Jewett, Ch. J.
The plaintiff claims a reversal of the judgments below: 1st. On the ground that upon the pleadings in error and verdict upon the issue in fact found for the plaintiff, the supreme court was* precluded from looking into the record, as there was no joinder in error, and was bound to give a judgment of reversal as a matter of course, whether there was error in law in the judgment of the common pleas or not, as that by the pleadings error in law was' confessed.
A non-enumerated motion was made in this cause on the part of the plaintiff at a special term of the supreme court, (2 Denio, 201,) for a rule reversing the judgment of the common pleas, founded upon the papers which would make the usual error book and the postea and circuit minutes, when it was held that the court must look into the record just as it would have done had there been a joinder in error, instead of a plea in bar, and that a judgment would be given upon the same principles which would govern, if there had been a joinder in error, instead of a plea in bar; subsequently error books were made and the cause brought to argument upon the calendar at a general term.
It was insisted on the argument by counsel for the plaintiff, that as the plea in nullo est erratum, and the plea of the statute [433]*433of limitations were inconsistent, and could not be pleaded together, (Acker v. Ledyard, 1 Denio, 677,) the defendants in error, by pleading the statute, lost the benefit of the other plea; that when an issue in fact, joined upon the plea of the statute, was found for the plaintiff, the judgment, upon which error was brought, must be reversed of course, although by looking into the record of the judgment, the court could see that there was no error therein, as error therein was confessed by the pleadings.
That if the court, after such issue in fact had been found for - the plaintiff, would still take notice of the record, so far as to see whether there was error in it or not, and render a judgment accordingly, as upon a plea of in nullo esi erratum, it would involve the inconsistency of giving the defendants the benefit of both pleas indirectly, which they could not have directly.
I think the result of the authorities are, that the court ought not to give judgment of reversal, if there be no error in law, notwithstanding in nullo est erratum is not put in; and though it be true, that the defendants in error will then have the same advantage indiréctly, as if they had pleaded that there was no error, which could not be permitted with the plea of the statute of limitations, the general rule is, that the court, ex-officio, must give the proper judgment, according to the right appearing upon the whole record. (Dive v. Manningham, Plowden, 66; Carleton v. Martagh, 6 Mod. 113, 206; Meredith v. Danes, 1 Salk. 270; Rex v. Wilkes, 3 Burr 2551; Castledive v. Mundy, 4 Barn. & Ad. 90; Bret v. Papillon, 4 East. 502; Fraunee’s case, 8 Coke, 93 A; Cunningham v. Houston, 1 Strange, 127; Davenant v. Rafter, 2 Ld. Raym. 1046.)
2nd. That the judgment of the common pleas is erroneous, because the evidence given on the trial showed, or tended to show, a wrongful taking of the property replevied by the defendant.
At common law, replevin only lay to recover personal property, which had been tortiously taken, either originally or by construction of law, by some act which made the party a trespasser ah initio. A wrongful detainer, after a lawful taking, " [434]*434is not equivalent to wrongful, original taking. (Many v. Head, 1 Mason R. .319.) Where the taking was lawful, and the subsequent conversion was wrongful, detinue was the only remedy to recover the property in specie. They are both- possessoryactions ; the former was governed by the principles applicable to trespass de bonis asportatis, the latter by those applicable to trover. (Pangburn v. Patridge, 7 John, 140; Chapman v. Andrews, 3 Wend. 240; Rogers v. Arnold, 12 Wend. 30.)
By 2 R. S. 553, § 15, the action of detinue was abolished, and the remedy by replevin was extended, so as to include cases of the wrongful detention as well as the "wrongful taking of chattels. (2 R. S. 522, § 1.) But the distinction between talcing and detaining is required to be maintained in the writ and declaration, and the plea differs both in its language and consequences in the two cases. (§§ 6, 36, 39, 40; Nichols v. Nichols, 10 Wend. 630.) In this case, the action being' for a wrongful taking, it follows, if there was no evidence given tending to show the defendants chargeable with such act, the common pleas was right in non-suiting the plaintiff, although the evidence showed them chargeable with a wrongful detention.
