Hackett v. Potter
| Decision Date | 05 April 1881 |
| Citation | 131 Mass. 50 |
| Parties | William H. Hackett v. Daniel Potter |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Essex. Replevin of seven eighths of a schooner, attached by the defendant, a deputy sheriff, as the property of Valentine Doane, Jr., upon a writ against him in favor of D. Crowell and another. Trial in the Superior Court, before Gardner, J who directed a verdict for the plaintiff; and reported the case for the determination of this court. If the plaintiff was entitled to recover, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside and judgment entered for the defendant, or a new trial ordered as the court might determine. The facts material to the point decided appear in the opinion.
Judgment for the defendant.
C Sewall, for the defendant.
S. B. Ives, Jr., for the plaintiff.
OPINION
This action cannot be maintained. It appears from the declaration that the plaintiff does not claim property in the whole schooner, and that he has attempted to replevy only a fractional part of it. It was decided in Hart v. Fitzgerald, 2 Mass. 509, that a part-owner of a chattel cannot maintain replevin for his undivided part, and that if it appear from his own showing that he is but part-owner, the court will abate the writ, ex officio. The doctrine of that case has been reiterated in several later cases, and it has never been doubted nor overruled. Gardner v. Dutch, 9 Mass. 427. Ladd v. Billings, 15 Mass. 15. Kimball v. Thompson, 4 Cush. 441. Webster v. Vandeventer, 6 Gray 428.
In the case at bar, it is not necessary to consider the question whether a part-owner of a chattel may maintain replevin for the whole chattel against a defendant who has no right to it, if the nonjoinder of the other owners is not pleaded. That is quite a different question from the one here presented. The decisive objection to the maintenance of the action is that it calls for the delivery of a fractional part of a chattel to the plaintiff, which delivery cannot be made without delivering to him the whole chattel, in which others have rights of ownership. The command of the writ cannot be obeyed without assuming control of property other than that which is the subject matter of the suit, and the title to which cannot properly be put in issue and tried in the suit.
The case of Hart v. Fitzgerald, ubi supra, goes much farther than is necessary for the...
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Gordon v. City of Medford
...no error in respect to them. The action was properly brought in the name of all the partners, Patten v. Gurney, 17 Mass. 182; Hackett v. Potter, 131 Mass. 50; Fay v. Duggan, 135 Mass. 242; Shapira v. Budish, 275 Mass. 120, 126, 175 N.E. 159; and the death of Alexander Gordon in 1949 after t......
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Brown v. Ravenscraft
...Dutch, 9 Mass. 427; Page v. Weeks, 13 Mass. 199; Ladd v. Billings, 15 Mass. 15; and of the same character are the later cases of Hackett v. Potter, 131 Mass. 50; Fay v. Duggan, 135 Mass. 242; and Corcoran White, 146 Mass. 329, 15 N.E. 636. The authority of Judge Parsons is very high, but th......
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Fay v. Duggan
... ... Hart v ... Fitzgerald, 2 Mass. 509. Ladd v ... Billings, 15 Mass. 15. Kimball v ... Thompson, 4 Cush. 441. Hackett v ... Potter, 131 Mass. 50. The plaintiff objects that ... nonjoinder of Thwaites as plaintiff could only be availed of ... by plea in abatement ... ...
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Hackett v. Potter
...judgment for a return of the property replevied. Judgment generally for the defendant has been entered, in accordance with the decision in 131 Mass. 50. The plaintiff contends that, that judgment, he is entitled to retain, as against the defendant, possession of the schooner, by virtue of a......