the disseisee; or, that he had abandoned his possession.1 But a mere mistake of the party in possession, which, as we have just seen, will not constitute a disseisin, will not, for the like reason, amount to proof of an abandonment of his possession.2 § 559. Improvements. Where the tenant by the laws of the State is allowed a compensation for the lasting improvements made by him on the land, the evidence is to be directed, not to the amount of his expenditures, but to the present increased value of the premises, by reason of the improvements. And these ordinarily consist of buildings, wells, valuable trees planted by the tenant, durable fences, and other permanent fixtures. 1 Small v. Proctor, 15 Mass. 495. 2 Ross v. Gould, 5 Greenl. 204. REPLEVIN. § 560. When the action lies. This action lies for the recovery, in specie, of any personal chattel which has been taken and detained from the owner's possession, together with damages for the detention; unless the taking and detention can be justified or excused, or the right of action is suspended or discharged.1 (a) It lies at common law, not only for goods distrained, but for goods taken and unjustly detained for any other cause whatever; except that, where goods are taken by process of law, the party against whom the process issued cannot replevy them; but, if the goods of a stranger to the process are taken, he may replevy them from the sheriff.2 (b) 1 Hammond's Nisi Prius, p. 372. 2 Gilbert on Replevin, p. 141; Rooke's Case, 5 Co. 99; Callis on Sewers, p. 197; Clark v. Skinner, 20 Johns. 470. This point is treated ably and with deep research in 12 Am. Jurist, pp. 104, 117, where the above authorities with others are reviewed. See also Allen v. Crary, 10 Wend. 349; Seaver v. Dingley, 4 Greenl. 306. In New York, the right of a stranger to replevy goods taken by the sheriff is limited to goods not in the actual possession of the judgment debtor at the time of the taking. Thompson v. Button, 14 Johns. 84; Judd v. Fox, 9 Cowen, 259. (a) Real property is not subject to replevin. Riewe v. McCormick, 11 Neb. 261. But if buildings are not so attached to the realty as to be fixtures, or if it has been agreed by the parties to regard them as personalty, they may be the subjects of a replevin suit. Dorr v. Dudderar, 88 Ill. 107; Brearley v. Cox, 4 Zabr. (N. J.) 387; Chatterton v. Saul, 16 Ill. 149. As to the replevin of growing crops, the same principle applies if they have been treated in such a way by the parties as to show that they were dealing with them as personal property, e. g. if they sell the crops by measure as if they were severed from the realty, an action of replevin will lie. Garth v. Caldwell, 72 Mo. 622. But cf. Jones v. Dodge, 61 Mo. 368, where it was held that an action for a certain number of bushels of corn will not lie when the crop is standing ungathered in the field. Replevin will lie for the goods of the plaintiff, though they have been mixed with those of the defendant, if it was done by a third party, and they can be separated without injury to the defendant. Wilkin son v. Stewart, 85 Pa. St. 255. If an action of replevin is dismissed for informality in the replevin bond, and judgment is given for the defendant for a return, and the plaintiff returns the property to the place whence he first took it, he may afterwards maintain another action of replevin for the same property, against the same defendant, upon the original unlawful taking, although the defendant has not taken out a writ of return, nor actually received the property under the judgment in the first action. Walbridge v. Shaw, 7 Cush. (Mass.) 560; Fisher v. Whoollery, 25 Penn. St. 197. (b) An action will lie against an officer who attaches the goods of plaintiff on a writ against a third party. Samuel v. Agnew, 80 Ill. 553. In Connecticut, however, it is held that replevin should be brought against the attaching creditor, not the officer. McDonald v. Holmes, 45 Conn. 157. But in the cases of Richardson v. Reed, and Skilton v. Winslow, 4 Gray (Mass.), 441, the question was whether replevin could be maintained a § 561. Plaintiff must prove title. Where the issue raises the question of title, the plaintiff must prove that at the