Conceding that the contract for the purchase of the horn-tips was consummated, and that under it the title to the property passed to the plaintiff, as I think it must be, at least, for the purpose of determining the question made on the trial, the evidence" showed that the plaintiff declined then to take away the goods, and left them in the possession of the defendants in their store to keep, until he could count and take them away during the following week, thus constituting the defendants his naked bailees for the safe keeping of the goods to be delivered to him at the place of .deposit and time appointed, if required. In this situation the plaintiff called at the .time and place appointed, and while in the act of counting, preparatory to securing and taking the property away, under the allegation, that in making the payment of the price of the goods, by some mistake it fell short by the sum of $ 100, Perkins refused to allow the plaintiffs to complete the count or take the goods away. [435]*435Now, unless this act of Perkins constituted a tortious taking by the defendants, or one of them, it is clear that trespass de bonis asportatis, or replevin in the cepit, could not be sustained. The defendants were lawfully holding the possession of the property at the time. Perkins refused to permit the plaintiff to take it away; and, of course, there had been no talcing, up to that time. What followed, at most, was but a wrongful detention; and having the possession of the goods as bailees, by the authority of the plaintiff, the defendants could not by any subsequent wrongful act, as by converting the same to their use, have made themselves trespassers db initio, and therefore replevin for an unlawful taking could not be sustained. (Hale v. Clarke, 19 Wend. 498.)
But it was insisted by the plaintiff’s counsel that a wrongful detention is evidence of, and constitutes a taking ; and the case of Evans v. Elliott, 5 Adol. & Ellis, 142, was referred to as sustaining the proposition. That was an action of replevin for taking and detaining certain cattle, Sec., against J. Elliott, S. Elliott and T. Patrick. There was an avowry by the two Elliotts, and cognizance by Patrick, for rent due to the two Elliotts. Plea by the plaintiff that, after the takingxof the cattle, Sec., and before the impounding of the same, to wit, &c., the plaintiff tendered and offered to pay to Patrick, then being the bailiff of J. & S. Elliott, and by them duly authorized to receive the said rent, and make said distress, the said sum of, &c., so due for rent, as in the avowry, &c., mentioned, together with a certain sum,of money, to wit, Sec., for the costs and expenses of the taking the distress, the last said sum being reasonable and sufficient for the costs, &c., which several sums Patrick refused to accept, and afterward unjustly detained the said cattle, &c. There was a demurrer, assigning for causes that the plea did not sufficiently traverse, or confess, arid avoid the matter in the avowry and cognizance, in this, that it is pleaded to the whole avowry and cognizance, and contains matter in answer only to part, the avowry and cognizance justifying the taking and detaining, and the plea not showing that the taking was not justified. There was a joinder. Lord Denman, C. J., said, “ This is a very [436]*436critical objection; and it seems to me that the plea in bar is good enough. Every unlawful detention is a taking. It is said that the plea in bar distinguishes between the taking and the detention ; and that the plaintiff might have pleaded that after the tender, the defendant again took and detained. But I do not see that, even as the plea stands, the taking complained of is necessarily confined to the taking before the tender.
“ The cases show that the damages recovered would be only for such unlawful taking as would be shown to the jury.”
Littledale, J., said, “ I am entirely of the same opinion. The detention after the tender satisfies the declaration.”
Paterson, J., said, “ The authorities cited by Mr. Williams show that replevin lies for detaining, and that is, as for a new taking.”
The judgment of the court in that case proceeded upon the ground that it was competent for the plaintiff to plead to the avowry and cognizance, that after the tender the defendants again took and detained the distress, See., and that as the plea stood it was not necessarily confined to the taking before the tender; and the remark that “ every unlawful detention was ' a taking,” was made in reference to an unlawful detention of a distress for rent, made under authority given the party by law, which unlawful act rendered the party a trespasser ah initio; in that sense the remark may be correct. But it has no application in this case. The counsel for the plaintiff on the argument insisted that any unlawful interference with the property of another, or exercise of dominion over it, by wdiich the, owner was damnified, was sufficient to maintain replevin for taking, or trespass de bonis, and Allen v. Crary, 10 Wend. 349, was referred to as an authority to sustain the principle. The principle, without any doubt, is true, and the authority is in point; but, as I think, neither the principle nor authority have any application here, as I understand the facts in the case. There the defendant who was sued in replevin in the cepit had pointed out the property in question, and directed the sheriff to levy on it (it being the property of Allen the plaintiff) on an execution in his (the defendant’s) favor against one Rowan. [437]*437The court rightly held, that a sheriff is a trespasser who levies upon goods which are not the property of the defendant in the execution: he acts at his peril in such cases; his process only authorizes him to seize the defendant’s property, and if the plaintiff in the execution direct the levy to be made, he is also a trespasser. The officer in such a case is his servant or agent, and trespass or replevin would lie against either of them. In this case the defendants neither took nor directed any other to take the property. The most they did was, to refuse to deliver the property to the plaintiff,-having a lawful possession of it.
