enabled to gain an increased right by means of the action of replevin. This action originally lay to recover damages for unlawfully taking chattels by way of distress (p), as for rent service (q). The peculiarity of replevin is, that the first step in the action is to obtain the re-delivery to the plaintiff of the identical goods taken on his giving security to prosecute his claim for damages. This re-delivery on giving pledges (replegiare), from which the name of the action is derived, was effected by virtue of the jurisdiction in that behalf vested in the sheriff of the county in which the goods were taken (). Now, at common law, when goods. were taken by way of distress, no property or even possession was gained in them; they were merely seized and detained in a pound as a pledge for payment, and were said to be in the custody of the law (s). Originally therefore if on proceedings in replevin, appropriate to distress alone, the defendant claimed the goods taken as his own, that put an end to the sheriff's jurisdiction to replevy them (t). It was afterwards (u) provided however that on such a claim being made the sheriff might hold an inquest, and if on the inquest the property were found to be the plaintiff's at the time. of the taking, the sheriff might still proceed to replevy the goods (x). When proceedings in replevin could no (p) Bract. fo. 155 b; Britt. liv. i. ch. 28. (q) See Williams, R. P. 63, 306, 307, 17th ed. (r) Glanv. 1. xii. c. 9, 12; Bract. fo. 155 b, 157 a; Britt. liv. i. ch. 28. Under statutes of the present reign, the powers of the sheriff with respect to replevins have ceased; and the registrar of the county court of the district, in which any chattels are taken, is empowered to grant replevins and issue all necessary process in relation thereto; see stat. 51 & 52 Vict. c. 43, ss. 133 -137 (replacing 19 & 20 Vict. c. 108, ss. 63-67, and 23 & 24 Vict. c. 126, s. 22); County Court Rules, 1889, Ord. 34, and Appx. Forms, Nos. 243-246. (s) Y. B. 20 Hen. VII. 1, pl. 1 R. v. Cotton, Parker, 112, 119-123. (t) Britt. liv. i. ch. 18, § 3; ch. 28, § 4; Y. B. 32 & 33 Edw. I. 54. (u) Probably in the reign of Edw. III.; Ames, 3 Harvard Law Review, 32. (x) Fitz. Abr. Proprietate Probanda, pt. 4; Co. Litt. 145; Gilbert on Distress and Replevin, 115, 4th ed. Peaceable re-taking. longer be stopped by a mere claim of property by the defendant, replevin became a remedy that might in theory (1) be used for any unlawful taking of chattels away from their owner; and if goods were taken out of their owner's possession by a trespasser, he no longer necessarily lost the right of property in them; for it was laid down that he might at his election bring either trespass, whereby he disaffirmed the property in the goods, or replevin, whereby he affirmed the property to be his (2). Like trespass, however, replevin was never available against any other person than him, who directly violated the owner's possession (a). 3. The dispossessed owner of goods being thus allowed to retain the right of property in them, was accordingly permitted to retake the goods, wherever he might find them, if he could do so peaceably (b); and such retaking is still lawful (c). But the right of ownership so re-established over goods was subject to an important limitation, which did not exist in the case of the ownership protected by the old action of theft (d). For if, after market overt. goods were gone out of their owner's possession, they were sold without his consent in open market (or market overt, as it is called), a person so buying the goods in good faith obtained a valid title to them, and Sale in (y) In practice, however, replevin does not appear to have been used for an unlawful taking, not by distress, until quite modern times; see Mellor v. Leather, 1 E. & B. 619. (*) See Y. B. 7 Hen. IV. 28 b, pl. 5; 19 Hen. VI. 65, pl. 5: 2 Edw. IV. 16, pl. 8 6 Hen. VII. 7, pl. 4; 14 Hen. VII. 12, pl. 22; Bishop v. Montague, Cro. Eliz. 824; Cro. Jac. 50. (a) Mennie v. Blake, 6 E. & B. 842. (b) Litt. s. 497; Y. B. 19 Hen. VI. 65, pl. 5, per Markham; 32 Hen. VI. 1, p. 3; 6 Hen. VII. 7. pl. 4; Chapman v. Thumblethorp, Cro. Eliz. 329; 3 Black. Comm. 4, 5. Originally it was not lawful for a dispossessed owner to re-take his goods, unless he did so immediately; that is, it seems, on the day of taking ; Britt. liv. i. ch. 16, §§ 1, 2, and ch. 25, § 3, and notes, pp. 55, 57, 116, ed. Nichols : Ames, 3 Harvard Law Review, 28. (c) Even by force, if no unnecessary violence be used; Blades v.. Higgs, 10 C. B. N. S. 713; Ex parte Drake, Re Ware, 5 Ch. D. 866, 871. (d) Ante, p. 8. the late owner could no longer retake them, or successfully sue the buyer for the goods or their value (e). So the law still continues (f). But under the statutes giving restitution of stolen goods after conviction of the thief on indictment (g), the ownership of the goods is effectually re-vested in the party robbed upon the thief's conviction, notwithstanding any intermediate sale in market overt. So that, after such conviction (h), any person in possession of the goods is not entitled to withhold them from the robbed owner upon the plea of purchase in market overt before conviction (i). 