#### *Boyle v. Townes.

January, 1838,

Richmond.

(Absent Cabell and Bbookenbrough, J.)

Curator and Receiver — Appointment Does Not Give Right of Property — Detinue—Surplusage.*—A person appointed curator and receiver of chattels by a court of chancery, does not, by virtue of that appointment, acauire a right of property ; but if he bring detinue for the chattels, describing himself as curator and receiver, and’ counting as upon his own property, and on a bailment thereof to the defendant, the count is good, the description of curator &c. being surplusage.

Detinue — By Bailee of Chattels.* — A bailee of chattels may maintain detinue for them upon his right of possession as bailee.

Same — Declaration — Misjoinder of Counts.* — Two counts in a declaration in detinue ; one counting on a right of property in the plaintiff, arid the other on a right of possession in him as bailee: held, here Is no misjoinder of actions.

Detinue for a slave, by Townes against Boyle, in the circuit superiour court of Peters-burg. The declaration demanded the slave in question, in the name of Townes, “ curator and receiver appointed by order of the hustings court of Petersburg, sitting in chancery, in the case of Patterson’s administratrix against Boyle’s administrator and others,” and contained two counts: the first count claimed the slave as Townes’s own property, and counted on a bailment by him to Boyle: the second count declared, that Townes, “ascurator and receiver appointed as aforesaid, was lawfully possessed of the slave in question, as one of the slaves belonging to the trust fund in the said chancery suit mentioned, and so being possessed of the slave, casually lost the same out of his possession,” and the slave afterwards into the hands and possession of Boyle by finding came: yet Boyle, “well knowing the said slave to be one of the slaves belonging to the said trust fund, and of right, by virtue of the appointment of the said hustings court as aforesaid, to belong and appertain to Townes, , curator &c. as aforesaid,” refused to deliver the slave to him &c. *Boyle, 1. pleaded non detinet; and 2. . put in a general demurrer to the declaration. The court held, that the law on the demurrer was for the plaintiff: the jury found for him on the general issue; and the court gave him judgment for the slave. The defendant Boyle applied to this court for a supersedeas to the judgment; which was allowed.

Allison, for the plaintiff in error.

. Spooner, for the defendant.

*

See monographic *noteou*“Detinueand Replevin” appended to Hunt v. Martin, 8 Gratt. 578. i

TUCKER, P.

Both the counts in the declaration are upon the plaintiff Townes’s own possession. In the first count, he states his possession of the slave as his own property; the declaration being filed in his name as curator and receiver of the' hustings court of Petersburg in chancery. Those words, descriptive of the character in which he sued, may well be taken as surplusage; and the rather, as it is certainly true, that he could not maintain the action upon the ground of property, merely by reason of the authority vested in him as receiver. The case is much less strong than that of Porter v. Nekervis, 4 Rand. 359, where the words “ cáshier of the farmers’ bank of Virginia,” attached to the plaintiff’s name, were considered as surplus-age. The first count, therefore, is good. The second count declares on the plaintiff’s possession as a fiduciary : and this count also is good. Eor a fiduciary who has possession and is deprived of it, has a right of action against the person detaining; because of his own obligation to restore it to the owner when lawfully demanded. The plaintiff, in this case, was a bailee liable to the court, or to the owner, for the slave of which he had suffered himself to be dispossessed; and, by reason of this liability, he might maintain detinue, to enable him to comply with his own obligations, whether express or implied ; 1 Chitt. Plead. 118, 2 Wms. Saund, 47 a. b. c. d. note 1. *Roberts v. Wyatt, 2 Taunt. 268. It was argued, that this was a misjoinder of action. I do not think so. The plaintiff is the same in both counts ; and though he claims the possession on two grounds, first on the ground of the right of property, and next of the mere right of possession, yet on each ground the claim is in his'own right; and whether he succeed on one or the other count, the judgment must be precisely the same. Neither count sets forth a claim in auter droit; without which the objection is without foundation. 1 Chitt. Plead. 200. I am of opinion, that the judgment be affirmed.

The other judges concurred. Judgment affirmed. _