time of the gainst a creditor at whose suit an attachment was made of goods not the property of his debtor, either alone or jointly with the attaching officer, and it was decided that the action would not lie. The opin ion of the court, by Metcalf, J., was as follows: "Though an officer who attaches, and a plaintiff who directs him to attach, A's goods, on a writ against B, are joint trespassers, and may be sued jointly in an action of trespass or trover, yet they cannot be sued jointly in an action of replevin. The grounds and incidents of a replevin suit are incompatible with the joinder of the creditor and officers as defendants. The writ of replevin assumes that the goods which are to be replevied have been taken, detained, or attached by the defendant, and are in his possession or under his control; and it directs that they shall be replevied and delivered to the plaintiff, provided he shall give bond conditioned, among other things, to restore and return the same goods to the defendant, and pay him damages, if such shall be the final judgment in the action. But attached goods are in the legal custody and possession of the officer only. The attaching creditor has no property in them, general or special; no right to the possession of them; and no right of action against a third person who may take them from the officer or destroy them. Ladd r. North, 2 Mass. 516. How then can the goods be returned, on a writ of return or reprisal, to him who never had possession of them, nor the right of possession? Or how can he be entitled to damages for the taking and detaining of goods in which he had no property? "The plaintiff's counsel cited Allen v. Crary, 10 Wend. (N. Y.) 349, as an authority for sustaining these actions. In that case the plaintiff, whose goods had been taken on an execution against a third person, maintained replevin against the judgment creditor who directed the officer to take the goods. The court proceeded on the ground, that, as both the officer and creditor were trespassers, replevin would lie against either of them, because it would lie wherever trespass de bonis asportatis would. And in a subsequent case, in the same State, the court maintained an action of replevin against the officer and creditor jointly. Stewart v. Wells, 6 Barb. (N. Y.) 79. But we can not admit the position that replevin will lie wherever trespass de bonis will. The two actions are not, in all cases, concur. rent. By the common law, replevin cannot be maintained where trespass cannot; for, by that law, an unlawful taking of goods is a prerequisite to the maintenance of replevin. 2 Leigh, N. P. 1323; Meany v. Head, 1 Mason, 322; Hopkins v. Hopkins, 10 Johns. (N.Y.) 373. But trespass will lie in cases where replevin will not. Replevin, being an action in which the process is partly in rem, will not lie where it is impracticable or unlawful to execute that part of the process according to the precept. Thus, replevin will not lie against him who takes goods and destroys them, or sells and delivers them to a stranger; yet he might be sued in trespass. So, where an officer seized A's property, first on an execution against B, and then on an execution against A, it was held, by the court which decided the case of Allen v. Crary, that although A might maintain trespass for the first seizure, yet he could not replevy the property, because he had no right to the possession of it after the last seizure. Sharp v. Whittenhall, 3 Hill (N. Y.), 576. In that case and in Brockway v. Burnap, 12 Barb. (N. Y.) 351, the former dicta, that replevin would lie wherever trespass de bonis would, were denied ; and in the latter case it was said that in Allen v. Crary the court, by sustaining replevin against a defendant who had not the property in his possession, 'pushed out the analogy between trespass de bonis asportatis and replevin further than is warranted by the cases.' See also Roberts v. Randel, 2 Sandf. (N. Y.) 712, 713. "In our opinion, replevin cannot be maintained, in this Commonwealth, against a person who has no possession or control of the goods to be replevied; replevied goods cannot be restored and returned to a person from whom they were never taken; and such person