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rior, anıl therefore the inferior can suffer no loss or injury. The wife cannot recover damages for the beating of her husband, for she has no separate interest in anything during during her coverture. The child has no property in his father or guardian, as they have in him, for the sake of giving him education and nurture. Yet the wife or child, if the husband or parent be slain, has a peculiar species of action allowed, in the nature of a civil satisfaction. And so the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in his master, and if he receives his part of the contract, he suffers no injury, and is entitled to no action for any battery or imprisonment, which such master may happen to endure.
CHAPTER IX.-INJURIES TO PERSONAL PROPERTY.
Distinction from Real Property. Personal property consists in goods, moneys, and all other movable chattels and things thereunto incident; a property which may attend a person, wherever he goes, and from thence receives its denomination. Real property consists of such things as are permanent, fixed and immovable, as lands, tenements and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place where they subsist.
Division, We will consider the injuries to the right of personal property in possession, and then to personal property in action only. FIRST. PERSONAL PROPERTY IN POSSESSION.
Two kinds of Injuries, Two species of injuries, viz., the privation of that possession, and the abuse or damage of the chattels, while the possession continues in the legal owner. The former is dividable into the unlawful taking them away, and the unjust detaining them, though the original taking was lawful. 1. AN UNLAWFUL TAKING.
Occupancy and Transfer. The right of property in all external things being solely acquired by occupancy, and preserved and transferred by grants, deeds and wills, which are a continuation of that occupancy, it follows, that when one has once gained a rightful possession of goods, either by a just occupancy or a legal transfer, whoever, either by fraud or force, dispossesses one of them, is guilty of a transgression against the law of society. For there must be an end of all commerce between man and man, unless private possession be secured from unjust invasions; and if an acquisition of goods by either force or fraud were allowed to be a sufficient title, all property would soon be confined to the most strong, or most cunning, and the weak could never be secure of their possessions.
Remedy. One remedy is the restitution of the goods so wrongfully taken, with damages for the loss sustained, which is effected by the action of replevin. REPLEVIN
Identity of the Article, This and the action of detinue are almost the only actions, in which the actual specific possession of the identical personal chattels is restored to the proper owner. For things personal are of a nature so transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came into the hands of the wrongful possessor. The law therefore contents itself generally, with rendering a pecuniary equivalent to the party injured, by giving him satisfaction in damages.
A Distress. But in the case of distress, the goods are from the first taking in the custody of the law, and not merely in that of the distrainor, and therefore they may not only be identified, but also restored to their first possessor, without any material change in their condition. And being thus in the custody of the law, the taking them back by force is an atrocious injury, and denominated a rescous, for which an action on the case may be brought, and if the distress was taken for rent, treble damages may be obtained. The term rescous is likewise applied to the forcible delivery of a prisoner from an officer on his way to prison, for which also an action on the case may be brought. The rescuer may also be punished by attachment.
Process by Replevin. The action is brought upon a distress taken wrongfully and without sufficient cause, being a redelivery of the pledge, or thing taken in distress, to the owner, upon his giving security to try the right of the distress, and to restore it if the right be adjudged against him, after which the distrainor may keep it till tender made of sufficient amends, but must then redeliver it to the owner. The statute directs, that (without suing out a writ in chancery, as was formerly done) the sheriff, immediately upon complaint to him made, shall proceed to replevy the goods. Upon application to the sheriff or his deputies, security is to be given, that the party replevying will pursue his action against the distrainor, and that, if the right be determined against him, he will return the distress against him, for which purpose he is bound to find pledges de retorno habendo.
Bond. Besides these pledges, the sufficiency of which is at the peril of the sheriff, the statute requires, that the officer granting a replevin on a distress for rent shall take a bond with two sureties in a sum double the value of the goods distrained, conditioned to prosecute the suit with effect and without delay, and for the return of the goods; which bond shall be assigned to the avowant or person making cognizance, on request made to the officer, and, if forfeited, may be sued in the name of the assignee.
Object. As the end of all distresses is to compel the party distrained upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient sureties, as by retaining the very distress, which might occasion great inconvenience. The sheriff, on receiving such security, is immediately to cause the chattels taken in distress to be restored to the party dis
Distrainor's Claim to Goods. Where the distrainor claims a property in the goods so taken, the law allows him to keep them, without reference to the manner by which he has gained possession, being a kind of personal remitter. Where he does so claim, the party replevying must sue out a writ de proprietate probanda, in which the sheriff is to try, by an inquest, in whom the property previous to the distress subsisted. If it be found in the distrainor, the sheriff can proceed no further, but must return the claim of property to the court, to be there further prosecuted, if thought advisable, and there finally determined.
