Crocker v. Mann
| Decision Date | 31 August 1834 |
| Citation | 3 Mo. 472 |
| Parties | CROCKER v. MANN. |
| Court | Missouri Supreme Court |
APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY.
Crocker brought an action of replevin against Mann for taking a negro The declaration states, that on a certain day the plaintiff was possessed of the slave in the county of Marion, and that afterwards, on that day, in the county of Marion (on the public highway leading from Palmyra to Hannibal, about five miles from Palmyra), the defendant Mann, took the said slave and unjustly detains the same. The defendant pleaded non cepit, and property in himself, &c.
The evidence on the part of the plaintiff was, that he purchased the slave at a constable's sale, on execution, and judgment of some person against Mann; that the property was levied on as Mann's property, and that the plaintiff was the purchaser, &c. To the admission of this evidence, the defendant objected, but the court let the testimony go. The plaintiff proved the delivery of the property to him by the constable; he then proved that afterwards, Mann was found in possession of the property, in the county of Marion; and that the sheriff took it from him by the writ of replevin. No proof was given as to the manner of Mann's getting possession; no proof to show that Mann's possession commenced on the highway leading from Palmyra to Hannibal, &c. On this state of the testimony, the defendant asked the court to instruct the jury, that if they believe from the evidence the defendant did not unlawfully take the slave from the plaintiff, at the place in the declaration mentioned and described, they must find for the defendant; which instruction the court gave; then a judgment and verdict were given for the defendant. The giving this instruction is assigned for error.
The question made by U. Wright and Hunt, the counsel for Mann, is, that the action of replevin is local, and that the plaintiff having failed to prove the taking at the place, that is, on the way leading from Hannibal, &c., cannot recover.
J. Anderson, counsel for the plaintiff, insists that the action is transitory.
We will examine this question; there can be no sort of doubt that the action of replevin is local in England. Many books and authorities will prove this. It has often been decided also in New York that it is so. In England, the action was almost exclusively confined to cases of wrongful distress, for rent or damage feasant. The instances of its application to other cases were so rare, that Sir William Blackstone laid it down as the law in the third volume of his justly celebrated commentaries, that it would not lie in other cases.
Farther research has shown, however, that Blackstone was mistaken in this; and that the action might be maintained in all cases where trespass would lie. When cattle broke into a man's close, the owner of the close might seize and keep the cattle till satisfaction was made. When this remedy for breaking fences is allowed, it must often happen that the owner would either take too much distress, or misuse it afterwards; refuse to deliver the distress when satisfaction is offered, or think enough had not been offered. In such case the owner brought replevin. The defendant must show he had a elose, and where it was, and that the beasts broke in, &c. In this way, the identical field and lot where the cattle were taken, became material. The owner of lands and tenements leased the same to tenants who did not pay the rent, the law gave the landlord the right to go to the land, and into the houses, and take as much property as would be sufficient to pay the rent in arrear, and he might sell the distress if the rent were not paid. If in these cases no rent were due, the distress excessive, or if the property of a stranger happen to be found on the land, and was distrained, the action of replevin would lie; or if the landlord took the property of the tenant at any other place than on the leased premises, the action would lie. In this way, there was a necessity that at least in all the casos arising out of distress for rent, the action should be local; because if the distress were made at any other place than on the premises where and for which rent was due, it would be void, hence the necessity of laying in the declaration, the place with certainty; but in all those cases where the object of the replevin was to try the mere right of property, without any reference to place, there could be no more reason why the exact place should be any more material than it could be where a trespass was committed in action of trespass; nor more material than it would be where any other injury might be committed; but as the action of replevin was mainly used in cases of distress, where the case was material, it is not too much to say, that the action itself became settled in the English law to be local.
In Missouri, there is no such thing heard of as distress of peasts for...
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