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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 “ 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, it 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 thChief 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 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 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 possession 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 replevin 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 present case Facey was not the servant of the plaintiff, nor was his possession 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 froin 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 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 In Hellor 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.


[Reported 3 S. & R. 559.) This was a replevin for 631 barrels of flour, tried before the Chief Justice, at Nisi Prius, in November, 1817, when the jury found a verdict for the plaintiff, subject to the opinion of the court in banc on a point reserved.

The plaintiff, on March 9th, 1813, contracted to ship 631 barrels of flour on board the Minerva, a Spanish vessel, of which the defendant was master, from Philadelphia to Ha na, at four dollars a barrel. The flour was accordingly put on board by March 16th, the ship then 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 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 he 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 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 noa 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.




[Reported 3 P. Wins. 390.) 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.

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