Giroux v. Wheeler , 163 Mass. 48 ( 1895 )

Barker, J.

The question for decision is whether, after the finding for the defendant in replevin, the Superior Court had power to order a return of the chattel. Upon the pleadings, the finding settled it as a fact in the case, that, when the horse was taken from the defendant by means of the replevin writ, he was the owner of the horse, and also that the plaintiff had then no right to its possession. If we assume in favor of the plaintiff that an order for a return will not be granted to a defendant in replevin who is at the time in the possession of the chattel, (Ware River Railroad v. Vibbard, 114 Mass. 458, 463,) the bill of exceptions does not show that the horse was in the defendant’s possession when he moved for the order for a return. Nor can we apply the doctrine that a return will not be ordered when it appears that, if the chattel should be delivered by the plaintiff to the defendant upon the order for a return, the plaintiff could at once retake it under a right acquired or ripened since the commencement of the suit. Simpson v. M'Farland, 18 Pick. 427. Whitwell v. Wells, 24 Pick. 25, 33. Martin v. Bayley, 1 Allen, 381, 382. Davis v. Harding, 3 Allen, 302, 303. Leonard v. Whitney, 109 Mass. 265, 268. The plaintiff might have pleaded the arrangement made between himself and the defendant after the service of the replevin writ in bar of the assertion by the defendant of his title. Campion v. Baker, Lutw. (Nelson’s ed.) 356. He did not so plead it, and we cannot say from the statements of the bill of exceptions that the judge who ordered the return could not find from the facts and evidence stated that the plaintiff had no right to the possession of the horse under the conditional sale. He may have found that bargain to have been made under such a mutual misapprehension of the facts as not to be binding. The bill of exceptions does not show that the court had no power to order a return.

Exceptions overruled.