Woods, J.
Two questions are involved in the ease.
The first arises upon the ruling of the court rejecting the evidence of the mortgage of Ela Rounceville to James B. Sumner, and of the authority of Sumner to the defendant to take the sleigh. It was rejected upon the ground that the evidence was inadmissible under the general issue. That it would have made out a perfect defence to the action of trespass, if receivable, admits of no doubt. The offer was to show a mortgage prior in point of time to the title of the plaintiff, whatever that might have been, and peaceable possession taken of the property mortgaged, by the defendant, an agent of the mortgagee. The taking the possession in that manner is the act complained of.
The question made in this branch of the case is, whether that evidence was admissible under the general issue, or whether the facts should have been specially pleaded. The rule upon this subject would seem to be well and distinctly settled in the books.
In 2 Saunders on PI. and Ev. 855, it is said that “ the defendant may, under the general issue, give in evidence any matter which directly controverts the truth of any allegation which the plaintiff, on such general issue, will be [559]*559bound to prove.” A similar rule is recognized in 2 Saund. Sep. 159, note 10..
Chitty says: “ In trespasss, whether to the person, personal or real property, the defendant can, under the general issue of not guilty, give in evidence any matter which directly controverts the fact of his having committed the acts complained of.” 1 Chitty’s PI. 500, (8th Am. ed.)
In Peavey v. Walter, 6 Carr & Payne 232, which was trespass for driving a gig against the horse of the plaintiff, and wounding him, it was held that it might be shown, under the general issue, that instead of the defendant driving against the plaintiff’s horse, (as a witness for the plaintiff had first testified,) the plaintiff drove against the gig of the defendant. The abstract of the opinion in that case is, that “under not guilty, in trespass, that only can be given in evidence which shows that the defendant did not do the act complained of.” In Gerrish v. Train, 3 Pick. 126, Mr. Justice Wilde remarks that, in trespass de bonis, “ if the defendant pleads property in himself or a third person, this is no admission that the property is the plaintiff’s, but it is an allegation inconsistent with a material allegation in the declaration, and a traverse is necessary.”' That same fact, given in evidence, would go to disprove the same material allegation. In trespass to personal property, in general the defendant may show, under the general issue, that the chattels in question are not the plaintiff’s property. 2 Sir Wm. Blackstone’s Rep. 701; 2 Saund. Pl. & Ev. 855. In Rawson v. Morse, 4 Pick. 127, Morton, J., says that “ in trespass quare clausum fregit, the defendant may give in evidence, under the general issue, any matter that contradicts the allegations which the plaintiff is bound to prove, or shows that the act complained of is not in its own nature a trespass. Thus he may give in evidence soil and freehold in himself, or in another by whose authority he entered, or that he has any other right to the possession. For he cannot be a trespasser in exercising a right which the law gives him, [560]*560nor be bound to justify when he does not, prima facie, appear to be a trespasser.” But it is well settled that, in general, matters which admit the plaintiff’s property as well as the seizure and carrying away, &c., must be pleaded. Com. Dig. Pl 3 M. 25; 2 Saund. PL & Ev. 855; 1 Chitty’s Pl. 502, (8th Am. ed.) Chitty states the rule thus: “ Where an act would, at common law, prima facie, appear to be a trespass, and the facts stated in the declaration could not be denied, any matter of justification or excuse, or done by virtue of a warrant or authority, must, in general, be specially pleaded; and, therefore, even where the defendant did the act at the request of the plaintiff, or where the injury was occasioned by the plaintiff’s own fault, those matters of defence must always have been specially pleaded. 1 Chitty’s PL 501. In Rawson v. Morse, 4 Pick. 127, before cited, it is said that “ a license from the plaintiff must be specially pleaded, but a license from a stranger, in whom the soil and freehold are, may be proved under the general issue.”
