Howe v. Shaw

Appleton, C. J. This is an action of replevin for a yoke of oxen. The defendant pleaded non cepit, and filed a brief statement setting forth the title of the oxen to be in the firm of Shaw, Tracy & Co., of which firm he and Peleg H. Tracy were members. The oxen were replevied from the barn of said Tracy, in Newport. The defendant testified that all he did, in relation to the taking of the oxen from McCrillis’ place in Somerset county, was as a member of the partnership of Shaw, Tracy & Co., — that the oxen were owned by said firm,— that he and Tracy went out to McCrillis’ to take the oxen to Newport, — that they drove them to Palmyra village, — thence to Wyman’s in Somerset county, near the line of Newport, — and that he then got out and Tracy drove them in. In tort, as a general rule, the action may be brought against one or all of the tort feasors. Replevin is an action of tort, — but it must be brought against the person or persons having the possession of the property replevied. The possession of. the servant is the possession of the master. The action may therefore be maintained against the owner when in the possession of the servant. Ramsdell v. Buswell, 54 Maine, 546. A mere servant, or depositary has not such property as will support this action, his possession being that of the master or bailor. 2 Greenl. Ev., § 561. "Partners, like individuals, are responsible for the negligence of their servants, upon the maxim of qui facit per alium facit per se; and, if one of the partners acts, he is considered, in this instance, as the servant of the rest. In these cases the tort is looked upon as the joint and several tort of all the partners; so that they may either be proceeded against in a body, or one may be sued alone for the whole of the damage done.” Collyer on Partnership, § 457. As the possession of one partner is, prima facie, the possession of the firm, it would seem that the action of replevin might be maintained against one or all the mem [294] bers, when the article replevied is in the possession of one claiming to act for and with the concurrence of all. In the present case, however, the defendant’s counsel requested the Court to instruct the jury that upon the issue of non cejpit, " the plaintiff must satisfy them that the defendant, at the time of the sueing out, or service of the writ, had the oxen in his possession in the county of Penobscot, and that the burden was on the plaintiff to satisfy them of that fact.” This intruction was not given. The general proposition, that the action of replevin should be brought against the person having possession of the property to be replevied, is unquestionably sound law. The action, however, may be maintained against the master for property in the possession of his servant, holding for him, or against one of many joint claimants under a title common to all, and when the possession of one is for all and is to be deemed the possession of all. Now, if, by the instruction requested, the counsel is to be understood as claiming that the oxen must, at the time referred to, have been in the actual possession of the defendant and under his immediate and exclusive care and control, the instruction should not have been given, for the possession of the servant is that of the master, or that of one partner that of the firm. ,But, if the counsel meant that kind of possession or control which may be exercised through an agent or partner, then the instruction given was correct, and all that he could properly ask for in the case. It was applicable to the facts as existing. The pleadings set forth a title in the firm of Shaw, Tracy & Co., of which the defendant was a member. As such member he had taken possession of the oxen. The Court instructed the jury "that, if they were satisfied from the evidence that the defendant and Tracy took the oxen from McCrillis’ place, in the county of Somerset, they being joint owners, for the purpose of driving them to Newport, in the county of- Penobscot, and that said Tracy actually drove them to said Newport, in pursuance of said purpose, [295] that his possession in the county of Penobscot would be a possession of said Shaw, and the issue would be well maintained on the part of the plaintiff.” The facts assumed in the above instruction were found by the jury. The defendant alleges in his plea the property to be in himself and others as members of a firm. He was acting for the firm. He asks that it be restored to him as a member of the firm. Pie would have been liable in trover for the conversion or the trespass in taking. The taking was commenced by him and Tracy, and the possession retained by Tracy for their common benefit. Pie was not aggrieved by the instructions withheld, under the circumstances of the case. Exceptions overruled. Cutting, Kent, Walton and Daneorth, JJ., concurred.