For the wrongful taking.

ger. Johnson v. Carnley, 10 N. Y. (6 Seld.) 570; Frost v. Mott, 34 id. (7 Tiff.) 253.

Property in a stranger will not avail the defendant as a defense in an action of replevin, unless he in some way connects his title with that of the stranger, and thus establishes a superior title to that of the plaintiff, such as will justify the taking of the property out of his possession. Gerber v. Monie, 56 Barb. 652; Duncan v. Spear, 11 Wend. 54; Rogers v. Arnold, 12 id. 30; Hoyt v. Van Alstyne, 15 Barb. 568; Davis v. Hoppock, 6 Duer, 254; King v. Orser, 4 id. 431.

The right of a vendor to disaffirm a sale, and to recover his goods in an action of replevin, exists wherever the vendee obtained such goods on credit, with the preconceived design to cheat and defraud the vendor. Hall v. Naylor, 18 N. Y. (4 Smith) 588; Nichols v. Michael, 23 id. (9 id.) 274. A sale and delivery of goods procured through the false representations of the vendee in regard to his solvency and credit, passes no title whatever to the property, as between the parties, and the vendor may recover the property in an action of replevin, unless it has passed into the possession of a bona fide holder for value. Ib.; Hunter v. Hudson River Iron and Machine Co., 20 Barb. 493; Barringer v. Hammond, 4 Trans. App. 115; Wilson v. Nason, 4 Bosw. 155.

But it is only in a few exceptional cases, as where a fraudulent vendee becomes a vendor and has the usual indicia of ownership, and the true owner has parted with the possession of the goods sold, that such vendor can make a sale of them, which will be valid as against such rightful owner. The general rule is, that a seller of merchandise having no title can convey none as against the true owner. Spaulding v. Brewster, 50 Barb. 142; Williams v. Merle, 11 Wend. 80; Saltus v. Everett, 20 id. 267; Ash v. Putnam, 1 Hill, 302; Ely v. Ehle, 3 N. Y. (3 Comst.) 506; Brower v. Peabody, 13 id. (3 Kern.) 121; Ross v. Cassidy, 27 How. 416; Linnen v. Cruger, 40 Barb. 633.

On default in the payment of a chattel mortgage, the mortgagee's title to the property becomes absolute, and he may maintain replevin against one who tortiously takes such property from the mortgagor. Fuller v. Acker, 1 Hill, 473; Hulsen v. Walter, 34 How. 385; Bank of Rochester v. Jones, 4 N. Y. (4 Comst.) 497.

For the wrongful detention.

So where the mortgagor is to have the possession of the property until demand, or default in the payment of the debt, he may bring replevin against the mortgagee if he takes the property before such default or demand. Newsam v. Finch, 25 Barb. 175.

The good faith of a party taking personal property from a mortgagee, who has acquired an absolute title by reason of a default in the payment of the mortgage debt, will not protect the taker from liability in an action for the wrongful taking and detention of such property. Levin v. Russell, 42 N. Y. (3 Hand) 251.

Replevin will lie against a vendee to whom goods were sold conditionally, when such vendee retains the goods and fails to fulfill the condition upon which the sale was made. Leven v. Smith, 1 Denio, 561; Russell v. Minor, 22 Wend. 659. See Smith v. Lynes, 5 N. Y. (1 Seld.) 41; Palmer v. Hand, 13 Johns. 434; Morris v. Rexford, 18 N. Y. (4 Smith) 552; Haggerty v. Palmer, 6 Johns. Ch. 437. Any valid lien is such a special property in goods as will entitle the holder to maintain an action of replevin against the owner who has taken such goods without the consent of the holder of the lien. Ingersoll v. Van Bokkelin, 7 Cow. 670; Baker v. Hoag, 7 N. Y. (3 Seld.) 555; Wheeler v. M'Farland, 10 Wend. 318; Rogers v. Arnold, 12 id. 30.

