Upon the trial by the court, it appeared that upon an execution issued on a judgment in favor of said Roberts against said Gordon, this property was seized by said deputy sheriff as the property of said Gordon, at a hotel where it then was, and that he duly advertised it for sale by auction; that the sale was twice adjourned, the property in the mean time being kept at said hotel stable, under the control of the officer, and that it was taken from his custody by virtue of this writ of replevin, on the day appointed for the sale, and before the time fixed for it.

It appeared, also, that the defendant directed the officer to seize the property upon the execution, and that at the time it was replevied it was in the custody of the deputy sheriff under said execution. Upon this evidence, the court found that the defendant did not take said goods and chattels, or any part thereof, in manner and form as the plaintiff in his declaration had alleged; to which finding the plaintiff excepted.

FOSTER, J. The case finds that the property was taken by a deputy sheriff upon an execution in favor of the defendant against one Gordon, and that, until taken from his custody by virtue of the writ of replevin, the property remained under the officer's control. The defendant never had actual possession of the property, nor constructive possession, unless the officer is to be regarded as his agent, he having been directed by the defendant to seize the property upon the execution.

Replevin is strictly a possessory action: that is, as expressed by Blackstone, 2 Com. 198, "such wherein the right of possession only, and not of property, is contested." And it lies only in behalf of one entitled to possession, against one having, at the time the suit is begun, actual or constructive possession and control of the property. Brockway v. Burnap, 12 Barb. 347; King v. Orser, 4 Duer 431: Roberts v. Randel, 3 Sandf. 707; Knapp v. Smith, 27 N. Y. 281; Richardson v. Reed, 4 Gray 442; Coffin v. Gephart, 18 Iowa 256. It is a proceeding in rem, wherein the plaintiff seeks to recover the thing detained in specie, and not, as in trespass or trover, damages for its detention.

The actual possession of the officer is not the constructive possession of the defendant, although the execution in the officer's hands was levied upon this property by the direction of the defendant; but, until the property passed out of the officer's control by sale upon the execution or other legal means, it remained in the custody of the law, and in no way subject to the defendant's control, who, by virtue of his judgment and execution, acquired no title whatever to the property, nor any right of custody thereof, but only an inchoate right to payment out of its avails, by legal proceedings under and by virtue of the execution. Gallagher v. Bishop, 15 Wis. 282; Ilsley v. Stubbs, 5 Mass. 283; Booth v. Able

man, 16 Wis. 460; Smith v. Orser, 43 Barb. 187; Repine v. McPherson, 2 Kan. 340; Willard v. Kimball, 10 Allen, 211.

The right to the writ while the goods are in the custody of the law, or of a sheriff, collector of taxes, or other officer acting under authority of the State, is denied by statute in Pennsylvania and New York. Morris on Replevin, 83, 113, 114.

"The writ of replevin," says Metcalf, J., in Richardson v. Reed, + Gray, 442, "assumes that the goods which are to be replevied have been taken, detained, or attached by the defendant, and are in his possession or under his control; and it directs that they shall be replevied and delivered to the plaintiff, provided he shall give bond, conditioned, among other things, to restore and return the same goods to the defendant and pay him damages, if such shall be the final judgment in the action. But attached goods are in the legal custody and possession of the officer only. The attaching creditor has no property in them, general or special; no right to the possession of them; and no right of action against a third person who may take them from the officer or destroy them.

North, 2 Mass. 516. ["]

Ladd v.

And even if, in any sense, the possession of the officer could be regarded as the possession of the defendant, still this action could not be maintained. It is well settled in this State that replevin will not lie against an officer for goods taken on execution from the possession of the judgment debtor. Kellogg v. Churchill, 2 N. H. 412; Smith v. Huntington, 3 N. H. 76; Melcher v. Lamprey, 20 N. H. 403; Sanborn v. Leavitt, 43 N. H. 473; Hilliard on Remedies for Torts, 29.1

Therefore it was once held that the recaption by process of replevin, of goods taken by an officer on execution, should be regarded as contempt of the court issuing the execution Winnard v. Foster, 2 Lutw. 1190; and in Rex v. Monkhouse, 2 Strange, 1184, the court granted an attachment against the under-sheriff of Cum-· berland, for granting a replevin of goods distrained on a conviction for deer-stealing.

