McKinstry, J.:
The action was brought to recover certain personal property, or its value, alleged to be $5,000. The original answer was a general denial. By consent, the cause was referred for a trial of all the issues of law and fact. Among other findings, the [456]*456referee found the value of the property, and that it had been taken under a “ writ of replevin,” and delivered to plaintiff, who had since “ unlawfully withheld the same from the possession of the defendant.” The property was, in fact, taken under a writ issued at the commencement of the action, and delivered to plaintiff. The judgment of the referee was, that plaintiff take nothing; that defendant have and recover of plaintiff the possession of the property, or in case delivery could not be had, that he recover the value of the property, adjudged to be $3,547.50. This judgment was entered November 25th, 1878. On the same day, an amended answer was filed, setting up, in addition to the denials of the original answer, that the property had been taken under the writ, and delivered to plaintiff; alleging its value to be $8,000, and claiming its return. The transcript does not show whether the amended answer was or was not filed by leave of the Court. It must, therefore, be presumed that leave was granted, and the answer filed before the judgment was entered.
Appellant claims that the amended answer was insufficient to authorize a judgment in favor of defendant for a return of the property, or its value, inasmuch as it does not allege the defendant to be the owner, or otherwise to have the right of possession, “ at the time of the trial.” This position is based upon supposed precedents in the action of replevin.
While, however, the proceedings in our action, “ claim and delivery,” are in some respects analogous to those in “replevin,” certain features which distinguished the practice in replevin have not survived. Thus, in replevin, the denial or general issue was non cepit. But non cepit simply denied the talcing, and admitted title in the plaintiff. So non detinet put in issue only the detention. Neither the avowries nor cognizances exist under our system of laws. They passed away with the ' abolition of distresses for rent, cattle,' damage feasant, etc. Avowries and cognizances admitted the taking of the plaintiff’s property, and justified it as a seizure by distress; the former in the defendant’s own right, the latter as distress made by defendant as bailiff for and in the right of another. A justification was where defendant was enabled to show that plaintiff had no property in the goods, and that they were the property [457]*457of the defendant, or some third person. There was a supposed technical necessity to allege property in defendant or a third person, since the general issue did not question the title of plaintiff. A simple demand in a plea for a return of the property was not sufficient, the plea had to state facts with respect to ownership or right of possession, such as would justify an award of a" return. Indeed, if such facts were stated, a formal claim or demand was not essential. (King v. Chandler, 13 Ill. 623; Underwood v. White, 45 id. 438; Chandler v. Lincoln, 52 id. 76.) By our system of pleading, a defendant may fully justify under the general denial. If defendant cannot deny plaintiff’s property without affirmatively asserting property in himself or some third person, then there can be no general denial of the averments of the complaint in this class of cases, although the Code of Civil Procedure expressly provides that there may be. Even of the former practice, under which, in order to obtain a judgment for a return of the goods, the defendant ought regularly to plead, as well property in himself (or a third person) as want of property in plaintiff, it was nevertheless said, “ The traverse or denial of the plaintiff’s right was the material thing, the allegation of title in another was merely inducement.” (Wells on Replevin, 869; Rogers v. Arnold, 12 Wend. 38; Chambers v. Hunt, 18 N. J. L. 339; S. C. 22 id. 553; Van Namee v. Bradley, et al. 69 Ill. 300.)
Under our system of pleading, the general denial puts in issue the plaintiff’s right to the possession of the property—the material matter. If the plaintiff was not entitled to possession when he commenced his action, but possession has been delivered to him by means of the ancillary writ, the possession should be restored to the defendant, from whom it has been taken.
While avowries and cognizances continued, both parties in replevin were considered as actors, “ the defendant, in respect of his having made distress (being a claim of right, and the avowry in the nature of a declaration), and the plaintiff in respect of his action.” (1 Chitty’s Plead. 165.) The same remark has been applied, somewhat loosely, to our action for the recovery of specific personal property. It is apparent, however, that under our system the denial puts in issue every aver[458]*458ment of the complaint, which goes to show property in plaintiff •when the action was commenced; and if, on the trial, it appears that plaintiff was not entitled to the possession when the suit was commenced, the defendant should be left undisturbed in his possession, if the goods have not been taken from him, and ordinarily they should be restored to him if they have been taken from him and delivered to plaintiff.
