Ellis v. Culver

This is an action of replevin for taking and detaining a bed and furniture, a dining table, one chest, fifty bushels of corn, six hogs, four sheep, one cow, one horse colt, and one-third of four and a half stacks of fodder, of the goods and chattels of the plaintiff. The defendant pleaded non cepit and property; and the jury have found for the plaintiff, and assessed his damages to $91 50.

A motion has been made to arrest the judgment, on the ground that one tenant in common cannot maintain replevin for his undivided share of a chattel, and that the writ and declaration show, that as to a part of the property in controversy, (the fodder,) the plaintiff makes claim of only one-third part.

The action of replevin is founded on the general or special property of the plaintiff. If he have not the immediate right of possession, to the chattel, he cannot maintain this action.

The primary object of the action is to recover back the chattel itself, and damages for taking and detaining it follow such recovery. The secondary object of this action is to recover a sum of money equivalent to the value of the property claimed, and likewise a compensation for the injury sustained by the plaintiff-, if the defendant will not yield possession of the property, for the recovery of which the suit has been instituted. Where the chattel is held in joint tenancy

If the property belonged to two, the plaintiff having a right to the one-fourth, and the defendant to three-fourths, and the defendant should not think proper to give security, and claim the property on the writ being served, or was unable to give the security, the property would be taken from him and delivered to the plaintiff, who claimed but the one-fourth and acknowledged the defendant’s right to the three-fourths. The plaintiff, in such a case, would receive possession of three-fourths to which he did not pretend to have a claim. In the event of a recovery, and a writ de retorno habendo awarded, the possession, of the entire chattel would be delivered to .the plaintiff, while the defendant’s title to three-fourths of it was undisputed.

In our judgment, therefore, a joint tenant or tenant in common, cannot maintain replevin for his share of an undivided chattel against his co-tenant, nor, as we conceive, against a third person who may have possession of it. The right to the possession is an entire right, .and all the owners must unite in the action. In this opinion we are sustained by the authority of the case of Hart vs. Fitzgerald, in 2 Mass. Rep. 509 , decided by C. J. Parsons, which was an action of replevin with two clauses or counts in the writ, one for the plaintiff’s undivided right, the other for the undivided half of four hundred and fifty spruce logs — .a chattel that was susceptible of severance — and by the case of Gardner vs. Dutch, in the 9th vol. of the same reports, page 427, and by the authority of Hammond’s Nisi Prius, page 449,

In trespass by one part owner for an injury done to a chattel, the defendant must plead in abatement, that there is another owner not joined, and cannot take this objection in arrest of judgment. The defendant may waive the objection, and the law holds him to have done so, if he does not plead it in abatement. In trespass damages alone are sought for, and on proof of the plaintiff owning only a part or share of the chattel, which proof may be made on the trial under

With these impressions as to the law, the court would have no difficulty as to the decision to be made, if this chattel held in common were the only one in controversy in this action. But the writ and declaration embrace various other articles, and this is the only one which, from the record or proof, appears to have been held in common — the plaintiff claims to be the sole owner of all the others. In such a case, ought the court to arrest the judgment l The extent of the injury to the defendant, in the present verdict, amounts only to 84 50, which, by the proof, was the value of the one-third of the four* and a half stacks of fodder. If a venire de novo is to issue, or a new action to be brought, it will be to correct the error in the present verdict to that amount; for we are to hold the finding as to the other articles to be right.

If the rules of law are such that judgment on this verdict must be arrested, notwithstanding the smallness of the sum, and the little advantage to be derived by either party by another trial, the court must conform to those rules; but if those rules do not imperatively require such a decision, it will be a favor to both parties to refuse it.

To so much of this action as sought to recover the one-third of these stacks of fodder, the defendant might have demurred, (1 Chittys 658,) and on that demurrer being, as it would have been, sustained, no proof in relation to the fodder would have gone before the jury, and it could not have been covered by their verdict. Nor are we aware that it would not have been competent for him to have objected on the trial to any evidence in relation to the fodder going to the jury, or to have called on the court to instruct the jury that they should not give damages for the fodder. In either mode

The declaration contains but a single count. It may be good for part and bad for the residue. Gould, 195; 5 Bacon, 349.

Where a verdict is given in an action of slander, in which there is only one count in the narr., and where some of the words are actionable and some are not, the court will intend that damages were given for the actionable words only, and render judgment on the verdict. Croke Eliz. 328; Archbold’s Pl. 196; 2 Saunders, 171, (a;) 1 Chitty, 384.

If several considerations be stated in one assumpsit, and one is void, and the others good, and damages be given “ ralione prcemissorum,” (as in 1 Lord Raymond, 146;) or, if one of several charges be insufficiently stated, (1 Lord Raymond, 239;) or, if part of the promise set out be a nudum pactum, ( 2 Johns. 443 ;) or, if a count in a narr, contain a sufficient cause of action connected with matter not actionable, ( 15 Johns. 121 ;) or, if to a plea in bar to a part of the claim, and not guilty be pleaded as to the residue, the plea in bar be demurred to and sustained, and a verdict of “ guilty in manner and form as plaintiff in his narr. had alledged,” be rendered, (as in 1 Day’s Cases in Error, 30:) — the court, in each of these cases, held that they would intend that damages were given only for the considerations that were good; or the matters that were actionable; or the charges that were well stated ; and rendered judgment on the verdicts.

In an action of trespass against baron and feme, (2 Strange, 1094,) for entering house, taking goods, and converting them to their use, the court held, that as the wife could not convert to her own use, they would intend that damages were given only for entering the house and taking the goods, and not for the conversion.

In the case of Steele vs. the Western Inland Lock Navigation Company, reported in 2 Johns. 283 , the same principle is recognized. It was an action on the case for an injury done to the plaintiff’s land, by the water leaking through the banks of the canal, and by the stopping up of'the natural courses, Spc. By the act of incorporation, the company was authorized to cut the canal, and of course to stop the natural water courses, and had paid the plaintiff the damages assessed by the appraisers for cutting through his land. Judge Spencer, before whom the cause was tried, in his charge to thejury told them, that though in judgment of law, the plaintiff must be deemed to have been compensated for all the injury done to the land, except what arose from the neglect of the defendants in keeping the canal and embankments in repair; yet in the state of the pleadings, the plaintiff in the declaration having blended the damage arising from both causes in one count, and the defendants not having demurred, thejury were not bound to discriminate between the injury caused by the obstruction of the drains in the making of the canal, and the damage arising from the neglect of the defendants in not keeping the canal and embankments in repair; but might assess damages to the plaintiff for the whole injury proved. A verdict was given for the plaintiff, and a motion submitted to the Supreme Court to arrest the judgment or grant a new trial, both of which were refused, the court saying, that as there was but one count with two separate and distinct allegations of damages, the one actionable and the other not, no motion in arrest of judgment could be sustained, and that they would intend after verdict, that damages were only given for the actionable part of the declaration, and this too when the judge who tried the cause, instructed the jury, that as the defendant had not demurred, they might give damages for those parts which were not actionable.

Upon the authority of these cases, and the principles they establish, we are not inclined to arrest the judgment in this suit. The court are to decide this motion from what appears on the record ; from it, no objection is presented to the recovery of any part of the property claimed in the writ, excepting the fodder: from aught that appears, this action can be maintained by the plaintiffs against the defendant for all the other chattels. It was entirely within the power of the

Layton, for plaintiff.

Frame, for defendant.

Motion to arrest the judgment overruled unanimously, and judgment as of the October term, when the case was argued.