
    Cummings vs. Vorce.
    One whose goods have been tortiously taken may maintain replevin either in the ccpit or in the detinet, at his election. Bronson, J. dissented.
    Though goods have been taken from the owner by an act of trespass, he may waive hiS right to proceed for the force, and recover their value in trover, or even in assumpsit. Per CoWen, J.
    The doctrine advanced by Brian, Ch. J., in 6 II. 7. 9., that a tortious taking of goods changes the property, overruled.
    Replevin-, for the wrongful detention of a horse, tried before Griblev, G. -Judge, at the Erie circuit, in August, 1840. The proof was of a tortious taking from the plaintiff’s possession ; whereupon the plaintiff sued out this writ of replevin, and delivered it to the sheriff to be served. He went with the sheriff to the defendant and demanded the horse; and immediately afterwards the writ was served. The judge decided that the demand was made after suit commenced, and hence was not available in this suit; and that proof of an unlawful taking would not sustain the action in this form. He therefore ordered a nonsuit, to which the plaintiff excepted, and now moved for a new trial on a bill of exceptions,
    
      M. Fillmore, for the plaintiff.
    
      D. Tilling hast, for the defendant,
   Cowen, J.

I think replevin in the detinet will lie in this case, on the same principle as that which makes trover concurrent with trespass, or assumpsit concurrent with both, where there has been a tortious taking. In either case it is competent for the plaintiff to waive his right to proceed as for the force, disregard it in declaring, and even fall down to an action in form ex contractu. (Vid. 1 Hill, 240, and note (a), with the cases there cited; Floyd v. Wiley, 1 Missouri Rep. 430 ; 643, S. C. and S. P,)

. I admit, the distinction between replevin in the cepit and detinet is sustained by the analogy of the old cases, or rather dicta, which denied that detinue would lie where the taking was tortious. My answer is, that those cases or dicta rest on the same slender principle as the denial in Bishop v. Viscountess Montague, (Cro. Eliz. 824,) that trover is concurrent with trespass de bonis. In trover for a tortious taking, Walmsley and Kingsmil, Js., there held that ti espass only would lie. But Anderson and Warhurton contra: for the plaintiff may elect, as he may have detinue or replevin for goods taken by a trespass. The justices who took ground against the action were evidently staggered by recollecting what Brian, J. had said in 6 H. 7. 9., viz. that detinue would not lie, because the property was changed by the trespass; and the original owner was not a proper party to the action, because every plaintiff in detinue must show' property in himself. Walmsley and Kingsmil afterwards changed their minds. (Cro. Jac. 50.) I had supposed that idea completely dissipated by a great many cases of a later date which are beyond all question and yet cannot stand with it. Yavisour, J. denied Brian’s law at the time; and I think Mr. Chitty does not speak too strongly in calling it fallacious for all purposes of legal reasoning at the present day. (1 Chit. Pl. 123, Am. ed. 1840 ; and see 1 Wheat. Selw. Am. cd. of 1839, p. 665, note (3) ; 2 Leigh's N. P. 782, note (b).) It has been very sensibly repudiated in North Carolina, even in its application to the action of detinue, as Chitty thinks it should be. (Johnston v. Pasteur, Cam. & Norw. 464,472 ; Wade v. Edwards, 2 Hayw. 221.) So in Kentucky. (Mansell's adm’r v. Israel, 3 Bibb, 510, 512 ; Owings v. Frier, 2 Marsh. 268, 9.) In the first of the Kentucky cases, the ground is taken on the weight of authority that, as in trover, the plaintiff may waive the tort, at his election. (Pierce v. Hill, 9 Porters Alab. Rep. 151, 154, S. P. resolved on a very learned opinion by Collier, C. J.; Irwin v. Wells, 1 Missouri Rep. 9, and Overfield v. Bullitt, id. 749,50, S. P. ; and vide Neely v. Lyon, 10 Yerg. 478 ; Burnley v. Lambert, 1 Wash. Virginia Rep. 308, S. P. assumed.)

