2 Blackf. 172 | Ind. | 1828
This is an action of replevin. There are two avowries. The first states, that Kinriard recovered a judgment against Thomas Chinn, and sued out an execution against his goods; that the defendant, as sheriff j by virtue of the execution, took the goods, they being in the actual possession of Thomas Chinn; that the present plaintiff and another person claimed the property, and the jury, summoned to try the right, found it to be in the plaintiff, but the Circuit Court, on appeal, determined the goods to belong to Thomas Chinn. The defend dant also averred the property to be in Thomas Chinn. The second avowry is the same as the first, except that it says nothing as to the trial of the right of property. The defendant also pleads that the goods belong to Thomas Chinn, and not to the plaintiff. To the avowries, the plaintiff pleads that the goods are his; that Thomas Chi^n had possession as his bailee; and that the plaintiff always had the right to reduce them into possession at any time. To the plea of property in another, the plaintiff replies property in himself. The defendant demurs to the pleas of the plaintiff, and joins issue on his replication.
It is contended, that the determination of the Court, as to the right of property, was a justification to the sheriff. This position cannot be supported. We are not aware that these trials of the right of property have been ever held conclusive. If the goods be found to be the debtor’s, the inquisition may show that the sheriff’s conduct in selling was not-malicious, but it is no bar to the action of the owner. Townsend v. Phillips, 10 Johns. R. 98
The principal questions arising fri‘ this cause are these two: first, can a person, not having the actual possession of goods when taken', recover in replevin, provided he have the general property, and the right of immediate possession? secondly, can a person, not the execution-defendant, have replevin under our statute for goods taken in execution? Our opinion is in the affirmative on both these points. As to the first, it is evident from the cases of Ward v. Macauley, 4 T. R. 489, and Putnam v. Wyley, 8 Johns. R. 432, cited by the defendant himself, and Gordon v. Harper, 7 T. R. 9, that the plaintiff could recover, under these circumstances, in trover, or trespass de bonis aspoftatis. And we know of no ground, as respects this point, on which replevin can be distinguished from trover or trespass. As to the second question, we are of opinion that, let the com-bi on law be as it may, our statute authorises the proceeding. According to the statute, Whenever any person tortiously takes and unlawfully detains, or lawfully acquires and unlawfully detains, the goods Of another,, the owner may replevy. One exception is made, and no more; which is, that the law shall not 'extend td execution-defebdants. R. C. 1824, p. 337. The Case we are considering is one of taking and detaining without sufficient authority; and the plaintiff is not an execution-defendant: it is impossible, therefore, to say that the statute does not apply to it
The judgment is reversed, and the proceedings subsequent to the joinder in demurrer are set aside, with Costs. Cause remanded, with directions to permit the appellee to withdraw his demurrer and reply to the pleas of the plaintiff
Sed vide R. C. 1831, pp. 237, 238. Vide, also, Bosley v. Farquar, ante, p. 61, and notes (1) and (2). 2 Tidd’s Prac, 8th Lond. Ed. 1047.
It has been a great questionjwhethei the debtor’s continuance in possession oí
That the continuance of possession is only prima fide evidence of fraud is the laty in New-York. Barrow v. Paxton, 5 Johns. R. 258.—Beal v. Guernsey, 8 id. 452, It was, in Sturtevant v. Ballard, 9 Johns. R. 337, decided to be conclusive; but that case is overruled, and the doctrine of the previous decisions is adhered to. Vide Butts v. Swartwood, 2 Cowen, 431.—Bissell v. Hopkins, 3 Cowen, 166 and note.— Jennings v. Carter, 2 Wend. 449.—Divver v. M'Laughlin, id. 596.—Hall v. Tuttle, 8 id. 375.
The law in Massachusetts is like that in New-York. Brooks v. Powers, 15 Mass. 244.—N. E. M. 1. Co. v. Chandler, 16 id. 279.—Bartlett v. Williams, 1 Pick. 288.—Badlam v. Tucker, id. 399.—Homes v. Crane, 2 id. 607.— Wheeler v. Train, 3 id. 255.— Ward v. Sumner, 5 id. 59.—Shumway v. Rutter, 7 id. 56. S. C. 8 id. 443.
