16 Barb. 309 | N.Y. Sup. Ct. | 1853
The parties were not partners inter sese. Bur-nap had no interest in the profits as profits. These belonged to Brockway, who employed Burnap as superintendent, for which the former was to pay him “ a sum equal to one-half the net profits,” &c. (Perk. Coll, on Part. §§ 40, and n., 44 and n.)
The action is to recover the possession of certain specified goods and chattels, choses in action and money. The plaintiff in detinue could recover money only when it could be specifically identified, as in a bag, <fcc. Whether that is still the rule under the code, it is not necessary to inquire; for if the plaintiff is en
It has been supposed that the legislature, by abolishing tne action of detinue, (2 R. S. 553, § 15,) and extending the action of replevin, intended the latter should serve all the purposes of both. Detinue was the proper action, where there was a wrongful detainer; and the bailment, or manner of acquiring possession, was not traversable; the gist of the action being the detainer. (Gladstone v. Hewitt, 1 C. & J. 565. Whitehead v. Harrison, 6 C. B. 423. 2 Saund. R. 84, f, n. f, &c. 6th ed. and cases there cited.) It has been said that it would not lie where the taking was tortious. But that seems to be incorrect. (1 Chit. Gen. Pr. 812, n. 1 Chit. Pl. 112.) And there are some dicta in the books that the defendant should be in possession. (1 Selw. N. P. 546. Bul. N. P. 51.) If by that was meant that he must have been so at the time the suit was commenced, it is a mistake. The defendant remained liable, though he had delivered possession to another. (Comyn's Dig. A. Southcote v. Bennett, Cro. Eliz. 815; S. C. 4 Co. 83 b. Jones v. Dowle. 9 M. & W. 19. Garth v. Howard, 5 C. & P. 346. 1 M. & Sc. 628. Anderson v. Passman, 7 C. & Payne, 193. 8 B. & Ald. 703. 1 Chit. Pl. 113. 5 C. B. 328, n. a, citing a case from the Year Books. 8 Petersd. Ab. 82, n. Bromley v. Lambert, 1 Washington, 308.) Southcote v. Bennett has been doubted, (Comyn's R. 134,) but not on this point. In Jones v. Dowle, the defendant had delivered the picture to an
In replevin, the possession of the property was not invariably delivered to the plaintiff, When the action was in the detinet, in some cases, the plaintiff recovered the value as well as damages. (F. N, B. 69, l, and note. Petrie v. Duke, 2 Lutw. 1150,1151. 1 Saund. R. 347 a, n. 2, &c. 1 Chitt. Pl. 145. 2 Lill. Pr. R. 560. Wilk. on Rep. 20. 22 Wend. 603.) If the goods had been eloigned, the count might have been in the detinet. (2 Lill. Pr. 154,) And the practice when the property was eloigned, of taking other beasts, &c. of the defendant in withernam; and of-compelling him to gage deliverance, ren
Whatever may have been the practice before our revised statutes, I think there can be no doubt that under these statutes, the action could have been brought, although the defendant had parted with the possession. By the first section of the title in relation to the action of replevin, any wrongful detention, as well as taking, was sufficient. (2 R. S. 522. And see § 36.) The defendant might be arrested, if the sheriff could not make delivery of the property, (§ 11,) and yet the action proceeded for the property or the value. (22 Wend. 602. § 19.) The general issue, when in the cepit, was merely that the defendant did not take, (§ 39.) If the property had not been delivered to the plaintiff, he had judgment for delivery, or in default thereof, for the value. (§ 49.)
Notwithstanding some dicía to the contrary, replevin would always lie for goods unlawfully taken. (Wilkinson on Rep. 3. Bishop v. Montague, Cro. Eliz. 824. Pangburn v. Patridge, 7 John. R. 140. Clark v. Skinner, 20 Id. 468. Dunham v. Wickham, 3 Wend. 280. Chapman v. Andrews, Id. 242. Bul. N. P. 52. Evans v. Elliott, 5 Ad. & El. 142.) And the revisers said it would be a substitute for detinue, and a concurrent remedy in all cases of unlawful caption or detention of personal property, with trespass or trover. (3 R. S. 767, 2d ed.) It was so in many respects before, but certainly has been so considered from that time; at least until the code. It has been repeated, again and again, that wherever trespass would lie, the injured party might maintain replevin. (Allen v. Crary, 10 Wend. 349. Rogers v. Arnold, 12 Id. 32. De Witt v. Morris, 13 Id. 499. Fonda v. Van Horne, 15 Id. 631. Cary v. Hotailing, 1 Hill, 311. Olmsted v. Hotailing, Id. 317. Ely v. Ehle, 3 Comst. 506. Stewart v. Wells, 6 Barb. 80.) Cary
It is clear to my mind, that replevin, as extended by the revised statutes, did, as a general rule, perhaps not invariably, extend to those cases in which replevin, detinue, trespass, or trover was the remedy at common law.
The effect of the code is the only remaining inquiry. The provisions of the code are not very full as to the practice in an action for the recovery of personal property. They hardly constitute a complete system, without resort to the former law. That part of the third subdivision of section 179, authorizing an arrest where the property haid been concealed, removed or disposed of, was contained in the 'code of 1849, under which this suit was commenced. . Sections 206, 207, 208 and 209, et seq. aré only in relation to the immediate delivery of the property, pendente lite, and before answer,- and do not control the final judgment. That may be for the possession” of the property, “ or for the recovery of the possession, or the value thereof, in case a delivery cannot be had, and of damages for detention.” (§ 277.) The legislature did not intend by the code to abridge the former action of replevin as they found it.- I find nothing therein that' prevents the present remedy by an action to recover personal property, being as full, general and complete, as that action was under the revised statutes.
admitted that the doctrine' of Roberts v. Randall did not apply to removals of property in fraud of the law, when a writ was expected. I think the plaintiff’s case could stand upon that ground. But I prefer to put it upon the broad foundation, that, as a general rule, the action will lie for any unlawful
Hand, Cady and C. L. Allen,
Justices.]
The cause must be sent back to the referee.
Cady, J. concurred.
G. L. Allen, J. -dissented.
Report set aside.