It was formerly held that replevin would not lie where the defendant had divested himself of the property claimed before the commencement of the action. But it is a well-settled rule that replevin will lie, notwithstanding the fact that the defendant has parted with the goods before the commencement of the action. Nichols v. Michael, 23 N.Y. (9 Smith) 264; Knapp v. Smith, 27 id. (13 id.) 277; Brockway v. Burnap, 16 Barb. 309; Ross v. Cassidy, 27 How. 416.

b. For the wrongful detention. The old action of detinue was the proper remedy where there was a wrongful detainer of personal property. This action would lie wherever the defendant had been in possession, whether he retained it, or had wrongfully parted with it. Jones v. Dowle, 9 Mees. & Wels. 19; Garth v. Howard, 5 Car. & P. 346. In this State, when the action of detinue was abolished by statute (2 R. S. 553, § 15), the action of replevin was extended so as to cover the cases formerly included in both actions. 2 R. S. 522, § 1; Snow v. Roy, 22 Wend. 602. The Code has not changed the rule. Therefore, where one has

For the wrongful detention.

obtained possession of goods by fraud, and has transferred the same to a third party by assignment, both the vendee of the goods and his assignee are liable to a joint action by the vendor to recover possession. Nichols v. Michael, 23 N. Y. (9 Smith) 264. But where personal property has come into the possession of the defendant by the delivery of the wrong-doer, it is not until after a refusal to deliver it up on demand that an action for the recovery of the property will lie against him. Ely v. Ehle, 3 N. Y. (3 Comst.) 506; Barrett v. Warren, 3 Hill, 348; Fuller v. Lewis, 13' How. 219; S. C., 3 Abb. 383; Howell v. Kroose, 2 id. 167; S. C., 4 E. D. Smith, 357.

So the action of replevin will lie at the suit of the owner, to recover the possession of goods that have been willfully mingled with those of a trespasser. Silsbury v. McCoon, 3 N. Y. (3 Comst.) 379; S. C., 4 Denio, 332; 6 Hill, 425; Betts v. Lee, 5 Johns. 348. The only condition requisite to a recovery is that the plaintiff shall be able to identify the property as his own. Any change in the form of the property, or any amount of labor or skill expended upon it, will not divest the owner of his title, or give a lien to the wrong-doer. Ib. Thus, where one wrongfully takes trees, and saws them into plank or boards, the owner may replevy the plank or bring trover for their conversion. Brown v. Sax, 7 Cow. 95. Or where wood has been converted into coal, corn into whisky, leather into boots or shoes, cloth into garments, or trees into rails. Silsbury v. McCoon, 3 N. Y. (3 Comst.) 380, note. The mere taking by one party of the mill logs of another, and mingling them with his own, will not constitute a confusion of goods. But where such party fraudulently takes the logs and manufactures them into boards, and intermixes those boards with his own, so that they cannot be distinguished, with the intent of thereby depriving the plaintiff of his property, the owner of the logs may maintain replevin for the whole pile of boards. Wingate v. Smith, 20 Me. 287.

If a party having charge of the property of another so confounds it with his own that the line of distinction cannot be traced, it is for him to distinguish his own property or lose it. Hart v. Ten Eyck, 2 Johns. Ch. 62.

As a rule, the original owner of the property may recover it from the vendee of a wrongful taker, so long as he can identify it. Silsbury v. McCoon, 3 N. Y. (3 Comst.) 379; S. C., 4 Denio, 332; 6 Hill, 425; Joslin v. Cowee, 60 Barb. 48.

On execution - When the action does not lie.

