Bray v. Raymond , 166 Mass. 146 ( 1896 )

Morton, J.

This was an action of replevin. In order to maintain it the plaintiff was bound to show, as the court instructed the jury, that she was the sole owner of the property replevied. Hart v. Fitzgerald, 2 Mass. 509. Fay v. Duggan, 135 Mass. 242. Corcoran v. White, 146 Mass. 329. The instructians requested were to the effect that if the officer attached and levied on the property as the property of another, and the plaintiff owned an undivided interest in it, she was entitled to recover. They were rightly refused. If she failed to establish that she was the sole owner, the conduct of the officer in attaching the property as the property of another gave her no right of action; an undivided interest was not sufficient.

The defendant contended that, although the plaintiff had filed a certificate that she was carrying on business as a married woman on her own account, the property belonged to her and her husband jointly, and that the business was carried on by them jointly. The testimony of the husband on cross-examination had some tendency to show what the relations between the plaintiff and her husband were respecting the business and the property that was attached and levied on, and therefore was properly received.

The testimony of the defendant and of Potter was admitted solely as affecting the testimony given by Bray, the plaintiff’s husband, and as part of the conversation with Bray, and as explaining what Bray said and failed to say, and for that purpose was clearly competent. He had testified that he had no interest in the property except a certain horse, and the testimony went directly to his credibility.

The writ against Bray and Gammon, with the officer’s return upon it and the schedule of the property attached, was admissible in justification of the defendant’s title, and was not rendered incompetent by the fact, if it was a fact, that at the time when the replevin suit was brought execution had been issued, and had been levied upon the goods attached. The statute expressly provides that goods attached may be kept thirty days after final judgment in order that they may be taken on execution, and the attachment was one step towards the levy on execution. It is stated in the exceptions, that the defendant attached the goods, but it is nowhere set out that they had been taken on execution, though that is alleged in the answer, and is perhaps to be inferred.

Exceptions overruled.