8. REPLEVIN (§ 85*)-MOTION TO DISMISS- the evidence. Exceptions overruled. JudgSUFFICIENCY OF BOND. ment for plaintiffs.

In a common-law action of replevin, a motion to dismiss the action for the alleged reason that the bond is not signed by sufficient sureties will not be sustained, although the objection comes within the scope of the motion, when it appears that on its face the bond is in due form and sufficient.

[Ed. Note.-For other cases, see Replevin, Cent. Dig. § 329; Dec. Dig. § 85.*]

9. REPLEVIN (§ 58*)-ALLEGATION Of OwnerSHIP-SUFFICIENCY.

In an action of replevin, an allegation that the goods "belonged to the plaintiff" is a sufficient averment of ownership.

[Ed. Note.-For other cases, see Replevin, Cent. Dig. § 211; Dec. Dig: § 58.*]

10. REPLEVIN (§ 61*)-ALLEGATION OF DEMAND NECESSITY.

In an action of replevin, demand is a matter of proof, and not of pleading.

[Ed. Note. For other cases, see Replevin, Cent. Dig. § 223; Dec. Dig. § 61.*] 11. REPLEVIN (§ 59*)-ALLEGATION OF VALUE -NECESSITY.

In an action of replevin, the allegation of value is unnecessary; and, even if required, an averment in the proviso that the plaintiff gave bond in a sum certain, "being twice the value of said goods and chattels," is sufficient. [Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 215-218; Dec. Dig. § 59.*] 12. REPLEVIN (8 57*) - DECLARATION-SUFFI

CIENCY.

In the case at bar, held, that the declaration follows exactly the form of replevin writ established by St. 1821, p. 312, c. 63, § 9, and in general use in this state for more than 80 years.

[Ed. Note. For other cases, see Replevin, Dec. Dig. 57.*]

13. REPLEVIN (§ 20*)-TIME TO SUE-PREMATURE ACTION.

When a replevin writ is made provisionally to be used only in case of the refusal of the defendant to surrender the property after demand, and is not served until after demand and refusal, the action is not prematurely brought. [Ed. Note. For other cases, see Replevin, Dec. Dig. 20.*]

14. RECEIVERS (§ 173*) — AUTHORITY - RE

PLEVIN.

When receivers of a street railway company have been duly appointed, with express authority "to prosecute and maintain any suits at law or in equity for the recovery, preservation, or protection" of the property of the railway company, no special decree is needed in order to authorize such receivers to prosecute and maintain an action of replevin for the recovery of personal property of the railway company, alleged to be unlawfully taken and detained by

a defendant.

[Ed. Note.-For other cases, see Receivers, Dec. Dig. 173.*]

(Official.)

Action of replevin brought by the plaintiffs as receivers of the Rockland, South Thomaston & Owls Head Street Railway for one reel of copper trolley wire alleged to have been taken and detained by the defendant. The plaintiffs' writ and declaration were as follows:

"State of Maine, Knox-ss.

"To the Sheriff of Our County of Knox, or His Deputy-Greeting:

"We commend you that you replevy the goods and chattels following, viz.: One reel 4-0 grooved copper trolley wire belonging to A. S. Littlefield, S. T. Kimball, both of Rockland, and J. E. Moore, of Thomaston, Knox county, Me., as receivers of the Rockland, South Thomaston & Owls Head Railway, now taken and detained by Maine Central Railroad Company in Rockland aforesaid, and them deliver unto the said Littlefield, Kimball, and Moore, receivers, provided the same are not taken and detained upon mesne process, warrant of distress, or upon execution as the property of said Littlefield, Kimball, and Moore, receivers, and summon the said Maine Central Railroad Company that it may appear before our justices of our Supreme Judicial Court, next to be holden at Rockland, within and for the county of Knox, on the 1st Tuesday of April next, to answer unto the said Littlefield, Kimball, and Moore, receivers, in a plea of replevin, for that the said Maine Central Railroad Company, on the 1st day of March at said Rockland unlawfully, and without any justifiable cause, took the goods and chattels of the said Littlefield, Kimball, and Moore, receivers, as aforesaid, and them unlawfully detained to this day, to the damage of the said Littlefield, Kimball, and Moore, receivers, as they say, the sum of $500; provided, they the said Littlefield, Kimball, and Moore as receivers shall give bond to the said Maine Central Railroad Company with sufficient surety, or sureties, in the sum of $1,000, being twice the value of the said goods and chattels, to prosecute the said replevin to final judgment, and to pay such damages and costs as the said Maine Central Railroad Company shall recover against them, and also to return and restore the same goods and chattels, in like good order and condition as when taken, in case such shall be the final judgment; and have you there this writ with your doings therein,

