
    * Joseph Badger versus Elias Phinney.
    Replevin lies for goods unlawfully detained, although there may have been no tortious taking.
    Where goods are sold to an infant on a credit, and he avails himself of his infancy to avoid payment, the vendor may reclaim the goods as having never parted with his property in them.
    Where a writ of replevin was delivered to an officer, and he was directed, before serving it, to demand the goods of the party, and, the same not being delivered, he proceeded to replevy them, — the writ and service were held good.
    This was an action of replevin, in which the plaintiff declares upon a taking by the defendant on the 20th of August, 1818, and on a detainer at the time of suing out the writ, which is tested and was executed on that day.
    The defendant pleaded property in himself as administrator of the estate of Rufas Rand, with a protestando that he did not take; and also non cepit, with a protestando that the property is in him as administrator ; and it was agreed that, if it was competent for the defendant thus to plead, issue should be joined by the plaintiff upon the said pleas.
    It was agreed by the parties that, on a trial of the action, the following facts would be proved, and the same are to be considered as the evidence on trial reported by the judge.
    The said Rand and one Bradford commenced dealing together, as copartners, in the retailing of crockery-ware, in December, 1816, and purchased their stock of one Beals, to whom they gave their joint note for a sum exceeding 700 dollars. Rand at that time affirmed to Bradford that he should be of age in a month or six weeks. In March, 1817, they dissolved their connection, and Bradford relinquished to Rand all his interest in the stock and profits. Rand for a few weeks carried on the business alone, and in his own name. The plaintiff, Badger, then, in presence of Bradford, bar gained with Rand, to purchase of him all the stock which Rand then had, at the cost, and that Rand should continue in the management of the business, receiving one third of the profits and paying one third of the expenses, and each should give the other three months' notice before putting an end to the contract. While they were bargaining, Badger inquired of Rand whether he was of full age ; to which Rand, in Bradford’s hearing, answered that he was. Badger gave a note for the amount of the stock, payable to Rand and Bradford, which they endorsed to Beals, who thereupon * discharged Bradford from what remained due of the note originally given for the stock. In the fall of the year 1817, Badger sold all the remaining stock to Rand at the cost. In the meanwhile, several purchases of ware had been made and added to the stock. The goods replevied were a part of the goods so sold by Badger to Rand, constituting about one third thereof; the other two thirds having been sold by Rand from his shop before the attachment hereafter mentioned. After the said sale, Badger sued a writ against Rand for the price of the said goods, returnable to the Boston Court of Common Pleas, Jan. term, 1818, and caused the goods now replevied, and other goods in possession of Rand, to be attached thereon. Pending said action in the Common Pleas Rand died, and the defendant, having been duly appointed administrator, took upon him the defence of the suit, pleaded the infancy of his intestate, in bar, and filed two depositions to prove the same; whereupon the plaintiff discontinued his suit. Rand was born in February, 1798, and was an infant at the time of the sale by the plaintiff; but there was no evidence that the plaintiff knew that fact, though in habits of intercourse with him. After the said discontinuance, the officer who made the attachment delivered the goods he had attached to the defendant, and at the same time produced the writ in this action, which he before had in his hands, and informed the defendant that he was directed to demand of him, on Badger’s behalf, the goods sold by the latter to Rand, and if not delivered, to replevy the same by virtue of said writ; and thereupon, after demand, as aforesaid, by the officer who was authorized to make the same, the said goods were replevied by virtue of the said writ. The defendant included the goods in his inventory of Rand’s estate, which was represented insolvent; and there were creditors, other than Badger, against whose claims the defence of infancy could not be made. Upon these facts, it was agreed that such judgment should be entered as the Court should order.
    
