§ 327. Whether replevin will lie when goods of another are seized in the session of the debtor.

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When goods are seized in the possession of the debtor, it may well be doubted whether replevin can be maintained; yet there does not seem to be any reason why it should not lie (that is, be sued out), to try.the question of possession at the time of the caption as well as of title to the property. The possession may be equivocal, as in the case of Clarke v. Skinner, 20 Jehrs., 465, where actual possession was in the debtor, but the right of possession was in the third person, the owner, the plaintiff in replevin. So, in Thompson ». Button, 14 Johns., 84, the goods were supposed by the court to have been taken out of the possession of the plaintiff in replevin, and not of the debtor; and the court intimated a strong opinion that if they had been taken out of the possession of the debtor, the replevin could not have been maintained. In the case of Clarke v. Skinner, 20 Johns., 465, Mr. Justice Platt, who seems to have considered the case well, and who gave the reasons of his opinion very fully, said: "I am of opinion that replevin lies in favor of any person whose goods are taken by a trespasser. As to John Clarke (the debtor), the goods were in the custody of the law, and therefore irreplevisable; but, in my judgment, the law does not deny the remedy by replevin to any person whose goods are taken from his actual or constructive possession, by a wrongdoer." "The rule, I believe, is without exception, that wherever trespass will lie, the injured party may maintain replevin." "Baron Comyns says, replevin lies of all goods and chattels unlawfully taken (Com. Dig. Replevin, A.); though (Replevin, D.) he says replevin will not lie for goods taken in execution." "This last proposition is certainly not true without important qualifications. It is untrue as to goods 'taken in execution,' when the fieri facias is against A., and the goods are taken from the possession of B. By 'goods taken in execution,' I understand, goods rightfully taken, in obedience to the writ; but, if through design or mistake, the officer takes goods which are not the property of the defendant in the execution, he is a trespasser, and such goods never were taken in execution, in the true sense of the rule laid down by Baron Comyns." "By constructive possession, I mean a right to reduce the chattel to immediate possession." And in page 470, he says: "The general rule is that the plaintiff must have a general or special property in him at the time of the unlawful taking of, which he complains; that is, he must either have the actual possession, or the right of reducing it to his actual possession, at the time of the tortious taking. If goods be taken on a fieri facias, as the property of the defendant named in the execution, and the writ is from a court of competent jurisdiction, and not void from any defect on its face, the officer, as against such defendant, is never a trespasser nor a wrongdoer. As to such defendant, the property is in the custody of the law, and he is precluded by the judgment against him." "But such reasoning has no application to the rights of a stranger whose property has been wrongfully taken on an execution against another person." "In every adjudged case that I have found, where it was held that goods 'taken in execution,' or goods in the custody of the law,' could not be replevied, that doctrine has been applied to cases where the defendant in the execution was plaintiff in the replevin."

In the case of Mulholm v. Cheney (Addison, 301), the president of the court of common pleas in Pennsylvania expressed the same opinion. In the above case of Clarke v. Skinner, Spencer, C. J., and Woodsworth, J., concurred with Mr. Justice Platt, but they rested their decision solely on the ground that the

goods were to be deemed as taken from the actual possession of the plaintiff in replevin, who was not the defendant in the execution.

§ 328. When replevin tiés.

The general rule, as before observed, is, that replevin will lie wherever trespass will lie for taking the plaintiff's goods. The facts necessary to maintain the suit are; property in the plaintiff, either general or 'special, and a wrongful taking of the goods out of the plaintiff's possession, either actual or constructive.. The possession must be such as would maintain trespass. If the original taking be lawful, or if the possession never was in the plaintif, an unjust detention alone will not maintain replevin (Gardner v. Campbell, 15 Johns., 401; 2 Wheat. Selwyn, 896), unless attended by some act which would make the defendant a trespasser ab initio. Meany v. Head, 1 Mason, 322; 5 Bac. Abr., Replevin, F.

