Wade v. Mason

78 Mass. 335

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1859
• Status: Published

Opinion

Metcalf, J.

This action cannot be maintained. It is settled law that a party, in order to maintain replevin, trover or trespass de bonis, must have'possession or the right to immediate possession of the property for which, or for the conversion or seizure of which, either of these actions is brought. Wheeler v. Train, 3 Pick. 255. Collins v. Evans, 15 Pick. 63. Fairbank v. Phelps, 22 Pick. 535. Muggridge v. Eveleth, 9 Met. 233. In the present case the plaintiff had bailed the piano to Graham, on terms which Graham had not violated at the time when it was attached by the defendant. If Graham, before the attachment, had violated the terms of the bailment, by selling the piano, or by removing it without the plaintiff’s consent from the premises at No. 6 Fruit Street, the plaintiff’s right to immediate possession would have attached. Farrant v. Thompson, 2 D. & E. 1, and 5 B. & Ald. 826. Daniels v. Pond, 21 Pick. 367. But Graham’s agreement not to remove it from those premises was not broken by the removal of it therefrom by the defendant. Smith v. Putnam, 3 Pick. 221. Platt on Cov. 416. Exceptions sustained.