Tarr v. Smith

• Decision Date: 07 March 1878
• Citation: 68 Me. 97
• Parties: HANNAH M. TARR, administratrix of Thomas S. Tarr, v. GEORGE W. SMITH.
• Court: Maine Supreme Court

68 Me. 97

HANNAH M. TARR, administratrix of Thomas S. Tarr, v. GEORGE W. SMITH.

Supreme Judicial Court of Maine.

March 7, 1878

ON EXCEPTIONS AND MOTION.

REPLEVIN of goods, obtained by one Morton, a retail dealer of Lisbon of the plaintiff's intestate, a wholesale dealer of Lewiston, on the ground that they were obtained through the fraudulent representations of Morton. The plea was non cepit, with a brief statement that the goods were the property of one Joseph G. Morton, and held by the defendant as deputy sheriff on certain writs.

A witness called by the plaintiff was allowed, against the defendant's objection, to relate a conversation he had with Morton about the time of the commencement of the replevin suit and after the attachments, the substance of which was that Morton said the whole amount of his indebtedness was about $700 at the time he purchased the goods in question.

Morton was afterwards called as a witness by the defendant, and testified on cross-examination to items of his then indebted ness which amounted in the aggregate to $787.

The verdict was for the plaintiff, with damages assessed at $269.45. The plaintiff offered to remit the damages except one dollar. The defendant alleged exceptions.

J. W Spaulding, F. J. Buker & J. Millay, for the defendant, contended though the admissions of Morton, made before attachment, were admissible, on the ground that they were in disparagement of his own title and no other rights had intervened, yet after the attachment and other rights had intervened, his admissions were not admissible to affect their rights, and cited 1 Greenl. Ev., § 180. Bartlet v. Delprat, 4 Mass. 702. Clarke v. Waite, 12 Mass. 439. Bridge v. Eggleston, 14 Mass. 245. Spencer v. Godwin, 30 Ala. 355. Tapley v. Forbes, 2 Allen 20. Wesson v. Washburn Iron Co., 13 Allen 95, 99. Lyman v. Gipson, 18 Pick. 422, 425. Horrigan v. Wright, 4 Allen 514. Gilligham v. Tebbetts, 33 Me. 360. Savery v. Spaulding, 8 Iowa 239.

In cases like this such declarations made even before the attachment have been held not admissible. Hines v. Soule, 14 Vt. 99.

L. H. Hutchinson & A. R. Savage, for the plaintiff.

LIBBEY J.

This is replevin by which the plaintiff seeks to reclaim goods which she alleges one Morton obtained from her intestate by fraudulent representations in regard to his property and indebtedness. The defendant claims to hold the goods by virtue of an attachment made by him as deputy sheriff, on a writ against Morton. The plaintiff had introduced evidence of the representations made by Morton when he purchased the goods, as to the amount of his property and liabilities. For the purpose of showing his representations as to the amount of his indebtedness to be false, she offered evidence of the admissions of Morton, made to the agent of her intestate after the attachment of the goods by the defendant. This evidence was objected to but admitted; we think it was inadmissible. It is true that the defendant is not a bona fide purchaser, nor is he entitled to the rights of one. As an attaching officer he represents Morton's title, and has no greater rights as against the plaintiff than Morton had. Jordan v. Parker, 56 Me. 557. But he, nevertheless, represents the lien created by the attachment in favor of the attaching creditor, upon the title of Morton as against him; and after the lien was created, it was not competent for Morton to defeat it by admissions tending to show that he had no title, but that the title was in the plaintiff. We find no authority that affirms the admissibility of such evidence. The case is similar in principle to an action against an assignee in bankruptcy, to try the title to property claimed by him as a part of the assets of the bankrupt. In such case the assignee represents the title of the bankrupt, but he holds that...