'The opinion of the Court was delivered by
Weston J.Where a party is rightfully in possession of property belonging to another, he does not unlawfully detain it, until after a demand by the true owner and a refusal. But if the taking is tortious, no such demand is necessary. This is a principle uniformly applied in actions of trover. In Gates v. Gates, 15 Mass. 311, and in Seaver v. Dingley, 4 Greenl. 306, the same rule is understood to apply in cases of replevin. In some other cases cited, as in Hussey & al. v. Thornton & al. 4 Mass. 405, and in Marston v. Baldwin, 17 Mass. 606, this point does not appear to have been taken.
It is assumed in argument, on the part of the counsel for the defendant, that his possession was lawful, and that a demand was necessary by the plaintiff, to enable him to maintain replevin. And if his premises are correct, he is sustained in this position, by some of the cases cited. The possession of the- defendant did not subject him to the imputation of any thing morally wrong. He acted in good faith, having purchased of one whom he supposed to have been the rightful owner; as did two others, who successively purchased and sold the horse in question. But their supposition did not accord with the fact. The horse was from the beginning the property of the plaintiff; and he had never authorized either of these sales.
Whoever takes the property of another, without his assent express or implied, or without the assent of some one authorized to act in his behalf, takes it, in the eye of the law, tortiously. His possession is not lawful against the true owner. That is unlawful, which is not justified or warranted by law; and of this character may be some acts, which are not attended with any moral turpitude. A party honestly and fairly, and for a valuable consideration, buys goods of one who had stolen them. He acquires no rights under his purchase. The guilty party had no rightful possession against the true owner; and he could convey none to another. The purchaser is not liable to be charged crim*31inally ; because innocent of any intentional wrong; but the owner may avail himself against him of all civil remedies, provided by law' for the protection of property. If the bailee of property for a special purpose, sells it without right, the purchaser does not thereby acquire a lawful title or possession.
In the case before us, Staples was rightfully in possession of the horse, but he had no right to sell him; if he had, the plaintiff would, upon the sale, have ceased to be the owner, which has been negatived by the verdict. It does not follow, because his possession was rightful, that those who hold under him are also lawfully in possession. Indeed the very reverse is true. Staples had the horse by the assent of the owner; hut he sold him in his own wrong, and in violation of the rights of the plaintiff. The defendant came honestly by the borse, but be did not receive possession of him from any one authorized to give it, and is therefore liable civiliter to the true owner for the taking, as well as for the detention.
Judgment on the verdict.