Walbridge v. Shaw

61 Mass. 560

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1851
• Status: Published

Opinion

Dewey, J.

The plaintiff may well maintain this action upon the original unlawful taking by the defendant. It is no valid objection, that the plaintiff had instituted a previous action of replevin for the same goods, for the facts show that the case was dismissed on motion of the defendant for an informality in the same, and thereupon judgment was rendered for a return of the property to the defendant. That judgment constitutes no bar to this action, because the case was not heard on its merits, but was dismissed for error in the form of the proceedings. Nor does it form a valid objection, that the defendant had not in fact taken out any writ of return, or actually received the property into his custody under that judgment. The judgment for a return was ordered upon the motion to dismiss the writ, and the plaintiff yielded to it, and returned the property to the place from which he had taken the same under his defective proceedings. This left the plaintiff’s case as it was-when he instituted his first action. The order for return was no bar, as it was founded upon a dismissal of the action for errors in form. The plaintiff’s possession was no longer a lawful one under the first writ, and he thereupon properly instituted a new action, grounded upon the original illegal taking by the defendant. This action may be therefore maintained. Exceptions overruled.