But appellant insists that the answer should allege the defendant’s right to the possession up to “ the time of the trial.” It has been held, that if plaintiff has obtained possession of the property in dispute at the commencement of the action, and the defendant asks for a return of it in his answer, and it shall appear at the trial that his interest has ceased intermediate the commencement of the action and the trial, and the right to the possession has vested in the plaintiff, the Court should render a judgment in favor of the defendant for costs only. (O’Connor v. Blake, 29 Cal. 47.) There is nothing, however, in our Code of Procedure which provides for anticipatory pleading: the answer cannot aver that certain facts will exist in the future. Answers—unless supplemental, and averring matter arising puis darrein continuance—relate to the time of filing the complaint. So the substantial part of the declaration in replevin was, that “ defendant, in a certain (definite place), took the goods and chattels of the plaintiff,” etc.; and the plea, when defendant denied plaintiff’s right, averred, “ the said goods and chattels were (when taken) the goods and chattels of the defendant (or one ‘ E. P.’s’), and not of the plaintiff, as alleged.” (Chitty’s Precedents; Pleas in Replevin.)
The power of the Court, therefore, as asserted in O’ Connor v. Blake, to refuse a return where defendant has lost his right to it, between the commencement of the action and the trial, is not dependent upon allegations in the answer; but is employed upon equitable principles, and because it would not be advisable to return the property to defendant merely that it might again be replevied by plaintiff.
Our conclusion is, that it is not necessary to allege affirmatively that defendant, or a third person, is entitled to the possession of the specific property sued for. The general denial, if the plaintiff fails to prove his averments, determines that
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McKinstry, J.:
The action was brought to recover certain personal property, or its value, alleged to be $5,000. The original answer was a general denial. By consent, the cause was referred for a trial of all the issues of law and fact. Among other findings, the [456]*456referee found the value of the property, and that it had been taken under a “ writ of replevin,” and delivered to plaintiff, who had since “ unlawfully withheld the same from the possession of the defendant.” The property was, in fact, taken under a writ issued at the commencement of the action, and delivered to plaintiff. The judgment of the referee was, that plaintiff take nothing; that defendant have and recover of plaintiff the possession of the property, or in case delivery could not be had, that he recover the value of the property, adjudged to be $3,547.50. This judgment was entered November 25th, 1878. On the same day, an amended answer was filed, setting up, in addition to the denials of the original answer, that the property had been taken under the writ, and delivered to plaintiff; alleging its value to be $8,000, and claiming its return. The transcript does not show whether the amended answer was or was not filed by leave of the Court. It must, therefore, be presumed that leave was granted, and the answer filed before the judgment was entered.
Appellant claims that the amended answer was insufficient to authorize a judgment in favor of defendant for a return of the property, or its value, inasmuch as it does not allege the defendant to be the owner, or otherwise to have the right of possession, “ at the time of the trial.” This position is based upon supposed precedents in the action of replevin.
