
    Chester Judson & another vs. Thomas Adams.
    A writ of replevin in an action pending in Norfolk, which alleges the taking of the goods to have been in. Suffolk, may he amended by alleging the taking to have been in Norfolk.
    A writ of replevin may be issued by the clerk of the courts in one county, returnable in another.
    It is no ground for dismissing an action of replevin, that in the replevin bond, taken by the officer serving the writ, the sureties are described as partnerships, and sign and seal the same in their partnership names.
    A having made a contract with B, to manufacture certain articles for him, from materials to be furnished by the latter, and B having agreed to pay therefor such amount as should arise from the profits of the business, together with ten per cent on the amount of sales of goods manufactured; it was held, that the terms of the contract did not constitute A and B partners, and that articles manufactured under it, and in the shop of A, were not liable to attachment as his property.
    This was an action of replevin, commenced in the court of common pleas, for “ all the glass ware now in the Norfolk Glass Works in Roxbury, and the buildings belonging to said works; all the moulds in said said glass works so called; all the sand, rosin, soda ash, lime, and other materials for the manufacture of glass, now in or about said works, being the same under attachment by Thomas Adams, sheriff, as the property of one Joseph Foster, over which he has now possession and control; also all the glass, moulds and materials for manufacturing glass, now under attachment by said Adams, wherever they may be in said Roxbury, which he claims as the property of said Foster; all of the value of eight hundred dollars; belonging to Chester Judson, doing business under the style of Judson & Co. of Newton, in the county of Middlesex, doing business in Boston, in the county of Suffolk, and Henry B. Williams of said Newton, merchant, plaintiffs, now attached by Thomas Adams, sheriff of Roxbury, in said county of Norfolk, at said Roxbury, in the county aforesaid.”
    The writ alleged the taking to be at Boston. The coroner who served the writ returned thereon, among other things, that by virtue thereof he took from the plaintiffs a bond to the defendant with sufficient sureties, approved by the coro ner, in a penalty double the value of the property, as ascertained by agreement of the parties, with condition to prosecute the replevin to final judgment, and to pay such costs and damages as the defendant should recover against the plaintiffs, and also to return the property in case such should be the final judgment. The bond was in the usual form; but' the sureties were described only as “ Baker & Chase, and W. & W. K. Lewis, merchants, of Boston,” and the bond was executed by them respectively by the same names.
    The defendant pleaded the general issue; and specified in his defence, that as sheriff of this county he attached the goods replevied as the property of one Foster on eight writs against him, and that Foster was the owner or part owner of the property at the time of the attachment.
    At the return term, the defendant moved to dismiss the action for the following reasons: 1; Because the writ alleged, that the goods replevied were taken at Boston, and therefore the action lay only in the county of Suffolk; 2. Because the writ was not subscribed by, nor did it issue from the office of, the clerk of this court for the county of Norfolk; 3. Because no replevin bond, sufficient in law, was given to the defendant before service of the writ.
    The plaintiffs thereupon moved to amend by alleging the taking to be in Roxbury instead of Boston; which motion was allowed, and the motion to dismiss overruled, by Eying-ton, J., before whom the case was afterwards tried.
    The plaintiffs, in support of then: action, introduced in evidence a contract in writing, between them on the one part, and the said Foster on the other, for the manufacture by him of certain articles for the plaintiffs; and it was admitted, that the articles replevied were manufactured by Foster from materials furnished by the plaintiffs, under the contract, and that they were in Foster’s shop at the time of the attachment.
    The material parts of the contract were as follows: —
    First, said Judson & Co. and said Williams agree to furnish such materials as are required for the purpose of manufacturing and making glass bottles and such other glass ware as they may from time to time decide upon to be manufactured. And said Foster agrees to manufacture said materials, furnished by said Judson & Co. & Williams, into such glass ware as they shall direct, and to do the same in a faithful and -workmanlike manner, and to give his whole time and attention to said business, and to see that no unnecessary waste is made of any property belonging to said Judson & Co. and said Williams, and that no wares or other property shall be permitted to go from the works, without the consent of and an account of the same being rendered to said Judson & Co. and said Williams (or said Judson & Co. who are to act as agents in conducting the business.) Said Foster furthei agrees to hire the buildings and works necessary to cany on said manufacturing, and to hire and pay all the workmen, and pay all the expense of conducting and carrying on the business.
    For and in consideration of which, said Judson & Co. and said Williams agree to pay said Foster such amount as shall arise from the profits of the business, after first deducting the cost of all materials furnished, and incidental expenses incurred by said Judson & Co., together with ten per cent on the amount of sales of all ware manufactured at said works.
    Said Judson & Co. and said Williams to keep a strict and just account of all wares sold, and to make up the sales once a month, and to render a statement thereof to said Foster, if so required, and to pay said Foster the amount which shall be due him, arising from the profits of the business, from time to time as required, reserving to themselves the right to retain in their own hands one quarter of the amount found to be due to said Foster, from, time to time, and are not bound to pay the same to the said Foster until a yearly or general settlement is made, but the said one quarter amount shall remain as security for the faithful performance of this agreement, on the part of said Foster.
    Said Judson & Co. and said Williams agree to deliver to said Foster money from time to time for the purpose of paying off the men employed; but it is distinctly understood and agreed, that said Foster is to pay said men employed by him, and all rent for said Koxbury Glass Works, and that Judson & Co. and said Williams are in no way liable for the labor of said men or rent, unless by special agreement.
    This agreement to continue during the pleasure of said Judson & Co. and said Williams, and said Foster shall in no case give up or transfer to any person the said works or business, without the consent of said Judson & Co. and said Williams ; and said Judson & Co. and said Williams shall not discontinue it without first giving said Foster reasonable notice; but if not found to be an object to them to continue to carry on the business, they may at any time discontinue it.
    The defendant contended that the contract, upon its face, was fraudulent and void as to attaching creditors, and asked the judge so to rule, but the judge refused. The defendant also contended that it was a question to be determined by the jury, upon an inspection of the instrument, whether the contract was fraudulent; but the judge ruled, that the contract was not fraudulent on the face of it, or by any terms contained in it, as to the attaching creditors of Foster, and that whether it was so or not, was a question to be decided by the judge, and not by the jury.
    The jury returned a verdict for the plaintiffs, and the defendant excepted.
    
