Platt, J.
I am of opinion, that replevin lies in favour of any person whose goods are taken by a trespasser. As to John Clark, the goods were in the custody of the law, and therefore, irreplevisable ; but, in my judgment, the law does not deny the remedy by replevin, to any person whose goods are taken from his actual or constructive possession by a wrong-doer. It is, in many cases, the only certain and efficacious remedy, and, without it, a man’s personal chattels would never be safe, unless he keeps them in his own absolute custody. Suppose, John Clark, in this case, had taken the horse and sleigh, as a trespasser himself, would they be in the custody of the law, as to the true owner, because the constable happened to find them in the hands of a person against whom he had an execution ? If I leave my watch to be repaired, 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 hoard a vessel to be transported, shall he not have this remedy, if they are taken on execution against the master of the vessel ? It. seems to me indispensable, for the due pro[468]*468tection of personal property. In many cases, it would be mociíery t0 say t0 the owner, bring an action of trespass or trover against the man who has despoiled you. Insolvency would be both a sword and a shield for trespassers. Besides, there are many cases, where the possession of chattels is of more value to the owner, than the estimated value in money; and the action of detinue is so slow and uncertain, as a specific remedy, that it has become nearly obsolete.
The rule, I believe, is without exception, that wherever trespass will lie, the injured party may maintain replevin. (Pangburn v. Patridge, 7 Johns. Rep. 140.) Baron Comyns says, “ replevin lies of all goods and chattels unlawfully taken (6 Comyn’s Dig. Replevin A.) though, (Replevin D.,) he says, “ replevin does not lie for goods taken in execution.” This last proposition 'is certainly not true, without important qualifications. It is untrue, as to goods “ taken in execution,” where the fi. fa. is against Jl. and the goods ar,e taken from the possession of B. By goods “ taken in execution,” I understand goods rightfully taken, in obedience to the writ: but if, through design or mistake, the officer takes goods which are not the property of the defendant in the execution, he is a trespasser ; and such goods never were “ taken in execution,” in the true sense of the rule laid down by Baron Comyns.
Creditors, who have not indemnified the officer, have no right to complain of the delay of a replevin : and, as regards the interest of creditors who indemnify, no greater inconvenience can result from the action of replevin, than from a suit in trespass against the officer who levies. It may delay the execution, but there are countervailing benefits; for, if the creditor has indemnified the officer against a claim of property in a stranger, the damages will be less, if such claim, be established in an action of replevin, than in an action of trespass; because, in the former mode, the property would be speedily restored to the injured owner, without deterioration or sacrifice ; and the creditor would be thereby relieved from his obligation to indemnify, except for mere nominal damages. Whereas, if trespass or trover be the only remedies, the creditor who indemnifies, incurs a risk for the whole value of the property, and its safe keeping, [469]*469until the uncertain termination of a tedious lawsuit. As to the officer himself, if he acts Iona fide, similar consideradons would induce him to prefer the remedy of replevin to an action of trespass : for it relieves him from risk and responsibility.
The loose dicta, and the apparent contradiction and confusion of ideas, in many of the reported cases, on this point, have arisen from the want of precision of language, or the misapplication of the phrase, that “ goods cannot be taken from the custody of the law.” Sir Edward Coice says, " a replegiare lyeth where goods are distrained s” (Co. Litt. 145 b.) thus giving an example for a definition; and even the learned and discriminating Sir William Blackstone, was led into the error, that replevin lies “ only in one instance of an unlawful taking, that of a wrongful distress.” (3 Black. Com. 146.) Baron Gilbert says, " A replevin is a judicial writ to the Sheriff, complaining of an unjust taking and detention of goods and chattels.” (Gilb. Replev. 58.) In Baker v. Fales, (16 Mass. Rep. 147.) it was held, that replevin lies for a wrongful detention of goods, although the original taking was justifiable. In Shannon v. Shannon, (1 Sch. & Lefroy, 324.) Lord Redesdale holds, that there must be an unlawful taking from the possession of the plaintiff, to maintain replevin. But the question is, what is meant by the possession in such case ? I understand by it, not only the actual, but the constructive possession of the owner •, and, by a constructive possession, I mean a right to reduce the chattel to immediate possession. If the plaintiff in replevin shows a possession in himself, or his bailiff, the law then casts the onus probandi on the defendant, as to property.
In the case of Thompson v. Button, (14 Johns. Rep. 84.) Chief Justice Thompson said, “ as a general principle, it is undoubtedly true, that goods taken in execution, are in the custody of the law; and it would be repugnant to sound principles, to permit them to be taken out of such custody, when an officer has found them in, and taken them out of the possession of the defendant in the execution.” But, in that case, the goods were taken while in the possession of the plaintiff in replevin, who was not defendant in the execu[470]*470tion : and the general rule, as laid down by the Chief Jus^ce’ ha4 no necessary application to the case.
In the case of Gardner v. Campbell, (15 Johns. Rep. 401.) this Court recognised the rule as laid down in Thompson v. Button, and gave it its proper application 5 that is, to a case where the defendant in the execution brought replevin against the officer; and it was held not to lie.