When the non-suit was ordered, the defendants being entitled to a return of the property, by their counsel stated that he would take an assessment of damages under the statute; but before any further step was taken in the cause, he stated to the court that he would waive the assessment of damages, and take a judgment for a return of the property. The plaintiff’s counsel objected on the ground that the defendants had elected an assessment of damages, that the jury had remained impanneled, and that the defendants had thereby waived and precluded themselves from such judgment. The objection was overruled and an exception taken, upon which the jury assessed the value of the property.
It was a matter within the discretion of the court to allow the defendants to waive their election to have an assessment of damages and take judgment for a return, especially as nothing had been done under that election.
I think there is no error in the judgments of the courts below,' and that the judgment of the supreme court should be affirmed.
Bronson, J.
As the issue of fact which was joined in the supreme court was found for the plaintiff, he insists that the judgment of the common pleas should have been reversed, whether there was any error in the record and proceedings or not. Another argument of the question has not changed, but has confirmed the opinion which I expressed when the case was before the supreme court on motion. (2 Denio, 201.) All the cases on which the plaintiff now relies were examined then, though some of them are not mentioned in the report. The verdict only settled that the plaintiff was not barred of his writ [438]*438of error, and left the question still open, whether in truth there was any error in the judgment of the common pleas. -The distinction is between error in fact and error in law'. When error in fact is assigned, and is found or adjudged in favor of the plaintjff, the judgment will be reversed; for though there may be no error in the record, it appears dehors the record, that there was error. But when error in law is assigned, if the defendant plead some matter in bar of the writ of error, as the statute of limitations or release, and the matter be found or adjudged against him, nothing appears beyond the fact that the plaintiff is not barred of hip writ of error; and the court will look into the record to see whether in truth there be any error. If the matter pleaded in bar be found or adjudged in favor of the defendant, the court does not affirm the judgment, for it may be that there are errors in the record ; the entry is, that the plaintiff take nothing by his writ of error. I do not now recollect any case where the judgment is either affirmed or reversed without looking into the record, except where judgment passes by default in the appellate court, and where error in fact is assigned and is found or adjudged in favor of the plaintiif.
The common pleas was right in holding, that at the most there was nothing but a wrongful detention of the goods, and that replevin in the cepit would not lie. It is clear upon the evidence that the property was never out of the possession of the vendors, and, consequently, that they could not have taken it from the plaintiff. It has been settled quite too long to allow it to be questioned now, that, at the common law, replevin wilT only lie where trespass might have been maintained ; and although our statute authorizes the action for an unlawful detention, as well as for an unlawful taking, the distinction between the two cases is to be kept up in the writ and pleadings; (2 R. S. 522, § 1, 6, 36, 39, 40;) and in this, as well as in other cases, the plaintiff must prove his case as it is laid, or he cannot recover. There have been many instances where the plaintiif has failed in the action of replevin, because he had declared in the cepit instead of the detinet.
[439]*439We are referred to a dictum, of Lord Denman, C. J., in Evans v. Elliott, (5 Ad. & El. 142,) that every unlawful detention is a taking. But the case only decides that on a distress for rent, if the tenant tenders the rent, with costs, before the cattle are impounded, he may have replevin for the subsequent ■ unlawful detentions. Whether this decision can be supported may admit of question. ( See Gardner v. Campbell, 15 John. 401; Hall v. Clark, 19 Wend. 498.) But it is enough for the present occasion to say that it was a case where a wrongful act had been done after distraining the goods; and so were all the cases which were cited in support of the decision. The doctrine that every unlawful detention is a taking, for which replevin in the cepit will lie, is not only at war with the distinction taken in our statute, but is in conflict with many adjudications.