Thus I think the case itself on which the analogical argument is sought to be rested, must be considered as displaced from the law by the progress of conflicting judicial decision. The doctrine concerning the election of actions has in the mean time been acquiring greater strength and compass. To my mind, it abounds with principles and analogies which oh-viously warrant the election of replevin in the detinet, though there has been a tortious taking.

Nelson, Ch. J. concurred.

Bronson, J. dissenting.

As the demand was made after the writ had been delivered to the sheriff to be served, it goes for nothing, and the plaintiff must rely on the original trespass in taking the property. The question then is, whether replevin in the detinet will lie for a tortious taking. The action of detinue has been abolished, and the action of replevin has been extended to cases where the goods are “ wrongfully detained.” (2 R. S. 553, § 15, and p. 522, § 1.) But the statute requires that the distinction between the common law action of replevin for a wrongful taking, and the substituted remedy for the old action of detinue should be kept up in the writ and pleadings. (Id. p. 528, § 36, 39, 40.)

At the common law, detinue lies where the defendant wrongfully detains goods which came lawfully to his possession, as by delivery or finding. The plaintiff must have either an absolute or special property in the goods at the time the action is brought; and it was laid down by Brian, Ch. J. so long ago as the year-book, (6 H. 7. 9,) that detinue will not lie where the defendant took the goods tortiously ; for by the trespass the property of the plaintiff is divested. The soundness of this reasoning has been very justly questioned in the modern books 5 but the doctrine that detinue will not lie in such a case seems not to have been overruled. The gist of the action is the wrongful detention; and, as a question of pleading, the delivery or finding laid in the declaration is said to be mere, matter of .inducement, and not traversable. Still, I find no adjudged case in the English courts where detinue has been maintained upon a tortious taking. Some of the books directly affirm that the action will not lie, and others impliedly admit the same doctrine. (F. N. B. 138 ; Co. Litt. 286, b. ; Vin. Abr., tit. Detinue, (B.) and (B. 2 ;) Com. Dig., tit. Detinue, (D. ;) Bac. Abr., tit. Detinue, p. 661, and 664, (C.) 7th Lond, ed. ; 3 Black. Com. 151 ; Bull. N. P. 49, 51 ; 1 Selw. N. P. (Wheat.) 664—7 ; 2 Leigh’s N. P. 782 ; Bateman v. Elman, Cro. Eliz. 866 ; Gledstane v. Hewitt, 1 Cromp. & Jer. 565 ; Walker v. Jones, 2 Cromp. & Mees. 672 ; 4 Tyr. 915, S. C. ; 1 Chit. Plead. 139,140, ed. of '37 ; and see Kettle v. Bromsall, Wittes’ P.118 ; Bishop v. Montague, Cro. Eliz. 824 ; Dalston v. Janson, 5 Mod. 90.) It was said in JIPPs v. Graham, (4 Bos. 4r PmP. 140,) that detinue would lie where the goods came to the defendant’s possession by wrong ; but in that case -the property was actually .delivered to the defendant by the plaintiff, though under a contract which was invalid in consequence of the defendant’s infancy. In Johnston v. Pasteur, (Cam. & Norw. Rep. 464,) it was held, that the action would lie without regard to the manner in which the defendant got possession ; but it was admitted that this was a departure from the common law rule. In Holbrook v. Wight, (24 Wend. 169,) the goods came lawfully to the defendant’s possession.

As the plaintiff may have replevin in the cepit, as well as trespass and trover, for the injury of which he complains, there seems to be no good reason for extending the remedy by replevin in the detinet to the case of a tortious taking. I think the nonsuit was properly ordered.

New trial granted., 
      
       See Pritchard v. Fort, (1 J. J. Marsh. 543, 4 ;) Morrison v. Rogers, (2 Scamm. R. 317.) The latter case follows the doctrine in Massachusetts as established by Jones v. Hoar, (5 Pick. 285,) stated in note (a) to 1 Hill, 240.
     
      
       Whether this would be so where the writ is delivered with express instructions to the officer not to serve it until after demand, and the officer acts acrordingly, pure. (See 1 Hill, 120, note (a) and the case there cited.)
      
     