While, however, the proceedings in our action, “ claim and delivery,” are in some respects analogous to those in “replevin,” certain features which distinguished the practice in replevin have not survived. Thus, in replevin, the denial or general issue was non cepit. But non cepit simply denied the talcing, and admitted title in the plaintiff. So non detinet put in issue only the detention. Neither the avowries nor cognizances exist under our system of laws. They passed away with the ' abolition of distresses for rent, cattle,' damage feasant, etc. Avowries and cognizances admitted the taking of the plaintiff’s property, and justified it as a seizure by distress; the former in the defendant’s own right, the latter as distress made by defendant as bailiff for and in the right of another. A justification was where defendant was enabled to show that plaintiff had no property in the goods, and that they were the property [457]*457of the defendant, or some third person. There was a supposed technical necessity to allege property in defendant or a third person, since the general issue did not question the title of plaintiff. A simple demand in a plea for a return of the property was not sufficient, the plea had to state facts with respect to ownership or right of possession, such as would justify an award of a" return. Indeed, if such facts were stated, a formal claim or demand was not essential. (King v. Chandler, 13 Ill. 623; Underwood v. White, 45 id. 438; Chandler v. Lincoln, 52 id. 76.) By our system of pleading, a defendant may fully justify under the general denial. If defendant cannot deny plaintiff’s property without affirmatively asserting property in himself or some third person, then there can be no general denial of the averments of the complaint in this class of cases, although the Code of Civil Procedure expressly provides that there may be. Even of the former practice, under which, in order to obtain a judgment for a return of the goods, the defendant ought regularly to plead, as well property in himself (or a third person) as want of property in plaintiff, it was nevertheless said, “ The traverse or denial of the plaintiff’s right was the material thing, the allegation of title in another was merely inducement.” (Wells on Replevin, 869; Rogers v. Arnold, 12 Wend. 38; Chambers v. Hunt, 18 N. J. L. 339; S. C. 22 id. 553; Van Namee v. Bradley, et al. 69 Ill. 300.)
Under our system of pleading, the general denial puts in issue the plaintiff’s right to the possession of the property—the material matter. If the plaintiff was not entitled to possession when he commenced his action, but possession has been delivered to him by means of the ancillary writ, the possession should be restored to the defendant, from whom it has been taken.
While avowries and cognizances continued, both parties in replevin were considered as actors, “ the defendant, in respect of his having made distress (being a claim of right, and the avowry in the nature of a declaration), and the plaintiff in respect of his action.” (1 Chitty’s Plead. 165.) The same remark has been applied, somewhat loosely, to our action for the recovery of specific personal property. It is apparent, however, that under our system the denial puts in issue every aver[458]*458ment of the complaint, which goes to show property in plaintiff •when the action was commenced; and if, on the trial, it appears that plaintiff was not entitled to the possession when the suit was commenced, the defendant should be left undisturbed in his possession, if the goods have not been taken from him, and ordinarily they should be restored to him if they have been taken from him and delivered to plaintiff.
But appellant insists that the answer should allege the defendant’s right to the possession up to “ the time of the trial.” It has been held, that if plaintiff has obtained possession of the property in dispute at the commencement of the action, and the defendant asks for a return of it in his answer, and it shall appear at the trial that his interest has ceased intermediate the commencement of the action and the trial, and the right to the possession has vested in the plaintiff, the Court should render a judgment in favor of the defendant for costs only. (O’Connor v. Blake, 29 Cal. 47.) There is nothing, however, in our Code of Procedure which provides for anticipatory pleading: the answer cannot aver that certain facts will exist in the future. Answers—unless supplemental, and averring matter arising puis darrein continuance—relate to the time of filing the complaint. So the substantial part of the declaration in replevin was, that “ defendant, in a certain (definite place), took the goods and chattels of the plaintiff,” etc.; and the plea, when defendant denied plaintiff’s right, averred, “ the said goods and chattels were (when taken) the goods and chattels of the defendant (or one ‘ E. P.’s’), and not of the plaintiff, as alleged.” (Chitty’s Precedents; Pleas in Replevin.)
The power of the Court, therefore, as asserted in O’ Connor v. Blake, to refuse a return where defendant has lost his right to it, between the commencement of the action and the trial, is not dependent upon allegations in the answer; but is employed upon equitable principles, and because it would not be advisable to return the property to defendant merely that it might again be replevied by plaintiff.
Our conclusion is, that it is not necessary to allege affirmatively that defendant, or a third person, is entitled to the possession of the specific property sued for. The general denial, if the plaintiff fails to prove his averments, determines that [459]*459property taken from defendant by the writ of “ replevin ” should be restored to him.
