dissenting. — I am unwilling to concur in overturning what seems to me the righteous and well considered decision of our own Court, in Sayward v. Warren, 27 Maine, 453. It covers precisely the point presented in this case. By it the wrongful taker is held responsible to the true owner, in an action of replevin, for such wrongful taking, accompanied by a continued detention of the property by the wrongdoer’s grantee. Why should he not be? He is privy to the detention. It is continued by his authority, not only up to the time of the making and service of the writ, but up to the time of the trial, except so far as the service of the writ places the property in the custody of the law.- Can he be permitted to say that that is not his act which is done solely by the authority which he has assumed to confer? By the act of selling, which he puts in evidence, *551he asserts title in himself to the property in controversy, as against the plaintiff in replevin. That puts an end to any question between them as to the talcing and detention by the defendant. The main question then is, — which is the true owner? Now when he finds that question likely to be decided against him, shall he invoke and receive the assistance of the Court to change the issue which he has been litigating, and defeat the true owner’s right to recover damages and costs against him, because, forsooth, without the knowledge of the owner, he had transferred his wrongful possession to some third party, who, under and by virtue of his authority, continues the wrongful detention ?
I do not think that any technicalities pertaining to the action of replevin under our statutes require us to do any such piece of injustice. If they do, the value of replevin as a remedy is greatly impaired, — for, if the defendant’s title seems likely to fail, it needs only the intervention of some convenient and irresponsible father, brother, son, or friend, to convert defeat into victory, at the last moment, by testimony which the owner of the property would seldom or never be able to controvert.
E. S., c. 96, § 8, provides, in substance, that the owner or person entitled to the possession of personal chattels, may cause them to be replevied when unlawfully taken or detained from him. The remedy can be pursued only in cases where the officer serving the writ can get possession of the property so as to deliver it to the plaintiff. When that is done, I see no valid objection to allowing the plaintiff to maintain the suit against any one who would be liable to him in trespass for the wrongful taking. It is, doubtless, in view of that condition of things that the various dicta treating trespass de bonis and replevin as concurrent remedies have been enunciated. When that condition of things does exist, v)hy are not such dicta correct and applicable ? The judgment is not conclusive except upon the parties and their privies. The rights and the remedies of no third parties, claiming by an independent title, are in the least degree *552affected or interfered with. If the person summoned as defendant has not wrongfully taken or detained the plaintiff’s goods, let him plead a simple non cepit, and, if the plaintiff fails to establish a tortious taking or detention by him or his authority, he has his judgment for costs, as in case of any other defendant wrongfully sued. But when he asserts a title to the property, and has had it in his possession by a tortious taking, do not let him defeat the owner’s claim against him for damages and costs, after he has put the owner to the proof of his title, by saying, what in plain English amounts to just this, — "true, I have taken this man’s goods and detained them from him, but, before he could get his writ made, I shuffled the control of them, without his knowledge, into the hands of a third person, who, when the officer came with the writ, had a possession unknown to the plaintiff and claimed title under me. The plaintiff has proved that the goods are his and not mine, but let him pay me my costs and litigate the matter anew with my grantee.” It seems to me that this is limiting § 8, c. 96, in a way which the Legislature never designed.
Against whom shall the owner of goods unlawfully taken pursue the remedy given in that section? Why not against the man who (as the owner knows and can prove) unlawfully took the goods, and who claims the right to take and to dispose of them ? It seems to me that the sale by the wrongful taker is, quoad the owner, res inter alios, and not admissible to affect his rights.
Stress is laid upon the fact that the bond required of the plaintiff is to run to the defendant, and the Chief Justice remarks as follows: — "If the plaintiff recovers, he is entitled to damage. If he fail, the goods are to be restored to the defendant;” and again, "the statute in all its provisions implies that the property replevied was in the possession of the defendant,” that it was taken from his possession by the writ of replevin, and, in case of failure on the plaintiff’s part, is to be restored to the possession of the defendant.” I do not suppose that he means that a judgment for a re*553turn is in all cases a necessary accompaniment of a judgment in favor of the defendant, or a necessary consequence of the failure of the plaintiff to maintain his suit. But then the argument fails, for it seems ihe Legislature did contemplate cases where a defendant in replevin might make a successful defence, and yet not be entitled to damages or a return. Chapter 96, § 11, provides for a judgment of return with damages, only, K if it appears that the defendant is entitled to a return.”
J. A. Peters, for the defendant. F. A. Wilson, for the plaintiff, cited Sayward v. Warren, 27 Maine, 453.It may be worth, while to remark that, while the dicta in Richardson v. Reed, 4 Gray, 441, cover the case at bar, the two cases are totally dissimilar. It was decided there that the attaching creditor could not be joined as defendant in replevin with the officer making the attachment, — Met-calf, J., remarking, that "attached goods are in the legal custody and possession of the officer only. The attaching creditor has no, property in them, general or special; no right to the possession of them, and no right of action against a third person who may take them from the officer or destroy them. How then can goods be returned on a writ of return or reprisal to him who neuer had the possession of them nor the right of possession ?”
The distinction between that case and this is, that the attaching creditor never had possession nor the right of possession, and never claimed to have had either property or possession. Otherwise, here.
He cannot say that he does not now detain them, whose grantee is detaining them. As Whitman, C. J., says, "he virtually did detain it till replevied.” It can hardly be considered as certain that the Massachusetts Court will ever push the dicta in Richardson v. Reed to this extent by an actual decision in a similar case. My conviction is, that the exceptions here ought to bo overruled.