to the adverse claimant, or be accompanied by circumstances of notoriety, such as erecting buildings or fences upon the land, from which he ought and may be presumed to know, that there is a possession adverse to his title. But a fence made by the mere felling of trees on a line, lapping one upon another, is not sufficient for this purpose; 2 much less is the running and marking of lines by a surveyor, under the direction of one not claiming title; nor the occasional cutting of the grass.3 An entry and occupancy under a deed of conveyance from a person without title, will constitute a disseisin of the true owner; extending to the whole tract described in the conveyance, if the deed is registered; because the extent of the disseisor's claim may be known by inspection of the public registry.5 But an entry under a registered deed, and the payment of taxes assessed upon the land, is not sufficient evidence of a disseisin, unless there was also a continued and open possession. Where an inclosure of the land by fences is relied upon, it must appear, that the fences were erected with that intent, and not for a different purpose, such as the inclosure and protection of other lands of the party; of which the Jury are to judge. So, if the owner of a parcel of land should, through inadvertency, or ignorance

1 Kenebec Prop'rs v. Springer, 4 Mass. 416; Doe v. Prosser, Cowp. 217; Kennebec Prop'rs v. Call, 1 Mass. 483; Little v. Libby, 2 Greenl. 242; Poignard v. Smith, 6 Pick. 172; Norcross v. Widgery, 2 Mass. 506; Supra, § 311; Bryan v. Atwater, 5 Day, 181, 188, 189; Mitchell v. Warner, 5 Conn. 521; Teller v. Burtis, 6 Johns. 197.

2 Coburn v. Hollis, 3 Metc. 125.

3 Kennebec Prop'rs v. Springer, 4 Mass. 416.

4 Warren v. Child, 11 Mass. 222; Northrop v. Wright, 7 Hill, N. Y. Rep. 476, 487-489, per Walworth, Ch. The party, thus in possession, may take a deed from a hostile claimant, for the mere purpose of quieting his title, without thereby abandoning his character of an adverse possessor. Ibid. See also Blight v. Rochester, 7 Wheat 535; Fox v. Widgery, 4 Greenl. 214.

5 Kennebec Prop'rs v. Laboree, 2 Greenl. 275.

6 Little v. Megquier, 2 Greenl. 176; Bates v. Norcross, 14 Pick. 224. 7 Dennett v. Crocker, 8 Greenl. 239. And see Weston v. Reading, 5 Conn. 257, 258.

of the dividing line, include a part of the adjoining tract within his inclosure, it is no disseisin of the true owner.1

§ 558. The evidence of disseisin may be rebutted by proof, that the disseisor had consented to hold under the disseisee; or, that he had abandoned his possession. But a mere mistake of the party in possession, which, as we have just seen, will not constitute a disseisin, will not, for the like reason, amount to proof of an abandonment of his possession.3

§ 559. Where the tenant, by the laws of the State is allowed a compensation for the lasting improvements made by him on the land, the evidence is to be directed, not to the amount of his expenditures, but to the present increased value of the premises, by reason of the improvements. And these ordinarily consist of buildings, wells, valuable trees planted by the tenant, durable fences, and other permanent fixtures.

1 Brown v. Gay, 3 Greenl. 126; Gates v. Butler, 3 Humphr. 447. 2 Small v. Proctor, 15 Mass. 495.

8 Ross v. Gould, 5 Greenl. 204.

REPLEVIN.

§ 560. THIS action lies for the recovery, in specie, of any personal chattel which has been taken and detained from the owner's possession, together with damages for the detention; unless the taking and detention can be justified or excused, or the right of action is suspended or discharged.1 It lies at Common Law, not only for goods distrained, but for goods taken and unjustly detained for any other cause whatever; except that where goods are taken by process of law, the party against whom the process issued cannot replevy them; but if the goods of a stranger to the process are taken, he may replevy them from the sheriff:2

§ 561. Where the issue raises the question of title, the plaintiff must prove, that at the time of the caption he had the general or a special property in the goods taken, and the right of immediate and exclusive possession. But a mere servant, or a depositary for safe custody, has not such property as will support this action, his possession being that

1 Hammond's Nisi Prius, p. 372.

2 Gilbert on Replevin, p. 161; Rooke's case, 5 Co. 99; Callis on Sewers, p. 197; Clark v. Skinner, 20 Johns. 470. This point is treated ably and with deep research, in 12 Am. Jurist, p. 104, 117, where the above authorities with others are reviewed. See also Allen v. Crary, 10 Wend. 349; Seaver v. Dingley, 4 Greenl. 306. In New York, the right of a stranger to replevy goods taken by the sheriff, is limited to goods not in the actual possession of the judgment debtor at the time of the taking. Thompson v. Button, 14 Johns. 84; Judd v. Fox, 9 Cowen, 259.