Exceptions from Supreme Judicial Court, together with the bond you shall take. Knox County.

Replevin by A. S. Littlefield and others, as receivers of the Rockland, South Thomaston & Owls Head Street Railway against the Maine Central Railroad Company. Defendant's motion to dismiss was overruled, and it excepts. The case was also brought before the Supreme Judicial Court on a report of

"Witness, Lucillius A. Emery, Chief Justice of our Supreme Judicial Court at Rockland, the 1st day of March, A. D. 1907.

"Gilford B. Butler, Clerk."

A bond to the defendant, as required by the writ, for the sum of $1,000, "being twice the value of said goods and chattels," was

The writ was duly entered at the April term, 1907, Supreme Judicial Court, Knox county, at which time the defendant filed a motion to dismiss the action for the following reasons:

"First. Because the goods and chattels mentioned, and which the officer was commanded to take, are not definitely or sufficiently described.

"Second. Because the plaintiffs are not named as owners, or that they have or had a right of possession to the articles named.

"Third. Because there is no averment in the writ of a demand having been made upon the defendant before this action was commenced, or that said article was tortiously or unjustly taken or detained.

"Fourth. Because there is no averment or statement in the writ of the value of the article alleged to have been taken and detained. "Fifth. Because the bond is not signed with

sufficient sureties.

"Wherefore the defendant prays judgment of said writ, and for a return of the goods and chattels therein named."

This motion was overruled, and the defendant excepted. The action was then continued to the September term, 1907, of said court, at which time it came on for trial. The defendant pleaded the general issue with brief statement as follows:

"And said defendant, by brief statement of its further defense, says that the goods and chattels, viz., the coil of wire mentioned in plaintiffs' writ, were not, at the time of the issuing of said writ, owned or possessed by the plaintiffs, nor were said goods and chattels ever owned or possessed by the plaintiffs, and neither were they then or now entitled to the possession thereof as receivers or otherwise.

should be carried to the law court as a part of the case.

It was admitted that the Rockland, South Thomaston & Owls Head Railway was duly organized as a railroad company.

Clause 3 of the original decree appointing receivers of the aforesaid Owls Head Railway reads as follows:

"Said receivers are hereby authorized and directed to take possession of all the real and personal property of said Rockland, South Thomaston & Owls Head Railway, including its line of railway, its equipment, franchise rights, and including all deeds, books, vouchers, accounts, contracts, papers Said receivers shall preand documents.

serve, manage and care for said property, may employ all necessary servants, agents and employés, shall collect and receive all money due or that may hereafter become due to said company from whatever source and shall pay all wages and caring for said property. Said receivers are authorized to prosecute and maintain any suits at law or in equity for the recovery, preservation or protection of said property."

All the material facts appear in the opin

ion, and in Chalmers v. Littlefield et al., 103

Me. 271, 69 Atl. 100.

Argued before WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ.

J. E. Moore, A. S. Littlefield, and S. T. Kimball, for plaintiff. D. N. Mortland, for defendants.

CORNISH, J. This is an action of replevin for one reel of copper trolley wire, a part of a quantity purchased by the Rockland, South Thomaston & Owls Head Railway, for use in the construction of a street railway from the Rockland Line to Crescent Beach and Owls Head.

The plaintiffs claim title as receivers of said railway. The defendant denies the title of the plaintiffs, and sets up right of possession in itself as bailee of C. Gordon Chalmers, who claims ownership by virtue of an attachment, in an action of assumpsit brought by him against the corporation July 12, 1904, and an execution sale thereon made June 14, 1906. The case is before this court on defendant's exceptions to the overruling of its motion to dismiss, and also on a report of the evidence.

