Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

were called redhibitory, because the action, founded upon the obligation to warrant against them, was brought by the buyer to compel the seller to take back the thing sold and restore the price. To constitute such a defect of this sort, as would entitle the buyer to maintain his redhibitory action, the following circumstances were necessary; first, that the defect complained should be such as was considered to be redhibitory, in the particular place; second, that the buyer should have been ignorant of its existence; third, that there should have been no exception of the particular defect, from the general obligation of warranty; and, fourth, that it should have existed at the time. of the contract. And here again a distinction was made between those cases, in which the seller had, and those in which he had not knowledge of the defect. The existence of redhibitory defects entitled the buyer also to demand a dissolution of the contract, so that the parties might be placed in the same situation as if it had not been made. He was obliged to offer to restore the thing, if it continued to exist, with the fruits which he had received, if any. If the thing had ceased to exist, through any fault on his part, he was still entitled to his action, by making an allowance to the seller of so much as the thing would have been worth, if it had been in existence. In this action, the buyer was entitled to recover the price paid, and interest, the expenses attending the contract, and what he had been obliged to incur in relation to the thing, as tolls, customs, &c. He was also entitled to recover damages for any injury occasioned by the thing to his other goods, provided the seller had knowledge of the defect at the time of the contract. The buyer might also, at his election, make use of an action, called æstimatoria or quanto minoris, by which he was entitled to have the price of the thing diminished to its real value. By making his election to bring this action, he ‘affirmed the contract,' and was enabled to keep the article for what it was worth to him. III. Good faith. The civilians held, that good faith required the seller to be free from falsehood and fraud; and to impart to the buyer whatever he knew concerning the thing, which it was for the interest of the buyer to know. Positive falsehood and fraud were not only prohibited by the ancient Roman law, but even the slightest concealment on the part of the seller, of any circumstance, whether

intrinsic or extrinsic, was forbidden; provided the buyer would be influenced by a knowledge of such fact. This strictness has, however, been departed from by those nations who have taken the civil law for their municipal code. And Pothier (Contrat de Vente) says, the buyer is not easily listened to, who complains of the concealment of some vice in the thing sold, unless such vice be redhibitory; the interests of commerce not permitting parties to set aside their contracts, with too much facility, they must impute it to their own neglect that they have not better informed themselves of the faults which the thing sold might have.'

ART. IV.—REPLEVIN OF GOODS TAKEN IN EXECUTION.— ERROR IN THE BOOKS.

Multa ignoramus, quæ non laterent, si veterum lectio esset familaris. MACROBIUS.

THE general proposition, that replevin does not lie for goods taken in execution, is to be found in many books and is often cited by counsel. It is laid down in the above words by Lord Baron Comyns in his Digest. (Com. Dig. Replevin D.) Chitty, in his work on Pleading (vol. Ist, p. 189), says, 'if a superior court award execution, no replevin lies for the goods. taken by the sheriff by virtue of the execution; and if any person should pretend to take out replevin, the court would. commit him for contempt of their jurisdiction." In the case of Isley v. Stubbs (5 Mass. 283), Parsons, C. J.-an authority to be deeply respected on a subject of this kind—says, 'chattels in the custody of the law cannot at common law be replevied, as goods taken by distress upon a conviction before a justice, or goods taken in execution. For the common law would not grant process to take from an officer chattels which he had taken by legal process already issued;' and he cites

This is found in the last corrected and improved edition of Chitty on Pleading. See also Chitty's late and valuable work on the Practice of the Law, vol. 1st, Index, art. Replevin.

the Massachusetts Statute of Replevin of 1789, c. 26, § 4, as altering the common law in this respect.' So also another great authority, Mr. Dane. (5 Digest, 516.). This statute authorizes the suing of a writ of replevin against the officer for chattels which he has attached or seized in execution, provided the plaintiff in replevin be not the debtor. This alteration of the common law, as it is called by Chief Justice Parsons, is said to have been productive of much practical inconvenience, and it is referred to the wisdom of the legislature whether, in this respect, the common law should or should not be restored, (Isley v. Stubbs.)

It is proposed to show that the rule, as laid down by Baron Comyns, is limited to cases of replevin by the party against whom execution has issued that the more extended rule of Chitty and of Chief Justice Parsons is founded in a misunderstanding of the common law, and that the Massachusetts statute, which was supposed by the latter to have altered the common law, was in fact a declaration of it-in other words, that the rule of the statute, to wit, that a writ of replevin may be sued against the officer for chattels, which he has attached or seized in execution, provided the plaintiff in replevin be not the execution debtor, is the very rule of the common law. Nothing: will be said upon the alleged practical inconvenience of this rule-that being a topic, which would deserve ample consideration, if the discussion were upon the establishment or adoption. of the rule, but which cannot affect the question, whether the common law has been rightly or wrongly understood.

