27 Me. 453 | Me. | 1847
The opinion of the Court was drawn up and delivered June 30, 1848, by
This is an action of replevin, to which the defendant pleads the general issue, non cepit; and files a brief statement under the statute, setting forth, among other things, that he was not in possession of the property replevied, nor claimed to own the same at the time it was replevied from him; and the ruling of the Court appears to have been, that, if such was the case, the action was not maintainable; and to this the plaintiff took exceptions.
The first obvious remark to be made is, that such a plea, for such in substance it is, is unprecedented; and, in such case, doubts might well be expected to arise as to its admissibility, as, if it be admissible, it is a matter of no little surprise, that it should not heretofore, have been found necessary to have had recourse to it; especially as this species of action has been of frequent occurrence — as much so as almost any other
In Massachusetts it seems to have been held, that a wrongful detention is so far a wrongful taking, as to authorize the
In the position taken in defence in the case at bar, the unlawful taking, and also the wrongful detention, with the exception of the moment at which the writ was served, must be considered as admitted ; for they are not traversed. And if by the general issue pleaded they should be considered as traversed, the evidence was conclusive, that the defendant did take the hay replevied, and sold it. He, therefore, was the cause of the detention and virtually did detain it, till replevied. At any rate, he must be considered as having commanded the-detention of it to that very moment; for selling it to a third person is in efiect commanding him to detain it. And he who-commands a taking, we have seen, is liable to this process; and could not plead, that he had not the property in possession, and did not claim to own it, as matter in full defence. The effect of such a disclaimer might be to prevent a judgment for a return, in case the defendant should prevail upon proper defence made. The judgment against him would be for damages only for the unlawful taking or detention. If
Exceptions sustained.