I am aware of the cases of Badger v. Phinney, 15 Mass. Rep., 359, and Baker v. Fales, 16 id., 147, but am not satisfied that they can be supported upon principles of common law, however correct they may be under the statutes of Massachusetts. "The whole personal property is liable to execution, except wearing apparel." "But the absolute property of those goods must be in the debtor; and therefore, if the sheriff takes the goods of a stranger, though the plaintiff assures him they are the defendant's, he is a trespasser, for he is obliged at his peril to take notice whose the goods are; and, for that purpose, may impanel a jury to inquire in whom the property of the goods is vested; and this, it is said, shall excuse him in an action of trespass. 2 Bac. Abr., C. 4; Keilway, 119, 120; Bro., tit. Trespass, 99; Dalt., Sheriff, 146; Bro., tit. Pledges, 28; Dyer, 67 b, in margin. When no other person has the right of possession, the property draws after it the possession in law, and possession is implied in him who has the right of possession. Gordon v. Harper, 7 T. R., 12, 13; Ward v. Macauley, 4 id., 489. The books are full of authorities that trespass will lie against the officer who takes a stranger's goods in execution, either out of the actual or constructive possession of the plaintiff. Hallett v. Byrt, Carthew, 381, where Lord Holt says: "There is a difference between replevin and other process of law, with respect to the officers; for, in the first case, namely, in replevin, they are expressly commanded what to take, in specie; but, in writs of execution, the words are general, namely, to levy of the goods of the party, and therefore 'tis at their peril if they take another man's goods; for, in that case, an action of trespass will lie." So, in the Year Book, 11 H., 4, 91, cited in 2 Rolle's Ab., 552, "If a bailiff of a court attach the party by the goods of another man. trespass lies against him, for he ought to take notice of the goods of the party." "So, if he attach the servant, by the goods of his master, being in possession of the servant. 11 H., 4, 90, (b), 91, (b). The law is the same, if the sheriff, upon an execution, takes the goods of a stranger." Wale v. Hill, 1 Bulstrode, 149; Coote v. Lighworth, Moore, 457; Turbane's Case, Hardres, 323; Sanderson v. Baker, 3 Wilson, 309; S. C., 2 W. Bl., 832; Bloxam v. Olden, 1 Burr., 26; Cooper v. Chitty, 1 id., 30; Bro. Ab., Trespass, 135; 19 H., 6, 80; Ackworth v. Kempe, Doug., 40; Cole v. Hindson, 6 T. R., 234; Shadgett v. Clipson, 8 East, 328, and Farr v. Newman, 4 T. R. 633.

In the present case of Williamson v. Ringgold, the simple question submitted to the cour: is, whether the mere fact that the defendant took and detained the goods of the plaintiff, under color of an execution against Wells, is sufficient ground to justify the court in quashing the replevin. The court

must suppose the strongest case against the defendant, namely, that he took the goods from the possession of Williamson, the plaintiff in replevin. Being of opinion that it is a general principle of the common law, that replevin can be maintained in all cases where the plaintiff's goods have been wrongfully taken from his possession, and that the exception of goods taken in execution applies only to the debtor himself, I think that the motion to quash the replevin, on the ground that the goods were in the custody of the law when the replevin was served, and also the motion for a venditioni exponas, ought to be overruled.

MORSELL, J., concurred. THURSTON, J., dissented.

STATEMENT OF FACTS.- Replevin for a quantity of flour. Plea of property in one C. W. Greene. The evidence showed that the goods were the property of the plaintiff, and had been consigned by him for sale to Greene, who placed them with the defendant for storage; that the plaintiff notified defendant that the property was his, and that Greene had no authority to place it in defendant's hands; that the defendant had made advances on some of the goods, but not on the flour sued for; and that, at the time of the suit, there remained a balance due from the plaintiff to Greene as agent and factor, but it did not appear that Greene had authorized the defendant to hold the property to secure his, Greene's, lien as such factor. It appeared that the plaintiffs were both, in separate suits against Greene, served with trustee process.

Opinion by STORY, J.

There is no pretense of a general property in Mr. C. W. Greene; and the plea puts in issue, so far as respects the parties to this suit, the general property only in the goods replevied. Nor had Mr. Greene any special property in the goods, for he had a lien only for the general balance of his account as a factor; and a lien, as has been well observed in Brace v. Duchess of Marlborough, 2 P. W., 491, is neither a jus ad rem, nor a jus in re.

8 329. Lien of a factor defined.

The lien of a factor is a mere right of retaining the goods of his principal until his demands in that capacity are settled; and it gives the factor a rightful possession which cannot be divested without his own consent. But as against his principal, it gives him no general or special property, whatever may be the case in respect to mere strangers. Hammonds v. Barclay, per Grose, J., 2 East R., 235; Lickbarrow v. Mason, per Buller, J., 6 East R., 25 n; Wilson v. Balfour, 2 Camp. R., 579. And in the present case, Mr. Greene never authorized the defendant to assert any claim for a lien on his account. On the contrary, Mr. Greene now expressly waives any claim for a lien on account of his general balance, and justifies the defendant in abandoning it; and the defendant has been paid his own charges for storage. Under these circumstances a return irreplevisable could not, under any acknowledged form of pleading, be awarded by the court.

$ 330. Replevin only lies where there has been an unlawful taking.

It is as clear that the lien of Mr. Greene is not an attachable interest, under the trustee process served on the defendant, either as personal property or as a chose in action, due from the defendant to Mr. Greene. The only doubt that I have ever entertained is, whether a writ of replevin is a proper remedy in this

case.

At common law a writ of replevin never l'es unless there has been a tortious taking, either originally or by construction of law, by some act which makes the party a trespasser ab initio. In case of a bailment or rightful possession of the property, replevin is certainly not the proper remedy at common law; but detinue or trover lies in such case, where there is an unjustifiable detention or conversion. This doctrine is very fully expounded and justified by Lord Redesdale in some recent cases (Ex parte Chamberlain, 1 Sch. and Lefr., 320; Ex parte Wilson, 1 Sch. and Lefr., 321 n; Shannon v. Shannon, 1 Sch. and Lefr., 324, 327), and has been recognized by a very learned judgment in our country. Pangburn v. Partridge, 7 Johns. R., 140. Nor has the statute of replevin of Massachusetts (Act 25 June, 1789, ch. 26, § 4) altered the common law in this respect. It gives the remedy only when goods are taken, distrained or attached, which are claimed by a third person who thinks proper to replevy them. The act requires that there should be a wrongful taking, distress or attachment from the possession of another, for the count in the statute expressly alleges the goods to be taken unlawfully and without justifiable cause.

