Pangburn v. Patridge , 7 Johns. 140 ( 1810 )

Van Ness, J.

delivered the opinion of the court. The opinion I expressed, on the trial of this cause, that replevin lies only in the case of an unlawful distress, was a mistaken one. The passage to that effect, in Blackstone's Commentaries, is not warranted by the books. This action is usually brought to try the legality . of a distress; but it will lie for any unlawful taking of a chattel. Possession by the plaintiff, and an actual wrongful taking, by the defendant, are the only points requisite to support the action; and none of the cases, defining the nature of the action, confine it specially to the case of a chattel, taken under pretence of a distress,

The old authorities are, that replevin lies for goods taken tortioushj, or by a trespasser; and that the party injured may have replevin, or trespass, at his election. This is so laid down by Gascoigne, J. in 7 Hen. IV. 28 b. and by Danby, J. in 3 Edw. IV. 16. and by Brian, J„ in 6 Hen. VII. 9. and these dicta are cited as good law, in Ero. tit. Replevin, pi. 36. 39. and in Roll. Abr. tit. Replevin, B. The same rule was admitted, by the judges, in the case of Mason v. Dixon, (Jones's Rep„ 173.) and in Bishop v. Montague, (Cro. Eliz. 824.) Similar language is held, in many of the modern authorities, cited by the plain nil ?s counsel, upon the argument j and particularly by Baron Gilbert, Baron Cojnyns, and Lord RedesJale. The opinion of the latter is reported by Schoales and Lefroy, in which he lays down the law, ",1'idi peculiar accuracy and precision. The provisions in our statute (11 sess. c. 5.) apply chiefly to cases of illegal distress; but there is nothing which coniines the remedy to that particular injury.

If this question be considered upon principle, it is proper this action should be maintainable, wherever there is a tortious taking of a chattel out of the pos= „ ° ■ . r session of another. A great variety or cases might be stated, in which no damages which a jury is legally competent to give, can compensate for the loss of a particular chattel.

The nonsuit must, therefore, be set aside, and a new trial granted, with costs to abide the event of the suit.

Rule granted.