The plaintiff in this action of replevin claimed to receive scrip of the Great Western Insurance Company to the amount of $1,310, which was issued in the year 1864, and scrip in the same company for $3,570 issued in the year 1865, and he recovered upon the trial for both scrips.
There are two grounds upon which I hold this recovery was erroneous.
1. As to the scrip of 1865, it is undisputed that the defendant never purchased any for the plaintiff. He was directed to take the plaintiff's money, which was in his hands, and invest it in the scrip of that year. But he did not do so, but used the money for other purposes. It is true, however, that he gave plaintiff a certificate June 2, 1865, stating that he had invested this money in such scrip, but this certificate was untrue. While it may be true that an action of replevin may be maintained to recover property which the defendant has had in his possession but has wrongfully disposed of, I know of no authority or principle which will authorize a recovery in such an action for property of which the defendant never has had the possession.
2. It seems to be undisputed that the scrip for the $1,310 was issued to the defendant and stood in his name. Hence, he had the legal title to the same. In law he held the same as trustee for the plaintiff, and as such trustee he could be compelled to account to the plaintiff in an action of equity. But an action of replevin to recover the scrip under such circumstances is a great novelty. The legal title was never vested in the plaintiff, and his only remedy to procure this scrip was by an action in equity.
The order of the General Term should be affirmed and judgment absolute rendered against the plaintiff for costs.
All concur, LEONARD, C., not sitting.
Order affirmed, and judgment accordingly. *Page 43