19 N.J.L. 160 | N.J. | 1842
The opinion of this Court, was delivered by
The case shows the .following state of facts : The plaintiff and one John Buckley were originally the joint owners of the machinery in question ; and on the dissolution of the co-partnership between them in October, 1836, the plaintiff sold and assigned all his right and interest therein to Buckley, who thereby became the sole owner thereof. In the spring of 1837, Buckley rented a building of the defendants in the township of Lodi, in the then- county of Bergen, and removed the machinery into it. He was engaged for some time in
On the 4th of November, 1837, Buckley being indebted to the plaintiff, executed to him a bill of sale of the machinery, at which time, he says, he considered himself in the possession of it. One or two weeks after this, the plaintiff went to the factory of the defendants in company with Buckley, and demanded the machinery of Rushforth. The plaintiff said “ I have come after the-, machinery ” and exhibited to him the bill of sale. Rushforth refused to deliver it, saying, it should not go out of the factory until they got others in the place of it. Buckley was present and consented that the plaintiff should take it.
Under this state of facts, the defendants insisted, that the goods-had not been tortiously taken, and consequently that replevin would not lie. Whether tortiously taken or not, depends in some measure, upon the possession of the goods by Buckley at the time of the execution'of the bill of sale.
It is manifest from the evidence, that Buckley, at the time of the execution of the bill of sale to the plaintiff, was the absolute owner of the machinery; and if not in the actual possession thereof, he was so constructively. He considered himself in the possession of it. It was in a building he had rented of the defendants, the key of which he retained. By the last arrangement between the parties, after the defendants had failed in the business, the defendants were only permitted to use the machinery when Buckley had no use for it. There was nothing in this arrangement which gave to the defendants any right or power over it, affecting Buckley’s right to use, sell or deliver i.t., When
Under this evidence, it appears to me, Buckley must be considered, at the time of the execution of the bill of sale, as having beyond all question, the constructive possession of the machinery ; and by the bill of sale, the plaintiff succeeded to all his rights, both of property and possession.
Now it has been repeatedly ruled, that a general property in goods, with the constructive possession thereof, that is to say, a right to reduce them to possession at pleasure, is sufficient to maintain either trespass or replevin.
The case of Dunham v. Wyckoff, 3 Wend. 280, came before the court upon a demurrer to the avowry of the defendant, in which he avowed the taking of the goods in question, as sheriff, by virtue of a writ of execution against one Griswold, as the goods and chattels of Griswold, the same being in the possession of Griswold. The pleadings admitted, that at the time of the taking, the property was in the plaintiff, and the possession in Griswold the defendant in execution. The question was, whether replevin would lie. The court say, “ replevin lies where trespass de bonis asportatis will lie. The plaintiff must have property general or special, and possession either actual or constructive. The plaintiff having the property in the goods in question, had the constructive possession ; for the property draws to it the possession. The plaintiff therefore had the right to take possession at pleasure, and could have sustained trespass: and replevin and trespass in such cases are concurrent remedies.”
The plaintiff' then being the absolute owner, and in the constructive possession of the machinery; did the conduct of the defendants, at the time the demand was made, amount in law to a tortious taking thereof or was it such an interference with the property, as would entitle the plaintiff to maintain an action of trespass against them ?
The evidence is, that when the plaintiff exhibited his bill of
It is not necessary to the decision of-the question in this cause, to express an opinion upon another point raised by the plaintiff’s counsel, whether the action of replevin in this state, may not be sustained for a wrongful detention, when the taking was not tortious.
The Supreme Court of Massachusetts hold, that the action lies for goods unlawfully detained though there was no tortious taking. 15 Mass. Rep. 284; 16 Mass. Rep. 147. In the last case Putnam judge, is of opinion, that one may be considered constructively taking goods, who came lawfully, into possession, but keeps them from the owner against right. Chief Justice Savage, in reference to these decisions, remarks in Marshall v. Davis, 1 Wend. 109, “ were the question new in this court, I should be strongly inclined to hold the doctrine of the Massachusetts Court correct.”
There is a strong disposition in courts to favor this action, as it furnishes a more adequate remedy than trespass or trover; and not unfrequently it is the only effectual remedy for the party injured. In the language of the late Chief Justice Ewing, 6 Halst. 374, “the remedy by replevin is prompt, efficacious and beneficial, and the use of it on proper occasions should be rather fostered than repressed.”
Elmeb, J. The only question for the consideration of this Court is, whether the judge decided correctly in overruling the motion for a nonsuit made by the defendants upon the ground that replevin would not lie, no proof having been given that the machinery was tortiously taken.
It was ruled by this court in the case of Bruen v. Ogden, 6 Halst. 370, “ that where goods or chattels are so taken as to en
In the same case of Bruen v. Ogden, the court also declare, that “the remedy by replevin is prompt, efficacious and beneficial and the use of it on proper occasions should be rather fostered than repressed.”
To maintain trespass, the plaintiff must have property general or special and possession either actual or constructive. The general property draws to it the possession, and he who has the general property, although he may not have the actual possession, yet if he have the right to take possession at pleasure, may maintain trespass. 9 Cowen, 690; 8 Johns. 435; Bac. Abr. Trespass, C. 2.
What constitutes a trespass or unlawful taking ? An answer to this question will determine the validity of the objection under consideration.
Upon an examination of the authorities, the following principles applicable to this question will be found to have been adopted. An actual manucaption of the goods is not necessary to constitute a tortious taking. The contrary has often been held. Any exercise or claim of dominion, though by mere words, the speaker having the goods within his power, may constitute such a taking as will sustain an action of trespass. Merely making an inventory and threatening to remove goods, which is prevented by another giving a receipt for them, has been held sufficient.
Apply the foregoing principles to the facts of the ease under consideration and it will be found that the judge decided correctly in refusing the nonsuit. In October, 1836, the machinery in dispute was at Belleville, in the county of Essex, and belonged to the plaintiff and John Buckley; at that time the former conveyed to the latter his share in the same, by a written bill of sale. Buckley had possession of the machinery, manufactured woollens for the defendants at a stipulated price per yard, they finding the materials, and used it at Belleville until the middle of April, 1837, when he removed it to a factory at Lodi, which he rented of the defendants. His possession and control of the machinery continued until the 4th of November, 1837, when he conveyed the same to the plaintiff by a written bill of sale. The defendants had no interest in the machinery or right to use it, except a part of the time, towards the payment of the rent; a right which, for aught that appears, Buckley had the power at any moment to revoke. By the last sale, all the interest of Buckley passed to the plaintiff, who thus acquired a general property in the machinery and the same right to immediate possession that Buckley had at the time of the sale. Under these circumstances the plaintiff went to the factory of the defendants where the machinery was, and found Buckley and Rushforth there. The plaintiff
These facts appeared when the plaintiff rested his cause; they show an unlawful interference and exercise of dominion over the machinery, prejudicial to the interest of the plaintiff, and place the defendants in the position of trespassers.
The Circuit Court advised to give judgment for the plaintiff,1
Cited in Brown v. Bissett, 1 Zab. 274.