
    Shaddon vs. Knott.
    Sale op Personal Property. Delivery. Purchaser without notice. A sale of personal property may be effectual to pass the title to the Tendee, as against a subsequent purchaser, without notice, though the vendor be permitted by the vendee in the first instance, to retain the possession of the property. Replevin. When a proper action. Act of 1846, ch. 65. The action of reple-vin will lie, in all cases where the plaintiff has a present right to the possession Of any personal property, in the possession of the defendant.
    This was an. action of replevin in tbe circuit court of Maury county. At tbe September Term, 1852, Maetin, Judge, presiding, there was judgment for tbe defendant, and tbe plaintiff appealed in error.
    Payne, for plaintiff in error,
    cited act 1846, ch. 65; 8 Humph., 609; 9 Hid., 141; 10 Ibid., 818; 3 New Iiamp., 183; 16 Mass., 146; 1 Dallas, 139; 6 Binney, 2.
    M. S. FeieesoN, for defendant in error,
    argued: Suppose tbe sale from Halcomb to tbe plaintiff, of tbe brown mare, was absolute and unconditional, and Halcomb, by agreement, was permitted to retain tbe possession, although we admit, as between the parties,- a contract of sale is complete without tbe -deli/wry; but, as to a second purchaser from tbe seller, who has no notice of tbe first sale, a delivery is necessary, for tbe reason that tbe first purchaser thereby enables the seller to practice a fraud upon tbe second buyer, and cannot take advantage of bis own wrong by demanding tbe property sold to the ■second purchaser, .who has innocently paid bis money for, and attained possession of tbe tiling sold. 1 Domat., §§ 259-278 ; 5 Shepley’s It., 162; 17 Serg. & Bawles II., 99; Pothier on Sales, § 320; 1 Bouv. Institutes,' § 952.
    Tbe action of refilevm in England, is founded on tbe statute of "Westminster, 2; and in this State upon tbe express enactment of 1844, cb. 65, and is given for precisely the same canses for which it might have been maintained at common law. At common law, it could only be maintained. for two causes. First, for the “caption” or tortious taking the goods and chattels of another; second, for the unlawful and illegal “detention” of the goods and chattels of another against “ gage and pledge.” The act of 1846, also gives the action of replevin in -two specified cases. First, for the “seizwe” or, for wrongful taking the goods and chattels of another; second, for the illegal “detention” of the goods and chattels of a third person. Thus, by simply comparing our statute with the common law, we at once see that the' action can only be maintained under our statute, for the same causes for which it could have been maintained at common law, although the mode of jprocedwe is entirely different. 2 Reeves’ Eng. L., 46, 47; Bl. Com., 145, 151; 10 Hum. R., 378.
    1. Then, what is the legal signification of the term, “caption” at common law, and the word, “seized” in the act of 1846 % It is manifest they mean the same thing; that is, that the original taking, or obtammg possession of the goods and chattels of another, was wrongful, was tortious ; and such has been the uniform course of decisions, both in England and in this country. Meaney vs. Head, 1 Mason’s R., 319, 322; 1 Sch. & Lefr. R., 320, 324; 2 Murphy’s R., 357; 7 Johnson’s R., 140; 4 Bing. R., 299 ; 3 Stephen’s N. P.. 2482, (note,) 2484.
    2. Then, what is the legal interpretation which has been placed upon the word “detention,” when applied to the action of reflemi/n? It means that character of hold-wig, or detai/ni/ng the goods and chattels of another, which will render the party liable as a trespasser ab initio. 
      Some positive act contrary to the authority or license conferred by law, and under wbicli be took the goods and chattels. The taking being just, but the holding tortious and unjust. 5 Barn & Cress, 485; 11 New Iiamp.' E.; 363; 1 Smith’s L. 0., 162; 10 Johnson’s E., 253, 369; 1 Mason’s E., 319; 3 Bl. Com., 151.
    3. That the term “ detention f in the act of 1846, was intended to apply to that character of holding and detaining goods and chattels, which would render the defendant liable as a trespasser ah imitio, is fully supported by the tenth section of the act of 184-6, which requires the plaintiff to make oath, that the goods and chattels which he proposes to replevy, are not subject to “seizwre” or “exeeution ;” substituting in this section, the word, “execution.,” for “ detention f thereby showing, that where the term,• “detamer” is used in the statute, the legislature meant a “detention,” under color of legal authority, or license; the abuse of which, would render the party liable as a trespasser from the beginning. Bor, unless the affidavit states that there was a “seizure” of goods, which were not subject to “seizw'e,” or that goods were taken in “execution,” which were not liable to “execution,” no writ of replevin could issue; both of which causes imply a tortious or wrongful taking. 9 Conn. E., 140; 10 Conn. E., 15.
    4. Consequently, wherever the plaintiff vol/u/nta/ril/y parts with the possession, or in cases of bailment, or where the defendant is in the rightful possession under a contract, and cannot be sued as a trespasser, the “detention” is not such as will sustain an action of replevin, although the holding, or detention, may be in violation of his contract, and for which, the plaintiff could maintain an action of trov&r, or detainer. Mecmey vs. Head, 
      1 Mason’s R., 319, 322; 3 Stepens’ N. P., 2830; 4 Bing. R., 299; 10 Humph., R., 378; 2 Chitty’s PL, 843; 4 Bouvier’s Institutes, §§ 3537, 3559.
   Oaruthers, J.,

delivered the opinion of the court.