cannot rightfully be made a defendant, sole or joint, in an action of replevin." But see Estey v. Love, 32 Vt. 744, where it is held that replevin may be maintained against the attaching creditor and the officer jointly, when the former assisted in taking the property, and took it into his own possession after the attachment. Where one seeks to support an action of replevin on the ground of a fraudulent sale, he must show that the sale, if it is voidable only, has been avoided by him, and in any case that it has not been ratified by him. Ormsby v. Dearborn, 116 Mass. 386; Mor caption he had the general or a special property in the goods taken, and the right of immediate and exclusive possession.1 (a) But a mere servant, or a depositary for safe custody, has not such property as will support this action, his possession being that of the master or bailor.2(b) It is not always necessary to prove a taking of the goods, since the action may be maintained against a bailee, by proof of an unlawful detention. But when a taking 1 Co. Lit. 145 b; Gordon v. Harper, 7 T. R. 9; Gates v. Gates, 15 Mass. 310; Collins v. Evans, 15 Pick. 63; Rogers v. Arnold, 12 Wend. 30; Wheeler v. Train, 4 Pick. 168; Smith v. Williamson, 1 Har. & J. 147; Ingraham v. Martin, 3 Shepl. 373. 2 Templeman v. Case, 10 Mod. 25; Waterman v. Robinson, 5 Mass. 303; Ludden v. Leavitt, 9 Mass. 104; Warren v. Leland, Id. 265; Dunham v. Wyckoff, 2 Wend. 280; Miller v. Adsit, 16 Wend. 335. 3 F. N. B. (69) G.; Badger v. Phinney, 15 Mass. 359, 362, per Putnam, J.; Shannon v. Shannon, 1 Sch. & Lefr. 327, per Ld. Redesdale; Baker v. Fales, 16 Mass. ford v. Peck, 46 Conn. 380; Moriarty v. Stofferan, 89 Ill. 528; Gittings v. Carter, 49 Iowa, 338. So if the sale was conditional he must show that the sale was avoided by breach of the condition. Ketchum v. Brennan, 53 Miss. 596. Replevin should be brought only against one who has the immediate possession of the goods. Thus, where one seized goods illegally and sold and delivered them to another, replevin will not lie against the former. Moses v. Morris, 20 Kan. 208. The owner of goods cannot maintain an action against an officer for taking them in the due service of a writ of replevin against another person who had them in his possession. Willard v. Kimball, 10 Allen (Mass.), 211. (a) Lake Shore, &e. R. R. Co. v. Ellsey, 85 Pa. St. 283; Lamb v. Johnson, 10 Cush. (Mass.) 126; Esson v. Tarbell, 9 Id. 407; Kimball v. Thompson, 4 Id. 441; Lockwood v. Perry, 9 Met. (Mass.) 440; Kidd v. Belden, 19 Barb. (N. Y.) 266; Rockwell v. Saunders, Id. 473; Quinn v. Kimball, 23 Penn. St. 193; Harlan v. Harlan, 15 Id. 507. A plaintiff in replevin must maintain his case on the strength of his own title; and, if he fails to show title in himself, it is immaterial whether the defendant has or has not any title. Johnson v. Neale, 6 Allen (Mass.), 227. See also post, § 637, n.; Schulenberg v. Harriman, 21 Wall. (U. S.) 44. The plaintiff must prove an exclusive right to possession (Mathias v. Sellers, 86 Pa. St. 486); and the burden of proof on the question of title is on him (Lamotte v. Wisner, 51 Md. 543; McFarlan v. McLellan, 3 Ill. App. 295). An allegation of right of possession, is proved by evidence of ownership of the property, where no special right of possession is shown by the op posite party. Cassel v. Western Co., 12 Iowa, 47. The defendant, in controverting this allegation of title in the plaintiff, will have judgment if he shows a special property in the goods which entitles him to the possession, e. g. a lien for repairs. Halstead v. Cooper, 12 R. I. 500; Lytle v. Crum, 50 Iowa, 37. The value to be recovered by one who has only a special or limited property in the goods replevied is the value of his interest, not the value of the goods. Pico v. Martinez, 55 Cal. 148. It is therefore always competent for the plaintiff, when the defendant has judgment, to show the value of the defendant's interest in the property. McArthur v. Howett, 72 ILL. 358. (b) Nor can an agent who is employed by his principal to receive, pay for, and forward to him certain goods contracted for by the principal, part of which have been delivered to the agent, maintain replevin for the balance not