| N.H. | Jul 15, 1866
The first' question is whether replevin can be main
At common law, it is quite clear, that, to maintain replevin, there must be an unlawful taking, with the single exception of a distress of cattle damage feasant, or of chattels for rent in arrear. Dame v. Dame, 43 N. H. 37, and authorities collected; and the doctrine of the common law is adhered to in New Hampshire, except so far as it has been modified by statute; and accordingly it has been held, prior to our statute, that replevin could not be maintained against a sheriff for property taken by him out of the debtor’s possession, either upon mesne process or execution. Kellogg v. Churchill, 2 N. H. 412; Smith v. Huntington, 3 N. H. 76; and Melcher v. Lamprey, 20 N. H. 403. In Smith v. Huntington, it was held that the action would not lie even where the goods were taken from the possession of the plaintiff upon process against a third person, although it had been decided the other way in New York. Thompson v. Button, 14 Johns. 84" court="N.Y. Sup. Ct." date_filed="1817-01-15" href="https://app.midpage.ai/document/thompson-v-button-5473807?utm_source=webapp" opinion_id="5473807">14 Johns. 84; Eastman v. Maloney, Strafford county, February, 1822, is cited by Richardson, C. J., in Smith v. Huntington, as having held the same doctrine.
There seems to have been no disposition in our courts to depart from the rule of the common law in this respect; and, indeed, in the recent case of Dame v. Dame, before cited, on a careful examination of the cases, it is distinctly laid down that it was the rule of the common law that replevin could only be maintained where the original taking was tortious, except in. cases of distress damage feasant, and that this rule is in force in this State, except so far as modified by statuteand the only modification is in respect to beasts impounded, and goods attached in mesne process. Comp. Stat. 520.
In Smith v. Huntington, Richardson, C. J., says, that replevin cannot be maintained for goods taken by valid process against the plaintiff, and the reason he assigns for it is that the taking must be deemed lawful.
In the case before us, the goods came into the hands of the defendants lawfully as carriers, and as there is nothing to make them trespassers ab initio, the action, we think, cannot be maintained.
There must, therefore, be judgment for the defendants, unless plaintiff desires a trial by jury.
Judgment for defendants.