      *Rand, for the defendant, observed that he was bound, as administrator, to make a defence in this case, or he should be chargeable to the legal creditors of his intestate, as for waste;  and he contended that replevin did not lie for the plaintiff, upon the facts shown. A tortious or unlawful taking is essential to entitle a party to his writ of replevin ;  and so are all the precedents.  There was no tortious taking in the case at bar, neither by the intestate nor by the defendant. The goods were in possession of the latter by the operation of law, and he cannot be considered as a trespasser merely for doing his duty.
    It may be said that his refusal to deliver them was equivalent to an original tortious taking. But this was a mere nonfeasance, for which neither trespass nor replevin lies except, where, by an unlawful detention, a party is to be considered as a trespasser ab initia ; but this principle is limited to the abuse of an authority conferred by law. 
    
    Torts die with the person of the tortfeasor; and replevin lies not for goods holden by one as administrator, although his intestate may have been guilty of a tortious taking.  Nor can the defendant be charged personally, if he is not liable as administrator.
    The property of these goods was not in the plaintiff. He has affirmed the sale, by bringing his action for the price; and in that suit, he attached these goods, as the property of the intestate. It is too late for him to avoid the contract. It is true, the plea of infancy to the former suit avoided the contract, as it respected the infant, but not as respected the plaintiff.  The delivery of goods to an infant has been held to be a gift.  The plaintiff may still bring his action for the price of the goods, notwithstanding his discontinuance or retraxit of his former suit.  But the original sale, by the infant to the plaintiff, was void, and so the plaintiff never had the property of the goods.
    The facts show the writ in the case at bar to have been tested before any demand made, and thus there was not even a wrongful detention, on which to found a replevin. If* replevin does not lie in the case, the defendant is entitled to a return.
    
      Gallison for the plaintiff.
    
      
       2 Mass. Rep. 80, Parson vs. Mills & Al.
      
    
    
      
       5 Ed. 2, 157. — 33 H. 6, Pl. 12__Brooke, tit. Detinue de Biens, Pl. 21 — Com. Dig. tit. Action, M. 6. — Ibid. tit. Pleader, 3 K. 1, 11. — 7 Johns. 140. — 1 Mason R. 319. — 3 Sch. & Lef. 324, Shannon vs. Shannon.
      
    
    
      
       Rastall, 569. —2 Instr. Cler. 517.
    
    
      
       5 Taunt. R. 198. —Hammond's N. P. 225.
    
    
      
       4 Mass. Rep. 480, Mellen & Al. vs. Baldwin.
      
    
    
      
       2 Str. 937, Holt vs. Ward. — 1 Mod. 25, Smith vs. Bowin.
      
    
    
      
       1 Mod. 137, Manby vs. Scott. — 1 Lev 5, S. C. — 1 Sid. 129, S. C.— 1 Keb. 905, Johnson vs. Pie. — 8 D. & E. 335, Jennings vs. Rundall.
      
    
    
      
      
        Co. 58, Cro. Jac. 211. — 3 D. & E. 511.
    
   Putnam, J.,

delivered the opinion of the Court. Several objections have been made to the plaintiff’s recovery.

It is said that there has not been any tortious taking by the de fendant, and that replevin lies only where there has been such a taking. And it is a general remark in the books that, where there has been a tortious taking, replevin will lie, as well as detinue and trespass.

Where the taking was originally without wrong, but the party detains the goods wrongfully, the owner should have some remedy for them specifically, if to be found. The defendant contends that detinue, in such case, is the only remedy. This is certainly not so effectual a remedy, if indeed it be not entirely obsolete, The judgment in detinue is, to recover the thing, or the value of it if it cannot be found, with damages for the taking. In replevin, the thing is immediately seized; but in detinue, the possession is not changed, until after judgment; and this being conditional, the value, as estimated by the jury, may be but a poor compensation for the thing detained. After a judgment in detinue, a distringas goes to the defendant, ad deliberanda bona; and if he will not deliver them, the plaintiff shall have the value, as ascertained by the jury. So that it is at the defendant’s election to deliver the goods or the value.

