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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.

Refleven

ing, the supposed wrongful possession has been put an end to, and the litigation proceeds for the purpose of deciding whether he, who by the supposition was originally possessed, and out of whose possession the goods were taken, and to whom they have been restored, ought to retain that possession, or whether it ought to be restored to the defendant. Blackstone (3 Com. 146), after observing that the Mirror ascribes the invention of this proceeding to Glanvil, says that it 6 obtains only in one instance of an unlawful taking, that of a wrongful distress.” If by this expression he only meant that in practice it was not usual to have recourse to replevin except in the case of a distress alleged to be wrongful, he was probably justified by the fact. But there are not wanting authorities to show that the remedy by replevin was not so confined ; and in the case of Shannon v. Shannon, 1 Sch. & Lef. 324, 327, Lord Redesdale finds fault with this passage, saying that the definition is "too narrow," and that “many old authorities will be found in the books of replevin being brought where there was no distress :” and the learned reporters, in a note to the passage, refer to Spelman's Glossary, 485 (tit. Replegio); Doctrina Placitandi, Replevin, 313; Com. Dig. Replevin (A); and Gilbert, Distress and Replevin, 58 (4th ed., p. 80).

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, 6 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

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from the generality of the language in a single sentence. A dictum of Lord Ellenborough has also been referred to in Dore v. Wilkinson, 2 Stark. N. P. C. 287, from which the inference is that he thought replevin might conveniently be had recourse to more often than it was, instead of bringing trover; but it was an observation thrown out in the course of a cause, a recollection of what Mr. Wallace used to say, not ruling any point, nor deciding anything, in the cause. Much importance ought not to be attached to such casual observations, even of so great a judge at Nisi Prius. On the other hand, Lord Coke seems to be authority the other way. In Co. Lit. 145 b, is the following passage : “ A replegiare lyeth, as Littleton here teacheth us, where goods are distrained and impounded; the owner of the goods may have a writ de replegiari facias, whereby the sheriff is commanded, taking sureties in that behalf, to re-deliver the goods distrained to the owner, or upon complaint made to the sheriff he ought to make a replevy in the county. Replegiare is compounded of re and plegiare; as much as to say, as to re-deliver upon pledges or sureties."

From a review of these and other authorities which might be added, it may appear not settled whether originally a replevy lay in case of other takings than by distress. Nor is it necessary to decide that question now ; for at all events it seems clear that replevin is not maintainable unless in a case in which there has been first a taking out of the possession of the owner. This stands upon authority and the reason of the thing. We have referred already to a dictum of Lord Redesdale. Three cases are to be found : Ex parte Chamberlain, 1 Sch. & Lef. 320; In Re Wilsons, 1 Sch. & Lef. 320, note (a); and

Shannon v. Shannon, 1 Sch. & Lef. 324, in which the law is so laid down by Lord Redesdale. And these are cases of great authority; for that very learned judge found the practice in Ireland the other way. He felt the inconvenience and injustice of it; he consulted with the Lord Chief Justice, and obtained the opinion of the other judges; and then pronounced the true rule, which, in one of these cases, In Re Wilsons, he thus states : The writ of replevin “ is merely meant to apply to this case, viz., where A takes goods wrongfully from B, and B applies to have them re-delivered to him upon giving security until it shall appear whether A has taken them rightfully. But if A be in possession of goods in which B claims a property, this is not the writ to try that right.” In the course of these cases his Lordship points out how replevin proceeds against the general presumption of law in favor of possession ; how it casts upon him who was in possession the burden of first proving his right; and he puts (Ex parte Chamberlain, 1 Sch. & Lef. 322), as a reductio ad absurdum, a case not unlike the present. “Suppose,” says he, “ the case of a person having a lien on goods in his possession, and who insists on being paid before he delivers them up: I do not see, on the principles insisted on, why a writ of replevin may not issue in that case.” The reason of the thing is equally decisive: as a general rule it is just that a party in the Def.

peaceable possession of land or goods should remain undisturbed,
either by the party claiming adversely or by the officers of the law, until
the right be determined and the possession shown to be unlawful. But
where, either by distress or merely by a strong hand, the peaceable pos-
session has been disturbed, an exceptional case arises ; and it may be
just that, even before any determination of the right, the law should
interpose to replace the parties in the condition in which they were
before the act done, security being taken that the right shall be tried
and the goods be forthcoming to abide the decision. Whatever may be
thought of Lord Coke's etymology, what he says of replegiare, while it'
shows his understanding of the law, gives a true account of what reple-
vin is, — a re-delivery to the former possessor on pledges found. But
this is applicable clearly to exceptional cases only. If wherever a party
asserts a right to goods in the peaceable possession of another he has
an election to take them from him by a replevin, it is obvious that the
most crying injustice might not unfrequently result. Now, in the pres-
ent case Facey was not the servant of the plaintiff, nor was his pos-
session merely the possession of the plaintiff ; he was the bailee of the
plaintiff, and bad a lawful possession from the delivery of the owner,
which conferred on him a special property. This did not authorize
him to transfer his possession to the defendant, nor could he give him
a lien for his debt against the paramount right of the true owner, the
bailor. After a demand and refusal, upon the admitted facts in this case,
the plaintiff could clearly have maintained trover against the defendant;
but yet there was nothing wrongful in his accepting the possession from
Facey. He acquired that possession neither by fraud nor violence, — at
least none is found, and we cannot presume either, — and he retained
the possession on a ground which might justify the retainer until the
alleged ownership was proved. This, therefore, in our opinion was a
case in which the plaintiff could not proceed by replevin, but should
have proved his prior right in trover or detinue.

It appeared in this case that the sheriff's deputy for the issuing of
replevins was the attorney for the plaintiff'; and although we have no
reason to believe that anything wrong was here intended, we think it
right to notice this circumstance, because it is one which obviously
might lead to much abuse and oppression. It is proper to be known
that there are several cases to be found in the books in which attach.
ments have issued where replevins have been thought to have been
granted improperly and from improper motives.
The rule should be absolute, not to enter a verdict, but a nonsuit.

Rule absolute for a nonsuit.'

1 In Mellor v. Leather, 1 E. & B. 619(1853), it had been said by the Court of Queen's Bench that replevin would lie where goods had been unlawfully taken, though not as a distress.

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