose chapter on Replevin we do not find the law so broadly laid down. As to the passage to which reference is made in Lord Chief Baron Gilbert, it should be remembered that the treatise is on the Law of Distresses and Replevins, and the passage occurs in a chapter in which replevin is treated of with reference to distress, as if the two formed parts of one subject-matter. Little, therefore, can be inferred |