"And the defendant further says that, at the time of the issuing and service of said writ, C. Gardner Chalmers, of Bangor, was the owner thereof, but before that time said Chalmers had deposited with and intrusted to the defendant said coil of wire for shipment, whereby, and by reason whereof, the defendant became the owner thereof pro hoc vice, and the same was then and there rightfully in its possession, and was then and there wrongfully and illegally taken there from, and are in law entitled to a judgmented, if at all, by demurrer to the declaration, for a return thereof to it."

1. Motion to dismiss.

The defendant alleges five grounds for dismissal, four of which should have been rais

and not by a motion to dismiss. These are: At the conclusion of the evidence it was Insufficient description of property taken; agreed that the case should be reported to want of allegation of ownership, or right of the law court for decision "upon so much of possession in the plaintiffs; want of allegathe evidence as is legally admissible; the tion of demand before suit; and want of allaw court to render such judgment as the legation of value. It is familiar law that a law and the legal evidence require." It was motion to dismiss will lie only when it is apalso agreed that the defendant's exceptions parent on the record that the court has no

Atl. 995, noted the distinction in these words: "The motion to dismiss is sought to be maintained on the ground that the plaintiff cannot recover, as bearer, on the order set out in the specifications or bill of particulars, because it is not negotiable. This ground is entirely untenable, and wholly misconceives the nature and scope of a motion to dismiss. Such a motion is in the nature of a plea in abatement, and is not used for testing the right of recovery on the merits, but only for impeaching the correctness of the proceedings for the purpose of abating the action. Defects apparent on the face of the declaration, independent of any reference to the writ or its service, are not pleadable in abatement, nor the subject of a motion to dismiss. The proper way of taking advantage of such defects is by demurrer or motion in arrest of judgment."

an original writ (Clapp v. Balch, 3 Me. 216; | rer." The Supreme Court of Vermont, in Pressey v. Snow, 81 Me. 288, 17 Atl. 71), or Alexander v. School District, 62 Vt. 273, 19 of writ running without warrant against the body of the defendant (Cook v. Lothrop, 18 Me. 260), or of want of service (Searles v. Hardy, 75 Me. 461), and analogous cases. But an action at law is not to be dismissed, if it appears that the court has jurisdiction, and the plaintiff has stated a good cause of action, for mere defects in pleading that are amendable or may be cured by verdict. The defendant should demur if he wishes to raise objections to such defects. A motion to dismiss and a demurrer are not interchangeable. The former can be used to abate an action only when it is apparent from the record that the court has no jurisdiction. The latter admits the jurisdiction, but attacks the plead ings. An order of dismissal is a finality. The action ends. Not so with the sustaining of a demurrer. There may still be opportunity for amendment, and until further steps are taken, the action remains on the docket. In statutory proceedings, where the jurisdiction of the court rests upon allegations and proof of statutory requirements, a motion to dismiss may serve the purpose of a demurrer, and the motion will lie where it appears that, assuming the allegations to be true, the court has no jurisdiction, as in Rines v. Portland, 93 Me. 227, 44 Atl. 925; Hayford, Aplt., v. Bangor, 103 Me. 431, 69 Atl. 688. But the case at bar is the commonlaw action of replevin, and not one of the four reasons for dismissal under discussion | matter of proof, and not of pleading. goes to the jurisdiction of the court.

"A defendant cannot move for a dismissal or nonsuit for the mere insufficiency or uncertainty of the declaration or complaint, where the defects may be obviated by amendment or by giving leave to plead over, or by allowing a continuance, or where the defect may be cured by verdict" (as in Stimpson v. Gilchrist, 1 Me. 202, Hutchins, Adm'r, v. Adams, 3 Me. 174, and Elliot v. Stuart, 15 Me. 160). "The underlying principle, as shown by the cases is: That if trial may be had on the merits of the case, and the defects in the pleading may be amended or cured by subsequent pleas or proceedings, the action should not be dismissed." Cyc. vol. 14, pp. 440, 441.

