White v. Wall

Tenney, J. The writ in this case bears date Dec. 4,1852. The trial took place, January term, 1854. Before the pleadings were filed, a motion was made that the writ be quashed, it not being made to run against the bodies of the defendants, according to the provisions of the statute, c. 148, § 9. In its form, the writ may be regarded as an original summons with an order to attach property; this is authorized by R. S., c. 114, § 23. If it were otherwise, the supposed want of conformity to the statute is a matter, which may be waived. And the omission to present the motion at an earlier stage of the proceedings, it being like a plea in abatement, must be treated as a constructive waiver. Regula; Generales, 18, 1 Greenl. 416. The defect in the declaration, on account of which the counsel for defendants moved that the writ be quashed, was cured by an amendment, made by leave of Court. This amendment, the Court, in the exercise of its discretion, was authorized to allow. R. S., c. 115, § § 9 and 10; Lord, in error, v. Pierce & als. 33 Maine, 350. Under the instructions which were given to the jury, they must have found that Crowley, out of the ordinary course of his business, as allowed by the contract with the plaintiff, [577] secretly sold to Wall the goods, portions of which he had mortgaged to the plaintiff, and other portions had been consigned to the defendant Crowley, by the plaintiff, with the intention to defraud the plaintiff of the same, and to withhold from him the proceeds; and did withhold them; and that Wall knew of that fraudulent purpose, and participating therein, secretly purchased the goods in pursuance thereof. The legal title to the property in question was in the plaintiff, and nothing exhibited in evidence suspended his right to take immediate possession, whenever he might choose to exercise that right. They were in Crowley’s possession for a specific object only; and they were disposed of by the concurrent acts of the two defendants inconsistently with the purpose, for which the plaintiff permitted them to be in Crowley’s possession. This was a breach of the trust reposed in Crowley by the plaintiff, and an abuse of the lawful possession of the former, and constituted a conversion by him. The purchase by Wall, made under a full knowledge of the relations existing between the plaintiff and Crowley, and his taking them in furtherance of Crowley’s fraudulent intention, and exercising acts of ownership over them, were simultaneous acts of both, and the whole constituted a joint conversion. The jury passed upon the facts presented in evidence, and if the testimony was believed, the Court cannot with propriety disturb the verdict, if the motion to set it aside had been seasonably filed. Exceptions and motion overruled.