8331. Effect of the plea of non cepit.

Under the circumstances of this case, if the issue had been non cepit, it must have been found for the defendant, for he never took the goods in any legal sense from the possession of another. He received them on storage, and the delivery to him was a lawful delivery upon a bailment for safe keeping. Non cepit puts in issue the fact of an actual taking; and unless there be a wrongful taking from the possession of another it is not a taking within the issue. A wrongful detainer after a lawful taking is not equivalent to a wrongful original taking. But if on non cepit, the issue would have been found for the defendant, no return could have been awarded to him. It would therefore after all be but a mere question as to costs; and, as the parties have agreed in no event to claim any costs, there is no reason for entertaining the motion for a new trial, since the merits are clearly against the defendant. The motion is overruled and the judgment must pass for the plaintiff upon the verdict. President of Portland Bank v. Stubbs, 6 Mass., 422.

NELSON v. GRAFF.

(Circuit Court for Michigan: 12 Federal Reporter, 389-391. 1882.)

Opinion by WITHEY, D. J.

STATEMENT OF FACTS.- The testimony discloses that Nelson was owner of one hundred and sixty acres of pine land, which in January, 1878, he agreed to sell by written contract to one Chandler for $4,800. Chandler paid at the time. $1,200, and agreed to pay a like sum by November 16, 1878, June 16, 1879, and January 16, 1880, with interest. The vendor stipulated that Chandler should have possession of the premises, but it was stated that he should not cut or dispose of any timber standing on the land except as provided in the contract of sale. The provision governing timber-cutting was in the following words: "And he is hereby granted the privilege of cutting, manufacturing, and disposing of timber upon forty acres of said land, and no more, until the second payment of $1,200 and interest shall have been made, when the second party shall have the privilege of cutting and removing the timber from forty acres more of the said land, and no more. And when the next payment of $1,200 and inter

est shall be paid, the party of the second part shall have the privilege of cutting and removing timber from forty acres more, and no more."

The payment down entitled Chandler to cut and remove the timber from forty acres; he made a second payment of $1,200, and was entitled to cut and remove the timber from another forty acres. His payments then ceased, but he cut and removed the timber on thirty-five other acres, and sold the same to defendants, who manufactured the logs into shingles, being the property seized and replevied in this action by Nelson. There are eight hundred and seventy thousand star shingles of the value of $2.15 per thousand, and thirty thousand second shingles of the value of $1.10 per thousand, aggregating $1,903.50. The shingles were seized under the writ of replevin July 24, 1879. The legal title to the land was in Nelson and the timber was part of the realty. Under the contract to Chandler he acquired an equitable estate or interest in the land, and possession of it, with a restricted license to cut and remove timber. It is quite clear that the timber was wrongfully severed and converted by the vendee, for it was done, not under the license, but was a positive and plain violation of the terms of the license.

$332. An action will lie for a chattel severed from the realty.

Upon principle and the authority of many judgments, it is manifest that one can maintain, on the strength of his title to realty, an action for a chattel which has become such by a wrongful severance from the premises; and the reason is because it belongs to the owner of the land. There are modifications that would affect such person's right to sue, but none of them affect this case. See Kircher v. Schalk, 39 N. J. Law R., 335, and cases there cited. The fact that the owner of the realty has contracted to sell it, and the fact that the severance of the trees was by the vendee, does not, it is believed, interfere with the owner's right of action; nor does the fact that the vendee held possession as a licensee licensed to cut and remove standing timber from forty acres and no more, so often as he paid $1,200, defeat replevin by the vendor. A vendee who should have paid the contract price of the land would occupy a more favorable footing. The vendor in such circumstances would have the mere naked legal title without equities or other rights. He would be a trustee merely. If Chandler could have maintained replevin against a trespasser who should have severed and converted the timber, it does not follow that Nelson could not have replevied from such trespasser by virtue of his title to the timber. miliar rule that one in the rightful possession of a chattel can maintain suit against any one wrongfully depriving him of it, though he may not be the owner. A bailee may do this, and so may the bailor, if the chattel owned by him has been converted.

$333. Timber wrongfully severed from land and converted into shingles may be recovered by the owner of the land.

This is the case of a plaintiff asserting his right to a chattel based on his right as owner of the land from which the chattel has been severed wrongfully. The fact that the trees after being severed have been manufactured into shingles and the value considerably enhanced does not prevent the owner from having the chattel returned to him in its altered form. Again, the fact that, the defendants obtained the timber by purchase is not sufficient to defeat its recapture from them under the facts in this case. Defendants were put upon inquiry as to Chandler's rights. The records of the county disclosed title to the realty in Nelson. Defendants were bound to take notice of this fact. They knew where Chandler cut the timber, and inquiries of the proper party would