Hatch v. Kenny

• Citation: 5 N.E. 527,141 Mass. 171
• Parties: HATCH v. KENNY.
• Decision Date: 25 February 1886
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 171

5 N.E. 527

HATCH

v.KENNY.

Supreme Judicial Court of Massachusetts.

Filed February 25, 1886.

Tort for the conversion of personal property. At the trial in the superior court, before STAPLES, J., it appeared that the goods alleged to have been converted were, before the acts of conversion complained of, the property of one Wesley P. Bean, at that time the tenant at will of the defendant, in a building owned by the defendant; that the goods aforesaid were in said tenement; that Bean was owing for rent of said building, and the defendant sued him therefor and attached said goods, the writ being served by one Andrews. Previous to said attachment, the said goods had been sold and delivered by the said Bean to the plaintiff; that the plaintiff, after the attachment of said goods by said Andrews, commenced a suit of replevin therefor, by writ returnable to the superior court, dated February 9, 1875, wherein said Andrews was defendant, and said Hatch plaintiff; that said writ of replevin was served by one Farr, a constable, who took the goods out of the hands of said Andrews, and into his own possession, and placed a keeper over the same. Said replevin writ was entered at April term, 1875, and the bond hereinafter mentioned filed, and January 7, 1876, judgment therein was entered for the plaintiff for the sum of one dollar damages, and costs. The return on the replevin writ, dated February 9, 1875, sets forth, in substance, that the constable replevied from said Andrews the property in question; that the parties agreed as to its value; that said Andrews, not approving the sureties on the replevin bond or waiving notice, he put in a keeper till notice could be given and the bond approved; that he gave the defendant due notice of the hearing in the matter of said sureties; that on February 10, 1875, the replevin bond duly executed was duly approved by the master in chancery; that on said February 10th, before delivery of the property to the plaintiff in replevin, said keeper was ejected from possession; that afterwards, on the same day, he, said constable, demanded the property of said Kenny, who held the same, and who refused to deliver it up, and that on March 22d he summoned the defendant in replevin to appear. It further appeared in evidence that said Kenny took the goods from the keeper forcibly, and had them locked up in said store. This occurred February 10th. Nathan M. Hatch, the plaintiff, testified as follows: “After the keeper was put out, I visited the store with Farr and Guilford, the keeper. Farr demanded the goods, and the defendant refused to give them up. I gave the bond in the replevin suit.” Said Guilford, the keeper, testified: “On being put out, I notified Farr, and he came up with Hatch. Farr said to Kenny, ‘Will you give up the goods?’ He replied: ‘They were forced from me. I have forced them back, and am going to keep them.’ ” The defendant asked the court to rule that, upon the foregoing evidence, this action could not be maintained. The court declined so to rule. The court instructed...