had been delivered to him Nov. 3, 1830, as the plaintiff in a writ of replevin issued against one Carter. The plaintiff further proved that the horse in question had been mortgaged with other property, by Carter, to one M'Cormick, to secure the payment of a certain sum of money; that the mortgage had been assigned to him, the plaintiff; that it had become forfeited; and that by an award of arbitrators, made in pursuance of a submission between him and Carter, he had a lien upon the horse. The defense set up on the trial was, that Carter was a tenant of one Bloodgood, and that previous to the issuing of the writ of replevin, to wit: Oct. 25, 1830, the horse in question was taken, with other property, as a distress for rent, by M'Gowen, as the bailiff of the landlord. Shepard was. the receiptor of the property, and it was left on the premises. The horse having subsequently been delivered by the sheriff to Spencer, by virtue of the writ of replevin, Shepard took the horse from Spencer's stable, and delivered him to M'Gowen, who sold him by virtue of the distress warrant. The jury, under the charge of the court, found a verdict for the defendants, on which judgment was entered. The plaintiff having excepted to the charge of the court, sued out a writ of error.

By the Court, Sutherland, J. It is contended by the plaintiff in error, that under the Act in relation to the Action of Replevin, 2 R. S., 525, sec., 13, etc., the defendants were bound to have demanded a jury from the sheriff to try their title to the horse, before they could summarily regain the possession of him. The 13th section provides, that if the defendant in the action of replevin, or any other person who may be in possession of the goods and chattels specified in the writ, shall claim property therein or in any part thereof, he may give notice to the sheriff thereof, and demand a jury to try his title. The 14th and 15th sections regulate the mode of proceeding. The 16th section provides that if the jury find against the title of the claimant, the sheriff shall forthwith make deliverance to the plaintiff in replevin. The 17th enacts that if the jury find in favor of the claimant, the sheriff shall not deliver the property to the plaintiff in replevin, unless he will indemnify him to his satisfaction, and refund to the claimant the fees of the sheriff and jury in trying the title. These provisions are designed rather for the security and benefit of the sheriff, than of the party claiming the property; for although the jury may find in favor of the title of the claimant, the sheriff may still and perhaps must deliver

the property to the plaintiff in replevin, if he will indemnify him. The person claiming title to the property is not prohibited by these provisions from taking any other course to try or enforce his right, which upon general principles he might have done before this Act was passed.

If the property of A is in the possession of B, and is taken under an execution or a writ of replevin against B, if A can peaceably obtain the possession of it, and can establish his title, the plaintiff in the execution or replevin cannot maintain trespass against him. A man is never a trespasser in peaceably obtaining possession of his own property.) Hyatt v. Wood, 3 Johns., 239; 4 Id., 150, 313. The defendants in this case had a special property in the horse, by virtue of the proceedings under the landlord's warrant, when the replevin was served. The replevin suit was not against them, but against the tenant.

MOORE V. SHENK, Supreme Court of Pennsylvania, 1846 (3 Pa. St. 1).

Gibson, C. J.: .. But the direction that the property was not revested in the defendant by his demand of it and offer to restore it, because he repossessed himself of it by force, was wrong. Each party had expressly reserved a right to put an end to the bargain by giving back what he had received under it. When, therefore, the defendant signified his determination to rescind, and tendered the animal with the money he had received, the parties were ipso facto remitted to their original rights. The remitter was so entire that the defendant could have maintained trover or replevin on the wagoner's refusal to deliver. Was it disturbed or prevented by any act of force subsequently committed in regaining the possession pursuant to it? It is true that the right of recaption cannot be pleaded in justification of violence. "If, for instance," says Sir William Blackstone, (3 Com. 5,) "my horse is taken away, and I find him in a common, a faire, or a public inn, I may lawfully seize him to my own use: but I cannot justify breaking open a private stable, or entering on the grounds of a third person to take him, but must have recourse to an action at law:" in other words, the right of recaption will not justify a collateral trespass committed in the prosecution of it. But recaption, being founded on a title already existing, is not an act necessary to revest the title, like an entry on land for a condition broken; but it is a remedy, like an action, to regain the possession by virtue of a title complete. If it were the former,

an action could be maintained without at least an attempt at recaption precedent to it. The defendant's original title was restored by the tender, and no principle of the common law declares his illegal enforcement of it to be a forfeiture of it. Even a right of entry on land might have originally been enforced by violence, and possession thus gained be held with a strong hand, (2 Comm. 148:) it is only by special provision in the statutes of forcible entry and detainer, that a party deforced may have a writ of restitution. As regards chattels, the common law principle is unchanged. Though the defendant could not have defended himself against an action of trespass for the force, he certainly can defend himself against an action for the property.

HARVEY V. DEWOODY, Supreme Court of Arkansas, 1856 (18 Ark. 252).

