
    Henry Woods v. George Nixon.
    IN replevin for a horse, the following case was submitted to the opinion of the court, to fix also the damages in case of judgment for the plaintiff.
    
      David Tate, in the Summer of 1791, bought a certain number of pack-horses, for the use of the army under general St. Clair, from George Nixon, at 8l. 15s. each. Nixon delivered all but one now in question, which had strayed. Tate going on the campaign of 1791, met Henry Woods, to whom he owed a debt: he gave him an order to Nixon to receive this horse, which he had heard had returned; that he might keep the horse, till he was satisfied of this debt. Woods demanded the horse of Nixon; who refused to deliver him on the order, and following Tate, and pretending as a reason a quarrel with Woods, procured from Tate an order to deliver the horse to his son. Nixon did not inform Tate’s son of this order, nor offer the horse to him, till after Woods had brought this suit. Then the son refused to accept, the Horse, because Woods had sued.
    
      Young, for the defendant,
    made two objections to this action.
    1. No action lies in the name of Woods against Nixon, on this transaction; but only in the name of Tate.
    
    2. Even Tate could not have brought replevin for the horse, which was never delivered to him, and of which therefore the property was not changed. Much less can Woods, to whom no delivery can be presumed.
    
      
      Ross, argued for the plaintiff,
    that this action lay is name of Woods.
    
    At December term, 1793, the opinion of the court was delivered.
    3 Reeve Eng Law 273-4 2 Powel Contr. 64. 2 Comm 447-8 Noy's Max c 42 p. 86-8 Comb. 341. Losst. 121. 3 Str, 166-7.
   President.

I will make three questions—1. Whether David Tate could have maintained any action for this horse ?

2. Could he have maintained replevin for him ?

3. Can Henry Woods maintain this action ?

1. The objection, on the first question is “that there was no delivery of this horse, and till delivery, the property is not changed."

Right and enjoyment are two different things; and the one may see perfect without the other. The property, or right, abstracted from the possession, arises from the contract; and is vested in the buyer, by the assent of the seller, who, from the time of the sale, is indebted to the buyer for a thing in kind. These principles apply to both parties. For as, if a horse be fold, and die in the table of the vendor, between the sale and the delivery, the vendor may have debt for the price, the horse being the horse of the buyer from the sale; so, for the same reason, if the horse live, and the seller refuse to deliver him, the buyer, tendering the price, may take the horse, or have detinue for him. In the case before us the price was paid. I should be disposed to consider delivery only as the conclusive evidence of the completion of a previous contract, which, without the symbol of delivery, had vested the right in the buyer. But there are other circumstances, which render this case stronger. The contract was entire, for a parcel or certain number of horses, and it cannot be severed at the will of one of the parties. He cannot deliver the worst horses, and retain the best. Delivery of part, without any new reservation expressed, and acceptance of the whole price, as completely executed the contract, as the circumstances could admit; and the horse coming into, or remaining in, the possession of Nixon, came into, and remained in, his possession, as the horse of Tate. Nixon was a mere trustee, bailee, or finder, like any other bona fide possessor and his being liable to refund the money can make no difference in the property of the horse: for that arises from his obligation to deliver the horse safely, and his retaining him contrary to his duty.

3 Reeve Eng Law 374. 2 Powel Contr. 64. See also 2 Med 243. 2 Comm 447-8. 2 Str. 955.

2 Com, Di. 632. Bull Ni. Pri. 49, 50.

Bateman v. Ellman Cro. El. 866.

James, versus Price, Losst. 219.

Bach, versus Owen. 5 T. Rep. 499.