The doctrine, as laid down by our own court in Stow v. Scribner, 6 N. H. Rep. 24, (a case cited by counsel,) which was trespass for killing a horse of the plaintiff, is thus: “ Matters which do not directly contradict that which a plaintiff is bound to prove, in an action of trespass, under the general issue, but which show collaterally that the action is not maintainable, must be specially pleaded, or a brief statement of the matter must be filed under the statute.” The same principle is recognized in Welch v. Nash, 8 East 39, which is a case in a clear manner illustrating the doctrine.
Merritt v. Miller, 13 Vt. Rep. 416, was trespass for taking and carrying away a quantity of corn. The general issue was pleaded.' It appeared that the corn was raised by one Clark, on shares, on the land of one Allen, and the corn having been divided, the plaintiff, being a deputy sheriff, and having certain writs against him, attached [561]*561Clark’s share, still standing in the field, in the stook, and the defendant and others came with teams and took the com and drew it away. The defendant offered to show that after the com was divided with Allen, Clark, for a good consideration, sold his part to Luke Williams, and that the defendant, on the next day, (the corn still remaining on the land of Allen, with his consent, at the request of Williams,) with others, went with teams to remove the corn for Williams, and proceeded to take and carry it away, notwithstanding the proceedings of the plaintiff, and that the plaintiff had notice of the sale to Williams before he made the attachment.
Redfield, J., delivered the opinion of the court as follows: “ The first question made is that the defence, if available in any shape, should have been pleaded specially. It is very clear that if the defence can prevail, it is good upon the general issue. In trespass for personal property, the general issue is a denial of the plaintiff’s property, as well as the taking by the defendant. If the defence amount to any thing, it is on the ground that the plaintiff acquired no property by the attachment, but that the property was in William's, in whose place the defendant stands. It is obvious this defence cannot be pleaded in bar, for it amounts only to the general issue.” There would seem to be no conflict in the authorities upon the first question involved in the present case. The only point of doubt or difficulty in the case, if any there be, is in the application of the well recognized principles governing the case.
If the matters offered in defence constitute a direct denial of the allegations in the plaintiff’s declaration, which, under the general issue, are essential to be proved, in order to maintain the plaintiff’s action, or, in other language, if the matters offered in defence are a direct denial of the material allegations of the declaration, essential to be proved, and inconsistent therewith, the same may and ought tobe given in evidence under the general issue.
[562]
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Woods, J.
Two questions are involved in the ease.
The first arises upon the ruling of the court rejecting the evidence of the mortgage of Ela Rounceville to James B. Sumner, and of the authority of Sumner to the defendant to take the sleigh. It was rejected upon the ground that the evidence was inadmissible under the general issue. That it would have made out a perfect defence to the action of trespass, if receivable, admits of no doubt. The offer was to show a mortgage prior in point of time to the title of the plaintiff, whatever that might have been, and peaceable possession taken of the property mortgaged, by the defendant, an agent of the mortgagee. The taking the possession in that manner is the act complained of.
The question made in this branch of the case is, whether that evidence was admissible under the general issue, or whether the facts should have been specially pleaded. The rule upon this subject would seem to be well and distinctly settled in the books.
In 2 Saunders on PI. and Ev. 855, it is said that “ the defendant may, under the general issue, give in evidence any matter which directly controverts the truth of any allegation which the plaintiff, on such general issue, will be [559]*559bound to prove.” A similar rule is recognized in 2 Saund. Sep. 159, note 10..
Chitty says: “ In trespasss, whether to the person, personal or real property, the defendant can, under the general issue of not guilty, give in evidence any matter which directly controverts the fact of his having committed the acts complained of.” 1 Chitty’s PI. 500, (8th Am. ed.)