But there is a still more serious difficulty in the plaintiff’s way. The title to the property never passed out of the vendors. Although the witnesses and the bill of parcels speak of the sale of nine casks of horn-tips, it cannot be denied, upon the evidence, that it was a sale of some specified quantity of tips, which quantity was to be ascertained by counting. The vendors requested the plaintiff to count and take them away as soon as he could, as they had no room for them; and the plaintiff said he could not take them away until he had counted them. The counting was" commenced, and it progressed until it had been ascertained that there were 1800 less tips of one kind than the number agreed to be sold. I need not refer to cases to prove that so long as any thing remains to be done between the parties, as weighing, measuring, counting, or the like, the title to the goods has not passed, but is still in the vendor. It is impossible to maintain that the plaintiff was bound to accept what tips might be found in the nine casks, although the quantity was deficient; and he never proposed or offered to accept any less than the quantity for which he had agreed. If the vendors were in fault, the plaintiff has a remedy; but he cannot maintain replevin.
I see nothing in the other questions made by the plaintiff [440]*440which calls for a remark; and am of opinion that the judgment of the supreme court should be affirmed. Judgment affirmed.
Wright, J.
This was an action of replevin in the cepit, and on the trial in the common pleas the judge non-suited the plaintiff on the ground that there was no evidence of a wrongful taking; but at most, only of a wrongful detention of the goods. It is admitted, that if the plaintiff gave any evidence of a tortious taking, however slight, the case should have been sub-' mitted to the jury.
The action being in the cepit, there can be no doubt that if the defendants lawfully acquired the possession of the goods, the plaintiff must fail; although it is not clear that had it been in the detinet, it might not have been sustained by showing a tortious taking only. The important question, therefore, in the case, is, whether there was any evidence of a wrongful taking by the defendants. The solution of this question depends upon several inquiries. 1st. Did the evidence offered show the general property of the goods to be in the plaintiff? 2nd. Had there been an actual or constructive delivery of them to him, and was he in actual or constructive possession ? 3rd. Was there, on the part of the defendants, such an interference with or unlawful exercise of dominion over the property as to constitute them trespassers? It is an established principle that replevin in the cepit will only lie where trespass might have been brought; but in my view, if the two first inquiries are satisfactorily solved for the plaintiff, there will be little difficulty in determining the latter in his favor. In cases of tortious taking, trover, trespass de bonis asportatis and replevin, are concurrent remedies; and the same interference with a man’s’ goods, which would amount to a wrongful taking in trespass, would have the like effect in replevin. My brother Jewett supposes that the defendants were naked bailees of the goods, and that, consequently, the form of the action was misapprehended ; but I can discover nothing in the facts of the case to lead to such a conclusion.
1. As to the right of property in the goods. It is a familiar principle of the case of contract, that although a contract for [441]*441the sale of goods he complete, and binding in other respects, the property in them remains in' the vendor, and they are at his risk, if any material acts remain to be done before the delivery, either to distinguish the goods or to ascertain the price thereof. If something remains to be done, as between vendor and vendee, for the purpose of ascertaining either quality, value or quantity, such as measuring, weighing, or counting out of a common parcel, there is no delivery. (Chitty on Contracts, 375, 6th Am. ed.; Harrison v. Meyer, 6 East, 614; 1 Denio, 51.) It is insisted in this case by the counsel for the defendants, that the plaintiff bought two lots of h6rn-tips, which the defendants offered to deliver in bulk; but the plaintiff refused to accept such delivery, and required the lots be counted. Before the counting was completed, the defendants retracted their offer, and declined to make ■ the delivery. If these were the facts, the judgment of the common pleas was clearly right, as no property passed to the plaintiff, something remaining to be done before the goods were delivered. But I do not so understand the evidence, nor, in my judgment, is it susceptible of such a construction. The facts are, that the defendants held themselves out to the public as manufacturers of combs, and importers of English, French, and German fancy goods. They kept a store or warehouse in the city of New-York. On the 3rd August, 1839, the plaintiff, through his agent, and in the ordinary course of trade, purchased from them, for cash, nine casks of horn-tips in bulk, at the price of $260 ; fifty dollars of which price was paid immediately, and the balance, amounting to $210, two days afterward. A bill of sale of the property, in bulk, was given by the defendants to the plaintiff’s agent,. and also receipts of payment of the price. The casks were in the lower part of the store of the defendants, and were pointed out to the plaintiff’s agent; and after the price had been fully paid, and the receipt given, he was directed by the defendants to take the tips awray. There is no evidence of an agreement to cbunt the tips, or that the number in any way entered into the bargain, or that the value or price depended at all upon the number. „ Indeed, [442]*442the written evidence is conclusive that the tips were purchased, and paid for at a stipulated price in bulk; • and that at the payment and receipt of the money, as between vendor and vendee, the contract was fully executed. Nothing remained to be done by the parties by way of identifying or setting 'apart the property. It in no part of the evidence appears that the plaintiff’s agent refused to accept the delivery of the casks; but, on the other hand, the evidence is that he went to the store the day following to take them away. Although, for his own convenience, or for any other cause unconnected with the sale, this agent may have desired to count the tips on the defendant’s premises before taking them away, as between vendor and vendee nothing, remained to be done to consummate the agreement and pass the right to the property. It was no longer at the risk of the vendor, and had it become destroyed by fire on the premises of the defendants, the loss would have fallen on the plaintiff. The payment of the agreed price or consideration for the sale absolutely vested in him the property contracted for.
