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the disseisee; or, that he had abandoned his possession. 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.?

§ 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.

? 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. (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.? (6)

1 Hammond's Nisi Prius, p. 372.

? 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 son v. Stewart, 85 Pa. St. 255. If an acreplevin. Riewe v. McCormick, ii Neb. tion of replevin is dismissed for informality 261. But if buildings are not so attached in the replevin bond, and judgment is to the realty as to be fixtures, or if it has given for the defendant for a return, and been agreed by the parties to regard them the plaintiff returns the property to the as personalty, they may be the subjects of place whence he first took it, he may aftera replevin suit. Dorr v. Dudderar, 88 I11. wards maintain another action of replevin 107 ; Brearley v. Cox, 4 Zabr. (N. J.) 387; for the same property, against the same Chatterton v. Saul, 16 Il. 149. As to the defendant, upon the original unlawful replevin of growing crops, the same prin. taking, although the defendant has not ciple applies : if they have been treated in taken out a writ of return, nor actually such a way by the parties as to show that received the property under the judgment they were dealing with them as personal in the first action. Walbridge v. Shaw, 7 property, e. g. if they sell the crops by Cush. (Mass.) 560; Fisher v. Whoollery, measure as if they were severed from the 25 Penn. St. 197. realty, an action of replevin will lie. (b) An action will lie against an officer Garth v. Caldwell, 72 Mo. 622. But cf. who attaches the goods of plaintiff on a Jones v. Dodge, 61 Mo. 368, where it was writ against a third party. Samuel v. held that an action for a certain number of Agnew, 80 Ill. 553. In Connecticut, how. bushels of corn will not lie when the crop ever, it is held that replevin should be is standing ungathered in the field. brought against the attaching creditor, not

Replevin will lie for the goods of the the officer. McDonald v. Holmes, 45 plaintiff, thongh they have been mixed Conn. 157. But in the cases of Richardwith those of the defendant, if it was done son v. Reed, and Skilton v. Winslow, 4 by a third party, and they can be separated Gray (Mass.), 441, the question was without injury to the defendant. Wilkin. 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 attach- two actions are not, in all cases, concur. ment was made of goods not the property rent. By the common law, replevin cannot of his debtor, either alone or jointly with be maintained where trespass cannot ; for, the attaching officer, and it was decided by that law, an unlawful taking of goods that the action would not lie. The opin. is a prerequisite to the maintenance of ion of the court, by Metcalf, J., was as replevin. 2 Leigh, N. P. 1323; Meany r. follows: "Though an officer who attaches, Head, 1 Mason, 322 ; Hopkins v. Hopkins, and a plaintiff who directs him to attach, 10 Johns. (N.Y.) 373. But trespass will A's goods, on a writ against B, are joint lie in cases where replevin will not. Retrespassers, and may be sued jointly in an plevin, being an action in which the proaction of trespass or trover, yet they can- cess is partly in rem, will not lie where it not be sued jointly in an action of replevin. is impracticable or unlawful to execute The grounds and incidents of a replevin that part of the process according to the suit are incompatible with the joinder of precept. Thus, replevin will not lie against the creditor and officers as defendants. him who takes goods and destroys them, The writ of replevin assumes that the or sells and delivers them to a stranger; goods which are to be replevied have been yet he might be sued in trespass. So, taken, detained, or attached by the de. where an officer seized A's property, first fendant, and are in his possession or under on an execution against B, and then on an his control ; and it directs that they shall execution against A, it was held, by the be replevied and delivered to the plaintiff, court which decided the case of Allen v. provided he shall give bond conditioned, Crary, that although A might maintain among other things, to restore and return trespass for the first seizure, yet he could the same goods to the defendant, and pay not replevy the operty, because he had him damages, if such shall be the final no right to the possession of it after the judgment in the action. But attached last seizure. Sharp v. Whittenhall, 3 Hill goods are in the legal custody and posses- (N. Y.), 576. In that case and in Brock. sion of the officer only. The attaching way v. Burnap, 12 Barb. (N. Y.) 351, the creditor has no property in them, general former dicta, that replevin would lie wheror special ; no right to the possession of ever trespass de bonis would, were denied ; them; and no right of action against a and in the latter case it was said that in third person who may take them from the Allen v. Crary the court, by sustaining reofficer or destroy them. Ladd 7. North, plevin against a defendant who had not 2 Mass. 516. How then can the goods be the property in his possession, 'pushed out returned, on a writ of return or reprisal, to the analogy between trespass de bonis ashim who never had possession of them, portatis and replevin further than is warnor the right of possession ? Or how can ranted by the cases.' See also Roberts v. he be entitled to damages for the taking Randel, 3 Sandf. (N. Y.) 712, 713. and detaining of goods in which he had no “In our opinion, replevin cannot be property ?

