1 Wend. 109 | N.Y. Sup. Ct. | 1828
By the Court,
The questions in this case are, 1. Whether, on the plaintiff’s own shewing, the action of replevin can be maintained 1 and 2. Whether Mrs. Vermilyea was a competent witness ?
1. The old authorities, (says Van Ness, justice, in Pangburn v. Partridge, 7 Johns. R. 143,) are, that replevin lies for goods taken tortiously, or by a trespasser ; and that the party injured may have replevin or trespass at his election. To maintain this position, the year books and several ancient and modern authorities are cited. In Thompson v. Button, (14 Johns. R. 87,) chief justice Thompson says, “ The utmost extent to which the case of Pangburn v. Partridge can be carried, is, to permit replevin to lie where an action of trespass might be brought.” Gardner v. Campbell, (15 Johns. R. 402,) was an action of replevin, in . which the defendant justified under an execution, and to which the plaintiff pleaded pleas of payment and satisfaction. To these pleas there was a demurrer and joinder. Spencer, justice, in delivering the opinion of the court, says, EE The first objection to the pleas is, that they admit the original caption to be lawful, and where that is the case, replevin does not lie.” In concluding his opinion, he again remarks: EE The goods were lawfully taken by the defendant., and replevin is not the appropriate remedy.” In Mills v. Martin, (19 Johns. R. 31, 2,) Platt, justice, and Spencer, chief justice, repeat the doctrine, that where the taking was tortious, and for which trespass would lie, there replevin would also lie. In Clark v. Skinner, (20
The next enquiry is, whether the taking by the defendant was unlawful, or, in the language of the law, tortious. Vermilyea was not the servant of the plaintiff. He was bailee ; he kept the horses for the plaintiff, and had the use of them to pay for their keeping. He had no authority to sell, or exchange the horses. He, however, had the actual possession ; and, for aught appearing in the case, the defendant believed him to be the owner. The defendant took the horse, by delivery of Vermilyea, professing to be the owner, and to have the right of disposing of him. The taking was, in fact, without authority, as Vermilyea had no authority to dispose of the horse, and was therefore unlawful. That the defendant was ignorant of the plaintiff’s rights, and therefore innocent of any fraudulent intent, does not alter the rights or liabilities of the parties in relation to each other. Mr. Tidd, In his division of actions, says, replevin lies to recover damages for an immediate wrong, without force, in taking away and detaining cattle or goods; and answers to the action of írepass de bonis asportaiis. Trespass vi et armis lies to recover damages for immediate wrongs, accompanied with force. (1 Tidd’s Pr. 7.) In the case of Mearey v. Head, (1 Mason, 322,) Mr. Justice Story says, “ At common law a writ of replevin never lies unless there has been a tortious taking, either originally or by construction of law, by some act, which makes the party a trespasser ab initio. In case of the
The doctrine of the supreme court of Massachusetts is more liberal in favor of the action. Parsons, chief justice, says, in Bailey v. Stubbs, (5 Mass. R. 284,) as a general principle, the owner of a chattel may take it by replevin from any person whose possession is unlawful, unless it is in the custody of the law, or unless it has been taken by replevin from him, by the party in possession. In Badger v. Phinney, (15 Mass. R. 359,) it was held that replevin lies for goods unlawfully detained, though there was no tortious taking. In that case, the goods replevied were sold by the plaintiff to the defendant’s intestate, an infant; and on his refusal to pay, on the ground of infancy, the plaintiff demanded the goods. The defendant refusing to give them up, replevin was brought, and it was held that this action lies, where
The title of the plaintiff was, no doubt, sufficient to maintain trespass, and it becomes important to inquire, whether the talcing by the defendant was such as to subject him to this action. I have not found any adjudged case in point; but in Bac. Abr. Trespass, C. 2, it is laid down as law, if the goods of J. S. which were bailed to J. N. are taken from, or injured in the hands of J. N. by a stranger, J. g. in whom the general property still remains, may maintain an action of trespass. But if the bailee of goods have delivered them to a stranger, the bailor cannot maintain this action, because the general property in the goods is changed, by the delivery of a person who had a special property therein. So in Fin. Mr. Trespass, M. pi. 11, if I bail goods to a man who gives or sells them to a stranger, and the stranger takes them without delivery, I shall have trespass; for, by the gift or sale, the property is not changed, but' by the taking: but if the bailee delivers them to the stranger, I shall not have trespass. It
2. On the second point I think the court erred also. Vermilyea’s interest was neutralized. If the plaintiff recovered, the defendant had his remedy against Vermilyea. If the plaintiff failed in this suit, then he had his action against Vermilyea. So that, let the decision be either way, Vermilyea was responsible for the value of the horse. His wife was a competent witness, as he would have been if offered.
Judgment reversed, venire de novo to Sullivan common