In Barlow v. Leavitt, 12 Cush. (Mass.) 483, the defendant attempted to take advantage of a misjoinder of different causes of action by a motion to dismiss, and the court, in overruling the motion, said: "There is no ground for the motion to dismiss this action. The court below had jurisdiction, both of the subject-matter and of the parties. The defect, if any existed, was in the misjoinder of two separate and distinct causes of action, for each of which the law prescribes different remedies. At common law the only proper mode of taking advantage of such a defect was by a demurrer or motion in arrest of judgment. 1 Chit. Plead. 236. Under the

As to the first four objections to the declaration, the remedy by a motion to dismiss was clearly inappropriate, and exceptions to the overruling of the motion in those particulars cannot be sustained.

We might add, however, that the objections would not be tenable even if raised on demurrer. The description is ample, within the rule laid down in Musgrave v. Farren, 92 Me. 198, 42 Atl. 355. The allegation that the goods "belonged to" the plaintiffs is sufficient averment of ownership. Demand is a

Sea

ver v. Dingley, 4 Me. 306; Lewis v. Smart, 67 Me. 206. The allegation of value is unnecessary (Blake v. Darling, 116 Mass. 300; Litchman v. Potter, 116 Mass. 371); and, if required, there is a sufficient averment in the proviso that the plaintiffs gave bond “in the sum of $1,000, being twice the value of said goods and chattels." In fact the declaration follows exactly the form of replevin writ established by section 9, c. 63, p. 312, Laws. 1821, and in general use in this state for more than 80 years.

The fifth cause of dismissal is that the bond is not signed with sufficient sureties. This objection comes within the scope of a motion to dismiss, Wilson v. Nichols, 29 Me. 566. But the bond is signed by the National Surety Company as surety, as authorized by Rev. St. c. 49, § 119, and the company is described as being duly organized by law and having an office at said Rockland. On its face the bond is in due form and sufficient, and a motion to dismiss does not lie, when to support it or resist it proof is necessary dehors the writ. Chamberlain v. Lake, 36 Me. 388; Badger v. Towle, 48 Me. 20; Hunter v. Heath, 76 Me. 219.

This ground therefore fails.
2. The case on its merits.

The rights of the parties in this action have been substantially established in the case of Chalmers v. Littlefield et al., 103 Me.

"A writ may be considered as purchased at any moment of the day of its date which will most accord with the truth and justice of the case." Bank v. Mosher, 79 Me. 242, 9 Atl. 614.

connected with this litigation are set forth the property, the action is not prematurewith such fullness that it is unnecessary to ly brought. O'Neil v. Bailey, 68 Me. 429; repeat them here. The parties in the two Grimes v. Briggs, 110 Mass. 446. suits are reversed, but the issues are practically the same. In that case Mr. Chalmers attempted to hold the defendants liable in trover for the conversion of certain steel rails, which had come into their possession as receivers of the railway company, and which he claimed to own by virtue of an execution sale made after the receivers were appointed. The wire in the case at bar was sold under the same execution, and at the same time, as the rails, so that Mr. Chalmers' source of title is the same in both cases, as is also that of the receivers.

in the former case this court held that the title to this personal property passed into the custody of the receivers, who had been appointed by the court to take possession of all the property of the corporation, and to manage it for the interest of the bondholders and creditors as their rights might be made to appear; that the entire property was in custodia legis when Mr. Chalmers, without leave of court, presumed to seize and sell a part of it on the execution issued on a judgment, which was also taken after the receivers were appointed, and this the law did not permit them to do. The title of the receivers was therefore held valid, and that of Mr. Chalmers invalid, and that decision as to title is conclusive in the case at bar.

