Fay v. Duggan
Massachusetts Supreme Judicial Court
Replevin of certain personal property. The answer alleged that the defendant took the property as a constable of the city of Boston, by virtue of a writ issuing from the Municipal Court of Boston, against one William G. Thwaites, which writ was returned by him into court. The answer further alleged that, at the time of the taking, the plaintiff had no property in, or right of possession of, said property.
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Replevin of certain personal property. The answer alleged that the defendant took the property as a constable of the city of Boston, by virtue of a writ issuing from the Municipal Court of Boston, against one William G. Thwaites, which writ was returned by him into court. The answer further alleged that, at the time of the taking, the plaintiff had no property in, or right of possession of, said property. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on the following agreed facts: “ The goods replevied were, at the time of the…
1Opinion of the CourtColburn, J.
Upon the agreed facts, the defendant was a trespasser, and the owners of the property attached were entitled to recover it in an action of replevin against him. Sanborn v. Royce, 132 Mass. 594. Both partners should have joined in the action of replevin. Hart v. Fitzgerald, 2 Mass. 509. Ladd v. Billings, 15 Mass. 15. Kimball v. Thompson, 4 Cush. 441. Hackett v. Potter, 131 Mass. 50. The plaintiff objects that nonjoinder of Thwaites as plaintiff could only be availed of by plea in abatement.
By submitting the case upon agreed facts, the parties waived all questions of pleading, and the case is…
2Cases cited9 opinions
- Hart v. FitzgeraldMassachusetts Supreme Judicial Court · 1807
- Inhabitants of West Roxbury v. MinotMassachusetts Supreme Judicial Court · 1874
- Esty v. CurrierMassachusetts Supreme Judicial Court · 1868
- Smith v. CarneyMassachusetts Supreme Judicial Court · 1879
- Sanborn v. RoyceMassachusetts Supreme Judicial Court · 1882
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3Cited by17 opinions
- Attorney General v. HenryMassachusetts Supreme Judicial Court · 1928
- Shapira v. BudishMassachusetts Supreme Judicial Court · 1931
- Bartlett v. TuftsMassachusetts Supreme Judicial Court · 1922
- Donahue v. HubbardMassachusetts Supreme Judicial Court · 1891
- Gordon v. City of MedfordMassachusetts Supreme Judicial Court · 1954
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