Bartlett v. Brickett , 96 Mass. 62 ( 1867 )

Hoar, J.

The court are all of opinion that the ruling at the trial that the action was not brought in the name of the corporation owning the property replevied, but in the name of the three plaintiffs named and described as trustees, was correct, and that the verdict tor the defendant was rightly ordered. There is nothing in the writ to indicate that the plaintiffs were a corporation, or that any corporation was a party to the suit. The plaintiffs are severally named, with their place of residence. It is true they are there described as the trustees of a Ministerial Fund, and that the corporate name of the body owning the fund "was shown at the trial to be “ The Trustees of the Ministerial Fund ” mentioned in the writ. But they are afterward spoken of as “ the said trustees ” and as “ the plaintiffs.” There is nothing upon which a judgment could have been rendered against the corporation.

The conclusion is strengthened by recurring to the other papers in the case. The receipt to the officer for the property replevied is signed by the individuals named as plaintiffs, with the word plaintiffs appended. The return of the officer sets forth that he has taken a bond from the same three persons with condition to prosecute the replevin to final judgment, and to pay such damages and costs as the defendant should recover against them. The bond is executed in their individual names, and with their several seals, and recites that the persons thus bound are the parties who sued out the writ.

We can have no doubt that the plaintiffs did not intend to prosecute the suit in the name of the corporation, but brought it inadvertently in their own names.

The other ruling to which exception was taken was erroneous ; and the verdict must be amended according to the agreement of the parties. In order to recover more than nominal damages, the defendant must prove some actual damages; and none were proved. The rule was stated in Bruce v. Learned, 4 Mass. 614. Except in the special cases in which provision is made by statute, the defendant in replevin who prevails is to recover damages “ measured by the nature and degree of the injury he has sustained according to the common law.” The cases in which six per cent, upon the value of the goods replevied has been allowed as damages, in analogy to the rule in other cases of unlawful detention of property, will be found to be cases where the defendant was entitled to a return and where the chattels replevied were merchandise or other property capable of physical use and enjoyment. That rule has no just application to the case of securities for money, bearing interest. It does not appear from the evidence reported, nor is it suggested, that the defendant claims any property in the replevied goods, nor that he has asked for a return of them. There is nothing in the case to show that any actual loss has accrued to him from being deprived of them.

The verdict will therefore be amended, and the defendant will have judgment for nominal damages only.