1 N.H. 289 | Superior Court of New Hampshire | 1818
The opinion of the court was delivered by
On behalf of the defendant it is contended that Poole has not a sufficient interest in the chattel in question to enable him to maintain this action, and several decisions in the supreme court of Massachusetts are relied upon as directly in point; and it is not to be doubted, that, if those decisions were correct, this objection must prevail. Rut the decisions in this state have been different. In the case of Eastman vs. Eastman, in the county of Hills-borough, December term, 1814, where the case was precisely like the present one, except that the article in question had been taken upon mesne process in Massachusetts, and the plaintiff had become answerable for it to an officer there, the cases in the ninth volume of the Massachusetts Reports were cited by counsel, and considered by the court; but the court (Smith, C. J., and Livermore and Ellis, justices:) were clearly of opinion that the plaintiff might maintain the
No man can maintain trespass, trover, or replevin for personal chattels, without either an absolute or special property in the goods, and also possession. But this possession may be either actual or constructive. Thus an executor is by construction of law possessed of the goods of the testator, and may maintain trover for them, although he has never been in the actual possession of them
A special property in goods may in some cases be founded upon mere possession. Thus he who find goods which have been. lost, has a special property in them, because possession is evidence of title
A special property may also be founded upon a responsibility for, or an interest in, the possession of chattels. Thus he to whom goods are delivered merely to keep and re-deliver upon request, has a special property in them. 21 H. 7, 14 PL 23, where it is said the point had often been decided. Jones on Bailment 112.
That a sheriff, who has seized goods upon mesne process, or upon execution, an agister of cattle, a carrier, factor, consignee, pawnee, trustee, &c. have a special property, admits of bo doubt. 11 H. 4, 17 Pl. 39.-48 E. 3, 20 Pl. 8.-2 Saund. 47. — 6 John. 195. — 12 John. 403.
But a mere servant has not a special property in goods. Thus where a servant was employed in a shop merely to sell goods, he was held not to have a special property in them
It now remains to compare the facts in the case before us with these principles. Huntington, having seized the mare upon execution, delivered her to Poole, and took his promise in writing to re-deliver her on demand. Did this contract impose any responsibility upou Poole ? That it .did, is not to be doubted
But the defendant further contends, that Huntington, having kept the mare more than five weeks without taking any step to complete the levy, the attachment, go far as respected other creditors of Flanders, was dissolved, and cites the case
) Latch 214, Hudson vs. Hudson.
) Fitz Herbeth N. B. 207.
) 2 Saund. 47, note 1.-Bac. Abr., Trespass, C., pl. 9, 10.
) Chitty's Pl. 48, 151.-11 John. 285, Thorp vs. Burling & al.
) 4 D. & E. 489, Ward vs. M'Carty.- 7 D. & E. 9, Gordon vs. Harper.-8 John. 432, Putnam vs. Wyley.
) 2 Saund. 47, note 1.-48 E. 3, 20, pl. 8.-1 Chitty's 48.
) 2 Saund. 47, note i —1. Sos. Sf Pul. 47,by Eyre,C.J
) 2 Saund. 47, note 1.— 1 Strange 505, Amory vs. Delamirie.-13 John. 151.
) 2 East's C. S. 635. — 1 Leach. 375.
) Owen 52, Blass vs. Holman.
) 14 Mass. R. 196, Webster vs. Coffin.-14 Mass. R. 155, Bailey vs. Jewett.-11 Mass. R. 210, Jewett vs. Terry.-8 Johnson 474, Slingerland vs. Morse & al.