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- Goods volun. [Reported 3 S. & R. 559.]

carily deriv.
This was a replevin for 631 barrels of flour, tried before the Chief erdid to
Justice, at Visi Prius, in November, 1817, when the jury found a ver. Ulr tu
dict for the plaintiff, subject to the opinion of the court in banc on a l l
point reserved.

The plaintiff, on March 9th, 1813, contracted to ship 631 barrels of ge
flour on board the Minerva, a Spanish vessel, of which the defend- y
ant was master, from Philadelphia to Havanna, at four dollars a barrel.
The flour was accordingly put on board by March 16th, the ship then A
lying at the wharf in Philadelphia. On March 16th the bills of lading
were signed, and the ship cleared out at the custom-house; and on the
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 BI. 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. i 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."

New trial refused.

3. Snuff bort

- 3 Great Cases.

SECTION II. 8. This case 8/2. Pusey stond ease.


SOMERSET v. COOKSON. 2 e meindw In CHANCERY, BEFORE LORD Talbot, C. 1735. Efnilet is against

[Reported 3 P. Wms. 390.) hentaw or The Duke of Somerset, as lord of the manor of Corbridge, in NorthDessunaww umberland (part of the estate of the Piercys, late Earls of Northumber

umberland (part of the estate o

i 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 peenlias value may he record

1 The opinie Pennsylvaning pea

in replerin,

in a adequate remedy at c. l.

Bill inequily land), was entitled to an old altar-piece made of silver, remarkable for ren t a Greek inscription and dedication to Hercules. His grace became | entitled to it as treasure-trove within his said manor. This altar-piece had been sold by one who had got the possession of it to the defend- Dalsenede ant, a goldsmith at Newcastle, but who had notice of the Duke's claim allar fiel thereto. The Duke brought a bill in equity to compel the delivery of wonlelacek 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 Sman who by wrong detains my property, should be compelled to restore

Yit to me again in specie ; and the law being defective in this particular, lo : such defect is properly supplied in equity.

Y Wherefore it was prayed that the demurrer might be overruled, and yg 5 $ it was overruled accordingly.

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(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 2 p plaintiff as the rightful owner.

- Rowcliffe claimed the furniture under a bill of sale, by way of mort

gage, from the defendant Elizabeth Wright who was at the time in &

Equity restons property last posesonfily ☆ įg breach of trust or drity.


a Bill

possession of it as apparent owner, but who, as the plaintiff alleged, had no property in it, having been left in charge of it merely as his agent during his absence abroad. The bill represented that the furniture was still in the hands of Elizabeth Wright, and that Rowcliffe had advertised it for sale. His answer, however, stated, and it was proved, that he had taken possession of it soon after the execution of the bill of sale, and that he had ever since retained such possession by keeping a man in the house where it was, although Elizabeth Wright, who resided there, was allowed the use of it.

Elizabeth Wright, by her answer, disclaimed all interest in the furniture.

At the hearing of the cause before Vice-Chancellor Wigram, by whom an injunction had been previously granted, a decree was made, by which it was ordered, among other things, that the bill should be retained, with liberty to the plaintiff to bring an action of trover for the furniture, and the defendant was, on the trial, to admit conversion.

On the hearing of an appeal by Rowcliffe from that decree, the following two points, amongst others, were made by the counsel for the appellant: First, that the plaintiff's remedy was at law, and that a bill in equity did not lie to restrain the sale of specific chattels, unless they possessed some peculiar value which could not be compensated by damages, as in the case of the Pusey horn. i Vern. 273. Secondly, that admitting such a bill would have lain had the goods been still in the possession of Elizabeth Wright as the plaintiff's agent for their custody, yet at all events the equity was gone as soon as they had changed hands and passed into the possession of a stranger. And in support of this they referred to the doubt expressed by the Vice-Chancellor himself in overruling a demurrer to this very bill, as to whether his decision would have been the same if the bill had alleged that the goods were in the hands of Rowcliffe.

In reference to these points,

The LORD CHANCELLOR said: The cases which have been referred to are not the only class of cases in which this court will entertain a suit for delivery up of specific chattels ; for where a fiduciary relation subsists between the parties, whether it be the case of an agent or a trustee or a broker, or whether the subject matter be stock or cargoes or chattels of whatever description, the court will interfere to prevent a sale either by the party intrusted with the goods, or by a person claiming under him, through an alleged abuse of power. In this case there is great reason to believe that Elizabeth Wright never had any right to the goods except as the plaintiff's agent, for she has disclaimed all interest in them by her answer, and there is nothing to show how she had acquired any property in them. But, says Rowcliffe, I purchased under circumstances which give me a legal right to the goods. If that be so, the equity of the plaintiff will be intercepted by a prior legal right. In such a case this court begins by putting the matter into a course of investigation to ascertain that legal right. That is what the Vice-Chan

ed into the doubt expresery bill, as t

of Cookson did not have any nocice uld had oblained the allar frodi che and man had wgood witte, Equine would not lie adainst Cook on. a Rowever the coug Aft it for a huf b would not have good itse. O

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