Replevin is, then, the only certain remedy to recover the specific goods; and it may be maintained where the taking was lawful, but the detention unlawful. Thus, where one takes cattle damage feasant; if the owner will tender amends before the cattle are impounded, he may, at common law, maintain replevin for the unlawful detention, although the taking was lawful. And in such case, the plaintiff shall recover damages for the detention, and there shall be no return. It was truly said by Lord Redesdale that this action, being founded on any unlawful taking, is * “ calculated to supply the place of detinue and trover.” And the remark seems to apply as well to an unlawful detention, as to an unlawful taking.

But, however limited this action was at the common law, the statute of 1789, c. 25, lias greatly extended the remedy, By the fourth section of this statute, when any goods or chattels shall be taken, distrained, or attached, the owner may have his replevin. And the late Chief Justice Parsons observes, after remarking upon this statute, that, “ as a general principle, the owner of a chattel may take it in replevin from any person whose possession is unlawful, unless it is in the custody of the law, or unless it has been taken by replevin from him, by the party in possession.”

We are therefore satisfied that this action will lie, if the defendant wrongfully detains the goods from the plaintiff. This leads us to the further objections made on the part of the defendant.

It has been said that the contracts between the plaintiff and the infant were voidable by the latter, and binding upon the plaintiff: that the defendant, as administrator of the infant, has a right to avoid them ; and that the plaintiff, deriving his title originally from .the infant, on a contract which the defendant now chooses to rescind, must fail in proving a property in the goods, either general or special.

As to the sale of the goods in March, 1817, to the plaintiff, it is sufficient to say that the contract vras executed by Rand,. He delivered the goods, and received the money for them ; and we should have required him to restore the money before recovering the goods. We must recollect that the privilege of infancy is a shield, and not a sword. There is no evidence that Rand ever expressed the least dissatisfaction with that contract. Now, that sale of the goods was valid until rescinded.

We proceed to consider the second contract, made in the fall of 1817; when the plaintiff, induced by the misrepresen tation of Rand that he was of age, conveyed the goods * to him. The defendant contends that he has rescinded that contract, as administrator of Rand. What then ? should not the plaintiff and defendant be placed in the same situation as if no such contract had been made? But that will not do for the defendant. His notion of rescinding is to keep all, and to pay nothing on the contract. He has defended successfully against the plaintiff’s suit for the price of the goods, on the ground that his intestate was an infant; and he now contends that he may' hold the goods also, without making any payment for them, for the same reason.

This result does not follow, The goods were delivered by the plaintiff to Rand, because he undertook to pay for them, and declared that he was of age. The basis of this contract has failed, from the fault, if not the fraud, of the infant; and on that ground, the property may be considered as never having passed from, or as having revested in, the plaintiff. It is said in Pothier, 1, 13, if, with the intention of giving or lending a thing to Peter, I give or lend it to Paul, whom I mistake for Peter, the gift or loan is void for want of my consent. The plaintiff supposed that he was dealing with a man of full age, and not with an infant; and the fraud which induced the contract furnishes the ground for the impeachment of it. Thus, in the case oí Buffington & Al. vs. Gerrish & Al., where one purchased goods on credit, by means of false representations, and afterwards the creditors of the vendee attached them, — it was very well held that the vendor had not parted with his property, but might maintain replevin against the attaching officer.

It has been further objected, that the writ was delivered to the officer before a demand was made for the goods. It is a sufficient answer that, if the defendant had delivered the goods upon the demand, there would have been no necessity to serve the writ. It may be considered as purchased at any moment of the day of its date which will most accord with the truth and justice of the case. And it * is evident, that it was not to be considered as of any validity until after the demand and refusal to deliver the goods was had.

Judgment for the plaintiff. 
      
