#### The Singer Manufacturing Co., Resp’t, *v.*Mary Hill, App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 2, 1891.)*

Replevin-—Conditional bale—Refusal to deliver according to agreement.

The plaintiff leased to the defendant a sewing machine under a written agreement, which provided for monthly payments; the title to remain in the plaintiff until full payment, and upon failure to make the agreed payments, the plaintiff was entitled to retake the machine. The defendant was a member of the Seneca Nation of Indians, and by chap. 92, Laws of 1813 (2 R. L., 153, § 2), it is provided that no person shall maintain an action upon a “ contract "against such an Indian. The defendant failed to make the agreed payments, and uppn a demand for the machine refused to surrender it, whereupon plaintiff brought replevin. *Held,*that the action was not upon contract, but founded on tort. That the right of action 'did not arise from the agreement, but was created by the wrongful refusal of the defendant to deliver the machine on demand.

Appeal from a judgment, of the county court of Cattaraugus county, affirming a judgment of a justice of the peace in favor of the plaintiff.

*A.*Hazeltíne, for app’lt; *G. W.*Cole, for resp’t.

Dwight, P. J.

The action was replevin for a sewing machine. The defendant is a woman of the Seneca Nation of Indians. By chap. 92 of the Laws of 1813 (2 R. L., 153, § 2), it is provided, “ that no person shall sue or maintain any action on any bond, bill, note, promise *or other contract*against any of the Indians * * * of the Seneca tribe or Nation; * * * and every person who shall sue or prosecute any such action against any *871such Indians, shall be liable to pay treble costs to the party aggrieved.” The defendant was in possession of the sewing machine under an agreement with the plaintiff, witnessed by a writing, signed by the defendant, dated December 20, 1881, and denominated a lease, which certified that she had leased the machine of the plaintiff for the term of fourteen months, and that for the use of it she agreed to pay the sum of fifty dollars in sums specified, payable monthly, commencing with the date of the agreement

The lease contained stipulations as to the disposition, use and care of the machine during the said term, and continued as follows: “ And if any default should be made in the payment of the rent, or any part thereof, as above provided, or if I shall violate any of the provisions of this agreement, then and in either case, on demand, I agree to pay the said Singer Manufacturing Co., their agent or assigns, the full original price of said machine, less the sum or sums that shall actually have been paid for the hire of the same; and it is further agreed that in case I fail to pay as last aforesaid, or fail to pay the rents as above stipulated, or any part thereof, or violate any of the provisions of this agreement, they, the said Singer Manufacturing Co., at their election may take said machine, and I hereby agree to surrender and deliver the same, with all its accompaniments, to them or their authorized agent, without let or hindrance, and do authorize them to enter my dwelling, building or place of business for the purpose of reclaiming the same. It is further agreed that as soon as the Singer Manufacturing Co. shall have received the sum of fifty dollars for the said rent or otherwise for the said machine, the full title and ownership thereof shall pass from the said The Singer Manufacturing Co. to me, and not before.”

Below the date and the signature of the defendant was the following :

> “ This certifies that I know and fully understand the provisions of the above lease.

> “ (Signed) Mart Hill.”

The defendant had had possession of the machine nearly eight years, and had paid under the contract less than thirty-five dollars when the plaintiff demanded the balance of the money due, which the defendant declared herself unable to pay. The plaintiff then demanded possession of the machine, which the defendant refused to give unless she was repaid the money already paid by her, and the plaintiff thereupon commenced this action to replevin, and took the machine under process issued therein.

The sole question in the case is whether that action was an action “ on contract ” within the meaning of the statute quoted above

Whether the agreement under which the defendant took possession of the machine was a lease or a conditional sale, or both, it is plain that the title to the property was all the time in the plaintiff. From the- moment of the demand and refusal to deliver the machine, the possession of the defendant was wrongful The plain*872tiff’s cause of action in replevin was based upon that demand and refusal. Although the contract between the parties determined the right of the plaintiff to the possession of the property, yet the right of action in replevin was not given by the contract, but arose only upon the wrongful refusal of the defendant to deliver the property on demand. The action of replevin is not an action on contract, but is one sounding in tort If a Seneca Indian hired a horse for a day or for a week, and then refused to return him to the owner, there would be no question of the right of the latter to maintain replevin for his horse, even though the Indian acquired possession under a contract, and the right of the owner to the possession depended upon the term of the hiring, which was fixed by the same contract.

The case of *Hastings*v. *Farmer,*4 Com., 293, is not at all in point Hastings had bought a pair of horses at a sale on an execution issued upon a judgment recovered by default, against an Indian, in an action on contract. The Indian took his horses where he could find them, and Hastings brought replevin to recover possession of the property. The court held that the judgment, the execution and the sale were absolutely void and that the plaintiff acquired no title by his purchase. He was not defeated because *his*action was on contract; but because the action in which the judgment was recovered, under which he claimed title, was on contract and, therefore, void.

The judgment in this case must be affirmed.

Judgment of the county court of Cattaraugus county affirmed, with costs.

Macomber, J., concurs.