damages, to which Fitzherbert objected, because he said the case was not within stat. 7 Hen. 8, ch. 4, for the plaintiff was not barred on a nonsuit. But the court were of opinion that the plaintiff, by the nonsuit on second deliverance, was barred; and awarded a writ of inquiry.

In the first place this was on a writ of second deliverance, and a distinction appears in the case grounded on that fact. For a nonsuit in a replevin, is not a bar; but in a second deliverance it is.

It may be observed of this case that there was an avowry for rent service, which was clearly within the statute. And at that time it was conceived that on plea of property in a stranger, no return could be had unless an avowry was made for the purpose of entitling to a return; at least this question was not clearly settled. But at the present day it is very clear that no avowry is necessary or proper in such a case. Carth. 243, 398; Cro. Jac. 519; 2 Rolle, 64; and so is 39 Henry 6, 35. And now, therefore, no such avowry would be made, and of course no damages awarded on a replevin. It is also to be observed, that it was a case within the statute, which provides that every avowant, &c. who avows or justifies as bailiff, &c. 'in any replevin or second deliverance, if their avowry, cognizance, or justification be found for them, or the plaintiffs in the said actions, shall be otherwise barred, shall recover their damages and costs, &c.' Now it seems clear that the avowry in this case could not be traversed, for it is a mere suggestion for a return, (Co. Litt. 145; Salk. 93,) and therefore the avowry could never be found for the defendant. But the case is within the words 'if the plaintiff in the said actions shall be otherwise barred;' and upon a nonsuit in a second deliverance the plaintiff is barred, as the court said. For by statute 13 Edw. 1, st. 1, ch. 2, upon a nonsuit in a second deliverance the plaintiff can never bring another action. 2 Inst. 340, 341; Bac. Abridg. Replevin, E. 3; Hullock on Costs, 266.

The case 19 Hen. 8, 11, is therefore in no way contradictory to the above doctrine, and it may be added that the cases, where a plea of property has been pleaded, and a return only adjudged to the defendant, show presumptively the doctrine for which we contend. See Carth. 243; ib. 519; Cro. Jac. 519; 2 Rolle Rep. 64, where the plea was property and a return awarded to defendant, but no damages.

In the first book of Judgts. p. 220, (cited 2 Lutw. 1197,) there is a precedent, where, on a plea of property, which was found for the defendant, and damages and costs taxed by the jury for him, the court awarded the defendant his costs (under stat. 4 Jac. 1, ch. 3,) but refused to give judgment for the damages. See also Townsend's second book of Judgments, 204, (9). And on a diligent search no precedent has been found in a like case, where damages have been awarded to the defendant.

On the whole, therefore, it may be concluded that at the common law, no damages were in any case given for the defendant. 2. That on the issue of property, if found for him, the defendant was not entitled, under the statutes of Henry 8, to damages, but the judgment remained as at common law pro retorno habendo.

The following entries and authorities, where the plea was property, and found for the defendant, and no damages were awarded, may be added to those above cited. Lib. Intrat. 47, b. ; id. 4, b.; Rastall, Ent. 570, 575; 39 Henry 6, 35; 39 Henry 6, 37. As to other pleas, see 15 Edw. 4, 29; 9 Henry 6,4; 21 Edw. 3, 22; 2 Henry 6, 1; 3 T. Rep. 349, 4; T. Rep. 509.

No general statute seems to have been made in Massachusetts regulating replevins, until the statute of 1789, ch. 26. The provincial statutes, 13 Will. 3, 13, and 7 Geo. 1, ch. 6, only prescribed the form, and seem to have confined the remedy to cases where cattle were distrained and impounded.

The statute of 1789, ch. 26, authorizes damages to be assessed for the defendant in the following cases: 1. Where cattle are taken damage feasant. 2. For going at large against law; sec. 2. 3. Where the plaintiff neglects to enter and prosecute his suit. 4. Where the goods replevied had been previously taken in execution; sec. 4. 5. And perhaps, as within the equity of the last clause, where the goods had been attached. 4 Mass. Rep. 614. The two first cases arise under the process provided before justices of the peace, where cattle are distrained and impounded; the three last on replevin to try the right of property claimed by a third person. In sec. 2, of the same statute, (applied to replevins before justices of the peace,) it is provided that when, from the matter of the plea of the defendant in replevin, damages with propriety cannot be assessed, or

a restoration of the property replevied is the best recompense the party can have, and the issue and justification shall be found for the defendant, judgment shall be rendered for a return to the defendant irreplevisable. This clause seems peculiarly applicable to the case of a plea of property. It is true that the plea of property cannot be pleaded to a justice writ properly sued, in the cases supposed by the statute, viz. damage feasant, or going at large. But if the writ be false, it seems that the plea of property may be pleaded to a justice writ, brought upon the first section of the statute, (and the second section of the same statute seems to suppose it,) otherwise the defendant would be without remedy where the writ is false; and such a plea in such case seems most proper to be pleaded in abatement.

On the whole, it deserves consideration, whether the decision of the court in 4 Mass. 614, be correct, according to the law of the land. Sed quære.

ART. VI.-COUNTERMAND OR REVOCATION.