In Pennsylvania the law -is otherwise. - There, the continuance of possession
Vide 2 Kent’s Comm. 2d Ed. 512—532, where the reader nray find a general review of tire English and American decisions on this litigated subject. Vide, also, 2 Stark. Ev. 617, and note.—Chitty on Contracts, 227, and note.—Roscoe on Ev. 485.— Jordan v. Turner, Nov. term, 1833, post. There is an English decision on this subject, as late as 1832, the .substance of» which is as follows:—Want of possession accompanying a conveyance of chattels does not of itself constitute fraud, and avoid •the deed as against creditors; it is only evidence (or as the cases term it, a badge) of fraud. And where a bill of sale of ’household furniture was given as a security for a honafide advance of money, and provided that if the debtor should repay the money by instalments on certain days the deed should be void, but in default of payment of any of the instalments, the creditor might take possession and sell off the goods; and that until such default, the debtor might keep possession,—the deed was held not to be fraudulent as against a judgment-creditor by reason of the debtor’s remaining in possession, being given for a good consideration, and his continuance of possession being in terms provided for. (2 W. Bl. 701; 1 B. Moore, 189; 2 Marsh. 427. The dictum of Buller, J., in Edwards v. Harden, 2 T. R. 587, was relied on contra.)—Martindale v. Booth, 3 Barn. & Adol. 498.—9 Lond. Law Mag. 429.
The statute of 1831 is the same with that of 1824 which is cited in the text. R. C. 1831, p. 424. Vide Parsley v. Duston, May teína, 1834, post. It is said by Blackstone, that replevin lies only in the case of a wrongful distress. 3 Bl. Comm. 146. It has been since shown, however, that this is a mistake; and that replevin lies for any tortious talcing of goods from the possession of the plaintiff. Shannon v. Shannon, 1 Sch. & Lef. 327.—Pangburn v. Patridge, 7 Johns. R. 140. By the common law, there must be an actual and wrongful taking of the goods from the plaintiff to authorise the action of ¿replevin. Shannon v. Shannon, supra.—Meany v. Head, 1 Mason, 322.-— Galloway v. Bird, 4 Bing. 299, In some of the states, replevin lies •in any case where one man claims goods which are in .the possession of another, no mat.ter how the latter’s possession was obtained. It is so in Pennsylvania. Weaver v. Lawrence, 1 Dall. 156.—Shearick v. Huber, 6 Binn. 2.—Staughton v. Rappalo, 3 S. & R. 562.—Keite v. Boyd, 16 id. 300. So in Massachusetts. Baker v. Fales, 16 Mass. 147. So in Maine. Seaver v. Dingley, 4 Greenl. 315.
The following is a late decision in New- York: Replevin against a sheriff. Avowry, that the defendant took the goods by virtue of an execution against G., they being found in G.’s possession. Demuner to the avowry. Per Curiam.—“By the pleadings it is admitted that, at the -time of the taking, the property w'as in the plaintiff, and tija possession in Griswold, the defendant in .the execution; and the question is, whether replevin lies? Since the case of Pangburn v. Patridge, 7 Johns. R. 140, it has been settled that replevin lies where trespass dé bonis asportatis will lie, The plaintiff must have property general or special, and possession either actual or constructive. In Thompson v. Button, 14 Johns. R. 84, Chief Justice Thompson lays down the broad •proposition, that as a general principle it is undoubtedly true, that goods .taken in execution are in the custody of the law, and cannot be taken out of such custody when the officer has found them in, and taken them out of, the possession of the defendant in the execution. In Clark v. Skinner., 30 Johns. R. 467, Mr. Justice Platt has shown very conclusively, that that proposition is correct only as between the defendant in such execution and the officer; and in such a case, it was applied in Gardner v. Campbell, 15 Johns, R. 401, A variety of cases are stated by Mr. Justice Plait, in which an actio»
In Massachusetts, by statute, replevin lies for goods attached on mesne process or taken in execution, provided the debtor in the original suit is not the plaintiff in replevin. Therefore, if MSs goods are taken in execution for R.’sdebt, A. may maintain replevin against the officer. Oliver’s Precedents, 464.