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, - at 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. 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. Reflivin. س сид. [Reported 3 S. & R. 559.] Goods volun carily 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. 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 as 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 The defendant pleaded property, on which issue was joined, and a 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 2 адчик 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 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. undefaced a Biel True well lie no flain & adequate remedy at c. l. suits only which concern real Equity d of thing hase peculiar val. ៤. lost ful render this 2 by 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. |