A husband, seized of land in right of his wife, sold 400 trees for 20l.; and half were taken away, and half of the price paid. The wife died, the heir entered, the husband brought debt for the other half of the money, and it was held good ; the contract being good, at the time, and entire, could not be fevered, having taken part, he might have taken the whole, in the lifetime of the wife. I argue, as before, the principles apply to both parties ; the remedy is mutual, If feiler can bring debt for the price, buyer may bring detinue for the thing sold. Detinue lies for him who has property, even though he never had possession, or his property be special, as, by heir, for an heir loom, by husband, for goods of wife, by buyer, for goods sold, or by bailee, or against bailee by him for whose use goods had been delivered. It lies, after performance of the condition, to recover hack goods sold and delivered on a certain condition. It was agreed between plaintiff and defendant, that plaintiff should exchange his ship F. for the defendant’s ship J. and give 25 guineas to boot, and, if the F. should be lost in the voyage she was then upon, 30 guineas more. Plaintiff paid defendant a guinea earnest. Afterwards defendant sent an excuse for not sending the R. because it had been previously sold to another.—Plaintiff required a peremptory answer, because, if the F. was lost, it would be to defendant’s hurt, and tendered the 24. guineas due of the boot, which the defendant refused. The F. was lost, on another voyage. Plaintiff brought trover for the R. and, though it was objected, as here, that the property was not transferred, it was held that trover lay, every part of the agreement having been performed by the plaintiff, and that detinue would have lien. In assumsit plaintiff declared, that it was agreed, on 1st May, 1792, that he should give defendant a colt, in exchange for defendant’s mare, and pay him two guineas to-boot, in 17th December following; that it was further agreed, that plaintiff should keep the colt till 29th September; that mutual promises were made ; that defendant, to make the bargain more firm, paid plaintiff one half-penny earnest ; and that plaintiff kept the colt till 29th September, was ready, and offered to fay defendant two guineas, but defendant would not receive them, and had not delivered the mare to plaintiff, though often requested. To this declaration there was a demurrer, because it did not appear, that the plaintiff was ready and offered to deliver the colt to the defendant, in exchange for the mare. But it was held, that there was no foundation for this objection: the payment of the half-penny vested the property of the colt in the defendant, and therefore it was unnecessary for plaintiff to shew, that he had tendered the colt to the defendant.

Co. Lit. 145-6 Woods Inst. 192,570.

Co Lit 145,b. Bull Ni.Pri. 53-2 Esp 48-9.

Dall. 156.

On these principles, I hold, that David Tate might have maintained an action for this horse. He might have maintained detinue, trover, or assumsit.

2. Could he have maintained the action of replevin ?

In England, replevin lies chiefly, it is said only, for goods taken by way of distress. It seems therefore to suppose a previous actual possession in the plaintiff. Yet, in some cases, it lies, where the plaintiff has not had possession in himself, but in one under whom he claims. Husband may have replevin, for goods taken from his wife, before marriage; executor, for goods taken from his testator; lord, for goods taken from his villein, as a distress: the distreining did not alter the property, the goods remained in the custody of the law, and the right devolved to the plaintiffs. In a case in Modern Reports, it is stated, without any disapprobation, that replevin had been brought by one of the vendees against the other, for sheep sold by the owner to two different persons.—Be this as it may in England, the practice in Pennsylvania has been to issue replevins in all cases where a man claims property detained from him. By this practice, it becomes, in fact, an action of detinue or trover, with the specific remedy of chancery, unless the defendant claim property; and as it gives a chance of more perfect and summary justice, without danger of abuse, I am inclined to support it in the liberal extent of our practice; and, supporting it, must hold, that David Tate might have maintained an action of replevin against George Nixon, for this horse.

3. Can then Henry Woods maintain this action?

Let me premise, that George Nixon has sold the horse, and parted with all his right; in him to David Tate, and received for him the agreed price; that David Tate transferred the right of the horse to Henry Woods, who thus acquired a right to demand him from George Nixon; and that George Nixon, in refusing to deliver this horse to Henry Woods acts maliciously and against conscience. He is not, therefore, a man to be favoured in a court of justice, and must expect our leaning to be against him. On the principles of natural justice, independent of any system and established forms, there can be no doubt, that Henry Woods ought to recover the horse from George Nixon. But if there be any thing in our artificial legal system, and established forms of proceedings, to prevent this recovery, in the present action, we are bound by it: though, if we possibly can, we will lay hold of every thing, to reconcile to our system and proceedings, a recovery, which natural justice so plainly dictates; since the only effect of a contrary decision would be another action, in another form, in which the horse, or his value, would certainly be taken from the defendant, whose conduct has been very unjustifiable.

Co Lit. 145,b. 5 Bac abr.260-3 Bull Ni. Pri. 53.