maintained in this Commonwealth, against “The plaintiff's counsel çited Allen v. a person who has no possession or control Crary, 10 Wend. (N. Y.) 349, as an au- of the goods to be replevied ; replevied thority for sustaining these actions. In goods cannot be restored and returned to a that case the plaintiff, whose goods had person from whom they were never taken ; been taken on an execution against a third and such person cannot rightfully be made person, maintained replevin against the a defendant, sole or joint, in an action of judgment creditor who directed the officer replevin." But see Estey v. Love, 32 Vt. to take the goods. The court proceeded 744, where it is held that replevin may be on the ground, that, as both the officer maintained against the attaching creditor and creditor were trespassers, replevin and the officer jointly, when the former would lie against either of them, because assisted in taking the property, and took it would lie wherever trespass de bonis it into his own possession after the attach. asportatis would. And in a subsequent ment. case, in the same State, the court main- Where one seeks to support an action of tained an action of replevin against the replevin on the ground of a fraudulent sale, officer and creditor jointly. Stewart v. he must show that the sale, if it is voidable Wells, 6 Barb. (N. Y.) 79. But we can only, has been avoided by him, and in any not admit the position that replevin will case that it has not been ratified by him. lie wherever trespass de bonis will. The 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." (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.?(6) 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

i Co. Lit. 145 b; Gordon v. Harper, 7 T. R. 9 ; Gates v. Gates, 15 Mass. 310; Col. lins 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. Jeland, 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. posite party. Cassel v. Western Co., 12 Stofferan, 89' III. 528 ; Gittings v. Carter, Iowa, 47. The defendant, in controverting 49 Iowa, 338. So if the sale was conditional this allegation of title in the plaintiff, will he must show that the sale was avoided by have judgment if he shows a special propbreach of the condition. Ketchum v. erty in the goods which entitles him to Brennan, 53 Miss. 596. Replevin should the possession, e. g. a lien for repairs. be brought only against one who has the Halstead v. Cooper, 12 R. I. 500 ; Lytle v. immediate possession of the goods. Thus, Crum, 50 Iowa, 37. where one seized goods illegally and sold The value to be recovered by one who and delivered them to another, replevin has only a special or limited property in will not lie against the former. Moses v. the goods replevied is the value of his Morris, 20 Kan. 208. The owner of goods interest, not the value of the goods. Pico cannot maintain an action against an offi. v. Martinez, 55 Cal. 148. It is therefore cer for taking them in the due service of a always competent for the plaintiff, when writ of replevin against another person the defendant has judgment, to show the who had them in his possession. Willard value of the defendant's interest in the v. Kimball, 10 Allen (Mass.), 211.

