Lewin v. Hopping

Foote, C. Action of claim and delivery. The plaintiff obtained judgment for the return of a certain wire rope, or its value, which had been seized in attachment by the defendant, as sheriff of Shasta County, at the suit of Chappel and Houston against one Joseph Waugh.

It appears that the plaintiff, being requested by a large number of the citizens of that county, had raised money by subscription from divers individuals, to complete a road to a certain point on the Sacramento River. That as an incident to that object, and as a part of the scheme, it was found advantageous to establish a ferry across said river at a place where a railroad could be reached, and this was where one Waugh kept a hotel. He possessed a certain wire rope, suitable for such a purpose, and Lewin visited him and proposed to obtain it from him (on [542]his own behalf and that of these public-spirited citizens) as an aid to accomplish the end in view.

Waugh, for the consideration that his hotel would thereby receive increased patronage from the traveling public, and himself derive pecuniary benefit, and that a boat would be built by Lewin and those he represented, so that a ferry would be estab- . lished, agreed to let the rope be used as desired by Lewin, and to make a permanent transfer of it for that express purpose. This he at once did, giving a written order therefor to Lewin, who took possession and control of and removed it to a warehouse, and left it there subject to his disposition. It remained in this situation for nearly a month before it was seized in attachment.

Some days after this transfer, but before the attachment levy, the board of supervisors of Shasta County subscribed $300 towards aiding in the establishment of the ferry as a free and public one, and made an order, upon a petition of certain citizens asking that such a one be established at that point, that the franchise should be granted as prayed for, but for the convenience of having some individual to take out a license, they gave it to Waugh, although he had not petitioned therefor. Lewin had possession all this time of the rope, and was proceeding to get the ferry ready for use when the attachment was levied on the property in dispute, and although he claimed it as his own, it was taken and is still withheld from him, and he instituted this action to recover it.

It is urged by the appellant that Lewin had no title or right of possession to the property; that it was a gift from Waugh to unknown persons, and in fraud of the rights of creditors.