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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

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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 had 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,
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.

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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 attachments 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

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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THIS was a replevin for 631 barrels of flour, tried before the Chief reth to Justice, at Nisi Prius, in November, 1817, when the jury found a verdict for the plaintiff, subject to the opinion of the court in bane on a point reserved.

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ift. unt re refused is The plaintiff. on March 9th, 1813, contracted to ship 631 barrels of you & here flour on board the Minerva, a Spanish vessel, of which the defend-back or ant was master, from Philadelphia to Havanna, at four dollars a barrel.hip fem The flour was accordingly put on board by March 16th, the ship then De had lying at the wharf in Philadelphia. On March 16th the bills of lading

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were signed, and the ship cleared out at the custom-house; and on the agreed

17th she cleared out at the Spanish consul's. When the contract was
made, both parties expected a blockade of the Delaware by the British,
and, accordingly, notice was received in Philadelphia on March 16th
that the blockade was instituted. Under these circumstances the
plaintiff several times applied to the defendant either to proceed on
his voyage, or to deliver up the flour; and the defendant, on the last
application, refused to do either, unless the plaintiff, in case of the
flour being delivered to him, would pay one half freight (two dollars a
barrel), or, in case the vessel, proceeded, would guarantee the ship
and two thirds of the freight. The plaintiff, therefore, on April 29th,
issued this replevin, on which the flour was delivered to him.

The defendant pleaded property, on which issue was joined, and a
verdict taken for six cents damages and six cents costs, subject to the
opinion of the court whether the property at the commencement of
the action was in the plaintiff.

Chauncey and Ingersoll for the defendant.

J. R. Ingersoll, contra.

DUNCAN, J. However the law may be in England as to the action of replevin, whether it only lies in case of distress, as is held by some (3 Bl. 145), or whether, as held by others, it lies in all cases where the goods have been taken out of the actual possession of the owner, it is the established law of Pennsylvania that it lies in all cases where a man claims goods in the possession of another. 1 Dall. 156. 6 Binn. 8. It is a question of property. It is not like trover, which is an equitable action, and if the party has a legal or equitable lien on the property, it may be defalked in the damages assessed by the jury. But in a case where the claim of the defendant must be entirely uncertain, no fixed standard by which to ascertain it, the owner cannot know what sum to tender; and if a verdict passed against him in replevin, because The tendered too little, his property would be lost. Here the goods were delivered to the plaintiff. If there is a verdict for the defendant, it

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must be a general one; in which case there would be judgment de retorno habendo, and the defendant might, for the value of the goods, and not for the amount of the lien claimed by him, proceed against the sheriff or the pledges. In the action the jury could not award damages to the defendant.

The taking here not being tortious, the plaintiff must prove property. If the taking were wrongful, this burden would lie on the defendant. The plaintiff has proved property. The defendant cannot claim a lien on the ground of freight, for no freight was earned; and it is impossible to say certainly that it would have been earned, had there been no blockade, for still the voyage might not have been safely performed. The plaintiff had done everything on his part. The defendant was not prevented from earning it by any breach of contract on the part of the plaintiff.

It is not necessary, as this case comes before the court, to decide whether the defendants were entitled to any compensation, and if to any, what. The occasion does not call for an opinion on the question whether the contract is dissolved or suspended. Although no direct decision has been produced, yet it appears from writers whose opinions are entitled to great respect, and such, too, would appear to be the reason of the thing, independently of direct precedents, that in case of a cargo such as this, perishable in its nature, which if kept on board during the continuance of the blockade would have been spoiled, or if secured on shore must be greatly deteriorated, that the owner had a right to have such cargo unladen, and to the possession of it, and the power to sell it, without giving any security to replace it. If this be so, the defendant could have no lien on the cargo. For the doctrine of lien is founded on the possessor's right to detain until the lien is discharged. When the possession is gone, the lien is gone. The remedy of the defendant for compensation, if he has any, is not by detaining the goods, nor action for recovery of freight, but an action for the recovery of damages for not being suffered to carry it.1

New trial refused.

val.

3 Great Cases.

1. This case

5)2. Pusey star case. 43. Snuff box Judgement in

Equity is against

SECTION II.

BILL IN EQUITY.

SOMERSET v. COOKSON.

IN CHANCERY, BEFORE LORD TALBOT, C. 1735.

[Reported 3 P. Wms. 390.]

The mean f THE Duke of Somerset, as lord of the manor of Corbridge, in Northumberland (part of the estate of the Piercys, late Earls of Northumber

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1 The opinions of the other judges concurring are omitted. For the States which agree with the Pennsylvania doctrine, see Morris, Replevin (3d ed.) 52–54.

Chattels having peculiar value

may

be recovered

in replevin.

Bill inequity

land), was entitled to an old altar-piece made of silver, remarkable for

became

a Greek inscription and dedication to Hercules. His grare three for for recomen entitled to it as treasure-trove within his said manor.

ротменили This altar-piece an old & altar-piccervened

had been sold by one who had got the possession of it to the defend esteemed ant, a goldsmith at Newcastle, but who had notice of the Duke's claim allar piece thereto. The Duke brought a bill in equity to compel the delivery of undec this altar-piece in specie, undefaced.

The defendant demurred as to part of the bill, for that the plaintiff had his remedy at law by an action of trover or detinue, and ought not to bring his bill in equity; that it was true, for writings savoring of the realty a bill would lie, but not for anything merely personal, any more than it would for an horse or a cow. So a bill might lie for an heirloom, as in the case of Pusey v. Pusey, 1 Vern. 273. And though in trover the plaintiff could have only damages, yet in detinue the thing itself, if it can be found, is to be recovered; and if such bills as the present were to be allowed, half the actions of trover would be turned into bills in chancery.

On the other side it was urged that the thing here sued for was matter of curiosity and antiquity; and though at law only the intrinsic value is to be recovered, yet it would be very hard that one who comes by such a piece of antiquity by wrong, or it may be as a trespasser, should have it in his power to keep the thing, paying only the intrinsic value of it, which is like a trespasser's forcing the right owner to part with a curiosity or matter of antiquity or ornament, nolens volens. Besides, the bill is to prevent the defendant from defacing the altarpiece, which is one way of depreciating it; and the defacing may be with an intention that it may not be known, by taking out or erasing some of the marks and figures of it. And though the answer had denied the defacing of the altar-piece, yet such answer could not help the demurrer. That in itself nothing can be more reasonable than that the man who by wrong detains my property, should be compelled to restore it to me again in specie; and the law being defective in this particular, such defect is properly supplied in equity.

Wherefore it was prayed that the demurrer might be overruled, and it was overruled accordingly.

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WOOD v. ROWCLIFFE.

IN, CHANCERY, BEFORE LORD COTTENHAM, C. 1847.

[Reported 2 Phil. 382.]

THE principal object of this suit was to restrain the sale of certain furniture by the defendant Rowcliffe, and to have it delivered up to the plaintiff as the rightful owner.

Rowcliffe claimed the furniture under a bill of sale, by way of mortgage, from the defendant Elizabeth Wright who was at the time in

Equity restores property lost possession of by breach of must or duty.

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