This action of replevin was brought for a brown mare, worth sixty dollars. The mare was sold by one Holcomb, to the plaintiff, but left with the vendor for the use of his family. Sometime after, Holcomb procured an auctioneer .to sell the mare for him, and she was bought by Tate, who sold her to the defendant. It does not appear that the defendant had any knowledge of the purchase of the plaintiff.

The judge charged the jury, first, that a sale of this kind of property, is good, even without delivery of possession, against a subsequent purchaser, without notice; and, secondly, “ that an action of replevin will not lie, unless there was a trespass committed in the taking of the property, where the action is brought for the seizure; or where brought for the detention, the detention must be wrongful, or tortious, and under such circumstances as will make the holder a trespasser from the beginning. If the jury shall find, 'from the proof, that the defendant came to the possession by purchase from one claiming the title, and having the possession, and the same was delivered to him by virtue of his purchase, then the obtaining possession would not be a trespass on the part of the defendant, so as to sustain the action of replevin; nor, would his subsequent holding or detention, make him a trespasser from the beginning, at the common law, or under the statutes; and in that event, replevin would not be tbe proper action, but the plaintiff must resort to his action of trover, or detinue.”

The jury found for the defendant. From the judgment of the court, overruling a motion for a new trial, the plaintiff appealed to this court.

The argument here, has been made upon the charge of the court on both points. "We think his honor was right on the first proposition; that is, that a sale of personal property, other than slaves, complete in all its parts, where nothing more remains to be.done by either party, passes the right to the property, without the possession being changed, against all the world. Though there are some authorities in conflict with this position, yet, we consider the preponderance greatly in its favor. Chitty on Con., 274-5; 6 Dana, 48; 7 Ib., 59; 24 Maine, 366.

In Potter vs. Coward, Meigs, 22, the same principle is stated, in these words: “A sale of chattels is complete, as soon as both parties have agreed as to the terms.” The same rule applies to a contract of barter or exchange, as to a sale for money. In these cases, the right to the possession, as well as the property, is perfect in the ven-dee, and any loss which may occur after that time, by ■death, or injury of the property, falls upon him. It is true, that the retention of possession in such a case, raises a rebutable presumption of fraud, but is not fraud in itself. It merely throws upon the claimant, out of possession, the necessity of proving the transaction was fair, in which his title originated. Chitty on Con., 410, note 1; Callen vs. Thompson, 3 Yerg., 475. So, upon this point, we think the law was correctly charged. But on the second point, we think his honor erred. It is true, that at common law, and perhaps in some of our states. the action of replevin, is confined to the cases designated by him; and we would, perhaps, concur in the propriety of so limiting it here, as a legislative question. But we are of the opinion, that our act of 1846, ch. 65, Nich. Sup., 243, gives it a broader range. By § 1, of this act, the action of replevin is given: “When the goods or chattels of any person may be seized, or detained by another, * * * in violation of the right of such person, * * * and against his will.” In § 12, it is provided, that where the property cannot be found by the officer having the writ of replevin in his hands, but he returns that he has made known the contents of the writ to the defendant, the plaintiff may elect to declare against the defendant in trover, or detainer, and proceed to final judgment, without any other summons, and the suit shall be in every respect, conducted as if the writ had been in either of those forms of action. Upon a fair construction of the whole of this act, and by it, judging of the intention of the legislature, we are constrained to decide that it will lie, in all cases where the plaintiff has a present right to the possession of any personal property in the possession of the defendant. In all such cases, the property is unlawfully. detamed from the plaintiff, by the defendant, and therefore, falls within the plain language and meaning of the act. Whether it should be so or not, as a matter of sound policy, is a question for the legislature, and not for the courts; but in expounding the act, which is the extent of our power and duty, we can only regard the action of reple-vin as a substitute for the action of detinue, and that it is co-extensive in its application. We can easily see how the act might be very much abused, by changing the possession of property, upon groundless claims, during the pendency of protracted litigation; where, perhaps, the most proper and just course, would be, to leave the possession undisturbed, except in cases of violent and wrongful taking, by officers, or others, until the right ■should be legally settled. But such are not the provisions of the act, as we understand them, and any alteration, or amendment, must come from the law-making power.

We, therefore, for this error in the charge of the law, reverse the judgment of the court below, and remand the cause for a new trial, when the law will be charged as here declared.  