delivered, which the contractor had promised, but failed to deliver, and which the agent had paid for. Dixon v. Hancock, 4 Cush. (Mass.) 96. See also Updike v. Henry, 14 Ill. 378. An auctioneer, who, as agent of the owner, sells and delivers goods on a condition which is not complied with, may maintain replevin therefor. Tyler v. Freeman, 3 Cush. (Mass.) 261. The holder of a carrier's receipt for goods, not negotiable, delivered to him by the owner as a security for advances, with intent to transfer the property, may maintain replevin against an officer who attaches them as the property of the general owner. Nat. Bk. of Green Bay v. Dearborn, 115 Mass. 219; Bk. of Rochester v. Jones, 4 Comst. (N. Y.) 497. is to be shown, it must be an actual taking. Thus, it has been held that merely entering at the custom-house, by the agent of the owners, goods already in the public stores, and paying the duties thereon, without any actual removal, but taking a permit for their delivery on payment of storage, is not such a taking as will support an action of replevin against the agent.1 (a) So this action cannot be maintained against a sheriff, who has made an attachment of the plaintiff's goods, but has left them in the custody of the plaintiff as his bailee, without any actual taking and removal of them.2 (b) § 562. General issue. The general issue in this action is non cepit, which admits the plaintiff's title, and under which it is incumbent on the plaintiff to prove that the defendant had the goods in the place mentioned in the declaration; for, the action being local, the place is material and traversable. (c) Proof of the original taking in that place is not necessary, for the wrongful 147; Illsley v. Stubbs, Mass. 284; Seaver v. Dingley, 4 Greenl. 306; Galvin v. Bacon, 2 Fairf. 28; Osgood v. Green, 10 Foster (N. H.) 210. But see Meany_v. Head, 1 Mason, 319, 322, that replevin does not lie without a tortious taking. See also Reeves v. Morris, 1 Armstr. Macartn. & Ogle, 159; Harwood v. Smethurst, 5 Dutch. (N. J.) 195. 1 Whitewell v. Wells, 24 Pick. 25. 2 Lathrop v. Cook, 2 Shepl. 414. 3 Weston v. Carter, 1 Sid. 10; 1 Saund. 347, n. (1) by Williams; McKinley v. McGregor, 3 Whart. 369; Dover v. Rawlings, 2 M. & Rob. 544. (a) If evidence is offered that the officer went to the plaintiff and read a writ of attachment against a third person, and at the same time declared that he attached certain property of the plaintiff, and went and inspected the property, but did not take it in possession, this proof will not support a writ of replevin. Libby v. Murray, 51 Wis. 371. So, too, an ineffectual levy of an execution on property, whereby it is left in the lawful possession of the owner, will not support replevin by the owner. Hickey v. Hinsdale, 12 Mich. 99. (b) Nor can it be maintained against a pound-keeper who receives and impounds beasts for going at large, and refuses to deliver them to the owner, on demand, unless his fees and those of the fielddriver are paid. Folger v. Hinckley, 5 Cush. (Mass.) 263; Radkin v. Powell, Cowp. 476. And a tender of such fees and costs, made after the writ of replevin has been unconditionally put into the hands of the officer for service, will not be sufficient to sustain the action. Bills v. Vose, 7 Fost. (N. H.) 212. Nor can a purchaser maintain replevin for goods purchased that formed a portion of, and were intermingled with, a larger quantity of the same kind of goods owned by the vendor, until they are specifically set apart or designated in some way as his. Scudder v. Worster, 11 Cush. (Mass.) 573; Dillingham v. Smith, 30 Me. 370; Winslow v. Leonard, 24 Penn. St. 14; Jackson v. Hale, 14 How. (U. S.) 525. See Neff v. Thompson, 8 Barb. (N. Y.) 213. Replevin does not lie in a a State court against a marshal of the United States for property attached by him on mesne process from a United States court against a third person. Freeman in error v. Howe, 24 How. (U. S.) 450. Reversing decision in Howe v. Freeman, 14 Gray (Mass.), 566. (c) The action may be brought either in the county where the defendant resides or where the property is situated, but not properly in any other. Hibbs v. Dunham, 54 Iowa, 559; Ellison v. Lewis, 57 Miss. 588. |