
    Ebenezer Stevens versus Ephraim Robins.
    Where one had contracted for the purchase of merchandise, as the agent of another, a part only of which had been delivered to the agent; and the agent had received from his principal more money than the cost of that part, including all charges ; he had still a right to hold that part to indemify himself for his •ngagements on account of the portion not yet received.
    * Replevin for 8756 sides of sole leather, of the [*180] value of $ 29,000. The defendant pleaded, 1. Property in himself; upon which issue was joined. 2. He avowed the detentien to be just, and alleged that the said 8756 sides of sole leather were parcel of 14,287 sides, of the value of $50,179, which he purchased upon the order of George Filch, of JVeto York, on account of which a large sum of money was due to him ; as a security for the payment of which, he detained the whole of the said sole leather, as he lawfully might do. The pleadings were long, but they terminated in an issue to the country, upon the plaintiff’s allegation, that the defendant detained the sole leather replevied of his own wrong.
    These issues were tried before the Chief Justice, at the last November term, and a verdict was taken for the plaintiff, subject to the opinion of the Court, upon the following facts, proved at the trial.
    In November, 1813, George Fitch, of «/Veto York, sent an order to the defendant, to purchase, at limited prices, on his account and risk, sole leather to the amount of $ 50,000. On the 3d of December following, having made the whole purchase, the defendant gave notice of it to Fitch. The leather was purchased to be delivered and paid for at different times ; and it was not expected that the whole would be received for several months.
    On the 14th of December, Fitch assigned the leather to the plaintiff, who, on the same day, wrote to the defendant as follows : — “ Enclosed I hand you a letter from our mutual friend, Mr. Geo. Fitch, requesting you to hold, subject to my order and disposal, a quantity of sole leather, purchased by you on his account. In your reply, please to advise me of the quantity, that, in pursuance of this order, will be at my disposal, subject, however, to any claims you may continue to have on account of the purchase.” On the 17th of the same December, the defendant wrote in * re- [*181] ply : — “ The whole amount of leather, purchased by order and for account of Mr. Fitch, I now consider as subject to your order and disposal, subject, however, to my claims for the regular charges of purchase, &c. The whole quantity is contracted for, deliverable within 3 or 4 months ; 600 or 700 sides are already in store.”
    The plaintiff assumed no responsibility for the payment for the' leather ; and the defendant kept his account of the transaction only with Fitch, and sent him invoices of the quantity received from time-to time, and drew on him for the purchase money.
    On the 19th of February, 1814, the day that this writ of replevin was served, the defendant had received about 9000 sides of the leather, and had sent invoices of the same to Fitch, and had drawn on him for, and received, at sundry times, several sums of money on general account, which sums were more than enough to have paid for that part of the leather which was replevied, and all commissions and charges thereon. But the defendant was, at the same time, under obligation to pay near $ 20,000 for the remainder of the leather, when it should be received ; and, for his security for that sum, he had nothing but the personal responsibility of Fitch, unless he had a right to retain the leather as additional security.
    On the same 19th of February, the plaintiff’s agent demanded the leather afterwards replevied by him at the defendant’s store. He being absent, his clerk informed the agent that the defendant had a large balance due on account of the leather ; and they refused to deliver it until that was paid or secured. By this balance the clerk alluded to the sum which the defendant would have to pay, when the remainder of the leather should be received, according to the contracts made for it.
    After the defendant had received the remainder of the leather, he notified Fitch and the plaintiff of the amount due to him ; but Fitch 
      being unable, and the plaintiff declining, to pay it, on the 2*182] 5th of July, 1814, he caused all the * remainder of it to be sold at public auction ; and then stated to Fitch an account of the whole transaction, by which he claimed a balance of $ 742,64, which the plaintiff denies to be due and payable out of the proceeds of the residue of the leather.
    If, upon these facts, the Court should be of opinion that the defendant had no right to detain the 8756 sides of leather, at the time they were replevied, judgment was to be rendered according to the verdict; but, if they should be of opinion that he had a right to hold the same, as a pledge, to secure him from eventual loss, a new trial was to be granted.
    
