general jurisdiction. It became important, however, to investigate that doctrine, with a view to ascertain the ground upon which the rule rests, that goods taken in execution cannot be replevied, and the extent of that rule. It is with that view only that the note of Mr. Durnford has been so minutely examined. With regard to the extent of the rule, I have found no adjudged case, except that of Cromwell v. Owens, 7 Har. & Johns. Rep., 55, in which the rule has been extended to a third person, whose goods have been taken out of his actual or constructive possession, to satisfy the debt of another person. All the cases of replevin cited in support of the rule are cases in which the debtor himself was plaintiff in replevin. Such was Pearson v. Roberts, Willes' Rep., 672; Milward v. Caffin, 2 W. Bl., 1330, cited in Pearson v. Roberts, and all the cases cited in Mr. Durnford's note to that case, namely, 'Aylesbury v. Harvey, 3 Lev., 204; Bradshaw's Case, Bac. Abr., Replevin, c.; Rex v. Sheriff of Leicestershire, 1 Barnard, B. R., 110; Rex v. Monkhouse, 2 Str., 1184; Rex v. Burchett, id., note 1, and Pritchard v. Stephens, 6 T. R., 522. So also were the other cases of replevin cited by the defendant's counsel in the case of Cromwell v. Owens, except the case of Ladd v. North, 2 Mass. Rep., 514, which was replevin by a third person; but no question was made whether it would lie. The case of Thompson v. Button, 14 Johns., 84, is decidedly against the rule in the extent contended for; because the replevin was sustained and judgment rendered for the plaintiff. But there the plaintiff was not the debtor in the execution, and the goods were taken out of the possession of the plaintiff. The case of Eaton v. Southby, Willes, 136, was a replevin by the vendee of the sheriff for corn sold under an execution against a former tenant, and distrained by the landlord for arrears of rent due from a subsequent tenant, the corn having been sold before it was reaped, and distrained after it was cut, and before it was fit, in the course of husbandry, to be carried away by the vendee. The question was, whether the corn could be distrained under those circumstances; and the court was of opinion that it could not, even if it had not been taken in execution, because the former tenant, being tenant at will, and his tenancy determined by his death, he had a right to keep the corn on the ground until, in the usual course of husbandry, it was fit to be carried away. The only part of that case applicable to the present is the dictum, "that goods taken in execution, or distrained for damage feasant, are in the custody and under the protection of the law, and therefore cannot be distrained for rent," which dictum, in regard to goods taken in execution, is not supported by the reference to Co. Lit., 47 a.

The case of Alexander v. Mahon, 11 Johns., 185, cited in Cromwell v. Owens, was an action of trover, and was probably cited for a similar dictum, that goods, seized under execution, are in the custody of the law, and therefore not distrainable; and for the reason assigned. "For it is repugnant, ex vi termini, that it should be lawful to take the goods out of the custody of the law." In that case the goods were lawfully taken in execution, and therefore were in the custody of the law; but it would be equally repugnant, ex vi termini, to say that goods unlawfully taken and detained were in the custody of the law. The case of Palgrave v. Windham, 1 Str., 212, was an action upon the case by a landlord against the officer who took the tenant's goods in execution, and removed them from the premises without paying one year's rent to the landlord; and I do not find in it any point or dictum applicable to the case of Cromwell v. Owens, in which it was cited. The case of Buxton v. Home, 1 Shower, 174, was debt upon a judgment. The defendant pleaded that he was taken in execution and permitted to escape with the consent of the plaintiff, which plea was

adjudged bad on demurrer. There seems to be nothing in that case applicable to the case in which it was cited, or to the present.