      
         Modern cases, where this action has been brought, are very numerous, and rather tend to show that replevin in those cases could not be maintained. — Garth vs. Howard & Fleming, 5 Car. & Paine, 346. — 1 Moore & Scott, 698. — Phillips vs. Robinson, 4 Bingh. 106.— Gledstane vs. Hewitt, 1 Cr. & J. 565.— 1 Tyrw. 445. — Kettle vs. Bromsall, Willes, 118. — Mills vs. Graham, 4 B. & P. 140.—Atkinson vs. Baker, 4 D. & E. 229. — Hall vs. White, 3 Car. & P. 135. — Stevenson vs. Addeson, 5 L. J. K. B. 265. — Pawley vs. Holley, 2 Bl. 853. — Darden vs. Alien, 1 Devr. 466. — Robinson's Admr. vs. Brock, 1 H. & M. 213. — Murell vs. Johnson's Admr. 1 H. & M. 450. — Merritt vs. Warmouth, 1 Hayw. 12. — Newby's Admr. vs. Blakey, 3 H. & M. 57.— Spiers vs. Alexander, 1 Hawks, 66. — Royall vs. Eppes's Admr. 2 Munf. 479. — Shepherd vs. Edwards, 2 Hay. 186. — Wethers vs. Wethers’s Exr. 6 Munf 10. — Shipper vs. Hargrave, Martin, 74. — Bass vs. Bass, 4 H. & M. 478. — Butler vs. Parks, 1 Wash. 76. — Armstrong vs. Simonton, 2 Murph. 351. — Bates vs. Gordon, 3 Call 555. — Buckner vs. Haggin, Munroe, 59. — Biggar's Admrs. vs Aderson, 1 H. & M. 54.— Garland vs. Bugg. 1 H. & M. 374. — Merritt vs. Merritt, Martin, 18.— Cornwall vs. Truss, 2 Munf. 195.— Thomas and Wife vs. Tanner, 6 Munroe, 52.— Boatright vs. Meggs, 4 Munf. 145. — Austin's Exr. vs. Jones, Gilm. 341. — Boggs vs. Newton, 2 Bibb. 221. — Holleday vs. Littlepage, 2 Munf. 539. — Denny vs. Booker, 2 Bibb. 427. — Higginbotham vs. Rucker, 2 Call. 313.— Grimes vs. Grimes, 2 Bibb. 594 —Bunley vs. Lambert, 1 Wash. 308. — Trimble vs. Stipe, 5 Munroe, 264. — Walthal vs. Johnson, 2 Call. 275. — Hugh vs. Clayton, 3 Call. 554. — Belch vs. Holloman, 2 Hayw. 328. — Stratton vs. Minnis, 2 Munf. 329. — Walker's Admrs. vs. Hawkins, 1 Hay. 398.— Smith vs. Towne, 4 Munf. 191.— Carrell vs. Early, 4 Bibb. 270.— Fowler vs. Lee, 4 Munf. 473. — Burton vs. Brashear, 3 Marsh, 278. — Fitzhughs, Adm. vs. Beale, 4 Munf. 186. — Tunstall vs. M'Clelland, 1 Bibb. 186. — Boggess vs. Boggess, 6 Munf. 486. — Johnson vs. Pasteur, Cam. & Nor. 464. — M 'Dewell vs. Hall, 2 Bibb. 610. — Foster vs. Smoot, 1 Marsh, 394. — And see Marbury vs. Maddison, 1 Crunch, 173. — Our own statute (1786, c. 52, § 1) recognizes the action.
     
      
       3 Black. Com.. 152.
     
      
      
        Kel. 64, b. Co. Ent. Detinue.
      
     
      
      
        Fitz. N. B. 69, G.
      
