Vinal v. Spofford

Holmes, J. 1. When replevin is brought for a number of chattels, some of which belong to the plaintiff and others to the defendant, although all are declared for in one count, the case is dealt with as if there were two counts, and each party was entitled to prevail upon one. Seymour v. Billings, 12 Wend. 285. Williams v. Beede, 15 N. H. 483. Each party is an actor, and each may have a judgment and legal costs, as happened in this case, Powell v. Hinsdale, 5 Mass. 343. These judgments are distinct, and it follows that an appeal by one party only from the judgment against him does not reopen the judgment in his favor. Pub. Sts. c. 154, §§ 39, 43; e. 155, § 28. Justice and analogy lead to the same result. See Downing v. Coyne, 121 Mass. 347; Whiting v. Cochran, 9 Mass. 532; May v. Gates, 137 Mass. 389; M' Donough v. Dannery, 3 Dall. 188, 198. 2. The jury have found that the plaintiff bought the horse in good faith and for a valuable consideration, and that it was not obtained from the defendant’s stable by fraud. On the bill of exceptions we must assume that the previous owner of the horse rightfully took it from the defendant’s custody and delivered it to the plaintiff. Such a transaction would divest a common law lien. Perkins v. Boardman, 14 Gray, 481. We are of opinion that it equally divested that which the defendant had previously acquired under the Pub. Sts. c. 192, § 32 (St. 1878, c. 208). That statute creates a lien in cases where the common law has not recognized one. Goodrich v. Willard, 7 Gray, 183. But it gives no intimation that it uses the word “lien” in any different sense from that which is known to the common law. On the contrary, it in terms supposes that the animals in question have been placed in the care, that is to say, in the possession, of the party to whom the lien is given. The provisions for sale would seem to imply the same thing. To admit that it was intended to create a tacit hypothecation, like that enforced from necessity, but within narrow limits, in the admiralty, would be to go in the face of the whole policy of our statutes, which always strive to secure public registration when possession is not given and retained, and which expressly provide for such registration when they in terms create a lien not depending on possession. It follows from what we have said, that, even if the defendant had had a lien for the keeping of the horse after 131 the sale, or whatever might be the rule when the animal was voluntarily restored to his possession, he lost it by allowing the plaintiff to take possession, and could not revive his right by seizing the horse. Thompson v. Dolliver, 132 Mass. 103. Walker v. Staples, 5 Allen, 34. Papineau v. Wentworth, 136 Mass. 543. Exceptions overruled.