
    Pangburn against Patridge.
    NEW YORK,
    No-. 1810.
    Replevin)iesfor any tortious or uniaw?i^ taking not 'in cases of distress onij.
    
    THIS was an action of replevin, brought against the defendant, for unlawfully taking and detaining a heifer, belonging to the plaintiff. The defendant pleaded non cep^ and that the heifer was his property, &c.
    The cause was tried at the Saratoga circuit, before Mr., Justice Van Ness.
    
    At the trial, the plaintiff proved a regular bill of sale, and delivery of the heifer and other cattle, from. Joseph Pangburn, to the plaintiff, for the consideration of 100 dollars. While the cattle were in the possession of the plaintiff, the defendant took and drove away the heifer in question, alleging, that he took it for a debt due to him from Joseph Pangburn.
    
    The defendant moved for a nonsuit, and the judge decided that the plaintiff could not recover in this form of action. The plaintiff offered further evidence, to show that the defendant had no right, or claim of property whatever in the heifer i but the judge, being of opinion that the right of property could not be decided in this action, directed the plaintiff to be called, and he was nonsuited.
    A motion was made to set aside the nonsuit, and for a new trial.
    
      J. B. Tates, for the plaintiff.
    Buller says, the action of replevin may be brought, in any case, where a man has had his goods taken from, him by another. Where the person, taking the goods, claims property in them, the sheriff cannot proceed to make replevin, but must issue a writ de proprieiate probanda, on which he has an inquest of office. But, though by the inquisition, the property should be found in the defendant, the plaintiff is not concluded, but may have his action of replevin.
    The plea of property is inconsistent with the idea of a distress.
    
    The first section of the “ act to prevent abuses, in delays in actions of replevin,” (11 sess. c. 5.) declares, u that if the beasts, goods or chattels of any person, be taken and wrongfully detained, the sheriff, by a writ, &c. or upon complaint, without a writ, shall cause them, to be replevied.” The language of the act is general, and applies to every unlawful taking, whether by distress, or otherwise.
    Gilbert calls the writ of replevin, at common law, a judicial writ, intended as a speedy remedy; and he says replevin lies for goods, in which the plaintiff has a qualified, as well as an absolute property; as if goods be in my hands, to be delivered to J. S., and J. H. takes them, I may have replevin to recover the possession, because I have a right of possession, against every body but j. S., and y. N. is, therefore, a trespasser.-]: So replevin lies for goods, taken in execution, issued by an inferior jurisdiction. Gomyns
      
       says, if a man tortiously takes the person or goods and chattels of another, and detains them, a replevin lies. “ Replevin lies of all goods and -chattels unlawfully taken.” In Viner,
      
       it is said, if a trespasser takes beasts, replevin lies of this taking, at election; and he cites the Tear Books, ,7 Hen. IV. 28 b. 6 Hen. VII. 9. 19 Hen. VI. 60. And Bro. ra replevin, pl. 37. 39. cites 2 Edw. IV. 16., for the owix-ir may affirm property in himelf, by bringing replevin. Tea all these authorities, we find the rule laid down generally, that replevin lies for a tortious or unlawful raising of goods, without reference or limitation to a distress.
    In Shannon v. Shannon,
      
       Lord Iiedesdale says, fix--': the writ of replevin is founded on any unlawful takmg, and is calculated to supply the place of detinue and trover. He said, “ he was sorry to hear Mr. jus nice 
      Blackstone’s Commentaries
      
       cited, as an authority.” . ... . . . “ His definition of the action of replevin, is certainly too narrow ■ many old authorities will be found in the books, 0f replevin being brought, where there was no distress,” Indeed, the law would, in many cases of a wrongful taking of chattels, be very deficient, if it did not afford this remedy by replevin; for the actions of detinue and trover would afford no compensation or redress, to the party to whom the possession of a thing may be of far greater value, than the thing itself.
    Taylor, contra.
    This is the first time that I have heard, that replevin would lie in any case except a distress. Blackstone
      
       expressly confines the remedy, by replevin, to the case of a distress. It is true, that there are dicta in the books, that replevin lies for an unlawful taking. But this must be such an unlawful taking, as is referred to by the statute, which speaks only of a replevin in case of a distress. The position of Gilbert, that replevin lies for -goods taken on execution issued by an inferior jurisdiction, is clearly erroneous. There are numerous authorities to the contrary; and it has been expressly decided, that a replevin will not lie for goods, taken by execution, in any case.
    