2. Was there a delivery to, and possession of the property in the plaintiff! Where a sale is Iona fide, and for a valuable consideration, slight evidence of delivery is sufficient. (Shumway v. Rutter, 8 Pick. 443.) Goods are delivered when they are placed in the vendee’s power, so that he may immediately remove them, and cannot be rightfully prevented from so doing., (Smith’s Mercantile Law, 499, and cases cited.) Where a sale is for cash, and payment is made, the vendor is bound to deliver ; and delivery may be inferred from slight circumstances. It is a rule, that where by the contract itself the vendor appropriates to the vendee specific chattels, and the latter thereby agrees to take them, and to pay the stipulated price, the very appropriation of the chattels is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattels, and to pay the specific price, is equivalent to his accepting possession. (Chitty on Contracts, 375.) There is no case contradicting the principle, that when a vendor of goods has ascertained and appropriated them, and the vendee has assented to such [443]*443appropriation, the property passes to the latter. (Hilliard on Sales, 136.) In this case, the evidence shows not only a contract appropriating by the defendants to the plaintiff the nine casks of horn-tips, and an assent of the latter to take them, and pay the stipulated price, but also payment by the vendee; a special direction to take possession of them on the part of the vendors, and an acceptance by the vendee. There was at least a constructive delivery by the vendors, unless I have wholly mistaken the terms of the contract and its legal effect in connection with the acts of the parties; and the defendants are clearly right in supposing that the evidence- shows that they offered to deliver in bulk; but that the plaintiff refused to accept such delivery, and required the tips to- be counted, it seems very clear that no such supposition can be fairly deduced. It is true, that after the contract was consummated by the payment of the money, the vendee’s agent took actual possession of the property, and with the assent of the vendors proceeded to count the tips on their premises; but there is no evidence that the counting was in any way to affect the contract of sale, or to regulate or control the price or value of the goods purchased. There is no intimation that any portion of the price already paid was to he refunded in the event of the tips falling short of a given or agreed number. As I look upon this matter of counting, it was an act solely of the plaintiff, transpiring subsequently to the transfer of the property to him, and by which the defendants were not, nor could not be in any respect affected. The plaintiff had paid a sum in gross for the nine casks, and whether there was a greater or lesser number of tips could make no difference. It appears to me, therefore, to infer as a matter of law that the right of property did not pass, or that the counting of the tips was, by the terms of the contract, a precedent condition to the delivery and vesting of the property in the plaintiff, would he clearly erroneous.
