
    Freeman Waterman versus Jesse Robinson
    Where the messenger of the commissioners of a bankrupt had delivered goods of the bankrupt to a stranger, taking his obligation to keep them safely, and to redeliver them on demand, it was held that the bailee could not maintain replevin against one who had taken them; property, either general or special, beng required to be shown in replevin, though possession is sufficient to maintain trover.
    In an action, depending on the bankruptcy of a stranger, and in which the assignee is not plaintiff, the plaintiff must prove the act of bankruptcy, and the regular issuing of the commission.
    By the writ in this case, the plaintiff replevied certain articles of household furniture from the defendant, who, as a deputy sheriff, had attached them as the property of Isaiah Lucas. A verdict was found for the plaintiff, that the goods replevied were his property, subject to the opinion of the Court upbn a case reported by the judge.
    On the 23d of July, 1801, the property was in the said Lucas, on which day a commission of bankruptcy issued against him, and he being declared a bankrupt, by a warrant from the commissioners, their messenger .seized the goods, caused them to be appraised and inventoried, and on the 28th of the same July, he delivered them to the plaintiff, taking his obligation to keep them safely, and redeliver them on demand. An assignee was chosen, and all the bankrupt’s effects duly assigned to him. The goods had not been demanded of the plaintiff, who had put them into the possession of 
      Lucas’s wife, daughter to the plaintiff, for the purpose of housekeeping, she and her husband living together. There [ * 304 ] * was no evidence of the petitioning creditor’s debt, but a copy of his oath annexed to the petition; and no evidence of any bankruptcy, but the warrant to the messenger, and the ' certificate of the discharge of Lucas.
    
   At this term, the cause was shortly argued by Perley, for the' plaintiff, and Mellen, for the defendant, after which the opinion of the Court was delivered by

Parsons, C. J.

[After reciting the facts as stated above.] Upon these facts, we are to decide whether the property of the goods, so that he might lawfully replevy them, was in' the plaintiff.

Trover may be maintained by him who has the possession; but replevin cannot be maintained but by him who has the property, either general or special. Admitting the commission, and the proceedings under it, to be regular, what property had the plaintiff in the goods ? The general property was in the commissioners until the assignment, and then in the assignee. The messenger, if any person, had the special property, and not the plaintiff, who had no interest in the goods, but merely had the care of them for safe keeping. If his possession was violated, he might maintain trespass or trover, but he had no special property, by which he could maintain replevin; in which the question is not of possession, but of property, although possession may be prima facie evidence of property. On this ground we are of opinion that the plaintiff cannot maintain this action, he not proving that either the general or special property was in himself.

But he must fail for the insufficiency of the evidence. Unless I/ucas had actually committed an act of bankruptcy, and a commission had regularly issued against him, the property of the goods always remained in him; and the plaintiff cannot have any control over them, which would prevent their being attached as the property of Lucas.

[ * 305 ] * In this action, the plaintiff must prove an act oí bankruptcy, and that the commission regularly issued on the petition of a creditor of the bankrupt. He must also then prove the debts of the petitioning creditor. To prove these facts at common law, the best evidence which the nature of the case will admit, must be produced.

No evidence was given of the act of bankruptcy; and evidence, not the best the nature of the case admitted, was received to prove the debt of the petitioning creditor, being only a copy of the oath annexed to the petition. The plaintiff must on this ground fail, unless the statute of bankruptcy has provided that, in a case like the pre& ent, these facts may legally be presumed from the evidence offered, or has superseded the necessity of proving them, because the certificate of discharge is proved.

The thirty-fourth section of the bankrupt law provides, that when a certificated bankrupt is sued for debts due before the bankruptcy, he may give the certificate in evidence, which shall be sufficient to prove his bankruptcy, and the regularity of all the proceedings previous to the certificate. But the bankrupt is not the defendant in this case.

The fifty-sixth section enacts, that where the assignee shall prosecute any debtor of the bankrupt’s to recover any debt due to the bankrupt, a certified copy of the commission and the assignment by the commissioners, shall be conclusive evidence of the issuing of the commission, and of the bankruptcy. But in this action, the assignees are not the plaintiffs, nor is a debtor of the bankrupt the defendant.

The plaintiff cannot bring himself within any of the provision* of the statute, and he ought to have produced the regular evidence of an act of bankruptcy, and of * the debt [ * 306 ] of the petitioning creditor. Not having done this, he has on this ground also failed.

Conformably to the agreement of the parties, the verdict must be set aside, and the plaintiff must be called.  