3 Co. Litt. 145 b; Gordon v. Harper, 7 T. R. 9; Gates v. Gates, 15 Mass. 310; Collins v. Evans, 15 Pick. 63; Rogers v. Arnold, 12 Wend. 30; Wheeler v. Train, 4 Pick. 168; Smith v. Williamson, 1 Har. & J. 147 ; Ingraham v. Martin, 3 Shepl. 373.

of the master or bailor. It is not always necessary to prove a taking of the goods, since the action may be maintained against a bailee, by proof of an unlawful detention.2 But when a taking is to be shown, it must be an actual taking. Thus, it has been held, that merely entering at the customhouse, by the agent of the owners, goods already in the public stores, and paying the duties thereon, without any actual removal, but taking a permit for their delivery on payment of storage, is not such a taking as will support an action of replevin against the agent.3 So this action cannot be maintained against a sheriff, who has made an attachment of the plaintiff's goods, but has left them in the custody of the plaintiff as his bailee, without any actual taking and removal of them.4

§ 562. The general issue in this action is non cepit, which admits the plaintiff's title, and under which it is incumbent on the plaintiff to prove, that the defendant had the goods, in the place mentioned in the declaration; for the action being local, the place is material and traversable.5 Proof of the original taking in that place is not necessary, for the wrongful taking is continued in every place in which the goods are afterwards detained. But under this issue, the

1 Templeman v. Case, 10 Mod. 25; Waterman v. Robinson, 5 Mass. 303; Ludden v. Leavitt, 9 Mass. 104; Warren v. Leland, Id. 265; Dunham v. Wyckoff, 2 Wend. 280; Miller v. Adsit, 16 Wend. 335.

2 F. N. B. [69] G.; Badger v. Phinney, 15 Mass. 359, 362, per Putnam, J.; Shannon v. Shannon, 1 Sch. & Lefr. 327, per Ld. Redesdale; Baker v. Fales, 16 Mass. 147; Ilsley v. Stubbs, 5 Mass. 284; Seaver v. Dingley, 4 Greenl. 306; Galvin v. Bacon, 2 Fairf. 28. But see Meany v. Head, 1 Mason, 319, 322, that replevin does not lie without a tortious taking. See also Reeves v. Morris, 1 Armstr. Macartn. & Ogle, 159.

3 Whitewell v. Wells, 24 Pick. 25.

4 Lathrop v. Cook, 2 Shepl. 414.

5 Weston v. Carter, 1 Sid. 10; 1 Saund. 347, n. (1), by Williams; McKinley v. McGregor, 3 Whart. 369; Dover v. Rawlings, 2 M. & Rob.

544.

6 Walton v. Kersop, 2 Wils. 354; Bull. N. P. 54; 1 Saund. 347 a, note by Williams; Johnson v. Wollyer, 1 Stra. 507; Abercrombie v. Parkhurst, 2 B. & P. 480.

defendant cannot have a return of the goods; if found for him, it merely protects him from damages. If he would defend on the ground that he never had the goods in the place mentioned, he should plead cepit in alio loco, which is a good plea in bar of the action. This plea does not admit the taking as laid in the declaration; and therefore the plaintiff must prove such taking, or fail to recover.2

§ 563. If the defendant, besides the plea of non cepit, also pleads property, either in himself or a stranger, and traverses the right of the plaintiff, which he may do with an avowry of the taking, the material inquiry will be as to the property of the plaintiff, which the plaintiff must be prepared to prove, the onus probandi of this issue being on him; for if the former issue is found for him, but the latter is either not found at all, or is found for the defendant, the plaintiff cannot have judgment. And where the issue is on the plaintiff's property, his right to the possession, at the time of taking, is also involved in the issue.4

§ 564. An avowry or cognizance of the taking is ordinarily necessary, whenever the defendant would obtain judgment for a return of the goods, thereby making himself an actor in the suit, and obliging himself to make out a good title in all respects. Where the avowry or cognizance is for rent, it admits, that the property in the goods was in the plaintiff; but the terms of the contract or tenancy must be precisely stated, and proved as laid, or the variance will be

1 Ibid.; Bullythorpe v. Turner, Willes, 475; Anon. 2 Mod. 199; Williams v. Welch, 5 Wend. 290; Prosser v. Woodward, 21 Wend. 205. 2 The People v. Niagara, C. P. 2 Wend. 644.

35 Com. Dig. 757, tit. Pleader, K. 12; Presgrave v. Saunders, 1 Salk. 5; Bemus v. Beckman, 3 Wend. 667; Sprague v. Kneeland, 12 Wend. 161; Rogers v. Arnold, Id. 30; Boynton v. Page, 13 Wend. 425; Clemson Davidson, 5 Binn. 399; Seibert v. McHenry, 6 Watts, 301; Hunt v. Chambers, 6 Penn. Law Journ. 82; 1 N. Jersey R. 620.

4 Redman v. Hendricks, 1 Sandf. S. C. R. 32; Meritt v. Lyon, 3 Barb. S. C. R. 110.