There being a cash sale, payment made, and a constructive, if not an actual delivery of the goods, the absolute right to, and possession of them vested in the plaintiff, the effect of which absolute investment was to enable him to hold them against all [444]*444others. His possession was either actual or constructive: actual, if in his custody and under his immediate control; con- , structiv.e, if having the right to reduce them to immediate possession ; for a general property in a chattel always draws to it a possession in law. In either case he might maintain trespass or replevin for an unlawful taking. But I think the facts show the plaintiff to have been in actual possession of the goods the day following the sale, and up to the time,of the alleged taking by the defendants. His agents had gone to the store of the defendants, and inquired wether they could get at the casks to count the tips and take them away. They were told that they must count them and take them away as soon as they could, as the defendants had no room for them. They set about counting, emptying the contents of each cask, separately, upon the floor, and counting the tips back into it. They had emptied and counted four or five of the nine casks in this way, and were still engaged when the defendants interfered, and would not let them take them away; setting up the unfounded pretence that they had not paid for them, and refusing to suffer them to be taken away solely upon that ground. The facts show the plaintiff 1o have been in actual possession of the property subsequent to the sale and prior to and cotemporaneous with the interference of the defendants. It is true, that it was on the premises of the defendants; but the plaintiff’s agents were there holding it by their express assent. Indeed, in the absence of any proof of assent, I think the plaintiff had an undoubted right to enter to possess himself of the property and take it away; for in a sale of goods, absolute and complete, in a store or warehouse, the legal right of the purchaser to enter, possess himself of them, and take them away, is implied, as an incident of such sale. In this case, however, there was an, express license by the defendants that actual possession might be taken on their premises, and such license being given, if subsequently, without any abuse of it by the plaintiff, the defendants exercised an unlawful dominion over the property, I cannot think that they were the less trespassers. I cannot adopt the doctrine, that an individual may not, even on his own [445]*445premises, tortiously take the property of another, when that other holds the actual possession on such premises of the specific property with his assent.
The judge, in non-suiting the plaintiff, admitted that he had given evidence of a wrongful detention. If by the terms of the contract, the property did not absolutely vest in the plaintiff, but something remained to be done by the parties as a precedent condition to the delivery and sale, the legal possession continued in the defendants; and such possession being legally in them, there could be no wrongful detention; nor could they, as one of my brethren supposes, be constituted bailees for the plaintiff. A wrongful detention, as against the plaintiff, supposes that he is entitled to the possession of the goods, and that they are unjustly detained, though the original possession of the defendants was lawful. If, as the counsel for the defendants insist, the property had not absolutely vested in the plaintiff, but the contract was still executory, there could be no wrongful' detention, nor could replevin in the detinet be maintained. The admission, therefore, that there was evidence of a wrongful detention in effect admitted the title to the property and the right of possession to be in the plaintiff. So also, if the property in the goods had not absolutely, vested in him by sale and delivery, the defendants could in no sense be considered as his bailees.
3. Was there, on the part of the defendants, such an interference with, or unlawful exercise of dominion over the property as to constitute them trespassers 1 For if their acts were such, as in judgment of law to make them trespassers, replevin in the cepit will lie against them. The defendants insist, that if the property in the goods passed to the plaintiff, trover was the proper remedy after demand and refusal. Why, if I am right in my conclusions that the title was in the plaintiff, and that there was a delivery and an actual or constructive possession, any exercise or claim of dominion, though by mere words, the defendants having the goods within their power, amounts to such a taking as to warrant an action of trespass. (23 Wend. R. 466.) Our own courts have repeatedly decided that a mere claim of dominion, an intention being indicated to interfere [446]*446with the goods, under pretence of any right or authority, amounts to a constructive trespass. An actual manucajition of goods is not necessary to constitute a tortious taking. This has often been held. To maintain trespass or replevin evidence of an actual, forcible dispossession of the plaintiff is not necessary; any unlawful interference with his property by which he is damnified is sufficient to maintain either action. (10 Wend. R. 350.) The evidence in this case shows an exercise of dominion over and interference with the property by the defendants; not as bailies for the plaintiff, nor for the reason that the sale, had not been fully consummated. The plaintiff’s agent, who had the property in custody, distinctly states that they thus interfered, and would not suffer him to take it away, assuming a right to hold and an absolute exercise of dominion over it. And they thus continued their claim of dominion up to the replevy. It appears to me, therefore, that there was such a wrongful taking shown as amounted to a trespass ; and if so, the form of action was not misapprehended. But if I am wrong in relation to the strength or degree of evidence on this point, the question should have been submitted to the jury. I am unwilling, under the circumstances of this case, to conclude, as is contended, that because the property had not, after the sale, been actually removed from the premises of the defendants, they may exercise an absolute control and dominion over it, in opposition to, and in exclusion of the rights of the plaintiff, and yet, that trespass or replevin will not lie against them. If this be so, the law will, in numerous instances, work manifest injustice.
I am of the opinion that the judge erred in non-suiting the plaintiff upon the assumption that there was no evidence of a wrongful taking. The property being in the plaintiff, the question, whether there had been a tortious taking, turned upon matters of fact for the jury to find from the evidence. That evidence should have been submitted to them.