5 Bac. 261, Bull.Ni.Pri. 35.

Cro. El. 164. 5Bac.abr.261 Bull 35.133-4. 1 Esp. 105-6. 2Esp. 333. Atkinson v Barnes Losst. 325. Green v. Farmer.

It is no objection to Henry Woods’s recovery, that he has but a special property; for detinue, trover, or replevin, will lie on a special property. If Henry Woods had no right to demand the horse, the defendant might shelter himself under a claim of property in himself or in another. He has none in himself, and David Date, who has, comes forward, and declares, that he transferred his right to Henry Woods. The specialty of the property, or the conditions to which it is subject in the hands of Woods, is a question only between him and Tate, who may do what he will with his own: Nixon, who transferred the whole to Tate, has no right to call Tate to account for the disposal of it. He was but a mere trustee or stake-holder for the true owner; and, in my mind, stands in the same situation, as if he had never owned the horse, but had undertaken to keep him safely for the owner, or bad found him. There are many instances, in which, those who had the beneficial interest, though no parties to the contract, from which their right must be derived, have been supported in actions against one of the parties: As on a promise to another to pay money to the plaintiff, or for goods delivered to another for the use the plaintiff. Trover, for goods sold, seems to have been brought against the feller, by an assignee of the buyer, the plaintiff recovered. Trover was also brought for goods, which plaintiff, having sold to A, delivered to defendant, in the name of A. to dye for A. who, being unable to pay the price, gave up his right of them to the plaintiff, and he recovered against the defendant. An assignee of a chose in action cannot sue for it at common law, though he may in chancery. The point cited from the case of Cummins assignee of Linn, applicable to the present case, is not the point judicially, or at least principally, before the court; and besides, it is decided on the informality of the assignment, a precise form of which had been prescribed by a positive act of assembly, and could not be varied. The question, then, at last, seems to resolve itself into this: Was the transaction between Tate and Woods an assignment of a chose in action, which will not support a suit at common law; or was it a sale or transfer of vested property?

4Burr .1214 1Bla. 651.

Dall. 444.

Basset v. Maynard.(Palmer's case)5 Co. 25 Cro. El. 219.Yelv.188. 5 Bac. 261. 3 Wils. 332

In an action of trover for certain loads of wood, a special verdict was found; that P. seised in fee of land, on which there was a great wood, sold to C. and his assigns, as many of the trees as would make 600 cords of wood, to be taken at the assignment of P.; C. assigned his interest plaintiff. Afterwards P. sold to defendant so much of his wood as would make 4000 cords of woods, to be taken at the election of defendant. Afterwards P. set out, and plaintiff selled the 600 cords of wood; and defendant (though there was sufficient left for his 4000 cords) took and converted them. On this verdict, it was resolved, that judgment be given for the plaintiff (not only because, though the assignment to plaintiff had been void, yet he having, by the felling, possession of them, and so a good title against a stranger, but,) because C. having a right to take the trees, if, after request P. did not set them out to him, had an interest, which he might assign over, not a thing in action, or a possibility only, and the interest of C. vested in the plaintiff his assignee, in the terms of the contract: for the grantor cannot, by his own act or default, subvert or derogate from his own grant.

This case goes a great way in deciding the case before us. At any rate, it makes me easy in saying, that the plain rules of justice are, in the case before us, consistent with the principles of our legal system. Between the principles laid down in the case cited, and the circumstances of the present case, I see no difference, but that, there, the sale was to C. and his assigns, and here the sale is to David Tate. But this difference, I conceive, does not prevent the application of the principles, laid down in that case, to the decision of this. For, as a grant of an estate in fee-simple cannot be restrained by a condition not to alien; so the purchase of a chattel implies a power to sell again. The first seller parts with all his power over the thing sold, and cannot restrain the buyer in the use or disposal of his acquired property. If, in the case cited, C. might have taken the trees, if P. on request, refused to set them out, the assignee of C. in whom all his interest was vested, might have taken them. If the assignee of C. might have taken the trees, Woods, in this case, might have taken the horse. If he might have taken the horse, he might, after demand and refusal, have brought detinue or trover for him. And if he might have brought detinue or trover for him, he may bring replevin.

2 Comm. 398.

Judgment for the plaintiff for 13l. 10s.  