Carlton v. Davis

1. The judgment in the replevin suit instituted by Elizabeth Cheever was a bar to all questions of title adverse to her that might have been set up by the original attaching creditor of Charlotte J. Carlton. It was equally so as respects the attaching creditors, Stephenson and others, who had attached the property under the provisions of Gen. Sts. c. 123, §§ 35-39, pending the replevin suit, and who thus made themselves common parties with the prior attaching creditor, in reference to the effect of a judgment in favor of Elizabeth Cheever.

The presiding judge properly ruled that the return of the officer serving the process for Stephenson & Co. was plenary evidence that they had notice of the replevin suit; but the qualification as to the effect of their having reasonable cause to believe that the creditor -who made the first attachment was defending the replevin suit, and that the conclusiveness of the judgment in replevin as respects them would depend upon that fact, was erroneous. Stephenson and others, having made a second attachment of the same goods attached by Boynton, which were attached by both as goods of Charlotte J. Carlton, are to be conclusively affected by the judgment in the replevin suit of Elizabeth Cheever. The title of the plaintiff, through the bill of sale from Elizabeth Cheever. of the stock of goods replevied by her, was a good title.

2. Upon the further question, as to the property in that portion *97of the goods purchased subsequently to the institution of the replevin suit, the right of the defendant to attach those articles as the property of Charlotte J. Carlton is an open question to the parties. The question of property in those goods is to be settled upon its own merits. The fact that goods have been subsequently purchased and added to the stock owned by Elizabeth Cheever does not defeat the right of the plaintiff to recover for the taking of the old stock. Although the defendant may show the newly purchased articles to be the property of Charlotte J. Carlton, and liable to be taken as such by her creditors, yet the officer had no right to attach the whole stock without first endeavoring to ascertain what particular portion of the stock was of that character. It was his duty to make the inquiry in the first instance, and not that of the other party. Smith v. Sanborn, 6 Gray, 134. But, as it seems, the purpose was to attach all of the stock, and the defendant now insists that it was all liable to attachment on the writ of Stephenson and others.

The verdict must be set aside, and the case tried under rulings on matters of law as above indicated. Exceptions sustained.