3 Day 272 | U.S. Circuit Court for the District of Connecticut | 1808
The first question arising in this case, is, whether the bankruptcy of one of the plaintiffs, and the assignment of his estate, under a commission of bankrupt, devested them of their right of action. By the act establishing a uniform system of bankruptcy, it is provided, “ That the commissioners shall take into their possession all the estate, real and personal, of every nature and description, to which the bankrupt may be entitled; and that they shall assign it to such persons as the creditors shall choose their assignees.” This was aright of action founded on a tort; and did not pass, by such assignment, to the assignees. They could not maintain an action, in their own names, for such injury done to the estate of the bankrupt. The plaintiffs, therefore, were not devested of their right of action.
The material question in the case is, whether it was competent for the plaintiffs to give in evidence the proceedings in the replevin, and that they indemnified the sureties in the bond, for the purpose of showing, that they became liable to the defendant for the amount of his claim against Miller; and that this sum ought to be the rule of damages.
It is a clear principle, that if one man wrongfully, and by force, take from another man his property, and com
The case of Shipwick v. Blanchard, 6 Term Rep. 298. supports this doctrine. The defendant, as assignee of bankrupt, ordered the goods of the plaintiff to be seized and distrained for rent due to the bankrupt. The plaintiff, to redeem the goods, paid the sum claimed for the rent, and expenses; but the petitioning creditor’s debt having accrued after the act of bankruptcy, the commission of bankruptcy was void; and the plaintiff brought an action of trover for the goods, which was held to lie. It is true, that the question made was, whether trover would lie ; and it was taken for granted, that the defendant was liable for such wrongful distress. If trover would lie, it clearly follows that trespass would also lie. In England, a distress for rent is in the nature of a legal process; and if trespass will lie for goods redeemed from a wrongful distress, it will for goods redeemed from a wrongful attachment.
Hence, it follows, that if, in the case under consideration, the plaintiffs had paid the money, or given security to the defendant for his debt against Miller, for which the vessel was attached, in order to regain possession of it, they could have maintained trover or trespass against him for such wrongful attachment. The procuring of the bond on the replevin, and the indemnifying of thé sureties by the plaintiffs,, was, in effect, giving security to the defendant for the debt due to him from Miller; for they became liable to pay it. It
It is said, that the plaintiffs are estopped by the aver-ments in the replevin from saying, that this vessel was not the property of Miller; that these facts ought hot to be given in evidence as a basis for the recovery of damages; and that it is improper and dangerous to permit the action of replevin to be used for such purposes.
In the writ of replevin, there is no acknowledgment by the plaintiffs, that the property of the vessel was in Miller. They are' not parties to the record. The only act done by them is to procure the bond on the writ, and indemnify the bondsmen; and this cannot estop them from sáying the vessel was their property,, any inore than if Miller had procured the vessel to have been replevied without their knowledge. In all cases where money is paid to redeem goods wrongfully taken, attached, or distrained, it is competent for the party to prove, that the money was paid to redeem the goods from a wrongful taking; and that it was not a voluntary payment of an acknowledged claim. There is no more impropriety, or inconsistency, in admitting the plaintiffs in this case to show, that the proceedings in replevin were for the purpose of redeeming property wrongfully attached, than there is to admit a party to prove the payment of money, or the giving of a note, for that purpose.
Nor does it appear that any inconvenience can result from such practice. .Where the title to goods is contested, and they are attached for the debt of one, and claimed to be the property of, another, there is no legal process, by which such claimant can regain possession: for replevin can.be maintained only in the name of the defendant in the suit. The only legal remedy, in the
If the plaintiffs, instead of replevying the vessel, had given a receipt to the officer, with an engagement to have it forthcoming on the execution when demanded, and then had taken the possession again, it is evident, that
Another ground of the present motion is, that the court directed the jury, that it was a question of property only. The defendant urged, that the plaintiffs had only a mortgaged right to the vessel, and was not in actual possession; and, therefore, if he had the prop erty, he could not maintain trespass, but trover only, on the principle laid down by Lord Kenyon, in Ward v Macauley, 4 Term Rep. 489. that trespass is founded on • possession, and trover on property; that where the plaintiff has not the possession, he cannot maintain trespass, but must bring trover. But Lord Kenyon afterwards retracted this doctrine in Gordon v. Harper, 7 Term Reft. 9. The true principle is laid down by Williams, in his notes to Saunders’s Reftorts. Note (1) to Wilbraham v. Snow, 2 Writs. Saund. 47. a. In order to maintain trover, it is necessary, that the plaintiff should have either a special or absolute property in the goods which are the subject of the action. He who has the absolute or general property, may support this action, though he had never had the actual possession; for it is a rule of law, that the property of personal chattels draws to it the possession, so that the owner may bring either trespass, or trover, at his election, against a stranger who takes them away.
It appears, that the ship ⅛ question, for a valuable consideration, was assigned by Miller to the plaintiffs, by an instrument in the nature of a bottomry bond, granting them the exclusive right to her during a voyage from New- York to New-London, and thence to London.
New trial not to be granted.
Brainerd and Griswold, Js. having been concerned a« counsel in this cause, did not sit.