
    June, 1808.
    Robert Bird, Henry M. Bird and Benjamin Savage against Joshua Hempstead and John 1. Clark.
    Under the late bankrupt law of the Unitei/S.-ates, a right of aetion founded not \liss "by the general assignment oi the' to die assignees*
    In an action takingand dc-taming a ship, it wits noin, that the tiff was entitled to jrive plevin by ('■ athird person, a replevin bond by D, ami L.y as sureties, and a judgment: thereon in vonr ot the to prove that the jiiain-t'C had those snreties, for the purpose of showing, that he heVarie l'ob'ü to the ant for ⅛ amount of his claim against r./ and that. this to be the rule of
    The owner of personal properly, though not in possession, may maintain trerpapa against a stranger.
    MOTION for a new trial.
    The nature of this action, which has twice been be- ... , tore the supreme court of errors, is concisely stated, ante, vol. 2. p. 293. Hempstead, one of the defendants, ha(j died since the commencement of the suit. On the in 1806, the cause was remanded to the sufie-r*or court next thereafter held in Hem-London county, where it was again tried. On that trial, the defendant offered to prove, that since the first trial of this cause, Robert Bird, one of the plaintiffs, had become bankrupt, ancj p,a£j assigrned his effects under a commission of bank-0 duly issued in the district of JVew-York. To the ■ " . . . , admission of this evidence the plaintiffs objected; and court ruled it out.
    - . . , , , . . m , . In the progress oi the trial, the plaintiffs offered in evyerce tjie wrjt of replevin, and replevin bond, men-1 7 1 7 tioned ante, vol. 2. p. 294.; also a writ, process and ih favour of the defendant, against Guv don I. j¡,£¡¡er an(j ¡-⅛ sureties, on said bond; and then offered p0 prove, that the plaintiffs had indemnified said sureties. evidence was objected to by the defendant,; but admitted by the court,
    In the charge to the jury, the court did not instruct . » th it Said cudence was not lobe considered as proof of sp.ci.il damage in the case; but instructed * ⅛ them, that the right of the plaintiffs to recover depend- . , . . r on me ngat ot propel ^y.
    
      The plaintiffs obtained a verdict.
    And the defendant moved for a new triai, on the ground that these decisions of the court, with regard to the evidence offered, and « • * , their direction,to the jury, were erroneous. This motion being reserved for the opinion of the nine judges, was argued, at this term, by Goodrich and Dana, in support of it, and by Daggett and Goddard, against it.
   By the Court

The first question arising in this case, is, whether the bankruptcy of one of the plaintiffs, and the assignment of his estate, under a commission of bankrupt, devested them of their right of action. By the act establishing a uniform system of bankruptcy, it is provided, “ That the commissioners shall take into their possession all the estate, real and personal, of every nature and description, to which the bankrupt may be entitled; and that they shall assign it to such persons as the creditors shall choose their assignees.” This was aright of action founded on a tort; and did not pass, by such assignment, to the assignees. They could not maintain an action, in their own names, for such injury done to the estate of the bankrupt. The plaintiffs, therefore, were not devested of their right of action.

The material question in the case is, whether it was competent for the plaintiffs to give in evidence the proceedings in the replevin, and that they indemnified the sureties in the bond, for the purpose of showing, that they became liable to the defendant for the amount of his claim against Miller; and that this sum ought to be the rule of damages.

It is a clear principle, that if one man wrongfully, and by force, take from another man his property, and compel him to pay money to regain it, trespass will lie for the wrongful act of taking the property. By a parity of principle, if he compel him to give security for money, action of trespass will lie. If one man procure the estate of another to he wrongfully attached, as the property of a third person, and the owner, to regain it, pay or satisfy the claim for which it is attached, trespass will lie.

The case of Shipwick v. Blanchard, 6 Term Rep. 298. supports this doctrine. The defendant, as assignee of bankrupt, ordered the goods of the plaintiff to be seized and distrained for rent due to the bankrupt. The plaintiff, to redeem the goods, paid the sum claimed for the rent, and expenses; but the petitioning creditor’s debt having accrued after the act of bankruptcy, the commission of bankruptcy was void; and the plaintiff brought an action of trover for the goods, which was held to lie. It is true, that the question made was, whether trover would lie ; and it was taken for granted, that the defendant was liable for such wrongful distress. If trover would lie, it clearly follows that trespass would also lie. In England, a distress for rent is in the nature of a legal process; and if trespass will lie for goods redeemed from a wrongful distress, it will for goods redeemed from a wrongful attachment.

Hence, it follows, that if, in the case under consideration, the plaintiffs had paid the money, or given security to the defendant for his debt against Miller, for which the vessel was attached, in order to regain possession of it, they could have maintained trover or trespass against him for such wrongful attachment. The procuring of the bond on the replevin, and the indemnifying of thé sureties by the plaintiffs,, was, in effect, giving security to the defendant for the debt due to him from Miller; for they became liable to pay it. It was, therefore, the same thing in judgment of law, as if they had paid him the money.