In Peavey v. Walter, 6 Carr & Payne 232, which was trespass for driving a gig against the horse of the plaintiff, and wounding him, it was held that it might be shown, under the general issue, that instead of the defendant driving against the plaintiff’s horse, (as a witness for the plaintiff had first testified,) the plaintiff drove against the gig of the defendant. The abstract of the opinion in that case is, that “under not guilty, in trespass, that only can be given in evidence which shows that the defendant did not do the act complained of.” In Gerrish v. Train, 3 Pick. 126, Mr. Justice Wilde remarks that, in trespass de bonis, “ if the defendant pleads property in himself or a third person, this is no admission that the property is the plaintiff’s, but it is an allegation inconsistent with a material allegation in the declaration, and a traverse is necessary.”' That same fact, given in evidence, would go to disprove the same material allegation. In trespass to personal property, in general the defendant may show, under the general issue, that the chattels in question are not the plaintiff’s property. 2 Sir Wm. Blackstone’s Rep. 701; 2 Saund. Pl. & Ev. 855. In Rawson v. Morse, 4 Pick. 127, Morton, J., says that “ in trespass quare clausum fregit, the defendant may give in evidence, under the general issue, any matter that contradicts the allegations which the plaintiff is bound to prove, or shows that the act complained of is not in its own nature a trespass. Thus he may give in evidence soil and freehold in himself, or in another by whose authority he entered, or that he has any other right to the possession. For he cannot be a trespasser in exercising a right which the law gives him, [560]*560nor be bound to justify when he does not, prima facie, appear to be a trespasser.” But it is well settled that, in general, matters which admit the plaintiff’s property as well as the seizure and carrying away, &c., must be pleaded. Com. Dig. Pl 3 M. 25; 2 Saund. PL & Ev. 855; 1 Chitty’s Pl. 502, (8th Am. ed.) Chitty states the rule thus: “ Where an act would, at common law, prima facie, appear to be a trespass, and the facts stated in the declaration could not be denied, any matter of justification or excuse, or done by virtue of a warrant or authority, must, in general, be specially pleaded; and, therefore, even where the defendant did the act at the request of the plaintiff, or where the injury was occasioned by the plaintiff’s own fault, those matters of defence must always have been specially pleaded. 1 Chitty’s PL 501. In Rawson v. Morse, 4 Pick. 127, before cited, it is said that “ a license from the plaintiff must be specially pleaded, but a license from a stranger, in whom the soil and freehold are, may be proved under the general issue.”
The doctrine, as laid down by our own court in Stow v. Scribner, 6 N. H. Rep. 24, (a case cited by counsel,) which was trespass for killing a horse of the plaintiff, is thus: “ Matters which do not directly contradict that which a plaintiff is bound to prove, in an action of trespass, under the general issue, but which show collaterally that the action is not maintainable, must be specially pleaded, or a brief statement of the matter must be filed under the statute.” The same principle is recognized in Welch v. Nash, 8 East 39, which is a case in a clear manner illustrating the doctrine.
Merritt v. Miller, 13 Vt. Rep. 416, was trespass for taking and carrying away a quantity of corn. The general issue was pleaded.' It appeared that the corn was raised by one Clark, on shares, on the land of one Allen, and the corn having been divided, the plaintiff, being a deputy sheriff, and having certain writs against him, attached [561]*561Clark’s share, still standing in the field, in the stook, and the defendant and others came with teams and took the com and drew it away. The defendant offered to show that after the com was divided with Allen, Clark, for a good consideration, sold his part to Luke Williams, and that the defendant, on the next day, (the corn still remaining on the land of Allen, with his consent, at the request of Williams,) with others, went with teams to remove the corn for Williams, and proceeded to take and carry it away, notwithstanding the proceedings of the plaintiff, and that the plaintiff had notice of the sale to Williams before he made the attachment.
Redfield, J., delivered the opinion of the court as follows: “ The first question made is that the defence, if available in any shape, should have been pleaded specially. It is very clear that if the defence can prevail, it is good upon the general issue. In trespass for personal property, the general issue is a denial of the plaintiff’s property, as well as the taking by the defendant. If the defence amount to any thing, it is on the ground that the plaintiff acquired no property by the attachment, but that the property was in William's, in whose place the defendant stands. It is obvious this defence cannot be pleaded in bar, for it amounts only to the general issue.” There would seem to be no conflict in the authorities upon the first question involved in the present case. The only point of doubt or difficulty in the case, if any there be, is in the application of the well recognized principles governing the case.