In Thompson v. Button, Ch. J. Thompson also remarked, that “ the utmost extent to which the case of Pangburn v. Patridge can be carried, is to permit replevin to lie, where an action of trespass might be brought.” That is precisely the extent to which I would carry it; and the ancient authorities sanction the doctrine to that extent. (2 Edwd. IV. 16. Danby, J. Winch. 26. Plowd. 281.) The general rule is, that the plaintiff in replevin must have a general or special property in him at the time of the unlawful taking of which he complains; that is, he must have either the actual possession, or the right of reducing it to his actual possession, at the time of the tortious taking. Sir
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Platt, J.
I am of opinion, that replevin lies in favour of any person whose goods are taken by a trespasser. As to John Clark, the goods were in the custody of the law, and therefore, irreplevisable ; but, in my judgment, the law does not deny the remedy by replevin, to any person whose goods are taken from his actual or constructive possession by a wrong-doer. It is, in many cases, the only certain and efficacious remedy, and, without it, a man’s personal chattels would never be safe, unless he keeps them in his own absolute custody. Suppose, John Clark, in this case, had taken the horse and sleigh, as a trespasser himself, would they be in the custody of the law, as to the true owner, because the constable happened to find them in the hands of a person against whom he had an execution ? If I leave my watch to be repaired, 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 hoard a vessel to be transported, shall he not have this remedy, if they are taken on execution against the master of the vessel ? It. seems to me indispensable, for the due pro[468]*468tection of personal property. In many cases, it would be mociíery t0 say t0 the owner, bring an action of trespass or trover against the man who has despoiled you. Insolvency would be both a sword and a shield for trespassers. Besides, there are many cases, where the possession of chattels is of more value to the owner, than the estimated value in money; and the action of detinue is so slow and uncertain, as a specific remedy, that it has become nearly obsolete.
The rule, I believe, is without exception, that wherever trespass will lie, the injured party may maintain replevin. (Pangburn v. Patridge, 7 Johns. Rep. 140.) Baron Comyns says, “ replevin lies of all goods and chattels unlawfully taken (6 Comyn’s Dig. Replevin A.) though, (Replevin D.,) he says, “ replevin does not lie for goods taken in execution.” This last proposition 'is certainly not true, without important qualifications. It is untrue, as to goods “ taken in execution,” where the fi. fa. is against Jl. and the goods ar,e taken from the possession of B. By goods “ taken in execution,” I understand goods rightfully taken, in obedience to the writ: but if, through design or mistake, the officer takes goods which are not the property of the defendant in the execution, he is a trespasser ; and such goods never were “ taken in execution,” in the true sense of the rule laid down by Baron Comyns.
Creditors, who have not indemnified the officer, have no right to complain of the delay of a replevin : and, as regards the interest of creditors who indemnify, no greater inconvenience can result from the action of replevin, than from a suit in trespass against the officer who levies. It may delay the execution, but there are countervailing benefits; for, if the creditor has indemnified the officer against a claim of property in a stranger, the damages will be less, if such claim, be established in an action of replevin, than in an action of trespass; because, in the former mode, the property would be speedily restored to the injured owner, without deterioration or sacrifice ; and the creditor would be thereby relieved from his obligation to indemnify, except for mere nominal damages. Whereas, if trespass or trover be the only remedies, the creditor who indemnifies, incurs a risk for the whole value of the property, and its safe keeping, [469]*469until the uncertain termination of a tedious lawsuit. As to the officer himself, if he acts Iona fide, similar consideradons would induce him to prefer the remedy of replevin to an action of trespass : for it relieves him from risk and responsibility.
The loose dicta, and the apparent contradiction and confusion of ideas, in many of the reported cases, on this point, have arisen from the want of precision of language, or the misapplication of the phrase, that “ goods cannot be taken from the custody of the law.” Sir Edward Coice says, " a replegiare lyeth where goods are distrained s” (Co. Litt. 145 b.) thus giving an example for a definition; and even the learned and discriminating Sir William Blackstone, was led into the error, that replevin lies “ only in one instance of an unlawful taking, that of a wrongful distress.” (3 Black. Com. 146.) Baron Gilbert says, " A replevin is a judicial writ to the Sheriff, complaining of an unjust taking and detention of goods and chattels.” (Gilb. Replev. 58.) In Baker v. Fales, (16 Mass. Rep. 147.) it was held, that replevin lies for a wrongful detention of goods, although the original taking was justifiable. In Shannon v. Shannon, (1 Sch. & Lefroy, 324.) Lord Redesdale holds, that there must be an unlawful taking from the possession of the plaintiff, to maintain replevin. But the question is, what is meant by the possession in such case ? I understand by it, not only the actual, but the constructive possession of the owner •, and, by a constructive possession, I mean a right to reduce the chattel to immediate possession. If the plaintiff in replevin shows a possession in himself, or his bailiff, the law then casts the onus probandi on the defendant, as to property.
