the property of one person that is owned or claimed by another; so that, in this country, the common law and statutory remedies are so intermingled as to be scarcely distinguishable. The statutes of a given State should always be consulted in order to ascertain the scope and extent of the remedy as well as the mode and methods of procedure.

§ 2. Jurisdiction. At common law, the original writ in an action of replevin issued out of the court of chancery and could be sued out only at Westminster. To remove this inconvenience of procuring the writ when required in a distant part of the kingdom, the statute of Marlbridge was passed, which provided that, if the beasts of any man were taken and unlawfully holden, the sheriff might, after complaint made to him therefor, deliver them to him "without let or gainsaying" of him who took the beasts. The original writ was thus dispensed with, and a proceeding upon a complaint made to the sheriff under the statute was called a "proceeding by plaint." In New York, the practice is quite similar to that under the statute of Marlbridge. In this country, provision is generally made by statute how, and before what tribunal the action shall be brought, and the statutory provisions must be strictly observed. Baker v. Dubois, 32 Mich. 92; Anderson v. Hapler, 34 Ill. 436; Darling v. Conklin, 42 Wis. 478.

§ 3. When the action lies. The action lies, at common law, for personal property when the defendant has wrongfully taken the same from the plaintiff's possession and the plaintiff has such a title to or interest therein, that he could maintain an action of trespass against the defendant therefor. Roberts v. Randal, 3 Sandf. (N. Y.) 707; Cummings v. Vorce, 3 Hill, 282; Pangburn v. Patridge, 7 Johns. 140; Rogers v. Arnold, 12 Wend. 30; Sawtelle v. Rollins, 23 Me. 196; Marshall v. Davis, 1 Wend. 109; Allen v. Crary, 10 id. 109; Stewart v. Wills, 6 Barb. 79. It is not confined to cases of illegal distress, but may be maintained wherever the taking is unlawful (Pangborn v. Patridge, 7 Johns. 149); and the defendant is in the possession of the property. Roberts v. Randel, 3 Sandf. (N. Y.) 707. Thus, it lies for property taken from the possession of a person upon which he has a lien for services or otherwise. Baker v. Hoag, 7 N. Y. (3 Seld.) 555. Thus, the defendant agreed that the plaintiff should cut staves upon his land at a certain price per thousand. The defendant removed the staves cut by the plaintiff which had been counted and not paid for, without the knowledge or consent of the plaintiff, and it was held that replevin would lie therefor. Mohn v. Stoner, 14 Iowa, 115. But if the lienor voluntarily suffers the property to go into the possession of the owner, his lien is lost, and, consequently, his right of recovering it by this form of action. But if the property is taken out of his pos

session by a legal process and the purchaser subsequently permits it to go back into his possession, he may hold it until his lien thereon is discharged. Thus, where a purchaser of horses at a sale on execution, which were subsequent to a lien for keeping, suffered them to go back into the possession of the lienor and afterward took them away against the will of the lienor, it was held that the lienor might maintain replevin against him therefor. Young v. Kimball, 23 Penn. St. 193.

So, too, the action lies against one who has obtained the possession of the goods of another by fraud, by false and fraudulent pretenses or representations, because in such cases, by reason of the fraud, no title to the goods passes, and the original taking is treated as forcible. Thus, when the possession of a horse was obtained by a fraudulent trick, it was held that replevin in the cepit would lie therefor. Peak v. Cogborn, 50 Ga. 562. See, also, Ayres v. Hewett, 19 Me. 281. So, it has been held that replevin will lie for a taking under color of a contract of purchase from a bailee, when he was drunk, whether the plaintiff induced his intoxication or not, the mere fact of such intoxication being sufficient to invalidate the contract, so that no title would pass under the sale, making the contract per se fraudulent in law. Drummond v. Hopper, 4 Harr. (Del.) 327. See, also, to the same effect, Farley v. Lincoln, 51 N. H. 577; S. C., 12 Am. Rep. 182. So, too, the action lies in favor of the vendor of property which was sold conditionally, after condition broken; and under such circumstances, although a note is given for a part of the purchase-money, an extension of the time of payment, predicated upon a good and valid consideration, does not affect the vendor's right to take and retain the chattel until paid for; and it was held in a case where the property was a mare, that the right extended to her progeny, and that the vendee could not maintain replevin against the vendor for either, without showing a full compliance with the conditions under which the purchase was made. Bunker v. M'Kenney, 63 Me. 529. Replevin in the detinet lies for property purchased of the real owner, but which, being in the possession of a third person having no right to retain it, he refuses to deliver. Perry v. Stowe, 111 Mass. 60. So, it lies to recover an undivided share of property as grainsusceptible of ready separation, although each particle thereof either party may claim is not susceptible of identification. Kaufmann v. Schilling, 58 Mo. 218. But not, if the defendant and the plaintiffs have a joint interest in the mass, or are tenants in common thereof. Lacy v. Weaver, 49 Ind. 375; Usry v. Rainwater, 40 Ga. 328. So, it lies for timber wrongfully cut upon a person's premises, without