The next case cited in Cromwell v. Owens is Farr v. Newman, 4 T. R., 640, 651. The question in that case was, whether the sheriff, upon a fieri facias against the executor for his own proper debt, could make the money out of the goods of the testator in the hands of the executor to be administered, and so force him to a devastavit, after notice by a creditor of the testator that he had judgment against the executor, de bonis testatoris, and an execution which he was about to levy on the same goods. It was an action upon the case against the sheriff for a false return of nulla bona testatoris upon that execution. The judgment of the court (Buller, J., dissenting) was for the plaintiff. The page 640, referred to in Cromwell v. Owens, contains a part of Mr. Justice Buller's argument against the opinion of the court; and probably the following passage was cited: "How is the sheriff to try any one of these questions? It should be enough to him that the goods are in the possession of the debtor, and used by him as his own. When the plaintiff's execution came to the sheriffs' hands they could not take these goods under it. The writ commanded the sheriffs to levy the debt of the goods and chattels of the testator in the hands of Reid and wife to be administered. These goods were not then in their hands, but they were in the hands of the sheriff, and in custodia legis; and in Holt, 643,. and 1 Shower, 174, it was resolved by Holt, C. J., that goods being once seized and in custody of the law could not be seized again by the same or any other sheriffs." "So the sheriff cannot take goods which have been distrained. Tulley et al. v. Peachey, Hill, 23; Geo. 3." But to this Lord Kenyon, C. J., answered, in p. 651, "As to the expression cited from Shower to show that goods once seized cannot be seized again, it must mean, when they are legally seized; for if any thing happen to disaffirm the first seizure, and to show that it was not legal, it is considered as no seizure in law; and the word seizure is, in such a case, misapplied."

The case of Turner v. Fendall, cited from 1 Cranch, 117, does not seem to have any bearing upon the case. Nor do the other cases of Ball v. Ryers, 3 Caines' Rep. 84, and Sturtevant v. Ballard, 9 Johns., 337. The case of Ilsley

v. Stubbs, 5 Mass. Rep., 280, was replevin against a defendant who had obtained possession of the goods by replevin against a third person. The defendant pleaded that fact, and that his suit against the stranger was still pending. This plea was adjudged bad on demurrer. If there was any thing in that case applicable to the case of Cromwell v. Owens, it was against the party who cited it; for the judgment was in favor of the plaintiff in replevin against the defendant, who claimed protection under the rule, that the goods were in custody of the law, they having been delivered to him by replevin, and he having given bond to return them in case it should be so adjudged. But it is probable that it was cited for the dictum of C. J. Parsons, that "replevin lies for him who has the general or special property in chattels, against him who has wrongfully taken them; but 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." "But if the goods are wrongfully taken by virtue of legal process, the remedy of the owner was by action of trespass or trover against the officer. For the common law would not grant process to take from an officer chattels which he had taken by legal process already issued; but the common law has, in this respect, been altered by the statute of 1789, c. 26, § 4. This statute authorizes the suing of a 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 has been productive of much practical inconvenience, but it must rest with the wisdom of the legislature to decide whether the common law in this respect should or should not be restored. As a general principle, the owner of a chattel may take it by replevin from any person whose possession is unlawful, unless it is in the custody of the law, or unless it has been taken by replevin from him by the party in possession."

All this is mere dictum, not at all necessary to the decision of the question before the court. It has already been shown that goods in the custody of the law may be replevied; as in the case of goods distrained and impounded for rent, or damage-feasant, or for poor rates, or for fines upon convictions before justices of the peace and cther inferior tribunals; and that in every case where it has been adjudged that goods taken in execution could not be replevied, the debtor himself was the plaintiff in replevin. But the chief justice (for whom while living I had the highest respect, and whose memory I revere) proceeded to say, "If goods are wrongfully taken by virtue of legal process, the remedy of the owner was by action of trespass or trover against the officer." No goods can be taken by virtue of process which does not authorize the taking of them; nor can the process authorize a wrongful taking. Beverly v. Lambert, 1 Wash., 308, 310, 312. If then the goods were wrongfully taken, they could not be taken by virtue of the process. The execution only authorizes the officer to take the goods of the debtor. If he take the goods of a stranger, he may take them under color of the execution, but not by virtue of the execution. If he took them by virtue of the execution he would not be a trespasser, which the chief justice admits he would be.

