John K. Simpson versus Amasa M'Farland, 18 Pick. 427

Morton J. delivered the opinion of the Court. The case was substantially tried on the plea of non cepit. And we are clear in the opinion, that there was not evidence enough to support the action on this plea. The plaintiff, to maintain this issue on his part, must prove either an unlawful taking or an unlawful detention. Badger v. Phinney, 15 Mass. R. 359; Baker v. Fales, 16 Mass. R. 147; Marston v. Baldwin, 17 Mass. R. 606. It is not pretended that the defendant wrongfully took the goods from the plaintiff.

The plaintiff had formerly sold and delivered them to the defendant, and never afterwards, and before the service of this writ, had or claimed possession. Nor is there any better ground for maintaining that the defendant wrongfully obtained them. He showed them to the plaintiff, and made no objection to his taking them. They had been attached at the suit of a creditor of the defendant; the legal .possession was in Edwards, the officer ; and the actual custody in his servant Richardson, the receipter.

The letter which the plaintiff relies upon cannot avail him If it contained a clear confession of the defendant, which it does not, it would not control the facts fully proved by the testimony of the plaintiff’s own unquestioned witness. It is very manifest that here was neither a taking nor a detention ; and the nonsuit must therefore stand. But now arises the more difficult question, whether the defendant is entitled to a return.

The plea of non cepit admits the property to be in the plaintiff; and, of course, on that plea the defendant cannot have judgment for a return. “ On the plea of non-cepit he cannot have a return.” Holmes v. Wood, 6 Mass. R. 1; 1 Wms’s Saund. 347, note 1. In England, the defendant can never have a return, unless he plead property in himself or another, or make avowry or conusance. Wildman v. North, 2 Lev. 92; Butcher v. Porter, 1 Salk. 94; Pul. N. P. 54. But in this State we have relaxed the strictness of the English form of pleading in replevin, as well as in other cases.

And avowries are less frequently resorted to now than formerly. Quincy v. Hall, 1 Pick. 361. But the general principle is the same here and in England. Whenever upon the pleadings it appears that the defendant is entitled to a return, he will have judgment for it ; otherwise he will not. Thus on a plea in abatement, when the defendant prevails, but no facts are stated in the plea or suggested on the record, showing that he has a right to the possession, he cannot have a return. Gould v. Barnard, 3 Mass. R. 199.

But if the plea in abatement shows that the plaintiff is not entitled to hold possession, the court, in rendering judgment, will award a return. Thus when the defendant, in his plea, alleges property in himself or a stranger, he is entitled to be restored to the possession, either because the property is in him or because he is accountable for it to the true owner. Salkold v. Skelton, Cro. Jac. 519; Presgrave v. Saunders, 2 Ld. Raym. 984.

And although it may appear that at the time to which the pleas must refer, viz. that of the service of the replevin, the property was in the defendant, and he was then entitled to the possession, yet if it also appear that by subsequent events and before the rendition of judgment, his right has ceased, he cannot have judgment for a return. Buller (N. P. 54) referring to Dan-ville., 652, says, “where by matter subsequent he is not to have the thing for which the distress was taken, there he will not be entitled to a return.” And in Wheeler v.

Train, 4 Pick. 168, where it appeared at the time of the trial that the plaintiff was not entitled to recover because the chattels were under lease, and the lessee’s interest had been attached by the defendant, but before judgment was rendered the plaintiff became entitled to the possession by the expiration of the lease, the Court rendered judgment for the defendant, but refused to award a return. It would have been not only useless, but unjust, to have restored the chattels to the defendant, as the plaintiff might have recovered them back immediately, the attachable interest of the lessee having expired.

We have already shown, that on the plea of non cepit the defendant is not entitled to a return. If he can claim it at all, it must be upon some of his special pleas. This renders it necessary briefly to examine them. In the first special plea, the defendant alleges that the goods were his property, that Edwards, a deputy sheriff, attached them at the suit of one of his creditors, who recovered a judgment which had not been satisfied, and that the goods were oeld by Edwards by virtue of the attachment.