It is said, that the plaintiffs are estopped by the aver-ments in the replevin from saying, that this vessel was not the property of Miller; that these facts ought hot to be given in evidence as a basis for the recovery of damages; and that it is improper and dangerous to permit the action of replevin to be used for such purposes.

In the writ of replevin, there is no acknowledgment by the plaintiffs, that the property of the vessel was in Miller. They are' not parties to the record. The only act done by them is to procure the bond on the writ, and indemnify the bondsmen; and this cannot estop them from sáying the vessel was their property,, any inore than if Miller had procured the vessel to have been replevied without their knowledge. In all cases where money is paid to redeem goods wrongfully taken, attached, or distrained, it is competent for the party to prove, that the money was paid to redeem the goods from a wrongful taking; and that it was not a voluntary payment of an acknowledged claim. There is no more impropriety, or inconsistency, in admitting the plaintiffs in this case to show, that the proceedings in replevin were for the purpose of redeeming property wrongfully attached, than there is to admit a party to prove the payment of money, or the giving of a note, for that purpose.

Nor does it appear that any inconvenience can result from such practice. .Where the title to goods is contested, and they are attached for the debt of one, and claimed to be the property of, another, there is no legal process, by which such claimant can regain possession: for replevin can.be maintained only in the name of the defendant in the suit. The only legal remedy, in the name of the owner, is by action of trespass, or trover ; which leaves the property in the possession of the offi-celi attaching it; and it may be held in the custody of the law, till the final trial of the suit on which it is attached, But, if it is permitted that the claimant (where the defendant in the suit on which the goods are attached consents) may, by replevin in his name, regain the goods, all the damage that arises from the detention is avoided. No case can exhibit this advantage in a more striking manner, than that under consideration. Clark, to secure a debt of ten thousand dollars, due from Miller, attached a vessel and cargo ready to sail, worth thirty thousand dollars, which was the property of Bird, Savage O' Co. If this vessel had not been replevied by them, in the name of Miller, then Clark would have been liable for the value of the property, as well as damages for defeating the voyage; but by admitting the replevin, he will recover on the replevin bond the whole sum recovered against him in this action; so that he can try the question, whether the property of the vessel was in Miller, without any expense, save that of the cost of trial. For the proceedings in replevin are not admitted as a basis on which to recover damages, but to limit the extent, where the value of the property is more than the amount of the debt, for which it is attached. But, if the value of the property be less than the debt demanded, then the defendant will be entitled to recover the value only; and the replevin is given in evidence merely for the purpose of showing, that the plaintiff has regained his property in such manner as does not excuse the defendant from the injury done him by the wrongful attachment.

If the plaintiffs, instead of replevying the vessel, had given a receipt to the officer, with an engagement to have it forthcoming on the execution when demanded, and then had taken the possession again, it is evident, that in an action of trespass for taking the vessel, they might have proved this fact, in order to show that they did not regain their property in such manner as to excuse the defendant from the trespass. There can be no difference in principle, between the proceeding to regain one’s property, and the process by replevin.

Another ground of the present motion is, that the court directed the jury, that it was a question of property only. The defendant urged, that the plaintiffs had only a mortgaged right to the vessel, and was not in actual possession; and, therefore, if he had the prop erty, he could not maintain trespass, but trover only, on the principle laid down by Lord Kenyon, in Ward v Macauley, 4 Term Rep. 489. that trespass is founded on • possession, and trover on property; that where the plaintiff has not the possession, he cannot maintain trespass, but must bring trover. But Lord Kenyon afterwards retracted this doctrine in Gordon v. Harper, 7 Term Reft. 9. The true principle is laid down by Williams, in his notes to Saunders’s Reftorts. Note (1) to Wilbraham v. Snow, 2 Writs. Saund. 47. a. In order to maintain trover, it is necessary, that the plaintiff should have either a special or absolute property in the goods which are the subject of the action. He who has the absolute or general property, may support this action, though he had never had the actual possession; for it is a rule of law, that the property of personal chattels draws to it the possession, so that the owner may bring either trespass, or trover, at his election, against a stranger who takes them away.

It appears, that the ship ⅛ question, for a valuable consideration, was assigned by Miller to the plaintiffs, by an instrument in the nature of a bottomry bond, granting them the exclusive right to her during a voyage from New- York to New-London, and thence to London. The plaintiffs had a right of possession, if they had a right of property; and, of course, their right to recover depended on the question of property.

New trial not to be granted. 
      
       Brainerd and Griswold, Js. having been concerned a« counsel in this cause, did not sit.
     