Hanly, J.:. . . The defense, set up in the plea is a justification of the trespass complained of in the declaration. The facts upon which the justification is based are, in substance, that the town of Des Arc was, by an act of the Assembly of this State, approved 28th December, 1854, incorporated: that, by said act, the corporate powers of said town were vested in one mayor and four councilmen, to be chosen in a certain manner-that five of the defendants were elected under the provisions of said charter, one as mayor, and the other four as councilmen-that at the same election, the remaining defendant Robinson was elected and chosen constable of said town: all strictly in conformity with the provisions of the act of incorporation that all qualified in their respective offices, and entered upon the discharge of the duties thereof-that, at a certain time named, it was ascertained that a certain tenement or house situate in said town, owned by the plaintiff, had become a common or public nuisance, by endangering the property and health of many of the good citizens of said town by its exposed condition, and liability to take fire, and because of the fact of its being used by the public as a privy, etc.— that it was thought by them in their official capacity, that the public health and security to property in said town required and demanded that said house or tenement should be declared a public nuisance, and be abated as such--that with this view they aver that on a certain day and time in said plea named and stated, they met in their corporate capacity, as by law they had a right to do, and passed an ordinance declaring said house or tenement of the plaintiff a public nuisance, and providing for its abatement by requiring the

constable of said town, the defendant Robinson, to notify the plaintiff of the proceedings of the defendants as mayor and council of said town, touching said house or tenement, and inform him that should he not within thirty days next thereafter abate said nuisance by removing the cause thereof, that they in their official capacity, as mayor, council and constable, would abate the same by tearing down such house or tenement-that said defendant Robinson, as such constable, gave the required notice under said ordinance to said plaintiff that more than thirty days elapsed after such notice was so given, and the cause of said nuisance being still unremoved or abated by said plaintiff, under the provisions of said ordinance the said defendant Robinson as constable proceeded to and did pull down and destroy said house or tenement, as the only means of abating said nuisance, and the plea avers that this is the same trespass of which the plaintiff complains in his declaration.

Under this state of facts, which are admitted on the record, it may not be unprofitable, by way of illustrating our views, to announce a few principles of law, which we regard as involved in this

cause.

A nuisance, in its common acceptation, means, literally, annoyance. In law, its signification is more restricted. According to Blackstone, it means or signifies, "anything that worketh hurt, inconvenience or damage. See 3 Blacks. Com. 216.

Nuisances are of two kinds :-common or public, and private. See Bac. Abr. 146.

The first class is defined to be such an inconvenience or troublesome offense as annoys the whole community, in general, and no merely some particular person. See 1 Hawk. P. C. 187; 4 Blacks. Com. 166-7; It is said to be difficult to define what degree of annoyance is necessary to constitute a nuisance. In relation to trades, it seems that when a trade renders the enjoyment of life or property uncomfortable, it becomes a nuisance for the reason, that the neighborhood have a right to have pure and fresh air. See 1 Burr. 333. 2 Car. & P. 485; 2 Lord Raym. 1163. 1 Str. 686.

The second class, or private nuisances, is anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. See 3 Blacks. Com. 215. 5 Bac. Abr. 146.

For a common or public nuisance, the usual remedy at law is by indictment. For a private nuisance the ordinary remedy at law,

is case.

See 3 Blacks. Com. C. 13; 10 Mass. R. 72; 7 Pick. 76; 3 Harr. & McH. 441.

Courts of chancery exercise jurisdiction both as to common or public, and private nuisances, by restraining persons from setting them up, by inhibiting their continuance, or compelling their abatement. See 2 Story's Eq., sec. 924, p. 260.

As we have said, both courts of law and equity afford ample redress, and sufficiently prompt remedies in case of nuisances.

it seems the law is not satisfied with these, as affording full protection to the public or citizen, in many cases, for it is generally conceded that any person may abate a public nuisance. See 2 Salk. 458. 5 Bac. Abr. 152. 3 Id. 498. And it seems that this right extends as well to private as to common or public nuisances. See 5 Bac. Abr. ubi sup. 2 Bouv. Law. Dic., 3-2, p. 18. 2 Barn. & Cress. 311. 3 Dowl. & R. 556. ·

A public nuisance may be abated without notice (2 Salk. 458): and so may a private nuisance, which arises by an act of commission. And where the security of lives or property may require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it, an individual would be justified in abating a nuisance from omission without notice. 2 Barn. & Cress. 311. 3 Dowl. & R. 556, as above.

As to private nuisances, it has been held, that if a man in his own soil erect a thing which is a nuisance to another, the party injured may enter the soil of the other and abate the nuisance, and justify the trespass. See 9 Mass. R. 316. 4 Conn. 418. 5 Id. 210.

H. R. 527.

4 N.

Distress for rent has been abolished or greatly modified by statute in most American jurisdictions. Distress of cattle damage feasant has also been modified or regulated by statutes (commonly known as the Herd Law), but is generally permitted.

Entry and Seizure are now obsolete.

BLACKSTONE, COMMENTARIES, III, 18.

The remedies for private wrongs which are effected by the mere operation of the law will fall within a very narrow compass; there being only two instances of this sort that at present occur to my recollection: the one that of retainer, where a creditor is made executor or administrator to his debtor; the other in the case of what the law calls a remitter.