
    STONE v. WILSON.
    Replevin — in what cases it lies — its gist is the detention.
    The action of replevin is regulated by statute, is brought where goods are wrongfully detained from the person entitled to the possession of them.
    Replevin will lie in all cases unless the goods have been taken in execution against the plaintiffs or for a tax¡ fine, or amercement against him.
    Replevin. Plea that the property replevied was held by the defendant on an execution in his hands as constable against one A. B. To this there was a general demurrer, and joinder.
    
      Nye, for the defendant,
    cited 3 O. R. 94; 2 Mass. R. 516; 3 Mass. R. 330.
    
      C. B. Goddard, contra,
    urged that upon common principles, goods ‘ in the custody of the laws’ were not to be replevied. 6 Bac. Ab. 56; 2 Harrison’s Dig. 381. It would be a contempt of court to replevy goods so held. Why should they be replevied?— In this case the laws 29. O. L. 102, 187, 132 and 204 provide a summary mode of proceeding where goods are seized in execution which are claimed by another.
    Vinton, in reply.
   Hitchcock, J.

The action of replevin is a statutory action, and is brought where goods are wrongfully detained from one entitled to the possession of them, who will make affidavit thereof, and that they were not taken in execution against him, nor for the payment of any tax, fine or amercement assessed against him. 29 O. L. 128. The plea here does not make a case within the exceptions of the statute, nor any defence to the action.

The demurrer is well taken.

Goddard, for the defendant,

and

Vinton, for the plaintiff,

argued to the jury.

The parties then made up an issue in fact, and went on to the jury.

It appeared in evidence that one D. Vail, being possessed of a mill, was embarrassed and indebted to the plaintiff. In order to obtain payment of part of his debt, the plaintiff agreed with Vail to deliver wheat at the mill to be manufactured for him by Vail, and packed in barrels. Vail to deliver in Marietta one barrel of flour for every five bushels of wheat, and to have credit for fifty cents for each barrel so delivered. The wheat to be kept separate, to be the plaintiff’s, so that Vail’s creditors should not get it. The twelve barrels of flour in dispute were made of the plaintiff’s wheat, and put in his barrels.

Hitchcock, J. The whole case turns upon the question whether Stone sold this wheat to Vail, or delivered it to him merely to be manufactured. If the former, the defendant is entitled to a verdict; if the latter, the plaintiff. Verdict for the plaintiff. Damages ‡3 00. Judgment for that sum and costs.  