Page v. Crosby ( 1835 )

Morton J.

delivered the opinion of the Court. According to the settled and established law of Massachusetts, the plaintiff was the legal successor of the deacons who had withdrawn from the old parish, and as such became the lawful owner, and entitled to the possession of the church plate which is the subject of the present controversy. Baker v. Fales, 16 Mass. R. 488 ; Stebbins v. Jennings, 10 Pick. 172. The plaintiff has a right to hold these goods in trust and .for the use of-- the church of which he is deacon. And having by means of this suit obtained possession, the parties have agreed that he shall retain it, whether judgment be rendered for or against fun. The case, therefore, resolves itself into a mere question of costs. Can the action be sustained upon the facts agreed ?

To maintain replevin, either a tortious taking or a tortious detention is necessary. Badger v. Phinney, 15 Mass. R. 859 ; Baker v. Fales, 16 Mass. R. 147 ; Marston v. Baldwin, 17 Mass. R. 606. The defendant by bis former relation to the church had a right to the possession ; and of course there was no tortious taking. Was there a tortious detention ? The defendant lawfully withdrew from the old society and cnurch. The property being in his hands, it was his duty to hold it till some trustee was lawfully appointed to receive it. He was accountable for the property, and a delivery to an unauthorized agent would not discharge him from his liability. Mrs. Reed was his servant, to keep the property, and for her negligence or" mistakes he was responsible. His direction to her not to deliver it without his personal or written order, was prudent and wise. A demand, therefore, upon her could avail nothing, till she had communicated it to the defendant and received his direction in relation to it. Alexander v. Southey, 5 Barn & Ald. 247. We see no objection to the manner in which the writ was made, or to its validity at the time of the service. But we think it very plain that the defendant could lot be guilty of a tortious detention before he even knew that the plaintiff had demanded the goods or had been elected to an office which conferred on him the right to receive them. It does not appear that he had been informed of either, before the service of the writ. It is, therefore, very obvious that here was no valid demand by the plaintiff.

Nor will the demand by the committee sustain the action. By St. 1785, c. 51, churches are empowered to choose committees, to call their deacons and other officers to account. But this manifestly applies to breaches of trust or other violations of duty. It does not divest, the deacons of their corpo rate power or rights ; nor invest the committee with authority to hold church property. This is a mean provided for compelling this class of trustees, by a proper process and in a proper forum, to render an account of their administration of the trusts confided to them. The legal property must remain in the deacons while they remain in office ; and when they resign or are displaced, it will either remain in them or be in abeyance till their successors are chosen. And in either case, it would be their duty to hold the property till some persons were invested with authority to.receive it.

But even if the committee had authority to recover the property and their demand was a valid one, it could not avail the plaintiff. He sues by virtue of his office and his corporate powers. The defendant cannot be liable in two actions, to two different persons, at the same time. If he is liable to the committee, he cannot be to the plaintiff. The committee made the demand in their own right, and not as the agents of the plaintiff or of the corporation now represented by him. That had at the time only a potential existence. Gunton v. Nurse, 2 Brod. & Bing. 447. If the committee could originally have maintained an action, their right ceased upon the appointment of a deacon. The property then vested in him, and he only had a right to the possession.

But even if the committee had authority to make the demand, and that could avail the plaintiff, we are of opinion that here was no tortious detention. The defendant never refused to deliver the property ; but always declared his readiness ami willingness to deliver it whenever any one was authorized to receive it. When the committee made their demand he only desired time to take advice and ascertain his legal rights and duties. This was reasonable and proper, and we think a trustee in his situation, was not bound to decide at his peril, but was entitled to a convenient time to inform himself what he ought to do. Bull. N. P. 46 ; Solomons v. Dawes, 1 Esp. R. 83 ; Mills v. Ball, 2 Bos. & Pul. 464 ; Green v. Dunn, 3 Campb. 215, note ; Isaack v. Clark, 2 Bulstr. 312 ; Watt v. Potter, 2 Mason, 77 ; Jacoby v. Laussatt, 6 Seig. & Rawle, 300. Had the plaintiff, exhibiting satisfactory evidence of his election to the office of deacon, demanded the property, the defendant would probably be presumed to know that he had a right to it, and the postponement of a compliance to get advice, might be deemed a subterfuge to enable him to obtain delay. But when the demand was made by a committee whose right, at best, was extremely doubtful, it may well be supposed that he needed information and advice, and he was entitled to a reasonable time in which to obtain it. This was not allowed before the action was commenced.

In whatever light we view this case, we can see no such unjustifiable detention as would amount to a conversion in trover, or will support replevin.

Plaintiff nonsuit, and costs for defendant.