Before entering upon the discussion, it may be well to state bow the question stands in different states. In New York, in Thompson v. Button (14 Johns. 86); Gardner v. Campbell (15 Johns. 402), it was held that replevin would lie for goods. taken in execution they not being, at the time, in possession of the execution debtor, and afterwards, in Clark v. Skinner (20 Johns. 470) a case, which contains more learning and

1 Chief Justice Parsons is said to have been the author of this statute. It is understood, of course, that the plaintiff in replevin must be the proprietor, or which amounts to the same thing, be entitled to the possession of the chattel in question, in order to maintain his action. This is the very groundwork of replevin, which it could not have been the intention of the legislature to disturb, and which will be recognised throughout the present

article.

correct reasoning on the present subject than any other to be found in the books-the rule was extended, it is believed, to all cases where the goods of a stranger to the execution are taken. In Judd v. Fox (9 Cow. 263), the court appear to have returned again to the more limited doctrine of the first cases, without once referring to the elaborate judgment in Clark v. Skinner. It does not appear that this case was cited at the bar. Can it be presumed that it was not brought to the mind of the court? In Pennsylvania, the courts have been relieved from considering this question by a statute passed 1779, declaring all writs of replevin, issued for any owner of goods taken in execution, to be irregular, erroneous and void, it appearing from the Journals of the Assembly (Journ. 27th March, 1779. See Malholm v. Cheney, Addis. 301,) that it was the intention. of the legislature to prevent replevins by third persons for goods taken in execution. In Maryland, the case of Cromwell v. Owings (7 Har. & John. 57) has laid down the doctrine in its full extent, that goods taken under an execution cannot be replevied out of the officer's hands, either by a stranger or by the defendant in the judgment, and this whether such goods, when taken, were in the possession of the defendant or not. Not an old authority is referred to by the court, or the slightest endeavor made to go behind the concise rule of Comyns.

I shall, in the first place, look at the question upon principle, referring at the same time to some settled doctrines which relate to replevins; and, in the second place, endeavor to show that the authorities in the books, some of them support, while none are inconsistent with the above propositions. I shall endeavor to bring before the reader all that can be found, which may assist him in forming an opinion upon the question aiming to be full, even at the risk of being tedious, and only expecting, in the language of Lord Holt, to stir those points, which wiser heads in time may settle.

[ocr errors]

I. It is said by Blackstone (Comm. vol. 3, p. 147,) that the action of replevin obtains only in one instance of an unlawful taking, that of a wrongful distress. It was the citation of this

If I leave my watch to be repaired' says Platt, J., in the above case, or my horse to be shod, and it be taken on a fi. fa. against the watch-maker or blacksmith, shall I not have replevin? If the owner put his goods on board a vessel to be transported, shall he not have this remedy, if they are taken on execution against the master of the vessel?'

position of the elegant, but often inaccurate commentator, that drew from Lord Redesdale the remark, which has been since so often quoted: 'I am sorry to hear Mr. Justice Blackstone's Commentaries cited as an authority; he would have been sorry himself to hear the book so cited; he did not consider it such.' (Shannon v. Shannon, 1 Sch. & Lef. 327.) The definition is by far too narrow, and authorities will be found from the earliest times, of a replevin where there has been no distress. (See Vin. Ab. Replevin, B & C ; 2 Cro. Eliz. 824.) Other and more correct definitions extend it to all cases of goods and chattels unlawfully taken. (Com. Dig. Repl. A.) Spelman in his Glossary (p. 485) describes it thus-replegiare est rem apud alium detentam, cautione legitima interposita, redimere, without any limitation to cases of distress. The definition of Gilbert is full and explicit. A replevin is a justicial writ to the sheriff, complaining of an unjust taking aud detention of goods or chattels.' (Gilb. Rep. Impey's ed. 80.) Late authorities support these definitions, and none with more firmness than Parsons, C. J. in Isley v. Stubbs, where his language is that replevin lies for him, who has the general or special property in chattels against him who has wrongfully taken them. (See also Hopkins v. Hopkins, 10 Johns. 373; Cummings v. M'Gill, 2 Tayl. 98; Shearick v. Huber, 6 Bin. 2.) In other cases the remedy by replevin is declared coextensive with that by trespass de bonis asportatis. (Bishop v. Montague, Cro. Eliz. 824; Pangburn v. Patridge, 7 Johns. 143; Thompson v. Button, 14 Johns. 87, Per Thompson, C. J.; Clark v. Skinner, 20 Johns. 467, Per Platt, J.) In the last case Platt, J. says that replevin lies in favor of any person whose goods are taken by a trespasser, and that the ancient authorities sanction the doctrine to this extent. (2 Edw. IV. 16, Danby, J.; Winch, 26; Plowd. 281.)

The St. of Marlbridge, 52 Hen. 3, c. 21, which was declar atory of the common law, provides that if the beasts of any man be taken and wrongfully withholden, the sheriff, after complaint made to him thereof, may deliver them without let or gainsaying of him that took the beasts.

Now, both upon principle and authority, it is easy to show that an officer, taking the goods of a person, not a debtor in the execution, is liable as a trespasser. A command to arrest the

« ΠροηγούμενηΣυνέχεια »