In the case of Thompson v. Button, (14 Johns. Rep. 84.) Chief Justice Thompson said, “ as a general principle, it is undoubtedly true, that goods taken in execution, are in the custody of the law; and it would be repugnant to sound principles, to permit them to be taken out of such custody, when an officer has found them in, and taken them out of the possession of the defendant in the execution.” But, in that case, the goods were taken while in the possession of the plaintiff in replevin, who was not defendant in the execu[470]*470tion : and the general rule, as laid down by the Chief Jus^ce’ ha4 no necessary application to the case.
In the case of Gardner v. Campbell, (15 Johns. Rep. 401.) this Court recognised the rule as laid down in Thompson v. Button, and gave it its proper application 5 that is, to a case where the defendant in the execution brought replevin against the officer; and it was held not to lie.
In Thompson v. Button, Ch. J. Thompson also remarked, that “ the utmost extent to which the case of Pangburn v. Patridge can be carried, is to permit replevin to lie, where an action of trespass might be brought.” That is precisely the extent to which I would carry it; and the ancient authorities sanction the doctrine to that extent. (2 Edwd. IV. 16. Danby, J. Winch. 26. Plowd. 281.) The general rule is, that the plaintiff in replevin must have a general or special property in him at the time of the unlawful taking of which he complains; that is, he must have either the actual possession, or the right of reducing it to his actual possession, at the time of the tortious taking. Sir Edward Coke says, “ it is a general rule, that the plaintiff must have the property of the goods in him at the time of the taking. But, yet, if the goods of a villeine be distrained, the lord of the villeine shall have a replevy j because, the bringing of a replevy amounts to a claim in law, and vests the property in the plaintiff.” (Co. Litt. 145 b.) Bacon says, “ not only a general property, which every owner has, but also a special property, such as a person has who has goods pledged to him, &c., is sufficient to maintain a replevin ; and in such like cases, either party may bring a replevin.” (Bac. Abr. tit. Replevin and Avowry, F. by Gwillim.)
In-the case now before us, the plaintiff in the replevin had not only a general and absolute property in the goods at the time of the seizure, but, in my judgment, he had not even parted with the actual possession of them. The testimony of John Clark, the only witness on that point, is, “ that at the time of the levy and seizure by Skinner, he (the witness) came to Waterloo, on business for his son, (the plaintiff,) and had the plaintiff’s horse, cutter, and harness; and drove [471]*471them under a shed, and went to Mr. Slack’s for boot-binding for his son,” (the plaintiff,) and while so under the shed, the defendant seized the horse, &c. on the fi. fa. against John Clark. There was no lending, nor letting for hire, nor any kind of bailment of the chattels to John Clark. He was not only in the use of the plaintiff’s property, but lie was using it in the business and employment of the plaintiff, at the time of the levy. Suppose aj/L/a. against a labourer, who is employed by me to plough my land with my horses 3 or against a stage driver on the highway, can it be contended, that the horses at the plough, or the post-coach on the highway, are not in the actual possession of the proprietors ? Or, if, intrusting a chattel to a servant, to be used in the business and employment of the owner, be, in any sense, a bailment, can the doctrine be endured, that it cannot be replevied by the owner, if taken on an execution against the servant, while so using it ?
If goods be taken on fi.fa. as the property of the defendant named in the execution, and the writ is from a Court of competent jurisdiction, and not void for any defect on its face, the officer, as against such defendant, is never a trespasser, nor a wrong doer. As to such defendant, the property is in the custody of the law, and he is concluded by the judgment against him. To allow him to question the validity of the seizure, in an action of replevin, would, indeed, be against public policy 3 for it would be moving in a circle, and the creditor would never receive the fruits of his execution. But such reasoning has no application to the rights of a stranger, whose property has been wrongfully taken on an execution against another person.
In Rex v. Monkhouse, (2 Stra. 1184. and note, 3d Ed.) the Court granted an attachment against the Sheriff, for granting a replevin of goods distrained on a conviction of deer-stealing 5 and “ the ground of the decision was, that the conviction was conclusive, and its legality could not be questioned in a replevin.” So, in Win v. Forster, (Lutw. 1191.) Aylesbury v. Harvey, (3 Lev. 204.) Rex v. Burchett, (Stra. 567.) and in every adjudged case that I have found, where it has been held, that “goods taken in executionor “ goods in the custody of the law,” could [472]*472not be replevied, that doctrine has been applied to cases where the defendant in the execution was plaintiff in the replevin, and to none other.
I admit that the judgment in this case against John Ciarle is conclusive; and the execution against him cannot be questioned in a replevin by him. But where a stranger to that judgment and execution brings replevin, it is not to
question or overhale those proceedings, but to obtain redress for a trespass done to him; the judgment and execution set out in the avowry, are res inter alios, and cannot affect his rights, or his remedies.
I am, accordingly, of opinion, that the Judge ruled correctly at the trial, and that the plaintiff is entitled to judgment.
Spencer, Ch. J., and Woodworth, J., were, also, in favour of the plaintiff; but they rested their decision solely on the ground'that the chattels were, in this case, to be deemed as taken from the actual possession of the plaintiff, who was not the defendant in the execution.
Judgment for the plaintiff