DEVENS, J. We have no occasion to consider whether the rabbits for the conversion of which this action was brought were unlawfully exposed for sale in violation of Pub. St. c. 91, and Acts 1886, c. 276, § 5, nor whether, upon proper proceedings had, they might have been adjudicated to be forfeited. Without so deciding, we assume these positions in favor of the defendant's contentions. His own statement, which, in the present posture of the case, must be taken as correct, does not show him to have been either a constable or police officer, even if these officers could have made a seizure of the property without a warrant, which, again, we do not intend to decide. He was a deputy of the board of inland fisheries and game commissioners, who states that he had orders from them to seize and remove whatever of this nature was offered for sale unlawfully. He did not pretend that he had orders from any court, or any warrant, but took the rabbits to destroy them. It is quite clear that neither the commissioners nor their deputy could, without power, seize, remove, and destroy property, even though the same was unlawfully exposed for sale. No right to do this is given by the statute, nor is any authority cited to us which justifies it.

Even if the taking of the rabbits was unlawful, yet, the possession of them being illegal, it is the contention of the defendant that the plaintiff cannot avail himself of this illegal possession to maintain the action. In Com. v. Rourke, 10 Cush. 397, it is held to be well established at common law that property unlawfully acquired may nevertheless be the subject of larceny, and it is said "that even he who larceniously takes the stolen object from a thief whose hands have but just closed upon it may himself be convicted therefor in spite of the criminality of the possession of his immediate predecessor in crime." In Com. v. Coffee, 9 Gray, 139, where the article stolen was intoxicating liq

uor purchased in violation of the statute of Massachusetts, and intended to be sold in violation of the act, it was held to be the subject of larceny. Even, therefore, if, as we have assumed, in the case at bar, the defendant might have forfeited and lost his property if it had been seized upon proper legal process, and it had appeared that it was kept for an illegal purpose, he was only to be deprived of it upon such proof and by the methods which the law points out. In the plaintiff's hands the rabbits were strict property, even if unlawfully kept for sale. If deprived of them by a wrongful seizure, the party taking them should be made responsible to him for their value..

Exceptions overruled.

MILLER V. HYDE.

(161 Mass. 472. — 1894.)

REPLEVIN of horse converted by Geo. Bryden, Nov. 13, 1890, and sold by him March 31, 1891, to J. C. Davenport and A. L. Hyde. In November, 1891, plaintiff brought trover in Connecticut for the horse against Bryden, Davenport, Hyde and John Shillinglaw, the horse then being in the possession of the last three defendants. Judgment was recovered against Bryden, but not against the other defendants, as they had nothing to do with the horse until some months after Bryden's conversion of it. The horse had been attached at the commencement of the suit, and execution on the judgment was levied on it, but it was replevied in Connecticut by Davenport, who intrusted it to E. A. Hyde by whom it was taken to Massachusetts, and against whom the present replevin suit was brought. The Connecticut replevin suit had not been determined when this was commenced; Bryden was worthless and the judgment against him by plaintiff remained wholly unsatisfied. The trial court ordered judgment for the defendant.

BARKER, J. The plaintiff may maintain replevin if she is the owner of the horse, and if she is not estopped from asserting her ownership against the defendant. As administratrix of her

husband's estate, she was the owner when she brought trover in Connecticut against Bryden, the bailee who had wrongfully usurped dominion and sold and delivered the horse to Davenport. As the horse was in Connecticut and the action of trover was in the courts of that State, the effect of the suit upon her title would be determined by the law of the forum. But as the law of Connecticut is not stated as an agreed fact, we must apply our own. Whether a plaintiff's title to the chattel is transferred upon the entry in his favor of judgment in trover has not been decided by this court. Assuming that, in early times, title to the chattel was transferred to the defendant upon the entry of judgment for the plaintiff in trover, at present a different doctrine is generally applied, and it is now commonly held that title is not transferred by the entry of judgment, but remains in the plaintiff until he has received actual satisfaction. See Atwater v. Tupper, 45 Conn. 144; Turner v. Brock, 6 Heisk. 50; Lovejoy v. Murray, 3 Wall. 1; Ex parte Drake, 5 Ch. Div. 866; Brinsmead v. Harrison, L. R. 7 C. P. 547; 1 Greenl. Ev. § 533, and note. And the law has been commonly so administered by our own trial courts. We think this doctrine better calculated to do justice, and see no reason why we should not hold it to be law. Whenever the title passes, as there has been no sale or gift and no title by prescription or by possession taken upon abandonment by the true owner, the transfer is made by his inferred election to recognize as an absolute ownership the qualified dominion wrongfully assumed by the defendant. The true owner makes no release in terms and no election in terms to relinquish his title; but the election is inferred by the law, to prevent injustice. Formerly this election was inferred when judgment for the plaintiff was entered, because his damages, measured by the value of the chattel and interest, were then authoritatively assessed, and the judgment brought to his aid the power of the court to enforce its collection out of the wrongdoer's estate or by taking his person; and this was deemed enough to insure actual satisfaction. If so, it was just to infer that when he accepted these rights he elected to relinquish to the wrong-doer the full ownership of the chattel. An election was not inferred when the suit was commenced, although the plaintiff then alleged that the defendant had converted the

