
    D. C. Hopkins against P. Hopkins.
    Where the replevin does titiefor^aiuJe *®ie£ seised, hut oniLi/wffJJos ¡¡¡® srrowry is^bad. PrJation‘to an jl^ia propria, s£eaa¿aemm> rer.
    wherJthede™ taking of the^beasts damage featiff may róply thauhe avoirant, alter ma= king the <lis» tress, abused it, so as to render him a trespasser ah initio / as if he impounds the cattle afi.es? making the distress, without having the damage previously assessed by the fence-viewersp accord» ing to the direction of the act. (Sess, 24. c. 78. s. 16.) Aud he shall recover damages*, as *m trespass, for the unlawful taking.
    THIS was an action of replevin. It was commenced by plaint, in the Westchester court of common pleas, and removed by ceriiorari into this court. The plaint and declaration, in the court below, was for taking and detaining, by the defendant, 24 sheep <» and 11 lambs, the property of the plaintiff. The defendant pleaded non cepit and three avowries: 1. An avowry of the taking in his own right, and as bailiff of James Hopkins, Thomas Hopkins, Job Cocks and his wife, and Mary Hopkins; because, the close in which, &c. was a close, &c. and was the soil and freehold of the defendant and the said James, Thomas, Job and his wife, and Mary, of which they were seised as tenants in com- ’ ^ / mon, &c. And because the said sheep and lambs were then and there eating up the grass, &c. and doing damage, and so being damage-feasant, he avowed the taking of them as a distress for such damage, See. with a verification, praying judgment and a return of the sheep and lambs, with his damages and costs, &c. 2. An avowry in his own right, because the close in which, &c. was a certain close, &c. and that the defendant and the said James, 
      T!wn?as, and the others, were seised imfee, as tenants in common~ to wit, that the defendant was seised inf'ec of one undivided third part thereof, and the &her~ of two undivided third parts thereof.; and that the said James and the others had demised the said two third parts, &c. to the defendant, for one year, &c. and that the said sheep and lambs entered the said close, Stc. and were damagefeasant in the said close, whereof he was so seised in fee and possessed, &c. and that he took them, &c. as a distress for such damage, &c. with a verification, praying judgment and a return of the distress. 3. An avowry of the taking of the said sheep, &c. because he was lawfully possessed of the said close, and the said sheep were damage-feasant, Sec. with a verification, &c. praying judgment and a return, &c.
    NEW YORK,
    Oct. 1813.
    The plaintiff replied to the first avowry: 1. That by reason of any thing in the said first avowry, See. the defendant ought not in his own right, nor as bailiff, Stc. to avow, &c. because the defendant took the said sheep, Sec. of his own wrong, and without any just cause, &c.; and this he prayed might be inquired of by the country, Sec. 2. Because, that after the taking :-f the said sheep, Seethe defendant afterwards drove them to a public pound, before he had made application to the fence-viewers, See. to ascertain and appraise the damage, Sec. and before the damages were ascertained and certified by the fence-viewers, with the fees, &c. as by the “ act relative to the duties and privileges of towns” he was required to do ; whereby the defendant was a trespasser from the Íbeginning, &c. whereupon he prayed judgment, &c. 3. Because, &c. that after the taking the said sheep and lambs, &c. the defend-j* ant afterwards converted and disposed of the same to his own ] use, and thereby became a trespasser ab initio, wherefore he $ prayed judgment. .
    To the second and third avowries, the plaintiff, in like manner, in his replication, gave three several answers, as above stated in reply to the first avowry. To each of these replications there was a general demurrer, and joinder.
    P. A. Jay, in support of the demurrers
    1. The plea of de injuria propria is bad in replevin, thougl~ it may be good in trespass. In Jones v. Kitchin, Eyre, Ch. J. on the authority of Grogate's Case, held such a plea clearly bad0 The rule is so laid down by Sergeant Witliains, and by Ghitty.
    
    
      2. That the defendant impounded the sheep, before applying to the fence-viewers to have the damage assessed, being a mere nonfeasance, could not make him a trespasser ab initio.
    
    3. The plaintiff in replevin cannot make the defendant a trespasser ah initio. In none of the books can such a plea in replevin be found; though there may be such a plea in trespass. If the plaintiff means to take advantage of the wrong or misconduct of the defendant, so as to render him a trespasser ab initio, he ought to bring an action of trespass. If in the lapse of centuries, no such plea in replevin is to be found, it furnishes a strong argument against it. It is true Chilly says, “ it would seem that in the case of a distress damage-feasant, the plaintiff ought to plead in bar that the avowant, after making the distress, used the cattle, or otherwise became a trespasser ab initio.” But he cites Comyns’ Digest, (tit. Pleader, 3 K. 20.) with a quaere; and the authority cited by Comyns from Lutwyche, (1423.) will be found to have been an action of trespass vi et armis. '
    
    The action of replevin is very different from an action of trespass; 1. Replevin is a proceeding in rem; 2. Both parties in the action are actors ; 3. It is founded on right,
      
       whereas trespass is for a wrong. In replevin, the plaintiff does not recover vindictive damages; the tort is waived, and no damages are claimed on the ground of a tort. If the party making the distress has been guilty of an abuse which renders him a tortfeasor, or trespasser ab initio, the proper remedy is an action of trespass grounded upon the tort.
    
    Again, the count is bad in not stating the place where the sheep were taken, as well as the lown.
      
