1. The claim and delivery of personal property, under our Practice Act, is a substitute for the action of replevin. (Roberts v. Randall, 3 Sanford's S.Ct. 712; Chappel v. Skinner, 6 Howard's Pr. Rep. 339.)
2. At common law, replevin only lies for the recovery of specific personal property. (2 Saunders' Pleading, 768; 2 Saunders' Reports, p. 74, B; 2 Greenleaf's Evidence, Sec. 560; Bacon s Abridgement, Title " Replevin," A.)
3. Property which has not been set apart or separated from the Mass. in which it is included is not specificproperty, and cannot be reached by an action of replevin. The right to designate and set apart a portion of the Mass. as so much specific property is one thing; the acquisition of title to it by such actual separation and setting apart is another and a very different thing. (2 Greenleaf's Ev. Sec. 638; Rapalje v. Mackie, 6 Cowen, 250; Gardner v. Suydam, 3 Selden R. 377; Lansing v. Turner, 2 Johnson, 16; Story on Sales, Sec. 240; Austin v. Young, 6 Pickering, 280; Austin v. Haven, 4 Taunton, 644; White v. Wilkes, 5 Taunton, 175.)
4. The action of replevin cannot be maintained under our statute against a sheriff to recover the possession of personal property held by him under a writ of replevin, unless a claim upon him for such property has been first made, under Section 109 of the Practice Act. No such claim was made by the plaintiffs in the present action upon the Sheriff. (See Secs. 100, 101, 102, 103, 104, 105, 106, 108, 109; see also Act concerning sheriffs, Sec 48, Compiled Laws, p. 719.)
In deciding the case of Rhodes v. Patterson , 3 Cal. R. p. 469, the attention of the Court does not appear to have been called to Section 109 of the Practice Act. (See Shipman v. Clark, 4 Denio R. 446.)
The case of Stimpson v. Reynolds, 14 Barbour p. 510, is not applicable, as the decision of the question in that case appears to have been influenced by the peculiar language of the statute of New York in relation to the action of replevin.
5. The first point of the appellant is not well taken, because there was no evidence of a delivery to submit to a jury. (Practice Act, Sec. 158, subdivision 5; 1 Greenleaf Ev. Sec. 49; Stewart v. Simpson, 1 Wend. 376.)
The authorities cited by the appellants under their first point are not applicable to the present case. Thus, in De Ridder v. McKnight (13 Johns. 294), the question was whether or not the bargain between the parties for the sale of mill stones was completed, or was only in fieri; it was a matter of doubt from the evidence, and it was held a question of fact to be submitted to the jury. In Smith v. Craig (3 Watts & Sergt. 14), it was held that the question whether goods marked and separated are actually delivered to the vendee, is to be determined by the jury. In Drapper v. Jones (11 Barbour 264), it was held that there was evidence in that case to go to a jury upon the question whether the sale and delivery of the property was " conditional." In Stephenson v. Clark (20 Vermont 624), it was held, that whether or not a sale of personal property has been followed by a sufficient change of possession to make it valid, as against the creditor of the vendor, is always a question of fact, when there is any testimony tending to prove such change of possession, and should be submitted to the jury, under proper instructions.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred.
OPINION
HEYDENFELDT, Judge
This action being for the recovery of specific property, it was necessary to show, as against the sheriff, that the portion claimed by the plaintiffs had been severed, and designated from the bulk out of which it was sold. Otherwise there is no mode of identification. This results from the character and nature of the action.
But, in favor of the other defendants, Tilden & Little, the same reasoning cannot be invoked. They were warehousemen, and gave their receipt for three hundred barrels of flour. This was specific, and they are estopped from denying their liability. It is very similar to the case of Chapman v. Searle, 3 Pick. 38, cited by respondent.
The Court below should have given judgment for plaintiffs, against Tilden & Little, and judgment for defendant, Gorham.
Nonsuit set aside, and case remanded.