It is further contended by the defendant that the plaintiffs have not been authorized by any special decree of court to bring this suit. The answer is that no special decree was needed. The original decree of appointment was comprehensive in its terms, and among other powers conferred on the receivers was the express authority "to prosecute and maintain any suits at law or in equity for the recovery, preservation, or protection of said property." This action is in conformity with that authority. Finally the counsel claims that the defendant came lawfully into possession of this property as a common carrier, and that the action could not be maintained until there had been a proper demand and refusal, which demand should have been made at least the day previous to the service of the writ. The evidence shows that one of the plaintiffs made the writ on the morning of March 2, 1907, and, accompanied by the sheriff, went at once to the station agent and demanded the wire, which was refused, and he then directed the sheriff to serve the writ and take the property, which was done. The refusal gave the plaintiffs the right to proceed forthwith. To require a longer time to intervene might wholly defeat the plaintiffs' rights, as it would permit the property to be put beyond their reach. Where a replevin writ is made provisionally to be used only in case of the refusal of the defendant to surrender

Exceptions overruled. Judgment for plaintiffs for $1 damages and costs. Plaintiffs to keep property replevied.

(104 Me. 164)

HAZELTON v. LOCKE. (Supreme Judicial Court of Maine. April 23, 1908.)

1. TROVER AND CONVERSION (§ 17*)-—ACTIONS -PERSONS ENTITLED TO SUE.

ciety appoints an agent to canvass for applicaWhen the manager of a life assurance sotions and collect premiums on all policies obtained by him, which premiums so collected are to be paid by the agent to the manager or the society, then as between the manager and the agent the manager has a special property in the premiums collected by the agent and is entitled to receive them, and this right gives him a remedy against the agent upon his refusal to pay over the same as directed.

[Ed. Note. For other cases, see Trover and Conversion, Dec. Dig. § 17.*1

2. TROVER AND CONVERSION (§ 32*) - DECLASUFFICIENCY DESCRIPTION

RATION
MONEY.

OF

In a declaration in an action of trover for the alleged conversion of money, only the same certainty is required as in indictments, and it is not necessary to set out the money verbatim; the description in a general manner being sufficient.

[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. § 194; Dec. Dig. § 32.*] 3. TROVER AND CONVERSION (§ 2*)—PROPERTY SUBJECT OF CONVERSION-CURRENCY.

Legal currency may be the subject of an action of trover, as there is nothing in the nature of money making it an improper subject of this form of action so long as it is capable of being identified, as when delivered at one time, by one act and in one mass, or when the deposit is special and the identical money is to be kept for the party making the deposit, or when wrongful possession of such property is obtained.

[Ed. Note.-For other cases, see Trover and Conversion, Dec. Dig. § 2.*]

4.

TROVER AND CONVERSION (§ 13*)-ACTIONS. Where the relation of a plaintiff and defendant is that of principal and agent, it is necessary, in determining whether trover or assumpsit is the proper remedy for money collected by the agent but not turned over, to consider the distinctive quality of money as differing from other kinds of property, and the character and conduct of the agent in receiving and retaining the money collected by him.

[Ed. Note. For other cases, see Trover and Conversion, Dec. Dig. § 13.*]

5.

TROVER AND CONVERSION (§ 9*)-LIABILITY
OF AGENT-MONEY OF PRINCIPAL.

From its nature, the title to money passes by delivery, and its identity is lost by being changed into other money or its equivalent in the methods ordinarily used in business for its safe keeping and transmission, and an agent, unless restricted by his contract, would violate

no duty assumed by him by adopting these methods in dealing with the money of his principal. Mere failure to deliver such property in specie on demand would not be technical conversion, nor would the refusal to pay over its equivalent be conclusive evidence of conversion in the sense of the law of trover, but might be the ground for an action of assumpsit.

[Ed. Note.-For other cases, see Trover and Conversion, Dec. Dig. § 9.*]

6. TROVER AND CONVERSION (§ 13*)-ACTIONS. When the defendant is the agent of the plaintiff for the collection and paying over not of a single premium of insurance, but such as are payable for all policies effected by him, and he is entitled to receive as commission a certain percentage of such premiums when paid over, an action of trover by the principal might be unjust to the agent by depriving him of his

right of set-off and other legal defenses.

[Ed. Note.-For other cases, see Trover and Conversion, Dec. Dig. § 13.*]

7. TROVER NOT MAINTAINABLE.

superior court for Cumberland county without the intervention of a jury.