    
    
      Wells, contra.
    The first and third avowries are clearly bad. It is net enough to say that the close was the soil and freehold of the defendant and others, of which they were seised as tenants in common; but the defendant must say of what estate he was seised, as in the second avowry. The third avowry stales no title whatever in the avowa.nl, but a mere possession, and in replevin yon cannot justify on possession alone.
    As to the replication de injuria propria, &c. it may be bad on special demurrer; but on a general demurrer it is good. A defect of a traverse in matter of form only, is aided upon a general demurrer, and would be cured by a verdict.
    
    
      The only question of any importance is, whether the plaintiff’ cannot in replevin, as well as in trespass, avail himself of the acts-of the party which make him a trespasser ab initio.
    
    In Pratt v. Petrie,
      
       the court said that cattle taken damagefeasant could not be impounded, under the act, before the damage had been ascertained by the fence-viewers.
    
    Again, in the third replication it is alleged that the defendant converted and disposed of the sheep, &c. to his own use. Now, it will not be pretended but that both these acts, if replied in an action of trespass, would make the defendant a trespasser ab initio. The wrong is the same in replevin as in trespass, and the redress may as well be afforded in one action as in the other. In Pang-burn v. Patridge,
      
       it was decided that replevin lies for any tortious or unlawful taking of goods. Then why make any distinction in the pleadings, in this respect, between replevin and trespass ? The reason equally applies to both. Why, then, send the party ■ to another action in order to recover his damages. Both Comyns• and Chitty are of opinion that such a plea is good in replevin ; and there is no authority against them. The court, then, in thé absence of any express authority to show this to he a bad plea, will decide on the reason of the case, and support this replication.
    
      
       1 Bos. & Pull. 76.
    
    
      
       3 Co 66. b
    
    
      
       2 Saund. 281. c. n.
    
    
      
       1 Chit. Pl. 161-560.
    
    
      
       But see ante, 253. and 8 Johns. Rep. 601.
      
    
    
      
      
        Carth. 74. Yelv, 148. Hob. 16. Cro Eliz. 799. 2 Roll 561. 20 Vin. Ab. 500. 6 East, 283.
    
    
      
       1 Sid. 9. Hob, 16.
    
    
      
      
        Com. Dig. Pl. 3 K. 21. Intw. 1263.
      
    
    
      
      
        Com. Dig. Pl. (F. 24.) (G. 22.), 5 Johns. Rep. 112. Lyttle v. Lee and Rugglets.
      
    
    
      
       2 Johns. Sep. 691.
    
    
      
      
        7 Johns. Rep. 140.
    
   Kent, Ch. J.

delivered the opinion of the court. The defendant avows the taking of the beasts damage-feascmt. He does this in three several avowries, and the last of them is clearly bad, because the avowant does not set forth his title, or allege the-estate of which he was seised. He avows only that he was lawfully possessed of the close, and this Was not enough by the rules of the common law; and as we have no statute altering the rule of pleading in this respect, the rule still prevails, and so it was declared by this court in Harrison v. M‘Intosh. (6 Johns. Rep. 380.)

The general replication to the avowries, de injuria sua, &c„ would have been bad on special demurrer, according to the cases of Lyttle v. Lee and Ruggles, (5 Johns. Rep. 112.) and Jones v. Kitchin. (1 Bos. & Pull. 76.) But the mérits of this case do-not turn upon the technical objections to the last avowry, or to the general replication. The special replications disclose matter which, according to the cases of Pratt v. Petrie, and of Sackrider v. M‘Donald, fenders the avowant a trespasser ab initioK and entitles the plaintiff to his damages for the original taking

The action of replevin is grounded on a tortious taking* and it sounds in damages like an action of trespass, to which it is extremely analogous if the sheriff has already made a return, and the plaintiff goes only for damages for the caption. It is a point assumed in many of the books, (Com. Dig. tit. Pleader, 3 K. 20. 1 Chitt. Plead. 562.) and nowhere denied, that the plaintiff may plead in bar to the avowry that the avowant so abused the distress as to render himself a trespasser from the beginning. 'There is no reason why the general principle should not apply to this action as well as to trespass, that where a person acts under i an authority or license given by law, and abuses it, he shall be deemed a trespasser ab initio^ The party recovers his damages in this action as well as in trespass, and the law would be incon-' sisfent in holding, in the action of replevin, that the original taking was valid, notwithstanding any subsequent abuse, and awarding a return, and yet in the action of trespass, to punish the party for the first taking. There is no colour for such a distinction in The Six Carpenters’ Case, (8 Co. 146.) where all the law on the subject is fully discussed and clearly expounded. It is there declared, that if “ the owner who distreineth for damage-feasant doth work or kill the distress, the law will adjudge that he entered Sor that purpose, and because the act which doth demonstrate the same is a trespass, he shall be a trespasser ab initio.” But the / court proceed to state and illustrate the cases in which the party is not to be adjudged a trespasser ab initio ; as if a man take cattle damage-feasant, and the other tender sufficient amends, and he refuses to deliver them back, if he sue a replevin, he shall recover damages only for the detention, and not for the taking, for that was lawful. The necessary inference from the language of the case is, that in the first instance put, the person taking and abusing the beasts would, on a replevin, be deemed a trespasser from the beginning.

The plaintiff is, consequently, entitled to judgment upon the whole record, and to have his damages assessed.

Judgment for the plaintiff 
      
       2 Johns. Rep. 691.
     
      
      
        Ante, 253.
     