chattel, and although the writ might contain a capias; because, owing to the uncertainties attendant upon the pursuit of remedies by action, it was not just to infer such an election while ultimate satisfaction for the wrong was but problematical. Forms of action are a means of administering justice rather than an end in themselves. When it is seen that the practical result of a form of action is a failure of justice, the courts will make such changes as are necessary to do justice. If the entry of judgment in trover usually gave the judgment creditor but an empty right, it was not just to infer that upon acquiring such a right he relinquished the ownership of the chattel, and the rule that required the inference to be then drawn was properly changed. The ground for inferring such an election was that upon the entry of judgment he acquired an effectual right in lieu of his property, and the doctrine that, without some actual satisfaction, the inference of an election would not be drawn has been shown by experience to be necessary to the administration of justice, and has been generally acted upon, and the modern rule adopted that the plaintiff's title is not transferred by the entry of judgment, but is transferred by actual satisfaction. Trover is but a tentative attempt to obtain justice for a wrong, and, until pursued so far that it has given actual satisfaction, ought not to bar the plaintiff from asserting his title. The present doctrine is consistent with the general principle stated by Lord Ellenborough in Drake v. Mitchell, 3 East, 251, and quoted in Vanuxem v. Burr, 151 Mass. 386, 389, as approved in Lord v. Bigelow, 124 Mass. 185, that "a judgment recovered in any form of action is still but a security for the original cause of action until it be made productive in satisfaction to the party." Whether the holder of an unsatisfied judgment in trover can, without a fresh taking, maintain replevin against the same defendant, or is restricted to one action against the same person for a single tort, we do not now decide. (See Bannett v. Hood, 1 Allen, 47; Trask v. Railroad Co., 2 Allen, 331; Bliss v. Railroad Co., 160 Mass. 447.) If he is so restricted, it is not because the ownership of the chattel has been transferred. But the present plaintiff has done more than to take judgment in trover. In her action of trover she caused the horse to be attached as property of Bryden, and, since

obtaining judgment, she has caused the horse to be seized in execution on the judgment as his property, and to be kept and offered for sale on the execution until, as it was about to be so sold, it was replevied by Davenport from the officer in a suit between them which is still pending in Connecticut. That suit is not a bar to this action, because it is not between the same parties. (White v. Dolliver, 113 Mass. 400; Newell v. Newton, 10 Pick. 470.) But we must still inquire whether, assuming that the plaintiff's property in the horse was not transferred by her judgment in trover, it was transferred by that judgment taken in connection with the facts of the attachment and levy, and also whether she is estopped by the attachment and the levy from asserting her title in this action.

In the first place, the doctrine that a mortgagee of personalty who attaches the mortgaged goods on a writ against the mortgagor cannot afterwards enforce his mortgage is not in point. The mortgagee is not the owner, but has merely a lien, and may well be held to relinquish that lien when by the attachment he establishes another. But if the plaintiff has actual ownership, and thus the full right to do with his own property as he may choose, merely procuring it to be attached on mesne process, or seized on execution as the property of another, does not work a change of ownership. The owner does not sell or give away his goods. In cases which are likely to occasion such conduct there usually is, as in the present case, a disputed title; and it is with the hope of avoiding litigation over it that the real owner consents that the chattel shall for a special purpose only be treated as the property of another. This is "consistent with an intention ultimately to assert title should circumstances render it desirable for him so to do;" and he may well wait to see an issue, which may be such as to avoid the litigation of the question of title. (See Edmunds v. Hill, 133 Mass. 445, 446; Bursley v. Hamilton, 15 Pick. 40, 43; Johns v. Church, 12 Pick. 557; Mackay v. Holland, 4 Metc. 69, 74; Dewey v. Field, 4 Met. 381, 384.) Nor is there any good reason why such a use of his own property by a plaintiff in trover should be held to divest him of his ownership when it would not have that effect in other forms of action. In trover he is in legal effect asserting by his suit that the title is and will remain in himself until he