Gardner v. Dutch
Massachusetts Supreme Judicial Court
Replevin for seventy-six bags of coffee, containing 8991 pounds. The defendant pleaded property in Timothy Wellman and Benjamin Hopes, and avows the taking, &c., on the 4th of June, 1810, as a deputy sheriff, &c., by virtue of a writ of attachment, at the suit, of Gamaliel Hodges against the said Wellman 8f Hopes.
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Replevin for seventy-six bags of coffee, containing 8991 pounds. The defendant pleaded property in Timothy Wellman and Benjamin Hopes, and avows the taking, &c., on the 4th of June, 1810, as a deputy sheriff, &c., by virtue of a writ of attachment, at the suit, of Gamaliel Hodges against the said Wellman 8f Hopes. The pleadings closed in an issue to the country upon the plaintiff’s property in the goods replevied This issue was tried at the sittings here after November term, 1810, before Sewatt, J., and a verdict was taken for the plaintiff, subject to * the opinion of the Court, upon…
1Opinion of the Court
The Court
observed that, if the plaintiff was, in fact, tenant in common of the chattels with Wellman Of Ropes, he could not maintain replevin for his undivided share. But he was not tenant in' common. Though the bags belonging to him had no distinguishing marks, he might have * taken the number of bags and the quantity of coffee, to which he was entitled, by his own selection, while they remained in the hands of Wellman & Ropes; and the defendant,- as a deputy sheriff, could not change the rights of third parties. Then, if a return were to be ordered, the defendant would still be accountable…
2Cited by13 opinions
- Chapman v. ShepardSupreme Court of Connecticut · 1872
- State v. HughesWest Virginia Supreme Court · 1883
- Pickering v. MooreSupreme Court of New Hampshire · 1893
- D'Wolf v. HarrisU.S. Circuit Court for the District of Massachusetts · 1827
- Hackett v. PotterMassachusetts Supreme Judicial Court · 1881
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