Selleck v. Macon Compress & Warehouse Co.

Whitfield, J., delivered the opinion of the court. Pearce v. Twitchell, 41 Miss., 344, as explained in Meyer v. Mosler, 64 Miss., 610, does hot hold that an action of replevin can be brought in the name of one person for the use of another, but that, if it is so brought, only the rights of the nominal plaintiff can be regarded, the “name of the usee being-treated as mere surplusage.’’ If Mrs. Selleck had brought re-plevin in her own name for the use of the bank, the suit could not have been maintained. So counsel misapprehend Johnson v. White., 13 Smed. & M., 584; and Bailey v. Colby, 66 Am. Dec., 752, is not in point here. The bank alone could have maintained replevin or trover against appellee. Mortimore v. Ragsdale, 62 Miss., 86. We think the bill does sufficiently show [1024] the kind of mistake, with reference to the confusion of the two lots of thirty-seven bales of cotton, which gives equitable jurisdiction, taken in connection with the other averments of the bill. On this 'point the averment is: “ She further shows that said compress company now claims that it delivered to said Frenkel the cotton mentioned in its receipts, which are now held by said bank as collateral security, and refuses to honor said receipts so held by said bank, although requested by complainant and said bank to deliver said cotton to said bank, and although said bank has offered to pay said compress company its usual charge for compressing and storage; and also refuses to account to complainant for the cotton for which complainant held said railroad receipts, unless complainant present to said compress company said railroad receipts. But complainant states that if it be true that said compress company has delivered to said Frenkel the cotton mentioned in said compress company’s receipts, it did so without requiring a surrender of said receipts, but knowingly took from complainant the railroad company’s receipts, which called for other cotton, and now holds or refuses to deliver to complainant or said bank any cotton whatever. ’ ’ The bank was a proper party defendant. It did not have “the same” interest identically with Mrs. Selleck, but in part a different interest. It was concerned merely to apply the proceeds of the cotton so far as needed to satisfy the debt for which it was collateral security. Mrs. Selleck was interested, not only to have this done, but to get for herself the surplus, if any, over the amount of the debt to the bank. The citation, 1 Daniel Ch. PI. & Prac., p. 190, note 5, is inapplicable, and so is Boyd v. Swing, 38 Miss., 182. In this last case the recovery sought against Boyd was on the bond, as surety of Thomas Arnot. The recovery sought against John W. Arnot, brother of Thomas, was for profits made by him by using .the money coming to him from Thomas Arnot in planting. The parties were utter strangers to each other, the grounds of liability wholly different, and neither connected [1025] with the other in any manner, nor with the conduct or dealing of the other touching the premises. The bill here presents the bank as holding the receipts of the compress company for the very cotton pledged by complainant to the bank, and the compress company as refusing to recognize its own receipts thus held, or to account for any cotton to either the bank, the pledgee of this cotton, or the complainant, its pledgor. Both the bank and the compress company have dealt with this very same lot of cotton, and out of this dealing have arisen the rights as well of complainant as of the bank. It follows as a corollary from what has been said — the cotton being in the possession of the appellee — that the demurrer to the cross bill should have been overruled. The decree is reversed, the demurrers to the original and cross MU loth overruled, and the appellee allowed thirty days frcmi the filing of the mandate in the court lelow within which to answer.