If the matters offered in defence constitute a direct denial of the allegations in the plaintiff’s declaration, which, under the general issue, are essential to be proved, in order to maintain the plaintiff’s action, or, in other language, if the matters offered in defence are a direct denial of the material allegations of the declaration, essential to be proved, and inconsistent therewith, the same may and ought tobe given in evidence under the general issue.
[562]*562But if the matters relied upon as an answer to the action do not involve a denial of the material allegations in the writ, but are consistent with the existence of such a state of fact as would constitute, at common law, a prima facie case of trespass, and amount only to an excuse or justification of such prima facie trespass, they cannot be given in evidence under the general issue, but must be specially pleaded.
Under the general issue it is necessary that the plaintiff should show either the actual possession or the constructive possession of the thing injured, as well as a general or qualified property therein. 1 Term 480; 4 Term 490; 1 Chitty’s Pl. 500, before cited; 2 Saund. Pl. & Ev. 855, 861, (3d Am. ed.) It denies and puts in issue the plaintiff’s property as well as the taking by the defendant. Ik is true, that proof of the actual possession by the plaintiff of the chattel at the time of the trespass will, in all cases, suffice to sustain this action against a mere wrong-doer not being the real owner of the chattel. 2 Saund. 47 d; Catteris v. Cowper, 4 Taun. 547.
In the ease under consideration, it was admitted that Ela Bounceville was once the owner of the sleigh in question, and the plaintiff claimed to have derived a title from him as the pledgee of the property, for a valuable consideration. The title, which the defendant proposed to prove as a ground of defence, was a mortgagee’s title, derived from Ela Rounceville, and acquired prior to the date of the pledge to the plaintiff by one James B. Sumner. Here, then, was a proposition to disprove the title of the plaintiff, by showing an elder and better title in said Sumner. The defendant proposed further to show that in taking the sleigh he acted by the authority of Sumner, who was thus clothed with a mortgagee’s title. .
In effect, then, the defendant offered to show that Sumner was the owner of the property by an elder and better title than that claimed by the plaintiff, and that in virtue of [563]*563that title, and of the right of possession which accompanied it, by direction of Sumner and under his authority, the defendant took possession, of it, which was, in point of law, the act of Sumner. Rawson v. Morse, 4 Pick. 127, before cited.
In the act complained of the defendant stood in Sumner’s place. Merritt v. Miller, 13 Vermont Rep. 419, before cited. It is clear that the matters of defence, relied upon in this case, were a direct denial of the allegations of property in the plaintiff, as well as of all right of possession in him, as against the defendant, at the time of the act of trespass complained of.
They were, then, a direct denial of the essential allegations necessary to be proved by the plaintiff upon the plea of the general issue, and according to the whole current of the authorities receivable in evidence under the general issue.
2. The second question made by the case arises upon the refusal or omission of the court to charge the jury as requested by the defendant’s counsel, as matter of law, “ that every material fact mustbe proved by testimony equal to the testimony of one unimpeached witness.” The court, instead of adopting the language thus suggested, directed the jury to consider all the evidence in the case, the impeaching testimony with the residue, and to decide according to the balance of the proof and the probabilities of the case. That direction was undoubtedly correct. There is no rule of evidence, in civil eases, that we are aware of, requiring any particular quantum or weight of evidence to warrant the jury in determining a controverted fact. The court, as matter of law, determine what evidence is competent for the jury to weigh, but are in-no wise authorized to determine, as matter of law, what amount or weight of competent evidence is sufficient or insufficient to convince the minds of jurors, and warrant them in determining a matter of fact in dispute between parties. The competency of the proof given in evidence is matter of [564]*564law for the court, but its weight is matter exclusively for the jury. The judgment of the court, therefore, is, that the verdict must be set aside for error in the court below, in rejecting the evidence offered under the general issue.
Verdict set aside and a nexo trial granted.