Black v. Pidgeon
| Decision Date | 29 June 1904 |
| Citation | 70 N.J.L. 802,58 A. 372 |
| Parties | BLACK v. PIDGEON et al. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Camden County.
Action by Thomas Black against James G. Pidgeon and others. Judgment for plaintiff, and defendants bring error. Affirmed.
The defendants not having given a bond, the plaintiff had obtained possession of the horses; hence the verdict was nominal—for six cents damages and costs.
Wilson, Carr & Stackhouse, for plaintiffs in error.
Francis D. Weaver and Howard L. Miller, for defendant in error.
VROOM, J. (after stating the facts). This was an action of replevin, and brought by a chattel mortgagee for the recovery of one gray mare five years old, one gray horse six years old, and one sorrel horse six years old, claimed to be of the value of $300; and in his declaration the plaintiff averred the taking to have been in a certain close of him, the said plaintiff, in the borough of Collingswood, in the county of Camden. The pleas interposed by the defendants were: (1) Non cepit. (2) That the goods and chattels in the declaration mentioned were the property of one Harry H. Devoe, and not that of the said plaintiff. (3) A plea by the defendant Joseph Hinger, which set up that he took the chattels in the declaration mentioned in or near the public highway at or near West Collingswood, and not in the close of the plaintiff in the borough of Collingswood, in the county of Camden, and avowing that he levied upon and seized and took in execution the said goods and chattels under a writ of execution issued out of the district court of the city of Camden, as the property of one. Harry H. Devoe, on a judgment recovered in said court by James G. Pidgeon and Ross Pidgeon, partners, etc., against the said Devoe. To the second plea filed by the defendants the plaintiff replied (1) that the goods and chattels were the property of him, the said Black, and not of the said Devoe; and as to the avowry of the said Joseph Hinger (2) that the goods and chattel were the property of him, the said Thomas Black, and not of the said Devoe.
The evidence adduced on the part of the plaintiff showed that Harry H. Devoe was indebted to the plaintiff in the sum of $368.74, and that to secure the said indebtedness the said Devoe gave to the plaintiff a chattel mortgage covering the three horses in question, and that the said mortgage was duly recorded in the register's office of the county of Camden; that the plaintiff, after the levy was made under the execution issued in the suit of James G. Pidgeon & Son against Devoe, made a demand upon Pidgeon for the said goods, and that the said demand was refused. It appeared that the demand was made after the sealing of the summons in the replevin suit, but before the sheriff was instructed to serve it. At the time the demand was made, the horses were in the stables of Pidgeon & Son, having been put there by Hinger after he had taken possession of them under the execution and levy.
At the close of the plaintiff's case the defendants moved for a nonsuit upon the following grounds: First, that there was no proof of the demand prior to the commencement of the action; second, that the proofs did not show the taking in the place alleged in the declaration; and, third, that the affidavit annexed to the mortgage is defective in certain particulars specified.
The motion to nonsuit was overruled by the trial judge, and, as we think, properly. The general rule undoubtedly is that the mortgagees of personal property cannot maintain replevin against the mortgagor after default or conditions broken without demand for the possession. Woodside v. Adams, 40 N. J. Law, 417; Shinn on Replevin, § 354; Cobbey on Replevin, 172. Although the evidence showed that the writ of replevin had been issued and was in the hands of the sheriff, who went with the plaintiff to the stables of Pidgeon, when the demand was made by the plaintiff for the horses, it was not placed in the hands of the sheriff for service until after the demand was made, and the evidence of Black was that he demanded the horses before the sheriff served the writ. It appeared also from the proofs of the defendants that Miller, who was the attorney of the plaintiff, had demanded the horses of Hinger several times before the suit was begun. There was undoubtedly sufficient evidence to go to the jury on the question of the demand.
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