      W. Sullivan, for the plaintiff.
    Peabody, for the defendant.
    
      
       This was a case where replevin at common law could not have been maintained. Galloway vs. Bird, 4 Bingh. 299. — Ex parte Chamberlain, 1 Sch. & Lef. 320. — Shannon vs. Shannon, 1 Sch. & Lef. 324. — Matter of Wilson's Bankruptcy, 1 Sch. & Lef. 320, in note. — Registr. Brew. 81, 139; 5 Ed. 2, 157; 33 H. 6. 12; 12 Ed. 4, 5; 13 Ed. 4, 9, 21; 8H. 7, 14; 3 H. 7, 12; 21 Ed 4, 11, 76.— Townsend's Tab. ab P.3. — 6 Inst Cler. 517. — Rast. Ent. 569. — Ham. N. P. 334. — Stamf. P. C. 25.— Hale, P. C. 504. — Com. Dig Plead., 3 K, 12, — lb., Replevin, A. — Bul. N. P. 52. — 3 Wooddeson, Lect. 219 -230. — Gubbings vs. Creed, 2 Sch Lef. 222, 223. Nightingale vs. Adams, 1 Show. 91.— Gilb. Rep. 140, 141, and 148. — Dore vs. Wilkinson et al., 2 Stark. 288. — Farrell vs. Berresford, 1 Ball & Beattie, 328. — Morg. Vad. Mec. 70 - 72. — Wilkinson, Repl. 2, 81 — Gilb. Rep. by Impey, 80 - 82.— Meany vs. Head, 1 Mason, 319. — Pangburn vs. Partridge, 7 Johns. 140.— Hopkins vs. Hopkins, 10 Johns. 373. — Button vs Thompson, 14 Johns. 87. — Gardner vs. Campbell, 15 Johns 402.— Mills vs. Martin, 19 Johns. 31. — Clark vs. Skinner, 20 Johns. 467. — Marshall vs. Davis, 1 Ward, 109. — Vaiden vs. Bell, 3 Randolph, 448.—Byrd vs. O'Harlin, 1 Rep. Const. Court, 401. — Cummings vs M'Gill, 2 Taylor, 98.— Sed vide Badger vs Phinney, 15 Mass 359. — Marston vs. Baldwin, 17 Mass. 606. — Baker et al. vs Fales, 16 Mass. 147 — Commonwealth vs. James, 1 Pick. 375. — Seaver vs. Dingle, 4 Greenl. 315. Weaver vs. Lawrence, 1 Dal. 157. — Shearick vs. Huber, 2 Binney, 2 —Stoughton vs. Rappala, 3 Serg. Rawle, 562.— Keite vs Boyd, 16 Serg. & Rawle, 300. — Cullam vs. Bevans, 6 Har. & Johns. 469. The process, as it has been used in Ireland, and is now used in Massachusetts, Maine, Pennsylvania, and Delaware, is liable to very serious objections. It may be the instrument of great abuse of the law and oppression. The remarks of Lord Redesdale, in the cases above cited from Scholes and Lefroy are certainly very just. "In the manner I have seen it used (said his lordship) in this country [Ireland}, I see no reason why any thing which a man has in his possession may not be taken out of it upon a mere claim of property of any kind, and then the person from whom the thing is so taken must get it back as he can.” "Some applications on this subject have come before me, which prove that this writ is used in this country for very oppressive purposes. One was a case where all the furniture in a man’s house, of which he had been in possession for four years, was taken out of fc;e possession by a writ of replevin, and taken by the man who had sold him the fur mture ; the security taken proved insufficient; the person who sued out the writ left, the country, and the man was completely robbed of his goods.” “ I have, in consequence of what passed the other day, conversed with the Lord Chief Justice on this subject, and he thinks, and it is the opinion of the other judges, as he informs me, that the use of the writ of replevin, in cases like the present, is a crying grievance ; the courts of law are put into a difficulty; they do not know how to deal with it. How is a party to be put into the situation he ought to be in. when a right to property is to be tried ? The first evidence of property is possession, and that you take *rom him in the first instance; and you throw the onus of proving title upon him on whom, as having the primó facie title, possession, that onus ought not to be thro** ” “ Here the possession was equivocal, and that is not a case to which the writ oi replevin can be applied; it must be a case of an unequivocal possession and of a taking; it would otherwise not be reasonable ; for, if there had not been a taking from the plaintiff, but that the defendant had the goods in his quiet possession by other means, the law presumes that they are primá facie the property of the defendant, and there is no reason why it should, in such case, give a writ to change the possession, in the first instance, against such presumption of property. It is much fairer to throw the onus on the person who has not had the possession, than on him who has had it.” “ It is certainly against the extension of the action,” says Mr. Wilkinson, “ that it takes the goods out of the possession of the person who has a primá, facie title to them, without even the oath of the plaintiff, and, in some cases, it may be, without security.”
      It has been said that the practice, before alluded to, in Massachusetts, is authorized by statutory law. Stat. 1789, Cb 26. But it clearly is not. Two cases only are provided for by the statute: — First, “ When any person shall have his cattle restrained or impounded in order to obtain satisfaction for damages they may have committed, or to obtain a forfeiture supposed to have been incurred by their going at large out of the enclosure of the owner, in violation of law, in order to have the legality of such distraint or impounding determined, he may have and prosecute a suit of replevin, in the form prescribed, which form alleges them to be "distrained or impounded' and to have been ‘unlawfully taken.’ ” (Sec. 1.) Secondly, “ When any goods or chattels shall be taken, distrained, or attached, which shall be claimed by a third person, and the person, thus claiming the same, shall think proper to replevy them, he may take out and prosecute his writ of replevin ” in the form also prescribed, which contains an allegation that the goods were “ unlawfully and without any justifiable cause taken and detained." According to the practice in Massachusetts, it would seem that there is nothing to prevent the plaintiff in replevin from taking any personal property whatsoever from the quiet possession of the rightful owner, who has had possession thereof for years, on giving bond with such sureties as he can prevail upon the officer, employed to serve the writ, to take for double the value of the goods at his the plaintiff’s own appraisal.f
      It may be proper to remark, that, although it is said in some of the cases that one may have ■ trespass or replevin at his election, yet trespass will lie, in some cases, where replevin will not; as, for instance, in cases of naked bailment, where the bailee wilfully destroys the thing bailed; and replevin will lie, in some cases, where trespass will not, namely, in the case of a lawful distress and wrongful detention after tender of amends.
    