      F. Hilliard, for the defendant.
    
      C. G. Davis, for the plaintiffs.
   Dewey, J.

The defendant, at the return term, moved to dismiss the action for various reasons stated in his motion, all of which, as they arise upon motion, must necessarily be for causes apparent on the record or face of the proceedings.

1. It was contended, that replevin being a local action, the allegation in the writ, that the goods replevied were taken at Boston, was fatal to the maintenance of this action in the county o-f Norfolk. But this being obviously a clerical error, and it being apparent that the real grievance complained of was a taking in Norfolk, the court of common pleas very properly allowed the plaintiff to amend, and allege the taking to be at Roxbury, instead of Boston.

2. It is objected to the writ of replevin, that it did not issue from the office of the clerk of the courts for the county of Norfolk. This point is not wholly free from difficulty, arising from the numerous provisions of the statutes upon the subject, and in some apparent conflict with each other.

The provision in Rev. Sts. c. 90, § 2, is quite broad, and embraces in its language writs of replevin. It is this: “All original writs, in the supreme judicial court and court of common pleas, may be issued by the clerk of said courts in any county, and be made returnable in any other county.” A writ of replevin is an original writ, and so within the words of the statute provision. Gould v. Barnard, 3 Mass. 199.

The ninth section of the act in amendment of the revised statutes-, enacted on the 13th of February, 1836, provides that “ all writs and processes issuing from the court of common pleas shall be signed by the clerk of the same court for any county, and may run into any county.” This provision also clearly embraces writs of replevin.