Decision.—Judgment affirmed. •
For affirmance, Jewett, Ch. J., Bronson, Jones, Rugóles and Gardiner. For reversal, Wright, Johnson and Gray.
[447]*447Note.-—-Jewett, Ch. J., (as to the record,) held, that the result of the authorities was, that the court ought not to give judgment of reversal, if there be no error in law, notwithstanding in millo est erratum is not put in; and though the defendants in error would have the same advantage indirectly, as if they had pleaded that there was no error; which would not be permitted, with the plea of the statute of limitations. The general rule is, that the court ex officio must give the proper judgment according to the right appearing upon the whole record.
Meld, (on the merits,) that the defendants, at the time of refusal to let the plaintiff have the goods, had the possession thereof as bailees, by the authority of the plaintiff; and could not by any wrongful subsequent act, as by converting the same to their own use, have made themselves trespassers ab initio; and replevin for an unlawful taking could not be sustained.
It was a matter within the discretion of the court to allow the defendants to waive their election to have an assessment of damages, and take judgment for a return.
Bronson, J., (as to the record,) was, after another argument, confirmed in the opinion which he expressed when the case was before the supreme court, on motion (2 Denio, 201) that the verdict only settled that the plaintiff was not barred of his writ of error; and left the question still open, whether in truth there was any error in the judgment of the common pleas.
Did not recollect of any case where the judgment is either affirmed or reversed, without looking into the record, except where judgment passed by default in the appellate court; and where error in fact is assigned by and is found or adjudged in favor of the plaintiff.
Meld, (on the merits,) that it was clear upon the evidence that the property was never out of the possession of the vendors, and consequently they could not have taken it from the plaintiff'. At the common law replevin will only lie where trespass might have been maintained; and although our statute authorizes the action of replevin for an unlawful detention, as well as for an unlawful taking, the distinction between the two cases is to be kept up in the writ and pleadings.
And further held, that in this case the title of the property never passed out of the vendors. Upon the evidence it was, undoubtedly, a sale of some specified quantity of tips, which quantity was to be ascertained by counting, and the counting not having been completed, the title remained in the vendors.
Wright, J., (dissenting, discussed only the merits,) held, that the evidence showed that the plaintiff, through his agent, and in the ordinary course of trade, purchased from the defendants, for cash, nine casks of horn-lips in bulk.; the amount was paid, and the defendants gave a bill of sale of the property in bulk; and also receipts of payment of the price. After the price had been fully paid and the receipts given, the plaintiff was directed by the defendants to take the tips away. There was no evidence of an agreement to count the tips, or that the number in any way entered into the bargain, or that the value or price depended at all upon the number. That the written evidence was conclusive that the tips were purchased and paid for at a stipulated price in bulk; and that at the payment and receipt of the money, as between vendor and vendee, the contract was fully executed. Nothing remaining to be done to consummate the [448]*448agreement, and pass the rights of the property, it was no longer at the risk of the vendors. The payment of the agreed price or consideration for the sale, absolutely vested in the plaintiff the property contracted for.
Also held, that the evidence showed, at least, a constructive, if not an actual delivery of the property to the plaintiff; and that the plaintiff was in the actual possession of it, subsequent to the sale and prior to and cotemporaneous with the interference of the defendants. . =>
It made no difference that the property was on the defendants’ premises; the plaintiff’s agent was there holding it by the express assent and license of the defendants. And in the absence of any proof of assent, the plaintiff would have had a right to enter and possess himself of the property and take it away.
The admission that there was evidence of a wrongful detention in effect, admitted the title to the property, and the right of possession to be in the plaintiff. If the title to the property was not absolutely vested in the plaintiff, and the contract remained executory, there could be no wrongful detention by the defendants.
If, therefore, the title of the property was in the plaintiff, and there was a delivery, and an actual or constructive possession, any exercise or claim of dominion by the defendants, though by mere words, the defendants having the goods within their power, amounts to such a taking as to warrant an action of trespass, and consequently replevin in the cepit.
Also held, that the evidence showed such an exercise of dominion over and interference with the property by the defendants, not as bailees for the plaintiff, nor- for the reason that the sale had not been fully consummated, as constituted a wrongful taking. At least it was a question for the jury; and the plaintiff should not have been non-suited.