At the conclusion of the plaintiff's evidence, upon motion of the defendant's attorney, the presiding justice ordered a nonsuit, to which ruling and action the plaintiff excepts, and the case is before this court upon the exceptions.

The following is a summary of the facts upon which the nonsuit was ordered:

The plaintiff and defendant entered into a written contract dated February 2, 1904, for transacting the business of canvassing for applications for life insurance in the Equitable Life Assurance Society of the United States, of which the plaintiff was manager for the state of Maine, upon certain specific terms, and conditions among which that the defendant was to receive commissions on the premiums under various forms of policies which were to accrue only as the premiums were paid to the plaintiff or the society in

In the case at bar the relation of principal and agent existed between the plaintiff and the defendant, and the principal brought an action of trover against the agent for money alleged to have been collected by the agent and convert- cash. ed to his own use. Held that, under all the cirOn January 10, 1905, the defendant receivcumstances of the case, the action could noted of George C. Fuller $51.13 in currency, be maintained.

(Official.)

Exceptions from Superior Court, Cumberland County.

Trover by Franklin H. Hazelton against Sperry H. Locke. A nonsuit was ordered, and plaintiff excepts. Exceptions overruled. Action of trover for the alleged conversion of $51.13 "in lawful current money of the United States," brought in the superior court, Cumberland county. For pleadings the defendant filed the general issue, together with a "special plea," interposing his discharge in bankruptcy as a defense. The case was heard before the justice of said superior court without the intervention of a jury. At the conclusion of the plaintiff's evidence, the justice ordered a nonsuit, and the plaintiff excepted. The specific defense presented by the "special plea" was that considered by the law court, but the case was decided on the questions raised by the general issue.

The case appears in the opinion.
Argued before EMERY, C. J., and WHITE-
HOUSE, STROUT, PEABODY, CORNISH,
and KING, JJ.

Harvey D. Eaton, for plaintiff.
Llewellyn F. Hobbs, for defendant.

consisting of bills and silver which was for the premium on a policy of insurance issued on the life of his wife by the Equitable Life Assurance Society on the 1st day of April, 1905. The attorney for the plaintiff called on the defendant and asked him for this sum of $51.13, also on two other occasions prior to the commencement of the action, and he declined and refused to deliver the same.

As we view the case, it is not necessary to consider the specific defense presented by the brief statement. The general issue raises the following questions:

1. The Nature of the Property as a Proper Subject of This Form of Action and the Sufficiency of its Description. As specified in the writ, the property was money in the currency of the United States, and the evidence is that it consisted of bills and silver amounting to $51.13. Legal currency may be the subject of an action of trover. There is nothing in the nature of money making it an improper subject of this form of action so long as it is capable of being identified, as when delivered at one time, by one act and in one mass (Burns v. Morris, 47 Tryw. R. 485; Royce, Allen & Co. v. Oakes, 20 R. I. 252, 38 Atl. 371; Walter v. Bennett, 16 N. Y. 220; Farrelly v. Hubbard, 148 N. Y. 592, 43 N. E. 65; Conaughty v. Nichols, 42 N. Y. 83; Vandelle v. Rohan, 36 Misc. Rep. 239, 73 N. Y. Supp. 285; Reeside's Executor v. Reeside, 49 Pa. 322, 88 Am. Dec. 503; Ringo v. Field, 6 Ark. 43; Wood v. Blaney, 107 Cal. 291, 40 Pac. 428; Michigan Carbon Works v. Schad, 49 Hun, 605, 1 N. Y. Supp. 490; Wallace v. Castle, 14 Hun [N. Y.] 106; Duguid v. Edwards, 50 Barb. [N. Y.] 288; G. T. R. R. Company v. Edwards, 56 Barb. [N. Y.] 408; Graves v. Dudley, 20 N. Y. 76), or when The case was tried before the justice of the the deposit is special and the identical money

PEABODY, J. This was an action of trover for the conversion of $51.13 in the money of the United States. The writ was dated July 8, 1905.

The defendant's plea was the general issue and a brief statement setting out his discharge in bankruptcy under the bankruptcy act of 1898, and that the claim, demand, debt, or action declared on was provable against his estate from which he is discharged, not being excepted by said act.