Wyman v. Dorr

MelleN, C. J.

at the ensuing August term in Oxford, delivered the opinion of the Court as follows.

This case comes before us on exceptions alleged against the ■opinions and instructions of the Court of Common Pleas.

As to the service of the writ, and non-return of the replevin bond; — objections on both these accounts are in abatement, and •of course should have been made at the first term; they were too late at the second term. Whiting v. Hollister 2 Mass. 102. Gilbert v. Nantucket Bank 5 Mass. 91.

The objection as to venue was removed by the amendment, alleging the taking to have been in the county of Somerset. This-amendment was made by leave of Court; it was a question of expediency and discretion merely, and not of law, and therefore not liable to exception; as we have decided in Clapp & al. v. Balch.

As to the question of fraud, — it was properly submitted to the jury and they have decided it in favor of the plaintiff.

The remaining and more important inquiry respects the right of the plaintiff to maintain the action, considering the circumstances in which the property was placed when replevied. Re-plevin cannot be maintained except by him who has a property in the goods, either general or special. Waterman v. Robinson 5. Mass. 303. Ludden v. Leavitt 9 Mass 104. Perley v. Foster ib. 112. And he must not only have the property, but an immediate right of possession. 1 Chitty Pl. 159; even trover requires such immedíeií¿*~fciglit of possession. Ward v. Macaulay 4 D. & E. 489, and Gordon v. Harper 7 D. & E. 9. Let us apply the principles of these cases to the facts in the case at bar. In June or July 1822, the plaintiff leased the cow to Benjamin Read for-four years, and the steers to Leonard Read for six years; in both instances under an agreement reserving to him leave to take them back when he should think himself unsafe. Neither of the limited terms had expired when the replevin was sued; and there is no proof in the case that prior to the commencement of this action the plaintiff thought himself unsafe; or, if he did, that he had given notice thereof either to Benjamin or Leonard Read, or to the defendant, the attaching officer; and in the case of Smith v. Plomer & al. 15 East 607, it was decided that where goods were let without limitation as to time, the lease must be determined by notice to the lessee; and that notice to the officer is not sufficient. In the present case no notice was given to either. The leases then for four and six years were in full force at the time the action was commenced; and of course, at that time, he had no immediate right of possession; and therefore, according to the authorities, which are not -questioned or overruled, the plaintiff is not by law entitled to maintain his action.

The exceptions are sustained; — the verdict is set aside, and a trial is to be had at the bar of this Court