The difficulty does not arise from any ambiguity in these statutes standing alone, but from a supposed conflicting provision in Rev. Sts. c. 113, § 28, being the chapter on the action of replevin, and the proceedings under that process. That enactment is thus : “The writ shall be sued out of, and returnable to, the court of common pleas for the county in which the goods are detained.” It is contended, that this is a special provision applicable to the action of replevin, and being so, takes the case out of the general provisions in the statutes above referred to. If it was clearly so intended, we might give this effect to it as a special provision regulating the process of replevin, leaving the general law as applicable solely to cases not specially provided for.

But there are considerations quite controlling this view of the case. In the first place, the 113th chapter of the Rev. Sts. does not in terms make any enactment as to the clerk who is to issue the writ. It is only by implication arising from the provision as to the court that is to have the jurisdiction of cases of replevin. It is to be sued out of and returnable to the court of common pleas for the county in which the goods are detained. The object of this provision was, to declare the action of replevin to be a local action. It was no part of the object of that chapter to prescribe the clerk’s office from which the writ was to issue. That subject was fully provided for in another chapter, c. 82, § 35, as reported by the commissioners who revised the statutes ; and it will be seen, by recurring to the original report, that they proposed, by c. 82, § 35, to require all original writs to issue from the clerk’s office of the court where the same were made returnable. Such being the case, and that chapter regulating the matter in direct terms, it can hardly be supposed that they had any purpose, by the words used in c. 113, to make any special provisions as to the clerk’s office from which the writ was to issue.

By further pursuing our inquiries on this subject, we find that the legislature amended the report of the commissioners, by inserting the broad provision already quoted from c. 90, § 2, entirely changing the provision, and authorizing the clerks of courts to issue all original writs for any other county, and at the same time amended § 35 of c. 82, by introducing the exception “ of all original writs ” from the provisions of that section. Thus the matter stood at the time of enacting the revised statutes. But before the period of their going into operation, an act was passed abolishing the distinction, in this respect, between original writs and others, and providing that all processes and writs might be thus issued by the clerk of any county returnable into any other. Thus the whole matter is now regulated, and the system is uniform. It embraces local actions as well as others.

This is a matter of the merest form, and can in no possible way prejudice the rights of the party defendant. The statute furnishes facilities for using the processes of the courts, and was intended as a remedial provision to that effect, and ought to be sustained as such, if practicable, and without doing violence to the language of the statutes. We are satisfied that the purpose of the provisions of c. 90, § 2, and § 9 of the act of February 13th, 1836, was thus general, and embraces the case of writs of replevin. This objection to the writ must therefore be overruled.

3. It is then objected to the maintenance of this action, that the replevin bond is insufficient. It is said to be so, because the bond is executed by partners by their partnership name, and nothing appears to show that any one member was authorized to bind the firm. It is to be borne in mind that this question arises on a motion to dismiss the action for errors apparent on the face of the bond. Now it is not to be assumed, that the bond has been executed without authority, and does not bind all whom it purports to bind. We must take it upon the face of the bond, taken in connexion with the officer’s return of the same as a duly executed bond. He has certified to this as such bond. This view is a sufficient answer to a motion to dismiss for the cause assigned. If questions of fact as to the execution of the bond are to be tried, they must be raised upon a plea in abatement. A motion to dismiss is much more restricted. As such it cannot prevail in the present case, no defect in the bond being apparent to the court on the face of the same.

4. The next inquiry is that arising upon the substantial merits of the case, whether the property attached by the defendant as the property of Joseph Foster was liable to such attachment. The plaintiffs claimed to be the owners of the same absolutely and free from any liability to attachment by creditors of Foster. The question hardly seems to be an open one. The case falls clearly within the principles settled in the case of Stevens v. Briggs, 5 Pick. 177, as to the right of property in the party furnishing the raw materials for manufacture, and the cases of Denny v. Cabot, 6 Met. 82, and Bradley v. White, 10 Met. 303, to the same points, and to the further one, that such a contract as the present could not constitute Foster a partner. These cases seem decisive of the present, and fully justify the ruling of the court of common pleas on this part of the case.

We perceive no valid objection to the rulings in matter of law, and the result is that the exceptions are overruled, and judgment is to be entered on the verdict for the plaintiffs.  