Brown v. Poland.

Poland." The court ruled otherwise and the defendant excepted.

We think the ruling was correct. The record says:"The plaintiff proved title to said chattels in said Ellen E. Poland, at the time of her marriage, and the execution by her of exhibit A, and no other testimony was offered to establish his title to said chattels." Exhibit A is a bill of sale of the chattels from Ellen E. Poland to the plaintiff made in 1885. The defendants were married in the state of New Hampshire in 1882. The defendant claimed and asked the court to rule as matter of law that "the plaintiff had proved no title to the goods and chattels sought to be replevied." The court did not so rule, but rendered judgment for the plaintiff. This question was not one of law but of fact. Finding the issue for the plaintiff was equivalent to finding title in the plaintiff. The record discloses no fact which shows such finding to be erroneous.

Assuming then, as we must, that the plaintiff owned the goods, did the defendant wrongfully detain them from him? Confessedly the only title or right which the defendant had was that which he held in right of his wife. He had no greater or other right than she had. Her right was that of lessee and was limited to one place. When she decided to change her residence her lease terminated, and it was her duty to return the property to the plaintiff. The husband, holding in right of his wife, was charged with the same duty. When he refused to return the property he stepped outside of his marital rights and held the property in his own right or without right. As he had in his own right no title his detention was of course wrongful. His refusal to return the property on demand of the wife was sufficient evidence of his wrongful detention. The plaintiff was under no obligation to give notice or make a demand. His right and the defendant's duty were absolute, not contingent. The office of a demand in this case was not to make the defendant's possession wrongful, but to furnish evidence that it was wrongful. Of course it was unnecessary if the wrongful possession could be otherwise shown,

Mead v. Johnson.

and it was shown, under the circumstances, by the wife's demand and his refusal.

There is no error.

In this opinion the other judges concurred.

MARIA A. MEAD vs. HENRY JOHNSON.

Fairfield County, Oct. T., 1886. PARK, C. J., Carpenter, Pardee, LOOMIS and GRANGER, Js.

Replevin lies only for specific property, distinguishable from other property of the same kind.

And the plaintiff must have a general or special property in the particular thing sought to be replevied.

It will not lie to recover damages for a mere breach of contract in not delivering property. There must be a tortious taking or detention of it.

[Argued October 26th-decided December 17th, 1886.]

REPLEVIN for twenty gallons of cider brandy; brought, by appeal from a justice of the peace, to the Court of Common Pleas in Fairfield County, and tried to the court before Hall, J. Facts found and judgment rendered for the defendant. Appeal by the plaintiff. The case is fully stated in the opinion.

H. W. Taylor, for the appellant.

J. B. Hurlbutt, for the appellee.

CARPENTER, J. The defendant was in the business of making cider and distilling cider brandy. The plaintiff furnished him with apples and money, for which he agreed to deliver to her twenty-eight gallons of proof cider brandy. There was no agreement that the brandy should be made from the apples so furnished, and it does not appear that

Mead v. Johnson.

these apples were made into brandy at all. At the time the suit was brought the defendant had no proof brandy, but had more than twenty-eight gallons above proof. The officer replevied no goods, but served the process as an attachment. The defendant for answer denied the allegations of the complaint.

Upon the trial in the court of Common Pleas the plaintiff claimed that the action of replevin was the proper remedy upon the facts proved, and that she was entitled to recover under the ninth section of the statute with regard to replevin. Gen. Statutes, p. 487. The defendant claimed otherwise. The court overruled the claims of the plaintiff and rendered judgment for the defendant. The plaintiff appealed.

The main question in the case, and the only one we have occasion to consider, as the view we take of that disposes of the case, is whether upon the facts replevin is the proper remedy.