Again, the chief justice says, "For the common law would not grant process to take from an officer, chattels which he had taken by legal process already issued." If the word "by" means "by authority of," then the taking by the officer was rightful; and if so, the proposition is correct as a proposition, but not as a reason why the owner of goods, wrongfully taken by the officer, should be confined to his action of trespass or trover. The chief justice further states that the common law in that respect was altered by the statute of Massachusetts which authorizes the suing of a writ of replevin against the officer for chattels seized by him in execution, provided the plaintiff in replevin be not the debtor. Of the correctness of that proposition I doubt. 1. Because it was never a rule of the common law that goods in the custody of the law could not, for that reason alone, be replevied, as has been already shown. 2. Because no adjudged case has been found in the English books in which it has been decided that a stranger to the execution could not maintain replevin against the sheriff for wrongfully taking his goods for the debt of another. 3. Because, at the time of the passing of the first colonial statute of Massachusetts, in 1641, the law was well settled in England, that in many instances, where goods were in the custody of the law, they might be replevied; as in case of goods distrained and impounded, either with or without good cause. Co. Lit., 47 b. Goods distrained for an amercement in a court-leet. Lukin v. Eve, Moore, SS, 10 Eliz., An. 1567; Joyner v. Skippe, Co. Ent., 570 b. Pasc. 36, Eliz., An 1593, in communi Banco, Rotulo, 1260. And Lord Coke, in his preface, says, "That for thy further satisfaction, learned reader, every precedent hath a true reference to the court, yeare, term, number, roll, and record where the precedent is to be found." And Ashhurst, J., in Farr v. Newman, 4 T. R., 648, says

that the form of proceedings and judgment "is of greater authority than even adjudged cases; because the writs and records form the law of the land." So in Kingston v. Bayly, Co. Ent., 572 a, Trin., 30, Eliz. Rot., 1012, C. B., Anno 1588; Hassell v. Wilkes, Co. Ent., 573 a, Mich., 8, Jac. Rot., 2119, Anno 1610; Godfrey's Case, 11 Co., 43, Mich., 12 Jac., Anno 1614; Freeman v. The Abbot of Ramsay, cited in 11 Co., 43 a, from the Year Book, 10 E., 3, fol. 9 and 10, Anno 1336; Griesley's Case, 8 Co., 38, Trin., 30, Eliz., Anno 1588; Potter v. Gray, Cro. Eliz., 245, Mich., 33, 34, Eliz., Anno 1591; Tott v. Ingram, 1 Brownlow, 185, 4 Jac., Anno 1606; Godfrey v. Bullein, 1 Brownlow, 189, 8 Jac., Anno 1610; Aylesbury v. Harvey, 3 Lev., 204; Lev. Ent., 152, S. C., 36, Car. 2, Anno 1684, for goods taken upon a conviction under the excise acts. Winnard v. Foster, 2 Lutwyche, 1190, Trin., 3 Wand. M., Anno 1691, for goods attached for a debt in the county court. Gins v. Dams, 2 Lutwyche, 1179, Hill., 9, W., 3, Anno 1697, for goods taken under a warrant of two justices of the peace for non-payment of a poor-rate. Fletcher v. Ingram, 5 Mod., 127, Trin., 7 W., 3, Anno 1695, for an amendment by a court-leet, for not serving as constable. Clift's Ent., 636, for goods taken by distress for a militia fine. And even as late as 4 Cro., 1, Anno 1718, in the case of Marriatt v. Shaw, Comyns' Rep., 274, replevin was maintained for goods taken for a fine upon a conviction by a justice of the peace under the game acts. All these were cases of replevin for goods in the custody of the law, and yet no question was made whether replevin would lie, although brought by the debtors themselves. These cases (and many more might be cited) extend from the Year Book of Edward the 3d, in 1336, to 4 Geo. 1, in 1718; more than three and a half centuries.

The first case which I find in which the question was started whether replevin would lie in such cases is that of Bradshaw, mentioned in Bac. Abr., Replevin, C., as having been decided Trin., 12 W., 3, in C. B., where "it was ruled that when an act of parliament orders a distress and sale of goods, this is in nature of an execution, and replevin does not lie; but if the sheriff grant one, yet it is not such a contempt as to grant an attachment against him."