Our statute, authorizing replevin against the officer for goods attached upon mesne process, does not, of course, apply to this case; but the common law rule prevails, with this statutory exception, that goods in the custody of the law cannot be replevied.

It was formerly held, in one or two New York cases, that replevin might be maintained against the judgment creditor under whose direction the officer took the goods, on the ground that, as both the officer and creditor were trespassers, replevin would lie against either of them, because it would lie wherever trespass de bonis

1 As to replevin of property in the custody of a public officer, see also Simpson v. St. John, 93 N. Y. 363 (1883) (property clerk of New York police department). Cf. 12 Harv. L. Rev. 510 (1899).

asportatis would. Allen v. Crary, 10 Wend. 349; Stewart v. Wells, 6 Barb. 79. But this doctrine, utterly inconsistent as it is with the theory which regards the possession of an officer of the court as the possession and custody of the law, has been long since exploded in the only State where, so far as I can ascertain, it ever temporarily prevailed. And it is now held that this doctrine, and the dictum of Cowen, J., in Cary v. Hotailing, 1 Hill, 311, that trespass and replevin are concurrent remedies, must be taken with the qualification that, the defendant is in possession when the action is brought.. Brockway v. Burnap, before cited.

It is undoubtedly true, that at common law replevin will not lie where trespass cannot be maintained; for by that law an unlawful taking of goods is a prerequisite to the maintenance of replevin. Richardson v. Reed, before cited. But it does not follow that trespass will not lie in many cases where replevin will not. Trespass will lie against the wrongful taker of goods, whether he has parted with the possession of them or not; but replevin will in no case lie against one who has transferred his possession to another.1

The plaintiff's exception to the finding of the court, therefore, is overruled.

It remains to consider whether the defendant is entitled to judgment for damages. By the common law, if the plaintiff in replevin did not prevail in his suit, the defendant had judgment for a return of the property; and by the Statute of Westminster, 2 c. 2, the sheriff executing the writ of replevin was required to take pledges, not only for prosecuting the suit, but for a return of the property if a return should be adjudged. But neither the common law, in this respect, nor the statute of Westminster, ever prevailed in this State, instead of which, by our practice, a judgment for the defendant for damages in the same suit (by which anomalous proceeding the defendant becomes the actor or plaintiff) is the proper judgment. Bell v. Bartlett, 7 N. H. 178.

The process de retorno habendo prevails in Massachusetts, and is secured by the replevin bond. But the pertinent inquiry of Mr. Justice Metcalf, in Richardson v. Reed, is at once suggested by the peculiar aspect of this case: "How can the goods, be returned, on a writ de retorno habendo, to him who never had possession of them nor the right of possession? Or how can he be entitled to damages for the taking and detaining of goods in which he had no property?" The plea of non cepit admits the property to be in the plaintiff ;

1 Accord, that replevin will not lie unless the defendant had possession of the chattel involved when the action was brought, see Ramsdell v. Buswell, 54 Me. 546 (1867); Gildas v. Crosby, 61 Mich. 413 (1886). Contra: Andrews v. Hoeslich, 47 Wash. 220 (1907) (defendant had parted with possession but plaintiff did not know it). See Note, 18 L. R. A. (N.s.) 1264 (1909). Suppose the defendant has destroyed the chattel? See Ames. Mississippi Boom Co., 8. Minn. 467, 473 (1863).

and, of course, on that plea the defendant cannot have judgment for damages. Johnson v. Wollyer, 1 Strange, 507.

The defendant will have

Judgment for his costs.1

REPLEVIN BONDS AND REDELIVERY BONDS.