4. The right of a dispossessed owner of chattels was Detinue. further increased by the expansion of the action of detinue, in which he was ultimately enabled to recover the goods themselves, or their value, if they could not be had, from any one, who unlawfully detained them from him. Detinue was originally an action for breach of a contract to deliver a specific chattel, as upon the termination of a loan, or upon a sale (k); and it lay only against the original contractor, and those who cam into possession of the goods with his privity () and (g) Ante, p. 10, n. (~). (h) See Horwood v. Smith, 2 T. R. 750. (1 Hale, P. C. 543, 544; 4 Black. Comm. 363; Scattergood v. Sylvester, 15 Q. B. 506; Vilmont v. Bentley, 18 Q. B. D. 322; see stat. 56 & 57 Vict. c. 71, s. 21. (A) It should be noted that detinue was merely a variation of the action of debt, which lay to recover a certain sum of money (1) E.g., his executors. At first Trover. It were thus affected with the duty of delivery (m). 5. In comparatively modern times (r) the dispossessed owner of goods acquired a further remedy for the violation of his right to the possession of them in the action of trover, or trover and conversion, in which he might recover the value of the goods as damages, though not the goods themselves (s). Trover was originally an action for damages by the owner of lost goods, against a finder of the goods, who had wrongfully converted them to his own use (t). But by means of 43 Edw. III. 29, pl. 11; 11 Hen. (m) Y. B. 16 Edw. II. 490. (0) Britt. liv. i. ch. 18, § 2; (p) See Y. B. 9 Hen. V. 14, pl. 22; 6 Hen. VII. 9, pl. 4; Bishop v. Montague, Cro. Eliz. $24, Cro. Jac. 50; Co. Litt. 286 b; Mills v. Graham, 1 Bos. & Pul. (q) Gledstane v. Hewitt, 1 Cr. & J. 565; Clossman v. White, 7 C. B. 43. (r) Hardly before the 17th century. See Bishop v. Montague, Cro. Eliz. 824; Cro. Jac. 50; Isaack v. Clark, 2 Bulst: 306; also Y. B. 12 Edw. IV. 13, pl. 10; 2 Ric. III. 14, pl. 39. (s) 3 Black. Comm. 152, 153. (t) See note (o), above. Trover was an action of the technical class known as trespass on the case. the fiction of a loss and finding, which the defendant was not permitted to traverse or dispute, this action was allowed to be brought by a person entitled to the immediate possession of goods (u) against any one, who had come into possession of the goods, by whatever means (x), and afterwards refused to give them up. For such refusal was held to argue a conversion of them to his own use (y). And the wrongful conversion was said to be the gist of the action (z). Thus in trover, as well as in detinue (a), the dispossessed owner of chattels acquired a remedy available against all, who violated his right to possession, whether they were the immediate invaders of his possession or not. The dispossessed owner of goods was thus tardily No certainty of the specific invested with the right to recover possession of them as restitution of against all the world. But still he had no such goods. certainty of specific restitution as the dispossessed freeholder enjoyed. Thus in a real or mixed action the claimant might always obtain judgment in his favour, either at the trial of the action, or upon his adversary making default in appearance before trial, and in either case he could have the king's writ directing the sheriff to put him in possession of the very land he claimed (b). But in personal actions (with the one exception of replevin) all process preliminary to trial (called mesne Mesne process. process) was directed entirely against the person sued, Trespass on the case was the general remedy for personal wrongs and injuries without force: the action of trespass or trespass vi et armis, lying only for damage directly caused by a man's wrongful and forcible act; 3 Black. Comm. 122, 123, 152; Scott v. Shepherd, 2 W. Black. 892, 1 Smith L. C.; Holmes on the Common Law, 275-283; ante, p. 12, n. (m). (u) Gordon v. Harper, 7 T. R. 9; 2 Wms. Saund. 47 b et seq. (x) Bishop v. Montague, Cro. Eliz. 824; Cro. Jac. 50. W.P.P. (y) Agar v. Lisle, Hob. 187. (a) See 7 T. R. 12. In practice (b) Glanv. i. 7, 12, 13, 16, 18, 21, 31; ii. 3, 4, 19, 20; iii. 3—6, 9; xiii. 7-9, 32-39. с |