c. On execution. The rule as to where replevin will lie against a sheriff or other officer to recover property taken on execution, or on a tax warrant, has been given, ante, 716, 717, in article 2, section 3, c., of this chapter. The Revised Statutes provide, that no replevin shall lie at the suit of the defendant in any execution or attachment to recover goods or chattels seized by virtue thereof, unless such goods and chattels are exempted by law from such execution or attachment; nor shall a replevin lie for such goods or chattels at the suit of any other person, unless he shall at the time have a right to reduce into his possession the goods taken. 2 R. S. 523 (540), § 5. The Code contains a similar provision. Code, § 207. A defendant in the execution cannot bring replevin against the officer. Gardner v. Campbell, 15 Johns. 401. As to such defendant, the property is in the custody of the law, and he is concluded by the judgment against him. But this rule has no application to the rights of a stranger whose property has been wrongfully taken on an execution against another person. In such a case replevin will lie against the officer levying on the property and the plaintiff directing the levy. Clark v. Skinner, 20 Johns. 465; Dunham v. Wyckoff, 3 Wend. 280; Allen v. Crary, 10 id. 349; Acker v. Campbell, 23 id. 372; Marsh v. Backus, 16 Barb. 483.

Section 5. When the action does not lie.

a. Where the property is restored before action. Replevin will not lie where the defendant restores the property before the commencement of the action, or where he unconditionally offers to restore it before suit brought. Nosser v. Corwin, 36 How. 540; Christie v. Corbett, 34 id. 19; Savage v. Perkins, 11 id. 17. The approval of the undertaking by the sheriff is not the allowance of a provisional remedy within the meaning of section 139 of the Code, and does not determine the time of the commencement of the action, and if the property sought to be recovered is unconditionally tendered to the plaintiff before the service of the summons, an action of replevin will not lie. Ib.

b. Where property replevied is in hands of officer. Replevin will not lie at the suit of a stranger to the action, to recover from the sheriff or other officer the goods taken in pursuance of section 206 of the Code. The only remedy given to such third party is that prescribed by section 216 of the Code. Edgerton v. Ross, 6 Abb. 189; Hunt v. Mootry, 10 How. 478; Haskins v. Kelly, 1 Abb. N. S. 63; S. C., 1 Rob. 160.

Where prohibited by statute - Real and personal property-Election of remedies. c. Where prohibited by statute. From considerations of public policy, the statutes declare that replevin shall not lie to recover goods or chattels subject to and taken under execution, when such recovery is sought by the defendant in the execution, and that no replevin shall lie for the recovery of any property taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute of this State. 2 R. S. 523 (540), §§ 4, 5; 3 id. (5th ed.) 845, §§ 4, 5; Code, § 207. See ante, 717, § 3, c, § 4, c; Hudler v. Golden, 36 N. Y. (9 Tiff.) 446 ; S. C., 2 Trans. App. 316; Stockwell v. Veitch, 38 Barb. 650; S. C., 15 Abb. 412; O'Reilly v. Good, 42 Barb. 521; S. C., 18 Abb 106; ante, 712.

d. Real property. Replevin will not lie for the recovery of any property other than personal. See art. 2, § 1, a, of this chapter.

e. Personal property. Replevin will not lie for the recovery of money, unless specifically described, and the plaintiff shows himself entitled to the possession of the specific money described. Sager v. Blain, 44 N. Y. (5 Hand) 445. Nor can a recovery be had, as for money had and received, when the action is in the form of replevin. Ib.

f. Before demand. Replevin will not lie against a party legally in possession of the property of another before demand and refusal. See post, 724, art. 3, § 1, a.

Section 6. Election of remedies.

a. In general. The proposition is too well established to need the citation of authorities in its support, that trespass de bonis asportatis and replevin in the cepit; or trover and replevin in the detinet are concurrent remedies. The remedies are distinct, although the facts that give the right of action in one case gives the right in the other. It is the demand for relief that determines the nature of the action. Spalding v. Spalding, 3 How. 297; S. C., 1 Code R. 64; Dows v. Green, 3 How. 377; Seymour v. Van Curen, 18 id. 94. But, although the plaintiff has his election between the remedies given, he cannot have both in the same action. He must elect between the remedies, and, having made his election, must abide by it. Ib. See Morris v. Rexford, 18 N. Y. (4 Smith) 552; Bank of Beloit v. Beale, 34 id. (7 Tiff.) 473; S. C., 7 Bosw. 611; 20 How. 331; 11 Abb. 375. Where the complaint sets up a cause of action in trover, and the relief demanded is damages for the conversion, the plaintiff cannot have