16 F. Cas. 1302 | U.S. Circuit Court for the District of Massachusetts | 1817
There is no pre-tence of a general property in Mr. C. W. Greene; and the plea puts in issue, so far as respects the parties to this suit, the general property only in the goods replevied. Nor had Mr. Greene any special property in the goods; for he had a lien only for the general balance of his account, as a factor; and a lien, as has been well observed in Brace v. Duchess of Marlborough, 2 P. Wms. 491, is neither a jus ad rem, nor a jus in re. The lien of a factor is a mere right of retaining the goods of his principal, until his demands in that capacity are settled; and it gives the factor a rightful possession, which cannot be devested without his own consent. But as against his principal, it gives him no general or special property, whatever may be the case in respect to mere strangers. Hammonds v. Barclay, per Grose, J., 2 East, 235; Lickbarrow v. Mason, per Buller, J., 6 East, 25, note; Wilson v. Balfour, 2 Camp. 579. And in the present case, Mr. Greene never authorized the defendant to assert any claim for a lien on his account. On the contrary, Mr. Greene now expressly waives any claim for a lien on account of his general balance, and justifies the defendant in abandoning it; and the defendant has been paid his own charges for storage. Under these circumstances a return irreplevisable could not, under any acknowledged form of pleading, be awarded by the court.
It is as clear, that the lien of Mr. Greene is not an attachable interest under the trustee process served on the defendant, either as personal property, or as a chose in action, due from the defendant to Mr. Greene. The only doubt, that I have ever entertained, is, whether a writ of replevin was a proper remedy in this case. At common law a writ of replevin never lies, unless there has been a tortious taking, either originally, or by construction of law, by some act, which makes the party a trespasser ab initio. In case of a bailment, or rightful possession of the property, replevin is certainly not the proper remedy at common law; but detinue or tro-ver lies in such case, where there is an unjustifiable detention or conversion. This doctrine is very fully expounded and justified by Lord Redesdale in some recent cases (Ex parte Chamberlain, 1 Schoales & L. 320; In re Wilson, Id. 321, note; Shannon v. Shannon, Id. 324, 327. See, also, Galloway v. Bird, 4 Bing. 299); and has been recognised by a very learned judgment in our country (Pangburn v. Patridge, 7 Johns. 140). Nor has the statute of replevin of Massachusetts (Act June 25, 1789, c. 26, § 4) altered the com
Under .the circumstances of this case, if the issue had been non cepit, it must have been found for the defendant; for he never took the goods in any legal sense from the possession of another. He received them on storage; and the delivery to him was a lawful delivery, upon a bailment for safe keeping. Non cepit puts in issue the fact of an actual taking; and unless there be a wrongful taking from the possession of another, it is not a taking within the issue. A wrongful detainer after a lawful taking is not equivalent to a wrongful original taking.
But if on non cepit, the issue would have been found for the defendant, no return could have been awarded to him. It would therefore after all be but a mere question as to costs; and as the parties have agreed in no event to claim any costs, there is no reason for entertaining the motion for a new trial, since the merits are clearly against the defendant. The motion is overruled, and the judgment must pass for the plaintiff upon the verdict. Portland Bank v. Stubbs, 6 Mass. 422.