AT common law, the plaintiff in replevin was required to give security (gage and pledge) for the prosecution of the action and the return of the chattel replevied to the defendant if the plaintiff should be unsuccessful in the action. This requirement of security has been preserved in replevin or its statutory equivalents in modern practice, and the plaintiff is required to give a bond for the return of the chattel if the action is unsuccessful before a writ directing the sheriff to replevy the chattel will be issued. It is often provided that the bond be for double the value of the chattel.2

In some states, the defendant may, by filing an affidavit of ownership or right to possession and a redelivery bond (sometimes called a counter bond) secure a return of the chattel to him pending the action. For example, the Arkansas Civil Code (Crawford, 1934) provides as follows:

§ 210. Redelivery bond. Within two days after the taking of the property by the sheriff, the defendant, or any one for him, may, in the case in which the property was not taken under an execution or distress warrant, cause a bond to be executed to the plaintiff in the presence of the sheriff, by one or more sufficient sureties, in double the value of the property, to the effect that the defendant shall perform the judgment of the court in the actions, whereupon the sheriff shall restore the property to the defendant, or to the person in whose possession it was found. If such bond is not executed within the time above limited, the sheriff shall deliver the property to the plaintiff. He shall return the bonds with the order.3

This procedure is known as "bonding back". If the plaintiff is successful in the action, he has the option of receiving damages as in trover or requiring return of the chattel in specie. At one time a different rule obtained in Pennsylvania, where the filing of a redelivery bond turned the action in effect into one of trespass de bonis asportatis, in which only damages were recoverable; but this has now been changed by statute."

1 See, accord, Lucas v. Gansler, 335 Ill. 274 (1929).

2 See, e.g., Ill. Stat. Ann. (Jones, 1935) § 109.508.

3 See also N. Y. C. P. A. § § 1103, 1105.

4 See Swantz v. Pillow, 50 Ark. 300 (1887); O'Brien v. Curry, 111 Minn. 533 (1910). Cf. Leinbeck & Betz Brewing Co. v. Tarrant, 79 N. J. L. 372 (1910). 5 See Schuckers v. Schuckers, 21 Pa. Dist. Ct. 608 (1911).

SECTION 4

DETINUE

3

DETINUE is a very old form of action.1 It lay originally to recover chattels bailed to the defendant. It was thus based upon a consensual transaction and closely resembled debt 2; indeed at one time debt lay for chattels bailed as well as for money lent. It was subsequently held that detinue would lie although there was no bailment. Thus if a chattel was sold and title passed to the buyer and the seller refused to deliver it, detinue lay. So also it came to be allowed against a finder of a chattel who refused to surrender it to the owner; and finally it was allowed against one who had wrongfully taken possession of a chattel and refused to surrender it. Thus the action which once sounded in contract came to sound in tort. The judgment in detinue is that the plaintiff recover the chattels or their value, at the option of the defendant. Since the defendant was allowed to wage his law, detinue came to be largely superseded in practice by trover or case.

5

4

to wit, A. B. (the plaintiff in this suit,) by E. F. his attorney, [or, in his own proper person,] complains of C. D. (the defendant in this suit,) who has been summoned to answer the plaintiff: For that whereas the plaintiff heretofore, to wit, on the day of

—, in the year of our Lord —, delivered to the defendant

1 See 2 Pollock and Maitland, History of English Law (2d ed. 1898) 173175.

2 As to the action of debt, see p. 115, infra.

3 Compare the writs in debt and detinue given in Maitland, The Forms of Action at Common Law (1936) 88. And see especially id. 61–63.

4 Wager of law (also called compurgation) was a mode of trial in which the defendant could defend by swearing that the plaintiff's claim was unfounded and producing the requisite number of "oath-helpers” (usually eleven) to swear that they believed his oath. See Thayer, "The Older Modes of Trial," 5 Harv. L. Rev. 45, 57-65 (1891); 2 Pollock and Maitland, History of English Law (2d ed. 1898) 634-636. This mode of trial was finally abolished in England in 1833.

5 See Ames, Lectures on Legal History (1913) 71-79; 3 Street, Foundations of Legal Liability (1906) 144-158.