Allen v. Butman
Massachusetts Supreme Judicial Court
Replevin of certain personal property mortgaged to the plaintiff, and attached by the defendant, a deputy sheriff, while in the possession of the mortgagor. After the former decision, reported 134 Mass. 347, judgment was entered by consent for the plaintiff in the Superior Court; and the case was thereupon heard on the question of damages only, before Staples, J., without a jury.
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Replevin of certain personal property mortgaged to the plaintiff, and attached by the defendant, a deputy sheriff, while in the possession of the mortgagor. After the former decision, reported 134 Mass. 347, judgment was entered by consent for the plaintiff in the Superior Court; and the case was thereupon heard on the question of damages only, before Staples, J., without a jury. The judge assessed damages for the plaintiff in the sum of $359.50, for which judgment was entered; and the defendant alleged exceptions, which appear in the opinion.
1Opinion of the CourtField, J.
If it be true that the plaintiff was not entitled to the immediate possession of the goods at the time 'he brought this action of replevin, because the attachment, being void ab initia, was not a breach of the condition in the mortgage that the mortgagor should not suffer the goods to be attached; and the mortgage provided that, until default in the performance ■of the condition, the mortgagor might retain possession of the property, still the parties are concluded by the judgment that has been entered. Whether there were breaches of some of the dther conditions of the mortgage we do not…
2Cases cited5 opinions
- Gooding v. SheaMassachusetts Supreme Judicial Court · 1869
- Gordon v. JenneyMassachusetts Supreme Judicial Court · 1820
- Byrom v. ChapinMassachusetts Supreme Judicial Court · 1873
- Allen v. WrightMassachusetts Supreme Judicial Court · 1883
- Whitman v. MerrillMassachusetts Supreme Judicial Court · 1878
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