Prior to 1863 writs of replevin were allowed in this state only to recover cattle or other animals impounded, and goods attached. Compilation of 1854, p. 140, sec. 253. In 1863, (Session Laws of that year, p. 45,) the action was extended to any goods which were unlawfully detained from the owner or other person entitled to the possession. The statute now in force is :-" The action of replevin may be maintained to recover any goods or chattels, in which the plaintiff has a general or special property with a right to their immediate possession, and which are wrongfully detained from him in any manner, &c." Gen. Statutes, p. 484.

Obviously the plaintiff must have a general or special property in some particular goods, which must be described. Bouvier says:-"The chattel also must possess indicia or ear-marks, by which it may be distinguished from all others of the same description; otherwise the plaintiff would be demanding of the law what it has not in its power to bestow. Replevin for loose money cannot therefore be maintained; but it may be supported for money tied up in a bag, and taken in that state from the plaintiff.

Mead v. Johnson.

The case does not show that the plaintiff ever owned or had a special property in any cider brandy. The most that it shows is, that the defendant had agreed to deliver brandy of a certain quality to the plaintiff; but it had never been separated from other brandy and set apart for the plaintiff; indeed it does appear that the defendant himself had no such brandy in his possession. He had brandy in his possession of higher proof which could have been reduced to the quality which the contract called for. But before any title can vest in the plaintiff it must be reduced, and the required quantity must at least be set apart for the plaintiff's use. This the law cannot do.

The action of replevin is founded in tort. There must be a tortious taking or detention of property; a mere breach of contract is not sufficient. Hence it is no remedy to enforce a contract or recover damages for its non-performance. This was clearly so under the old practice, and that is unaffected by the Practice Act, section 32, page 9. This suit seems to have been instituted originally for the sole purpose of enforcing specifically a contract, and to have been prosecuted solely for the purpose of recovering damages for its breach a manifest departure from the object of a replevin suit.

The plaintiff claims that the ninth section of the replevin act applies to the case and gives her a right to a judgment. The clause relied on is as follows:-" If any of the property described in the writ is not replevied, but the plaintiff proves a general or special property therein with a right to its immediate possession, and that it is wrongfully detained by the defendant, and claims full damages therefor, the value of such property with damages for its detention may be included in any judgment which the plaintiff may recover; and it shall be so stated upon the record."

Here the plaintiff encounters the same insurmountable obstacle; she has failed to prove a general or special property in the goods described. The same inherent vice remains -an attempt to recover damages for a breach of contract in

Wilcox's Appeal from Probate.

an action of replevin. That statute was not designed to extend the action of replevin to a case like this. There is no error.

In this opinion the other judges concurred.

JAMES A. WILCOX AND OTHERS' APPEAL FROM PRObate.

Hartford District, October T., 1886. PARK, C. J., CARPENTER, PARDEE, LOOMIS and GRANGER, JS.

A testator, after making bequests to his widow, his daughter and certain other near relatives, gave the residue of his estate to three trustees, of whom his daughter was one, who were to hold the property during the life of the daughter and pay her the income, and on her death without children attaining the age of twenty-one, the trust was to cease and the property to be divided into sixteen equal shares and distributed among relatives named; and in case a vacancy should occur among the trustees a trustee to fill it was to be "nominated to the judge of probate by at least one third of the devisees above named." Held-1. That by devisees above named" the testator intended only those who were ultimately to participate in the trust fund, and not all the beneficiaries under the will.-2. That the probate court had the right for good cause to refuse to appoint a person regularly nominated as a trustee.-3. That the mere fact that a person nominated as a trustee lived in another state was not a sufficient reason for rejecting him.

66

[Argued October 6th-decided December 29th, 1886.]

APPEAL from two probate decrees, one appointing a certain person as trustee under a testamentary trust and the other refusing to appoint another person; taken to the Superior Court in Hartford County, and heard before Andrews, J. Facts found, and the decree first mentioned reversed, and no action had on the other. Both parties appealed. The case is fully stated in the opinion.

C. E. Perkins, for the original appellants.

T. M. Maltbie, for the original appellees.