WHETHER money delivered by a debtor to be delivered to his creditor be countermandable in the hands of the bailee before delivery to the creditor?

In Clark's case, 2. Leon. 30; id. 89, Egerton, Solicitor General, said if goods be bailed to bail over on a consideration precedent on his part to whom they ought to be bailed, the bailer cannot countermand them: otherwise where it is voluntary and without consideration. But where it is in consideration of a debt, it is not countermandable; otherwise if it be to satisfy the debt of another.

So in the principle case in 2 Leon. 30, where A owed an obligation to B, and delivered certain hogsheads of wine to C, to satisfy B for his debt, the Court held that the property was immediately altered by the bailment, and that C might even sell them. S. C. cited Dyer 49, marg. S. P. Yelv. 164; and B has a property in the goods. Yelv. 164.

In Lyte v. Penny, Dyer 48, b. where A bailed money to another to the use of a woman, to be paid over on the day of her marriage, two judges against two, held that, before marriage, the bailment was countermandable, on the ground that it was

a voluntary gift without consideration; and Baldwin and Shelly said that the difference is when a man makes a gift of bailment to give to a stranger upon a consideration or former duty, and when it is purely voluntary. In the former case, and in every case where it is given in consideration, satisfaction, or recompense of another thing, it is not countermaudable, because it does not take effect as a pure gift, but as a satisfaction; but where it is a pure gift, it is countermandable, at any time before delivery over.

The same difference was argued by counsel in Harris v. Bervoir, Cro. Jac. 687, and 2 Rolle Rep. 440, who cited to the same effect 39 H. 6, 44; 8 Edw. 3, 42; and the case of Mosellworth v. Slany, 18 Jac., where the plaintiff declared that A was indebted to him, and delivered to the defendant £10 to pay him, and he had not paid it. Ley, Ch. J., said there is a difference in this case when the bailee is servant to the bailer, and when to him to whom the second bailment ought to be made; I do not mean a hired servant, but such a one as the law deems a servant, as if to A to deliver to me, A is your bail you money servant, but if you deliver to A to pay to B in satisfaction of another debt, which A, the bailee, owes the other, or to give or to lend from the bailer to B, then, in this case, I call A servant to B; in the first case the bailment is countermandable; but if there is no countermand I shall account; but if I assent, then the bailment to me is not countermandable, for it wants assent only to make it as perfect as in the other case. Doddridge, J. said in this case of payment over, the bailment is not countermandable, as it is agreed in 28 H. 8, Dyer, 21; but yet the bailer, where the bailment is to pay over to another in satisfaction of a debt, may have account, to know what is done with the money, for it may be that he to whom the payment is to be made, will not agree to it, and then he is not compellable, and also, for the same reason, he may have debt. But if the bailer and bailee each bring an action, the action of the bailee is the action of the bailer; and where it is said, that there wants a contract between the bailees, there is a contract made; this is not here, but it is a contract which the law makes; and so I hold that the action of debt is maintainable as well for the one as the other. Per Ley, Ch. J., if the bailer brings debt, and recovers, then the other shall be barred; but per Doddridge, if

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the other agrees to the bailment before the recovery, not, which Ley, C. J. granted; when a bailment is to give to another or to pay to another in satisfaction of a debt, or to tender to another, the stranger shall have debt, but I doubt it is not so, where the bailment is a deposit.

The same distinction as to what bailments are or are not countermandable, viz. where it is made in satisfaction of a debt, and where it is purely voluntary, is held by Doddridge, J., in Winter v. Foweracres, 2 Rolle Rep. 38; and in Atkin v. Barwick, 1 Strange, 165, the whole court recognise and approve it. That case was where goods were bailed to one P to deliver to C in satisfaction of a debt, and before the delivery to C the bailer became bankrupt, and afterwards C assented to the bailment, and the assignees brought trover against him; and it was held not to lie under the circumstances of the case. S. C. 10 Mod. 432. It is true Lord Mansfield, in Cowp. 117, says that the reasons for this decision were wrong, though the decision was right; but his Lordship put it upon the ground of the operation of the bankrupt laws. See also as to this case, 5 T. R. 211.

If a bailment is made to deliver over, and the cestui que use refuses, the bailer is entitled to the property, and may maintain an action for it. Brooke Condit. pl. 43, cites 19 H. 6, 34.

The cases 36 Hen. 6, pl. 10, per Wangford, and 39 Henry 6, pl. 44, decide that where there is a bailment to the use of another, the cestui que use may have debt or accompt. So per Prisot, 39 H. 6, 44, b, if bailment be of goods to deliver to another, the property passes, and the bailee is chargeable to both parties. If he does not deliver the goods to the cestui que use, the bailer may have an action, and the cestui que use may have an action; but one action shall make an end of the whole; for if the cestui que use recover, it shall bar the bailer, and so if the bailer recover, it shall bar the cestui que use. S. C. Bro. Detinue, 34.

From the foregoing cases the following points seem to result: That upon a bailment to pay over in satisfaction of a debt, there can be no countermand unless the cestui que use disagree; that the property passes on such a bailment subject to such disagreement; that until assent or disagreement the special property is in the bailee; that on assent the property vests in the cestui que use, who may, if it be money, maintain debt, account, or