     
      
       1 Scholes & Lefroy, Shannon vs. Shannon.
      
     
      
      
         It is quite clear that the statute embraces only two cases. First, “ When any person shall have his cattle restrained or impounded, in order to obtain satisfaction for damages they may have committed, or to obtain a forfeiture supposed to have been incurred by their going at large out of the enclosure of the owner, in violation of Law, in order to have the legality of such distraint or impounding determined, he may have and prosecute a writ of replevin in the f brm prescribedwherein it is alleged that they have been 61 unlawfully taken” and are u unlawfully distrained or impounded.” Seo ondly, 11 When any goods or chattels shall be taken, distrained, or attached, which shall he claimed by a third person, and the person thus claiming the saíne shall think proper to replevy them, he may take out and prosecute his writ of replevin in the form prescribed”— wherein also it is alleged that the goods were “ unlawfully and without any justifiable cause taken and detained.” — Stat. 1789, c. 26. — As to all other cases, tiiey are left to the common law. The above case does not come within the provisions of the statute ; and at the common law no action of replevin would lie in such a case. — Galloway vs. Bird, 4 Bingh. 299. — Meary vs. Head, 1 Mason, 319. — Reg. Brev. 81, 139. —5 .Ed 2, 157.-33 H. 6, 12. —12 Ed. 4, 5. —13 Ed. 4, 9, 21. —8 H. 7, 14. — 3 H. 7, 12.—21 Ed. 4, 11, 76 — Townsead's Tables, Ab. p. 3. — 6 Instr, Cler. 517. — Rast. Ent. 569. — Ham. N. P. 334. — Stamf. Pl. Cor. 25. — Hale, P. C. 504.— Com. Dig. Plead. 3 K. 12. — Repl. A.—Bul. N. P. 52. — 3 Woodes. Lect. 219. — Gubbings vs. Creed, 2 Sch. & Lef. 222,223. —Nightingale vs. Adams, 1 Show 91.— Gilb. Rep. 140, 143, 148. — Ex parte Chamberlain, 1 Sch. & Lef 320. — Shannon vs. Shannon, 1 Sch. & Lef. 324. — Matter of Wilson's Bankruptcy. 1 Sch. & Lef. 320, in note.— Gilb. by Impey, 80, 82. — Dow vs. Wilkinson & Al 2 Stark. 288. — Farwell vs. Berresford, 1 Ball & Beat. 328. — Morg. Vad. Mec. 70—72. — Wilkinson, Repl. 2, 82. — Pangburn vs. Partridge, 7 Johns. 140. — Hopkins vs. Hopkins, 10 Johns. 373. — Button vs. Thomson, 14 Johns. 87.— Gardner vs Campbell, 15 Johns. 402. — Mills vs. Martin, 19 Johns. 31.— Clark vs. Skinner, 20 Johns. 467. — Marshall vs. Davis, 1 Wend. 109. — Vaiden vs. Bell, 3 Rand. 448. — Byrd vs. O'Hamlin, 1 Rep. Const. Court, 401.— Cummings vs. M'Gill, 2 Taylor, 98. — 2 Selw. N. P. 1184, 8th Lond. ed., and note to the American edition, title Replevin.— Sed vide Baker vs. Fales, 16 Mass. Rep. 147. — Marston vs. Baldwin, 17 Mass. Rep. 606. — Commonwealth vs. James, 1 Pick. 375. — Seaver vs. Dingle, 4 Greenl. 315.— Weaver vs. Lawrence, 1 Dallas, 157. — Shearick vs. Huber, 2 Bin. 2. — Stoughton vs. Rappala, 3 Serg. & Rawle, 562. — Kcite vs. Boyd, 16 Serg. & Rawle, 300. — Cullam vs. Bevans, 6 Har. & Johns. 469. — The object of the statute seems to have been to provide for cases where the goods might be in custodió Jegis, and by the common law not jepleviable. — Cramwell vs. Owings, 7 Har. & Johns. 55.
     
      
       5 Mass. Rep. 284, Ilsley & Al. vs. Stubbs.
      
     
      
       1 Mod. Rep. f25.
     
      
      
        Roof vs. Stafford, 7 Cowen, 179. — Holmes vs. Blogg, 8 Taint. 508. — M’Coy vs. Huffman, 8 Cowen, 84. — Kriton vs. Elliott, 2 Buls. 59. — Earl of Buckingham shire vs. Drury, 2 Eden. 72.
      
     
      
       Ante, 156.
     