But, as before observed, it does not appear whether the court quashed the replevin, or whether judgment was given upon demurrer to the avowry, or whether it was an instruction to the jury upon the trial. At all events it was a rule applicable only to one of the many cases in which goods may be in the custody of the law; and was a case in which the debtor was plaintiff in replevin. This case, however, was ruled in the year 1700. The first statute of Massachusetts on the subject of replevin was passed in 1641; and as the law then was that replevin would lie in cases of distress by way of execution of the judgments of inferior tribunals, the statute of Massachusetts of 1641 was rather in restraint of the common law, than in enlargement of it, when it authorized replevin in all cases of "cattle or goods impounded, distrained, seized, or extended, unless it be upon execution after judgment, or in payment of fines."

The act of 1720, which excepts distress made by a proper officer for any tax, fine or forfeiture, was but an affirmance, in that particular, of the statute of 1641. Whether the statute of 1641 was construed by the courts to except the case of goods of a stranger taken in execution does not appear. From the words of the act itself, it would seem to be the most natural construction to confine the exception to goods of the debtor, taken on execution; because it says, "after judgment." Against whom? The most obvious answer is, against the plaintiff in replevin. The 4th section of the act of 1789, c. 26,

seems to corroborate this construction, for it takes for granted the right of the third person to replevy his goods wrongfully seized by the officer, and only Regulates the manner and process, and designates the tribunal by which it shall be done. It says "that when any goods or chattels shall be taken, distrained, or attached, which shall be claimed by a third person, and the person thus claiming the same shall think proper to replevy them," he may sue replevin from the common pleas, in the county where taken, distrained, or attached, and in a form prescribed in the act. 5 Dane, Ab., 517, 519. For these reasons, with great deference to the profound learning of the late chief justice of Massachusetts, I must doubt whether the statute of 1789, c. 26, § 4, altered the common law in regard to the goods of a third person wrongfully taken in execution. 326. Trial of the right of property by the sheriff.

It may, perhaps, be said that no such case is to be found in the English books in which replevin has been maintained against the sheriff; and that, if "laid, as per schedule, and replevied," was a good return to a fieri facias, it would be found in the "Retorna Brevium." One answer, however, will serve for both those objections. In England, under the statute of Marlbridge (53 H. 3, c. 21), the application for a replevin is to be made to the sheriff himself, who has the goods in his possession under the fieri facias, and who, if a third person claims the property, has the power of summoning a jury of inquest to inquire to whom the property belongs. Dalton, 146; Gilbert on Execution, 21, cited in Farr v. Newman, 4 T. R., 633. If, upon that inquest, it be found for the third person, the sheriff will restore it to him, and be justified in his return of nulla bona upon the fieri facias, so that the whole purpose of replevin is thereby answered. If the jury should find that it is the property of the debtor, he may go on to sell it, and the finding will mitigate damages in an action of trespass, if the goods seized should happen not to be the defendant's. Farr v. Newman, 4 T. R., 633. But, in this country, it has not been the practice of the marshal to summon a jury to try the question of property; if he has any doubt, he may require a bond of indemnity from the plaintiff. If the marshal here has no power to summon a jury to inquire of the property, justice seems to require that the owner should have his writ of replevin, if there be no positive rule of law to the contrary.

I have examined the dictum of the chief justice in the case of Ilsley v. Stubbs with the more minuteness, because it seems to be relied upon by the court of appeals in Maryland, as the main support of the dictum, in the case of Cromwell v. Owens, "that in no case whatever will replevin lie against an officer for goods taken in execution under lawful process." This proposition extends to the case of a stranger's goods wrongfully taken out of the possession of the stranger himself, by an officer, to satisfy the execution against the debtor. The case of Cromwell v. Owens was that of a stranger's goods taken out of the possession of the debtor, and that was the only case decided. The general proposition, so broadly laid down by the court, was mere dictum. It is not authority further than it was applicable to the case then before the court. That very respectable tribunal has taken the proposition to be universally true, that goods in the custody of the law cannot be replevied; and that goods wrongfully taken by an officer of the law, under color of lawful process, are in the custody of the law, although the officer in taking them was guilty of a trespass, and although he is liable for damages for every moment that he detains them in that supposed custody of the law. This would, indeed, be an incongruity. There cannot be a wrongful custody of law.