In this case, I do not concur with the Court, but adhere to the opinion given in charge to the jury at the. circuit.
I lay out of consideration the doctrine of the common law as to the action of replevin, because our statute has provided for it; and it must therefore be subject to the statutory regulations. This is laid down in 1 Swift’s Dig. 523., and is recog-nised by this Court. Indeed, if the common law were to govern, in this case, it is not within its principles ; for there is no pretence that the property in question was ever tortiously taken out of the possession of the plaintiff in replevin. This is an essential fact, upon the best authorities, to support the action at common law.
By our law, replevin lies to regain the possession of cattle or beasts which have been impounded, or personal estate which has been attached ; and in those cases only. In the present case, it is not pretended, that the beasts taken by this writ had, been attached. It is not so alledged. The plaintiff in replev-in simply alledges, that they were his beasts or horses impounded or distrained. The court below. Round as~-facts, that this horse was the property of Ralph Watson; — that it was forcibly taken out of his possession; and was not, in any way, either by distress, impounding, or attachment, in the custody of law, but was then in the actual possession of the plaintiff, Ralph Watson; and that these facts were well known to the defendants. Under these circumstances, the judge at the circuit charged the jury, that the writ of replevin and proceedings under it, formed no defence either to John B. Watson, the plaintiff in replevin, or to Phelps, the officer who executed the process, This Court now decide, that the charge was incorrect; but I must be permitted, with all due respect, to dissent*
Here, the proposition advanced is, that this process of replev-1 in was, upon the face of it, legal; and that this justifies the offi- J cer who has served it. It is said, that an officer can always justify his proceedings under a process legal upon the face of it; and that for any abuse of any such process, case, and not trespass, is the proper remedy. This general proposition I am not disposed to deny ; but let us enquire whether it applies to this case. The precept commands the constable to cause the i beasts of John B. Watson, impounded or distrained, to be re-plevied ; and the case finds, that the horse for which this action is brought, was not impounded or distrained, and that both the ! *158defendants knew it. They both then knew, that this horse was not repleviable ; and of course, they knew, that if this process was served upon this horse, it would be a misapplication of it. They knew then, that this horse was not the horse pointed out in the process ; — that it was the horse of Ralph. Watson, and in his actual possession, and not in custody of law. Then, in my judgement, they are both liable in trespass. It is familiar law, that if the sheriff, by mistake, levy an execution against A. on the body of B., or on his goods, it is a misapplication of the process, and he is liable to B., in trespass. Sanderson v. Baker & al. 2 W. Bla. Rep. 832. 2 Selw. N. P. 916. A fortiori, he is liable, if he knows that neither the body nor goods of B., thus taken, were liable. Now, I am wholly unable to distinguish that case, in principle, from this. The officer here is directed to replevy a horse belonging to John B. Watson, impounded or distrained. In obedience to this process, he seizes the horse of Ralph Watson not impounded or distrained. Is not this process wholly misapplied ?
So, if an attachment or execution should issue against the body of an executor or administrator, who by law cannot be arrested, for a debt due from him in that character ; and the officer should arrest the body, though the precept gave express authority, would he not be a trespasser ? The officer in that case cannot alledge, that he was ignorant of the law. The cases of Cameron v. Lighlfoot, 2 Bla. Rep. 1190. and Trade ton v. Fisher & al. Doug. 671. are cited in support of the principle adopted by the Court. In these cases, trespass was brought for arresting the bodies of persons protected from arrest, by special exemptions. Of the same nature was the action of Swift V. Chamberlain, 3 Conn. Rep. 537. . It was decided, in all thes*instances, that the remedy was by application to the proper tribunal for discharge from the arrest-that the process was legal; that the exemption wats a privilege, of which the party might avail himself or not; átd that no action would lie, except for the abuse of the process. These authorities do not establish any doctrine applicable to this case. Here the officer knew that the property was not repleviable.
Again: Proceedings in replevin like this, would expose every man’s property, in the community, to the rapacity of every unprincipled bankrupt. A horse of great value is forcibly taken from the owner’s possession, by a writ of replevin, returnable before a single minister of the law, and seven dollars dam*159ages demanded. On this writ, no bond with surety is given, as is directed, in case of attachment that shall extend to the value of the property, but a bond that the plaintiff will answer all damages, in case he make not his plea good — a bond applicable only to a case of property impounded, and not having any other or greater operation.
] will not say, that this process is void on the face of it: but it is so near it, that it is entitled to no indulgence and as it was executed on property not repleviable, and that known to the officer, and of course known to the plaintiff in replevin, I think it is misapplied, and should afford no protection to either.
The motion, therefore, ought, in my opinion, to be denied.
New trial to be granted.