    
      
       [According to the practice and the law, in Massachusetts, the action of replevin cannot be sustained, for goods, unless a tortious taking or detention of them be nr-- ed. See Rev. Stat. c. 113, § 27. — 3 Pick. Rep. 258. . No provisions of law can v.cvent injustice in all possible cases; especially when there is a conspiracy between a minister of the law and some other villain to defraud or oppress men. —Ed.]
    
   Per Curiam.

If the defendant in this case had a special property in the chattels replevied on account of any lien, then the issue ought to have been found for him ; for, in cases of lien, the special property must prevail, even against the owners, until such lien be discharged.

By the facts disclosed in the case before us, it appears that the defendant was the agent and factor of Fitch ; and of Stevens, the plaintiff, after the assignment to him ; and that, at the time the leather was replevied, the defendant was under liability, on account of his contract with Fitch, to a very large amount.

We think, that, by the general principles of law, he had a right to keep possession of all the goods purchased, until he should be reimbursed his advances, and secured against his liabilities. Indeed, such was the contract between the defendant and Fitch, which was adopted by the plaintiff, when he stepped into the place of Fitch. Notwithstanding, therefore, the defendant was not actually in advance at the time that a delivery of the leather was demanded by the plaintiff, we are satisfied that he was under no obligation to yield to that demand ; no indemnity being. offered him against his liability for the residue of the contract.

We consider it, therefore, immaterial to determine what balance was finally due from Fitch to the defendant. Whatever [ * 183] that balance may turn out to be, resulting from the first * contract, which came by assignment to the plaintiff, he has a right to exact, before he loses his control over the property. As to any thing resulting from the second contract, he will have no right to retain against the plaintiff, having assented to the assignment, without claiming any right to hold for any thing which might be due to him from any subsequent agency for Fitch.

New trial granted. 
      
       It is not apparent from the report, to what contract the Court here alludes.
     
      
      
        Foxcroft vs. Wood, 4 Rus 487. — Drinkwater vs. Goodwin, Cowp. 251. — Pultney vs. Keymer, 3 Esp. 182.—Hammond vs. Barclay, 2 East, 227. — King vs. Lee, 6 Price, 369.
     