Chase v. Andrews

60 Mass. 114, 6 Allen 114

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1850
• Status: Published

Opinion

Fletcher, J.

This is an action of trover for a quantity of leather, brought by the plaintiff as the assignee of Seba and Comfort Carpenter; and the first question is, whether the defendant has been guilty of any conversion of the property, so that this action of trover can be maintained against him. The facts relied upon to constitute a conversion are, that at the time of the attachment in Rhode Island, the leather was in the possession of the defendant, at Woonsocket, and that he pointed out the property to the attaching officer, and permitted him to attach and take it out of the possession of the defendant. It does not appear that the defendant had any thing to do with the matter, after this attachment, and taking of the leather from his possession, and unless what he did at the time of that attachment constituted a conversion, then he has been guilty of no conversion, and this action cannot be maintained. At the time of this attachment there had been no proceedings in insolvency.

The property had been attached in a suit in Worcester county; but the creditor might lawfully abandon that suit, and institute a suit in Rhode Island, and attach the property in that state. The attachment of the property, therefore, while in the possession of the defendant, was perfectly legal. and rightful as against the Carpenters, the debtors. Their creditors had an undoubted right to take it as against them. The attachment therefore being legal and rightful, the acts of the defendant, in pointing out the property to the officer, and permitting him to attach and take it, were not wrongful as against the Carpenters, and would not be a conversion, for which they could maintain trover. The property having thus been rightfully taken from the defendant by the attachment, and he never having since done any act in regard to it, the Carpenters could maintain no action of trover against him, and the plaintiff as their assignee has no better right than they had as against the defendant. There must therefore be judgment for the defendant on the facts.