    
      Non cepit, and property, were the only pleas which the defendant could plead. He says, first, that he has not taken the goods in such a manner as will entitle the plaintiff to an action of replevin; and he also pleads, that they are his property, to entitle himself to a writ de retorno habendo. He could not avow; for it would be inconsistent with the óther plea; and property cannot be given in evidence under the general issue, but must be pleaded in bar or abatement.
    
    If replevin is allowed to lie in every case of an unlawful taking, it will produce great inconvenience, vexation and expense. It may be brought for the taking of the most trifling article, and the proceedings may be “ removed into this court. ■
    
      
      
        Bull. N. P. 52.
      
    
    
      
      
        Co. Litt. 145.
    
    
      
      
        Gilb. on Dist. and Replevin, 3 Ed. 87. Com. Dig. Replevin. (A.)
    
    
      
      
        Gilb. 152. Com. Pl (3K.)
    
    
      
      
         6 Com. 220 Replevin, (A.)
    
    
      
       18 Vin. Abr 577 Replevin.
    
    
      
      
        tclioafas Zv/ '*Gy9 327.
      
    
    
      
      
        Bl. Com. 146, 147.
      
    
    
      
       3 Bl. Com. 145. 147. Co. Litt. 145. b. 2 Cromp. Pr. 222. 2 Sell. Pr. 240.
    
    
      
       1 Barnad. B. R. 110. .2 Stra. 1184. Wils.Rep. 672. note 2. Term Rep. 522. Morgan’s Vade Mecum, 72, 73.
    
    
      
      
         3 Salk. 307. 2 Sell. Pr. 254. 258.
    
   Van Ness, J.

delivered the opinion of the court. The opinion I expressed, on the trial of this cause, that replevin lies only in the case of an unlawful distress, was a mistaken one. The passage to that effect, in Blackstone's Commentaries, is not warranted by the books. This action is usually brought to try the legality . of a distress; but it will lie for any unlawful taking of a chattel. Possession by the plaintiff, and an actual wrongful taking, by the defendant, are the only points requisite to support the action; and none of the cases, defining the nature of the action, confine it specially to the case of a chattel, taken under pretence of a distress,

The old authorities are, that replevin lies for goods taken tortioushj, or by a trespasser; and that the party injured may have replevin, or trespass, at his election. This is so laid down by Gascoigne, J. in 7 Hen. IV. 28 b. and by Danby, J. in 3 Edw. IV. 16. and by Brian, J„ in 6 Hen. VII. 9. and these dicta are cited as good law, in Ero. tit. Replevin, pi. 36. 39. and in Roll. Abr. tit. Replevin, B. The same rule was admitted, by the judges, in the case of Mason v. Dixon, (Jones's Rep„ 173.) and in Bishop v. Montague, (Cro. Eliz. 824.) Similar language is held, in many of the modern authorities, cited by the plain nil ?s counsel, upon the argument j and particularly by Baron Gilbert, Baron Cojnyns, and Lord RedesJale. The opinion of the latter is reported by Schoales and Lefroy, in which he lays down the law, ",1'idi peculiar accuracy and precision. The provisions in our statute (11 sess. c. 5.) apply chiefly to cases of illegal distress; but there is nothing which coniines the remedy to that particular injury.

If this question be considered upon principle, it is proper this action should be maintainable, wherever there is a tortious taking of a chattel out of the pos= „ ° ■ . r session of another. A great variety or cases might be stated, in which no damages which a jury is legally competent to give, can compensate for the loss of a particular chattel.

The nonsuit must, therefore, be set aside, and a new trial granted, with costs to abide the event of the suit.

Rule granted.  