Stearns v. Dean

129 Mass. 139 | Mass. | 1880

Morton, J.

Under the instructions given, we must assume that the jury have properly found that the hay in question was the property of the plaintiff, and that the defendant attached it as the property of Carpenter. The defendant contends that there was not sufficient evidence to justify the finding that he attached and assumed dominion over the hay. This was purely a question of fact for the jury. There was evidence that the defendant, on February 18, 1878, went to the premises of the railroad company where the hay was, and told its agent that he had come with a writ to attach it; that when afterwards notified that the hay belonged to the plaintiff, and not to Carpenter, he did not disavow the attachment, but referred his informant to the attorney who made the writ against Carpenter; and that, in his return of the writ against Carpenter, he stated that he had, on February 18, 1878, “ attached as the property of Carpenter about eight tons of hay.” The presiding justice properly submitted this evidence to the jury, which the bill of exceptions states he did with full instructions .not excepted to. Under these instructions, it was for the jury, upon this and such other evidence as was introduced bearing upon the question, to determine whether the defendant had attached the hay and deprived the plaintiff of his dominion over it.

The defendant also contends that the plaintiff cannot maintain this action, because at the time he attached the hay the railroad company had a lien upon it for freight, and therefore the plaintiff had not the right of possession. But an officer may attach property subject to a lien in like manner as if it were unincumbered, upon the condition that the attachment is to be dissolved and he is to restore the property to the holder if the amount for which it is' liable is not paid by the attaching creditor within ten days after the same is demanded. Gen. Sts. c. 123, §§ 62, 63. The effect of such attachment is to defeat or suspend the lien, and the officer cannot set up, as a defence to the claim of the general owner of the property-taken by the attachment, that it was subject to a lien. The lien for freight is the personal privilege of the carrier; if he waives or loses it, no one can set it up against the owner. Holly v. Huggeford, 8 Pick. 73. Ames v. Palmer, 42 Maine, 197.

For the purposes of this case, it must be assumed that the defendant made an effectual attachment of the hay in question. If he has paid or became liable to pay the freight, the proper mode to avail himself of this fact was in reduction of damages, but he cannot set up the lien to defeat the right of the plaintiff, the general owner, to possession.

It follows that the Superior Court properly refused the several instructions requested by the defendant as to the effect of the lien in favor of the railroad company.

Exceptions overruled.