delivered the Opinion of the Court.
This is a bill in equity, enjoining an execution from selling, through the hands of the sheriff, two flat bottom boats, lying at Boyd’s landing on Cumberland river. At the time of the seizure of these boats, Alexander, the complainant, be*425low was in the act of lading, for a voyage down the Mississippi, and his crew was hired, and engaged with him. They were taken by the sheriff, as the estate of David S. Campbell, by an execution in favor of Bouldin. Alexander alleges the boats are his, and not the property of Campbell, and prays that his title may be quieted.
Decree of the circuit court p^nant°m Remedy of the own°r oi soSed"under an execution against anoHotTn equity.’ Where in s“ch case ajTqVaterémedyatlaw, the chancelor may afford relief.The claim was resisted by Bouldin, and the right of Alexander contested. But it was sustained by a decree of the court below, and a perpetual injunction granted.
It has been so often held by this court that a claim of this character is of a legal nature, and that the party asserting it must do it in a court of law, that to depart from the rule now, could admit of no apology. The cases reported are numerous, and to cite them would be a vain parade of authority, and' moreover, many cases have gone off without being reported, became the law was considered as settled. As late however, as the case of Watkins vs. Logan, Davis &c. 3 Mon. 20, a written opinion, was delivered, sustaining the same principles.
It must, however, be admitted, that the rule is general, and not universal, and that there will be found ■exceptions to it. If cases can be found where there is no legal remedy, or where the legal remedy rvouid be inadequate, or where there was some potent obstruction to the legal remedy, they may be exceptions; and as the chancellor in like cases, is permitted to intrude himself into the precincts of a court of law, and operate on legal questions, so he may in this instance. On this ground it is contended that this bill ought to be sustained; that this case is peculiar and forms a just exception to the general rule. It is insisted, that neither trespass, trover, nor detinue, after the estate was sold, could have remunerated Alexander for the loss of his trip, and that no remedy would have been adequate which would not have restored to him the immediate possession of these boats.
We grant that the immediate restoration of these boats was necessary to do justice to Alexander, and *426if there was no legal remedy, which could have given him such possession, we should be disposed to sustain his bill for that purpose, especially as his title to the boats appears to be well founded.
Action of replevin is not confined to casos ofdistress,but is the remedy for any wrongful taking the property of the owner out of his possession.Rut there is such a remedy. And although it has fallen somewhat into disuse in this country, yet if practised, it would be found a convenient mode of trying, what many have attempted to try by bills in equity of this nature. We allude to the action of replevin. By that the thing replevied at the execution of the writ is returned to the plaintiff, and the subsequent proceedings, are calculated- to try the right to the thing replevied. It has been said in some books, and particularly by justice Blaclcstone, in his commentaries, that replevin is a remedy founded on a distress; but as Lord Redesdale has well observed, in Shannon vs. Shannon, 1 Sch. and Lef. 325, “this definition is certainly too narrow; many antient authorities will he found in the books of replevin being brought where there was no distress. The writ of replevin is founded on a taking, and the right, which the party from whom the goods were taken, has, to have them restored to him, until the question of title to the goods is determined. The person who takes them, may claim property in them, and if he does, the sheriff cannot deliver the goods until that question is tried; but that claim of property can be made only where there has been a taking; and it appears to me (says the same author) that the writ of replevin is calculated in such cases to supply the place of detinue and trover, and to prevent the party from whom the goods are taken being put to those actions, except where the other can show property. Replevin must be applied to the case of an unequivocal possession and of a taking; it would otherwise not be reasonable; for if there has - not been a taking from the plaintiff, but the defendant had the goods in his quiet possession by other means, the law presumes they are, pri met facie, the property of the defendant; and there is no reason why it should, in such case, give a writ to change the possession in the first instance, against such presumption of property. It is much fairer to ■throw the onus on the person who has not had the *427possession, than on him who has hacl it.” Without referring particularly to the authors, it will be found, that this doctrine of Redesdale is in strict conformity to the antient law. It has likewise been followed in the American States; see Pangburn vs. Partridge, 7 John. 140; 1 Dall. 157; 2 Dall. 54. Actions of replevin, have also passed through this court, applied to other cases than mere distress, where the applicability of the remedy to such other cases has not been questioned; Kirley vs. Hume, &c. 3 Mon, 182.
Defendant in the execution by which the property was seized, oannot regain the possession by the writ of replevin; otherwise of. strangers to the process.It may, however, be said, that property or estate taken under execution, cannot be replevied. This, as a general principle, is laid down in all the books that treat of the action of replevin; and we have no doubt, that the defendant in an. execution cannot try the validity of an execution by issuing a writ, of replevin, or thus relieve his estate from the grasp of. the law. But the rule, as laid down, was never designed to take away the right of strangers to an execution relieving their estate when taken by it. As to them, the taking by color of the execution against another, is so tortious, that trespass will lie, and the tort may be waived, and the writ of- replevin be issued. To prevent the bringing such an action in the state of Pennsylvania, a statute was passed, particularly relieving the sheriff from the action; which shews, that the understanding of the law was in that state, that the action lay before the statute. And after the statute, it was held, that the action lay against the vendee of the sheriff; so that the sheriff alone was protected: Shearick vs. Huber, 6 Bin. 2. In the state of New-York, it has been clearly decided, that although the defendant in an. execution could not. himself maintain the action, yet it might be brought by a third person, even against the sheriff, and. consequently against the plaintiff when the sheriff, as is alleged in this case,, acted under his special authority; Thompson vs. Button, 14 John. 84: so that, according to good authority, the action of replevin will lie, in a case like the present.
It is true that if the plaintiff in replevin is defeated, he is subject to a judgment de retorno habendoy *428which admits .of severe process when the go'odi are el°igne^) anc^ ^ may '1C urged, that taking these boats down the river would have rendered it impossible ever to have restored them, because they are not constructed to come up the stream, and that therefore he ought not to be subjected to such judgment, by being driven to such action. This supposes that he waá not entitled to the estate, and yet ought to be permitted to issue the writ; when, if he was entitled to the estate, he never would be subject to such judgment, and if he was not entitled to the estate, he ought to be subject, and therefore the argument can have no weight, as it only operates in favor of him who issue's the writ wrongfully. The chancellor, if the ecpritable remedy could be allowed, would require a bond to restore; and if the complaint was groundless ought generally to direct the restoration of the estate; so that a claimant making a wrong application to either court would be subjected to a like bond with surety, and might be subjected to a like sentence, tfpon the whole, we conceive that the complainant in this case had adequate redress at law by action of replevin, and that pig case cannot be made an exception to the general rule.
Jucltrmcnt in oa*e the pl’ff fail« to replevm.Decree, Chief Justice dissenting, reversed, with costs; and cause remanded, witii directions to dissolve the injunction, and dismiss the bill with costs,