The second special plea is the same as the first, except that instead of alleging that the goods were held by Edwards, it alleges that they “were in the custody and keeping of one Richardson as the servant of said Edwards, and to whom said goods had been delivered by said Edwards to be kept, in and by virtue of said attachment.” The third special plea alleges, that the property was in Richardson, and not in the plaintiff. To all these pleas, the plaintiff, denying that the property and possession are as stated, reaffirms that the property is in himself; upon which issue is joined.

The first question which has been raised and argued upon these pleadings is, whether they are not so inconsistent and repugnant as by the rules of double pleading to be inadmissible. There certainly seems tobe some absurdity in trying, in.the same case, pleas so contradictory and irreconcileable as some of these seem to be. For if the defendant never took the goods, what does it matter whose they are ? He certainly cannot claim to have the possession of them.

But it is not easy to say how far in inconsistency double pleas may go, or what pleas which may be tried by the same forum, may le deemed so repugnant as not to be allowed to be pleaded together. In Comyns’s Digest, Pleader, E 2, many instances of double pleading are cited where the pleas are quite as inconsistent as these. And it is there said, and also in Barnes, 364, that in replevin, non cepit, property in another, and liberum tenementum are allowed. This seems to support this mode of pleading.

But if the special pleas are admissible, and we are inclined to think they are, they will not change the aspect of the case. Although the facts are not brought before us and spread on the record, by a special verdict, as in Wheeler v. Train, yet we have them in a form not less authentic. Facts reported by the judge who tried the cause, are not of less verity or less within our cognizance, for many purposes, than if they were brought before us by a special plea or verdict.

From the report m this case, it is perfectly clear that the plaintiff cannot support his action, and not less clear that the defendant has no right to the possession of the goods. As against the defendant the plaintiff manifestly had a right to the possession. His mortgage, though by reason of its not having been recorded in the town where the mortgager resided, it would not avail him against a bond fide sale by the mortgager or an attachment by a creditor of the mortgager, yet, as between the parties, was valid. St. 1832, c 15" See also Revised Stat. c. 74, § 5.

The condition was broken ; the plaintiff had a right to take possession under it, and of this the defendant could not complain. There is no ground upon which itie Court could restore, or, more correctly speaking, transfei the goods to the defendant. He is not entitled to possession as general owner, against the mortgagee ; he has no special property in them ; and he stands in no such relation to the officer or creditor, as to render him accountable to either of them. Furthermore, should we award a return, it would not exempt the plaintiff from his liability to Edwards.

The writ of replevin would not justify the plaintiff in taking the goods from Edwards, who had the legal possession and the actual custody, by his servant. This was a trespass, for which he will be liable, whether we order a return or not. But if we disregard the facts reported, and look only to the pleadings, the defendant’s claim of a return cannot be supported. The plea of property in the receipter most obviously must fail; for he had neither property nor possession. Commonwealth v. Morse, 14 Mass. R. 217.

The two other special pleas, after setting forth by way of inducement, a general property in the defendant, allege a special property in Edwards. The evidence would undoubtedly support these issues on the part of the defendant ; for the mortgage was of no avail against this attachment. At the time to which the pleas refer, the time the goods were replevied, the officer had a lien upon them which entitled him to hold possession. But the pleas also show facts from which it appears, that, at the trial, the attachment was dissolved by lapse of time.

So that though the officer might seize the goods on an execution, if he had one, and could find them, yet he could not hold them by virtue of his original attachment. Therefore, by the authority of Wheeler v. Train, upon the facts shown in the pleas, there is no ground for a return. We feel the greater satisfaction in following out the legal principles to this result, because it makes the nearest practical approximation to exact justice between the parties.

While the plaintiff should have the greatest benefit which he can derive from his mortgage, without infringing the rights of innocent parties, the consequences of his own negligence should fall on himself, rather than on the more careful and vigilant creditors, who attached the goods before his mortgage was legally recorded. And while he will hold the property, he will be liable to a suit by the attaching officer, in which the measure of damages will be the amount of the creditor’s claim, leaving the balance to pay the plaintiff’s demand as far as it will go. Boyden v. Moore, 11 Pick. 362.

Judgment for defendant for costs, but no return.