CHAPTER THE NINTH.

OF INJURIES TO PERSONAL
PROPERTY.

£ 145 ]

IN

N the preceding chapter we confidered the wrongs or injuries that affected the rights of perfons, either confidered as individuals, or as related to each other; and are at prefent to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

AND here again we must follow our former division of property into perfonal and real: perfonal, which confifts in goods, money, and all other moveable chattels, and things thereunto incident; a property, which may attend a man's perfon wherever he goes, and from thence receives it's denomination and real property, which confists of such things as are permanent, fixed, and immoveable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the perfon, nor can be moved from the place in which they fubfift.

FIRST then we are to confider the injuries that may be offered to the rights of perfonal property; and, of these, first the rights of perfonal property in poffeffion, and then those that are in action only.

I. THE rights of perfonal property in poffeffion are liable to two fpecies of injuries: the amotion or deprivation of that poffeffion; and the abufe or damages of the chattels, while the poffeffion continues in the legal owner. The former, or deprivation of poffeffion, is also divifible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful.

1. AND first of an unlawful taking. The right of property in all external things being folely acquired by occupancy, as has been formerly ftated, and preferved and tranfferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows as a neceffary confequence, that when I once have gained a rightful poffeflion of any goods or chattels, either by a just occupancy or by a legal transfer, whoever either by fraud or force difpofleffes me of them is guilty of a tranfgreffion against the law of fociety, which is a kind of fecondary law of nature. For there must be an end. of all focial commerce between man and man, unless private poffeffions be fecured from unjuft invafions: and, if an acquifition of goods by either force or fraud were allowed to be a fufficient title, all property would foon be confined to the moft ftrong, or the most cunning; and the weak and fimpleminded part of mankind (which is by far the most numerous divifion) could never be fecure of their poffeffions.

THE wrongful taking of goods being thus, moft clearly an injury, the next confideration is, what remedy the law of England has given for it. And this is, in the first place, the reftitution of the goods themselves fo wrongfully taken, with [146] damages for the lofs fuftained by fuch unjust invafion; which is effected by action of replevin: an inftitution, which the mirror afcribes to Glanvil, chief justice to king Henry the fecond. This obtains only in one inftance of an unlawful taking, that of a wrongful diftrefs; and this and the action of detinue (of which I fhall prefently fay more) are almoft

the only actions, in which the actual specific poffefsion of the identical perfonal chattel is reftored to the proper owner. For things perfonal are looked upon by the law as of a mature so tranfitory and perishable, that it is for the most part impoffible either to afcertain their identity, or to restore them in the fame condition as when they came to the hands of the wrongful poffeffor. And, fince it is a maxim that "lex neminem cogit ad vana, feu impoffibilia," it therefore contents itfelf in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a fatisfaction in damages. But in the cafe of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the diftreinor; and therefore they may not only be identified, but also restored to their first poffeffor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a refcous, for which the diftreinor has a remedy in damages, either by writ of rescous, in case they were going to the pound, or by writ de parco fracto, or poundbreach, in case they were actually impounded. He may also at his option bring an action on the cafe for this injury: and shall therein, if the diftrefs were taken for rent, recover treble damages. The term, refcous, is likewife applied to the forcible delivery of a defendant, when arrefted, from the officer who is carrying him to prifon. In which circumftances the plaintiff has a fimilar remedy by action on the cafe, or of refcous: or, if the fheriff makes a return of fuch [347] rescous to the court out of which the process iflued, the refcuer will be punished by attachment".

An action of replevin, the regular way of contefting the validity of the tranfaction, is founded, I said, upon a distrefs taken wrongfully and without fufficient caufe: being a redelivery of the pledge', or thing taking in distress, to the

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owner; upon his giving fecurity to try the right of the distress, and to restore it if the right be adjudged against him after which the diftreinor may keep it, till tender made of fufficient amends: but must then redeliver it to the owner. And formerly, when the party diftreined upon intended to difpute the right of the distress, he had no other process by the old common law than by a writ of replevin, replegiari facias'; which issued out of chancery, commanding the fheriff to deliver the diftrefs to the owner, and afterwards to do justice in respect of the matter in dispute in his own county court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great lofs and damage". For which reason the statute of Marlbridge directs, that (without suing a writ out of the chancery) the sheriff immediately, upon plaint to him made, fhall proceed to replevy the goods. And, for the greater ease of the parties, it is farther provided by statute 1 P. & M. c. 12. that the sheriff fhall make at leaft four deputies in each county, for the fole purpose of making replevins. Upon application therefore, either to the fheriff or one of his faid deputies, fecurity is to be given, in pursuance of the statute of Weftm. 2. 13 Edw. I. C. 2. 1. That the party replevying will pursue his action against the diftreinor, for which purpose he puts in plegios de profequendo, or pledges to profecute; and, 2. That if the right be determined against him, he will return the distress again; for which purpose he is also bound to find plegios de retorno habendo, Belides thefe pledges, the fufficiency of [ 148 ] which is difcretionary and at the peril of the sheriff, the statute 11 Geo. II. c. 19. requires that the officer, granting a replevin on a distress for rent, fhall take a bond with two fureties in a fum of double the value of the goods distreined, conditioned to profecute the fuit with effect and without delay, and for return of the goods; which bond fhall be affigned to the avowant or perfon making cognizance, on re

BOOK III. queft made to the officer; and, if forfeited, may be fued in the name of the affignee. And certainly, as the end of all diftreffes is only to compel the party diftreined upon to satisfy the debt or duty owing from him, this end is as well anfwered by fuch fufficient fureties. as by retaining the very distress, which might frequently occafion great inconvenience to the owner; and that the law never wantonly inflicts. The sheriff, on receiving fuch fecurity, is immediately, by his officers, to cause the chattels taken in diftrefs to be restored into the poffeffion of the party diftreined upon (1); unlefs the diftreinor claims a property in the goods fo taken. For if, by this method of diftrefs, the diftreinor happens to come again into poffeffion of his own property in goods which before he had loft, the law allows him to keep them, without any reference to the manner by which he thus has regained poffeffion; being a kind of perfonal remitter. If therefore the diftreinor claims any fuch property, the party replevying muft fue out a writ de proprietate probanda, in which the theriff is to try, by an inqueft, in whom the property previous to the diftrefs fubfifted P. And if it be found to be in the diftreinor, the fheriff can proceed no farther; but muft return the claim' of property to the court of king's bench or common pleas, to be there farther profecuted, if thought advifeable, and there finally determined 9.

BUT if no claim of property be put in, or if (upon trial) the fheriff's inqueft determines it against the diftreinor; then the fheriff is to replevy the goods (making ufe of even force, [149] if the diftreinor makes refiftance') in cafe the goods be found within his county. But if the diftrefs be carried out of the county, or concealed, then the fheriff may return that the

(1) If goods are taken in diftrefs for rent and are replevied, the landlord who diftrained has no lien upon the goods, but his only remedy is upon the replevin-bond. 1 Bro. 427.

goods,