property. McArthur v. Howett, 72 II. (a) Lake Shore, &c. R.R. Co. v. Ellsey, 358. 85 Pa. St. 283; Lamb v. Johnson, 10 (6) Nor can an agent who is employed Cush. (Mass.) 126 ; Esson v. Tarbell, 9 ld. by his principal to receive, pay for, and 407 ; Kimball v. Thompson, 4 Id. 441 ; forward to him certain goods contracted Lockwood v. Perry, 9 Met. (Mass.) 440; for by the principal, part of which have Kidd v. Belden, 19 Barb. (N. Y.) 266; been delivered to the agent, maintain reRockwell v. Saunders, Id. 473 ; Quinn v. plevin for the balance not delivered, Kimball, 23 Penn. St. 193; Harlan v. which the contractor had promised, but Harlan, 15 Id. 507. A plaintiff in replevin failed to deliver, and which the agent had niust maintain his case on the strength of paid for. Dixon v. Hancock, 4 Cush. his own title ; and, if he fails to show (Mass.) 96. See also Updike v. Henry, title in himself, it is immaterial whether i4 ll. 378. An auctioneer, who, as agent the defendant has or has not any title of the owner, sells and delivers goods on Johnson v. Neale, 6 Allen (Mass.), 227. à condition which is not complied with, See also post, $ 637, n.; Schulenberg v. may maintain replevin therefor. Tyler Harriman, 21 Wall. (U. S.) 44. The v. Freeman, 3 Cush. (Mass.) 261. The plaintiff must prove an exclusive right to holder of a carrier's receipt for goods, not possession (Mathias v. Sellers, 86 Pa. St. negotiable, delivered to him by the owner 486); and the burden of proof on the as a security for advances, with intent to tion of title is on him (Lamotte v. Wis- transfer the property, may maintain rener, 51 Md. 543 ; McFarlan v. McLellan, plevin against an officer who attaches 3 Ill. App. 295). An allegation of right of them as the property of the general possession, is proved by evidence of owner owner. Nat. Bk. of Green Bay v. Dear. ship of the property, where no special born, 115 Mass. 219 ; Bk. of Rochester v. right of possession is shown by the op. Jones, 4 Comst. (N. Y.) 497.

ques.

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. (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.? (6)

§ 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, 5 Mass. 284 ; Seaver v. Dingley, 4 Greenl. 306 ; Galvin 0. Bacon, 2 Fairf. 28; Osgood v. Green, 10 Foster (N. H.) 210. But see Meany t. 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.

? Lathrop v. Cook, 2 Shepl. 414. 3 Weston v. Carter, 1 Sid. 10; 1 Saund. 347, n. (1) by Williams ; McKinley 1. McGregor, 3 Whart. 369; Dover v. Rawlings, 2 M. & Rob. 544.

(a) If evidence is offered that the offi- Vose, 7 Fost. (N. H.) 212. Nor can a cer went to the plaintiff and read a writ purchaser maintain replevin for goods of attachment against a third person, and purchased that formed a portion of, and at the same time declared that he attached were intermingled with, a larger quantity certain property of the plaintiff, and went of the same kind of goods owned by the and inspected the property, but did not vendor, until they are specifically set take it in possession, this proof will not apart or designated in some way as his. support a writ of replevin. Libby v. Scudder v. Worster, 11 Cush. (Mass.) Murray, 51 Wis. 371.' So, too, an inef- 573 ; Dillingham v. Smith, 30 Me. fectual levy of an execution on property, 370 ; Winslow v. Leonard, 24 Penn. St. whereby it is left in the lawful possession 14 ; Jackson v. Hale, 14 How. (U. S.) of the owner, will not support replevin 525. See Neff v. Thompson, 8 Barb. by the owner. Hickey v. Hinsdale, 12 (N. Y.) 213. Replevin does not lie in a Mich. 99.

a State court against a marshal of the (6) Nor can it be maintained against a United States for property attached by pound-keeper who receives and impounds him on mesne process from a United beasts for going at large, and refuses to States court against a third person. deliver them to the owner, on demand, Freeman in error v. Howe, 24 How. (U. unless his fees and those of the field. S.) 450. Reversing decision in Howe . driver are paid. Folger v. Hinckley, 5 Freeman, 14 Gray (Mass.), 566. Cush. (Mass.) 263 ; Radkin v. Powell, (c) The action may be brought either Cowp. 476. And a tender of such fees in the county where the defendant resides and costs, made after the writ of replevin or where the property is situated, but not has been unconditionally put into the properly in any other. Hibbs_v. Dunhands of the officer for service, will not be ham, 54 Iowa, 559 ; Ellison v. Lewis, 57 sufficient to sustain the action. Bills v. Miss. 588.

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