any color of title thereto, although the trespasser has intermingled them with logs cut from other premises, and the plaintiff is entitled to have delivered to him such a quantity of logs from the common mase as was taken from his lands. Stearns v. Raymond, 26 Wis. 74; Richardson v. York, 14 Me. 216. Thus, it has been held that it is not necessary, in order to enable a person to maintain an action under such circumstances, that he should be able to trace and identify each log taken from his lands, but that, even where they have been intermingled with other logs and marked in the same way, so that they cannot be distinguished, he is entitled to replevy such a number in kind as were taken from his lands, and particularly is this so, if the defendant refuses to recognize the rights of the plaintiff. Schulenburg v. Harriman, 2 Dill. (C. C.) 398. It has been held that the action may be maintained, even after the logs have been manufactured into boards, and intermingled with other boards of the defendant; but in such cases, the plaintiff must describe the property as boards, and not as logs. Wingate v. Smith, 20 Me. 287. By the civil law, however, replevin does not lie under such* circumstances, but the owner of the property must seek his remedy for a conversion of the goods, and this rule has been adopted in North Carolina. Potter v. Mardre, 74 N. C. 36. The action may be brought to try the legality of a distress for rent, provided there is no sum due for rent; but if there is any sum due, however small, and the distress is for a greater sum, or is excessive in regard to the quantity of goods taken, or is otherwise irregular, the remedy must be by an action on the Hare v. Stegall, 60 Ill. 380. A sheriff or other officer who has attached property upon mesne process and delivered it to a person who receipted for it, may, in those States where replevin in the detinet is allowed, upon the neglect of the receiptor to return the property upon demand, proceed in replevin or trover therefor. Dezell v. Odell, 3 Hill, 215. When, by statute, replevin lies against an officer for goods attached or levied upon, the fact that they are receipted for, or are in the hands of a bailee, does not defeat the action, as they are treated as being constructively in the possession of the officer (Small v. Hutchins, 19 Me. 255); but the rule is otherwise if the attachment is dissolved. because the officer neglects to take them in execution within the time prescribed by law, or for any cause. Small v. Hutchins, 19 Me. 255; Hall v. Tuttle, 2 Wend. 475; Illsley v. Stubbs, 5 Mass. 280; Bouldin v. Alexander, 7 T. B. Monr. (Ky.) 424; Judd v. Fox, 9 Cow. 259; Thompson v. Button, 14 Johns. 84. So, it lies against him for property exempt from attachment, even though the plaintiff has never moved to dissolve the attachment, or for a release of the property. Wilson v. Stripe, 4 Greene (Iowa), 551. So, for property attached by an officer

case.

