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143 INJURIES TO PROPERTY IN POSSESSION. [Book III. no separate interest in any thing during her coverture. The child bath no prop- erty in his father or guardian; as they have in him, for the sake of giving him education and nurture. Yet the wife or the child, if the husband or parent be slain, have a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction; which is called an appeal, (26) and which will be con- sidered in the next book. 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 stipulated contract, he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure. CHAPTER IX. OF INJURIES TO PERSONAL PROPERTY. IN the preceding chapter we considered the wrongs or injuries that affected the rights of persons, either considered as individuals, or as related to each other; and are at present 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 (a) of property into per- sonal and real: personal, which consists in goods, money, and all other movable chattels, and things thereunto incident; a property which may attend a man's person wherever he goes, and from thence receives its denomination: and real property, which consists of such things as are permanent, fixed, and immova- ble; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist. First then we are to consider the injuries that may be offered to the rights of personalproperty; and, of these, first, the rights of personal property in pos- session, and then those that are in action only.(b) I. The rights of personal property in possession, are liable to two species of injuries: the amotion or deprivation of that possession; and the abuse or dam- age of the chattels, while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful. [*145] *1. And first of an unlawful taking. The right of property in all external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows, as a necessary consequence, that when I have once gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever, either by fraud or force, dis- possesses me of them, is guilty of a transgression against the law of society, which is a kind of secondary law of nature. For there must be an end of all social commerce between man and man, unless private possessions 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 the most cunning; and the weak and simple-minded part of mankind (which is by far the most numerous division) could never be secure of their possessions. (a) See book II, chap. 2. (b) Ibid. 25. (26) The remedy by appeal was abolished by statute ,59 Geo. III, c. 46, and an action for damages is now given by statute 9 and 10 Vic. c. 93. See note p. 119, ante. 94 Chap. 9.] REMEDY BY REPLEVIN. The wrongful taking of goods being thus most clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with damages for the loss sustained by such unjust invasion; which is effected by action of replevin, (1) an institution which the Mirror (c) ascribes to Glanvil, chief justice to King Henry the Second. This obtains only in one instance of an unlawful taking, that of a wrongful distress: and this, and the action of detinue (of which I shall presently say more) are almost the only actions in which the actual specific possession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as 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 to the hands of the wrongful possessor. And since it is a maxim that "lex neminem cogit ad vana, seu impossibilia," it therefore *contents [*146] itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction in damages. But in the case of a 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 tak- ing them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distrainor has a remedy in damages, either by writ of rescous, (d) in case they are going to the pound, or by writ de parco fracto, or pound-breach, (e) in case they were actually impounded. He may also, at his option, bring an action on the case for this injury: and shall therein, if the distress were taken for rent, recover treble damages. (f) The term rescous is likewise applied to the forcible delivery of a defendant, when arrested, from the officer who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action on the case, or of rescous: (g) (2) or, if the sheriff makes a return of such rescous to the court out of which the process issued, the rescuer will be punished by attachment. (h) An action of replevin, the regular way of contesting the validity of the trans- action, is founded, I said, upon a distress taken wrongfully and without sufficient cause: being a redelivery of the pledge, (i) 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 (7') after which the distrainor may keep it,till tender made of sufficient amends; but must then redeliver it to the owner. (k) And formerly, when the party distrained upon intended to dispute the right of the distresis, he had no other process by the old common law than by a writ of replevin replegiarifacias;(1) which issued out of chancery, com- manding the sheriff to deliver the distress to the owner, and *afterwards [,47] to do justice in respect of the matter in dispute in his own county court. [1] ( )C. 2, § 6. (d)F. N. B. 101. (e)Ibd. 100. (f) Stat. 2 W. & M. Sess. 1, c. 5. 6 Mod. 211. (A) Cro. Jac. 419. Salk. 586. (4) See page 13. (j) Co. Litt. 145. 8 Rep. 147. (1)F. N. B. 68. (1) Replevin is the universal remedy in the United States where chattels have been wrong- fully taken or are wrongfully detained from the plaintiff, and he seeks to recover them in specie instead of a satisfaction in damages. It is a statutory action, and the statutes are con- siderably variant. The plaintiff must have either a general or a special property in the chattels. Speaking generally we may say that the plaintiff is required to show his right by affidavit when he sues out the writ; that the officer seizes the property, if to be found, and delivers it to the plaintiff, on receiving bond with sureties for its return in case the action is not sustained; t at if the plaintiff recovers in such cases, he takes judgment for any damages he may have proved, while if the plaintiff is defeated, the defendant takes judgment either for a return of the property, or for its value, together with such damages as he may have shown. But if the officer does not find the property, so that it may be delivered to the plaintiff, the case nevertheless proceeds to judgment, and if the plaintiff recovers, he may, at his option, have the proper writ for its delivery in execution. (2) The action of rescous has fallen into disuse, and it is usual now to bring an action on the case. REMEDY BY REPLEVIN. [Book III. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage. (m) For which reason the statute of Marlbridge (n) directs, that (without suing a writ out of the chancery) the sheriff immediately, upon plaint to him made, shall proceed to replevy the goods. And, for the greater ease of the parties, it is farther provided by statute 1 P. and M. c. 12, that the sheriff shall make at least four deputies in each county, for the sole purpose of making replevins.
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