Robinson v. Besarick

• Decision Date: 29 March 1892
• Parties: ROBINSON et al. v. BESARICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 141

30 N.E. 553

ROBINSON et al. v. BESARICK.

Supreme Judicial Court of Massachusetts, Suffolk.

March 29, 1892

COUNSEL

W.A. Morse and G.E. Curry, for plaintiffs.

R Lund, for defendant.

OPINION

KNOWLTON, J.

The bill of exceptions does not very clearly show the relation of the defendant to the desk replevied. He was a warehouseman and the attaching officer removed the desk to his warehouse for safe-keeping, "and, the defendant not being personally at the warehouse, the constable deputized the defendant's employe, who was present as his keeper, and received from said person a warehouseman's receipt for the desk." We understand that the receipt was given in the defendant's name. The defendant afterwards exercised dominion over the desk by instructing his servant, who was in charge of the warehouse in his absence, not to deliver it. The only exception taken was to the refusal of the court to rule that the action could not be maintained. The court might well have found on the evidence that the defendant assumed control of the desk, and made himself accountable to the officer for the return of it on demand, and that his employe was not a servant or keeper of the officer. This brings us to the question whether an action of replevin can be maintained against a receiptor who becomes a bailee of an officer for attached goods, and makes himself accountable by contract for the return of them. There can be no doubt that the possession of such a bailee is sufficient to enable the true owner of the goods to proceed against him in replevin, unless the fact that the goods have been attached, and that the attachment has not been dissolved, prevents the maintenance of the action. The objection that at the common law goods in the custody of the law cannot be replevied is removed by our statute, which permits replevin of attached goods. Pub.St. c 184, §§ 10, 15, 24. Under this statute a suit to replevy such goods may be maintained against any proper party. The suit may be brought against the officer if he is in actual possession; but it is nowhere said that it must be brought against him if he has delivered the possession to a bailee who holds under his title, so that he has merely a constructive possession. There are several sections in our statutes which relate to proceedings in replevin against officers for goods attached, some of which are applicable only when the suit is against the officer personally; and from them it is argued that there is an implication in the statute that, so long as the attachment continues, an action cannot be maintained against one to whom he has delivered the goods in bailment. But such an implication should not be read into the statute, unless it clearly follows from the express provisions of the law. It is to be remembered that an officer who attaches goods on a writ against one who is not the owner of them is a trespasser. Replevin may be maintained by the owner without a demand against one who takes title by purchase from the officer. Edmunds v. Hill, 133 Mass. 445. On general principles, the owner can pursue his property, and take it wherever he can find it. He can maintain trover against a receiptor from the officer who refuses to deliver it up. He should have all the processes of the law to obtain it wherever it may be, for he cannot be affected by legal proceedings to which he is a stranger. If he finds his goods in the possession of a public warehouseman, or of any other receiptor, he ordinarily has no means of knowing from whom they were received. As an owner whose title to his property is perfect, he should not be deprived of the usual remedy for the receiving of it from the person in whose possession he finds it. If a suit against the receiptor renders inapplicable some of the provisions of the statute where the suit is against the officer, it results from the officer's allowing the property to go into the possession of a bailee, and the substitution of the bailee's contract for the property itself. The contract is presumably sufficient protection for the officer, and by taking it he enables the receiptor in every case, if the debtor desires it, to dissolve the attachment, and so dispose of the property that it cannot be taken on another attachment. Attached property which is turned over to a receiptor, who until demand may do with it what he will, subject...