under a statute that fixes a lien in his favor thereon under a process, by leaving a copy in the town clerk's office, as, under such circumstances, he has the legal custody of the property, and is constructively, if not actually, possessed thereof. Angell v. Keith, 24 Vt. 371. The action in the detinet lies to recover a note or other obligation that has been paid or satisfied by the plaintiff, and which the defendant ought to deliver up, but refuses to. Savery v. Hays, 20 Iowa, 25. The defendant must, at the time when the action is brought, be in possession of the property, but the fact that he sold it, or parted with its possession after the action was brought, does not defeat the remedy. Marston v. Baldwin, 17 Mass. 606; Sayward v. Warren, 27 Me. 453. In California, under the statute, it is held that the action will lie for a quantity of money described as being in a leather bag, which was delivered to a person and wrongfully detained by him, even though the money itself is not, and cannot be particularly described (Skidmore v. Taylor, 29 Cal. 619); but in all cases the description must be such that the sheriff therefrom can seize it. Where a person wrongfully obtains the property of another and sells it, the purchaser acquires no title thereto, and it may be replevied by the real owner. Thus, when A, by a writ of replevin against B, obtained possession of B's property and sold it to C, and before the replevin suit was tried, A died, whereby the suit abated, it was held that A could maintain replevin against C for the property, as he acquired no title thereto by his purchase. Lockwood v. Perry, 9 Metc. (Mass.) 440; Watkins v. White, 4 Ill. 549; Welker v. Wolverknehler, 49 Me. 35. The rule is, that a person having the possession of property belonging to another, which he obtained without color of right, is treated as having unlawfully taken the same, and is amenable to an action of replevin in the cepit, therefor. Murphy v. Tindall, Humph. (U. S.) 10. There need not be an actual forcible dispossession. Any unlawful interference therewith, or exercise of dominion over the property by which the owner is damnified, is sufficient to uphold the action. Haythorn v. Rushforth, 19 N. J. Law, 160; Neff v. Thompson, 8 Barb. 213.

So, where a person has possession of the property of another under lease for a time that has not expired, he may maintain replevin therefor against the owner, if he takes it out of his possession before the time has expired, without justifiable cause. So, a purchaser at sheriff's sale, of property to which the judgment debtor had no title, is liable in replevin therefor although he is not chargeable in trespass. Ward v. Taylor, 1 Penn. St. 238. Where an agent of a firm sold their goods and took certain notes and liens payable to them therefor which he had no authority to transfer, and afterward alleged that he had lost

them, and gave his own notes to his principals therefor, under a stipulation that when they were found they should be credited to him on the note, and afterward they were found in the possession of a person, it was held that the principals might recover them in this form of action. Wilcox v. Turner, 46 Ga. 218. So, a person who has merely a conditional or contingent interest in property can give no valid title thereto, and if he sells the same the owner may bring replevin against the purchaser therefor. Thus, where S. furnished the land and the necessary means to raise a crop to a freedman, under a contract that the crop was to be the property of S. until his advances were returned, for which purpose he was to sell the crop, and return any surplus to the freedman, and the cotton raised was carried to the gin house of S., and ginned, packed and left for several days, when it was carried away secretly by the freedman and sold, it was held, that S. could replevy the same out of the hands of the person who purchased it. Allen v. Smith, 45 Ga. 84. And see Quinn v. Davis, 78 Penn. St. 15. Goods bought at sheriff's sale may be replevied out of the hands of the purchaser, as after an officer has parted with his possession of the goods they cease to be in custodia legis, and the inhibition as to this remedy ceases to apply. Shearick v. Huber, 6 Binn. (Penn.) 2; Huber v. Shack, 2 Browne (Penn.), 160; Ward v. Taylor, 1 Penn. St. 238. So, where by statute the action lies against an officer for goods attached or levied upon by him, it is held that a wife, who purchases personal property from her husband bona fide, and for a valid consideration, is in equity the owner of such property, and may replevy it out of the hands of an officer who attaches or levies upon it, upon a debt against her husband. Going v. Orns, 8 Kan. 85. The action lies to recover cattle taken damage feasant, when the person impounding them fails to comply with the requirements of the statute (Kimball v. Adams, 3 N. H. 182; Brown v. Smith, 1 id. 36); and, generally, where property has been wrongfully taken from the possession of the owner, replevin in the cepit lies therefor, and in those States where the wrongful detention of property is made a ground for replevin, replevin in the detinet lies, whenever property is wrongfully withheld or detained from the plaintiff, against the person having possession of the same. Sudbury v. Sterns, 21 Pick. 148; Moore v. Moore, 4 Mo. 421. Replevin lies against a warehouseman for property in his possession, which he refuses to deliver, in favor of the warehouse receipt. Burton v. Curyea, 40 Ill. 320. So, where a person borrows property, as in this case, a gun, and refuses to return it on demand, replevin in the detinet lies against him therefor, and he will not be permitted to set up title to the property in himself. Simpson v. Wrenn, 50 Ill. 222.