The Act of Replevin. But if no claim of property be put in, or if the sheriff's inquest determine it against the distrainor, then the sheriff is to replevy the goods, making use even of force, if the distrainor resist, in case the goods be found in the county. Goods Eloigned. But if the distress be carried out of the county or concealed, then the sheriff may return, that the goods or beasts are eloigned, carried to a distance, to places to him unknown, and thereupon the party replevying shall have a writ of capias in withernam, which signifies a second distress, in lieu of the distress formerly taken and eloigned. So that there is now distress against distress, one being to answer the other by way of reprisal, and as a punishment for the illegal behavior of the original distrainor. For which reason goods taken in withernam cannot be replevied, until the original distress is forthcoming.
Jurisdiction. In common cases the goods are delivered back to the party replevying, who is then bound to bring his action of replevin, which may be prosecuted in the county court, be the distress of what value it may. Either party may remove it to the superior courts of king's bench or common pleas, the plaintiff at pleasure, the defendant upon reasonable cause.
Freehold Involved, Where, in the proceedings, any right of freehold comes in question, the sheriff can proceed no further.
Avowry. Upon this action brought, and declaration delivered, the distrainor, who is now the defendant, may make avowry; that is, he avows taking the distress in his own or his wife's right, and sets forth the reasons of it, as for rent in arrears, damage done, or other causes.
Cognizance. If he justifies in another's right, as his bailiff or servant, he is said to make cognizance; that is, he acknowledges the taking, but insists that such taking was legal, as he acted by the command of one who had a right to distrain, and on the truth and merits of this avowry or cognizance, the cause is determined.
Distress Unjust. If it be determined for the plaintiff that the distress was wrongfully taken, he has already gained possession of his goods, and shall keep them and may recover damages.
Distress Just, But if the defendant prevails, by the default or non-suit of the plaintiff, then he shall have a writ de retorno habendo, whereby the goods, which were distrained and then replevied, are returned to his custody, to be sold or otherwise disposed of, as if no replevin had been made.
Effect of Non-suit. The plaintiff, when nonsuited, cannot sue out a fresh replevin, but he may have a second writ, termed a writ of second deliverance, in order to have the same distress again delivered to him, on giving the like security as before. But in case of distress for rent in arrears, the writ of second deliverance is in effect taken away by statute, which directs that if the plaintiff be nonsuit before issue joined, then, upon suggestion made upon the record in the nature of an avowry or cognizance, or if judgment be given against him on demurrer, without any such suggestion, the defendant may have a writ to inquire into the value of the distress by a jury, and shall recover the amount of it in damages. If less than the arrears of rent, or if more, then so much as shall assess such arrears with costs, or if the nonsuit be after issue joined, or if a verdict be against the plaintiff, then the jury shall assess such arrears against the defendant, and if the distress be insufficient to answer the arrears distrained for, the defendant may make further distresses.
Second Distress, If pending a replevin for a former distress, a man distrains again for the same rent, then the party is not driven to his action of replevin, but shall have a writ of recaption, and recover damages for the redistrainor's contempt of the process of law.
DamagesOther remedies for other unlawful taking of a. man's goods consist only in recovering a satisfaction in damages. If one takes goods out of the actual or virtual possession of another, without lawful title so to do, it is an injury, for which an action of trespass vi et armis will lie, wherein the plaintiff shall not recover the thing itself, but only damages for the loss of it. Or if committed without force, the party, at his option, may have another remedy by an action of trover and conversion. 2. UNJUST DETAINER.
Original Taking Lawful. This may exist, even if the original taking was lawful.
1 Examples. If I distrain another's cattle, damage feasant, and before they are impounded, he tenders me sufficient amends; now although the original taking was lawful, my subseqnent detention of them after tender of amends was wrong, and he shall have an action of replevin against me to recover them, in which he shall recover damages for the detention only and not the caption, because the original taking was lawful. Qr if I lend a man a horse, and he afterwards refuses to restore it, the injury consists in the detaining. not in the original taking, and the mode of recovering possession is by an action of detinue.