Coursey v. Wright

Ox’inxon of Daniel Dulany, relating to the above CHS6» The question put, whether the present plaintiff could or not have brought replevin on the possession of the defendant under the first replevin, was, I suppose, with a view to the act of limitations. I apprehend the question stated with this view is against the defendant, because the return on the nonsuit prevented any effect from the possession of the defendant under the first replevin. On the point whether this present plaintiff might not have brought Replevin against the present defendant when in possession ³⁹⁶ under the replevin against J. Coursey, I have little doubt but he might. If not, there would be much inconvenience and great latitude given for the practice of fraud and colhision.

If a lord should distrain hors de son fee the cattle of a stranger, the tenant might replevy, and surely the stranger might against the tenant, for the case supposed would exemplify the very definition of replevin, “ a re- “ medy provided by the law for the specific recovery of “ personal property unjustly taken and detained,” (though Blackstone says, very erroneously, that replevin is only in one instance of unlawful taking, that of a wrongful dis tress.,) and the transaction being inter alios, as it cannot affect the right, so neither can it affect thé remedy which is inseparable from the right. The cases in 8 Mod. Gilbert and Strange, proceed on a peculiar principle. When goods belonging to a defendant are taken in execution on fieri facias, or by distress on conviction, they being in the custody of an officer acting-under the mandate of authority, are in the custody of the law, for the very purpose that justice may be done; but if the replevin by defendant were allowable, the views of justice might be disappointed, and the very object of the judgment destroyed; but if the property of a stranger should be taken, it would be a wrong, and consequently the thing taken would not be in custody of the law.

In the first instance it would be incongruous for the law to allow a process to defeat its ends; but in the second, very agreeable to its principles, that a man should not suffer an injury from the act of a stranger. Execution authorises the officer only to make or levy the debt, or penalty out of the chattels of the defendant; but in taking, for the purpose, the chattels of another person, he acts without authority. If the sheriff, on a fieri facias against the effects of A. takes and sells the goods of B. the owner may sue him. 1 Burr. 31. 638. In replevin the plaintiff shews the cattle of a stranger for the cattle of J. _D. and the officer takes them, he is a trespasser. 2 Roll, Abr. tit.

Replevin}. . ³⁹⁷ In the case of distress for rent arrear, the goods from the first taking are in the custody of the law, and not merely in the distrainer. 3 BL 146. But their being in this custody does not prevent the suit by replevin ; on the contrary, the suit is most proper in the very instance. When replevin is brought, the defendant may defend his possession, if he has property, by the writ de proprietaik probandoi, as he has means to secure his possession, and as, if the plaintiff in replevin should fail, the defendant may be entitled to retorno habendo. It might be reasonable (as full justice might be obtained without it) to say that the defendant in replevin should not, during the pendency of the suit, bring replevin on his part, as it would tend to iriliniteness.

But the case of a stranger is very different. He cannot make himself a party to the suit, entitle himself to the writ de proprietate probanda, 2 Roll. Abr. 431. or to a return on any event of the suit, not being provided for, or having the means of security afforded him on the suit, he consequently has a remedy by action against the possessor ; for there cannot be an irremediable right, and it would shock the first principles of justice to allow, that what A. and B. may do shall deprive C. of his right. The true legal ground of replevin is the unjust taking and detaining personal property, and of the remedy, that the owner may be specifically restored to it, and compensated for the injury from the unjust detention.

A denial of justice is injustice, suspension is deprivation for the time. Injury is not denominated from its degree ; but suppose, the replevin, on the mere allegation of taking and detaining, should deprive the owner of his right, or suspend it against the maxim, that res inter alios actce alteri nocere non debent, and against the maxim, that right and remedy are terms convertible. What would be the consequence l The effect of judgment is permanent and conclusive.. If the plaintiff is not to be interrupted by replevin in his pursuit of a judgment, surely when he obtains it he ought to be at rest.

The precaution that he should not be interrupted in the pursuit would be a strange