Nevertheless, a defendant cannot have judgment for a return of the property or its value, unless he has claimed a return in his answer. (Code Civ. Proc. 627, 667; Gould v. Scannell, 13 Cal. 430.) But this, even if it be held to require a formal demand, is not because such demand is necessary to eke out the denials, or constitutes of itself an affirmative allegation, but because it is arbitrarily made the duty of defendant to assert his formal claim for a return as a prerequisite to a judgment for the return of the property or its value.
Except for this arbitrary requirement of the statute, the formal claim for a return of the property would not be necessary. We have seen, that where the facts set forth in a plea of replevin showed that defendant was entitled to the possession of the property when the action ivas commenced, a formal claim or demand for a return was not essential. In reference to replevin, courts and legal writers have said that a defendant was entitled to a judgment for a return whenever the question, whether a return should be had, was presented by the pleadings; that is, whenever the right of' plaintiff was contested, and the right of possession in defendant, or a third person, asserted. (Wells on Replevin, 489.) Under our system, the general denial contests the right of plaintiff, and under it may be shown the right of defendant or a third person. The denial of plaintiff’s right to the possession necessarily includes an assertion of right in defendant, from whom the possession of the property has been taken under the writ; and would authorize a judgment for the return, were it not for the provision of the Code which requires a return to be claimed in the answer.
Apellant also insists that the Court below erred in permitting the amended answer, claiming a return, to be filed. He thus states the point: “ The issuer originally made had been referred, by consent, to the referee ; and he had tried the case, and made his findings and judgment under those issues. It was too late to permit an averment, raising new issues which had never been tried, and upon which plaintiff had no opportunity to be heard.” We do not understand appellant to assert that the consent of a party to a reference for a trial of all the issues debars him from [460]*460making application to the Court for leave to amend his pleading, if the application is made at the proper time. His position is, that it is error to permit an amendment which creates new issues after the original issues have been tried.
The alternative judgment in favor of defendant, for a return of the property “ or the value thereof,” is proper when the answer “ claims ” a return, and the court, jury, or referee finds the value of the property, and that defendant is entitled to a return. We have seen, that the trial of the issues made by the general denial determines whether the plaintiff or defendant was entitled to the possession of the property when the action -was commenced, and that a judgment refusing a return, by reason of a transfer of the right of possession intermediate to the commencement of the suit and the trial, does not depend upon the verbality of the pleadings.
The referee properly found the value of the property upon the original pleadings. The special verdict as to the value is a statutory requisite. (Code Civ. Proc. 627.) But a referee must find upon all the issues for any reason material. Under the former Constitution, the District Court had jurisdiction of actions like the present only where the value of the property in controversy amounted to $300. Hence, it was necessary for plaintiff to allege value, and when denied, to prove it. It was therefore, of course, necessary for the referee to find value, although the answer was but the general denial.
The referee then properly found the value of the property, because the answer denied that it was of any value. He also properly found that plaintiff was not, at the commencement of the action, “ or at all,” the owner or entitled to the possession of the property, because the plaintiff’s title and right were denied by the answer. Inasmuch as the property had been taken out of defendant’s hands, and delivered to plaintiff under the “ writ of replevin,” the finding, that plaintiff was not entitled to the possession, is a finding that defendant was entitled to the possession. As to whether the right of possession had passed from defendant to plaintiff, that question was not presented by the' pleadings. If, however, the question whether the right to the possession of the property had passed from defendant to plaintiff before the trial, after the commencement of the action (and [461]*461after or before the answer was filed), was constructively put in issue by the original pleadings, that question must be supposed to have been passed upon by the referee, who found that plaintiff was not, at the commencement of the action, “ or at allf entitled to the possession.
Every fact found by the referee was within the issues made by the complaint and original answer, and the facts found would fully ham sustained the judgment entered, had the original answer contained a formal claim for a return of the property.
The “ claim for a return ” would not have broadened the issues. It was not necessary to the trial of any material question upon which the rights of these parties depended. Ho judgment could be rendered directing a return of the property to defendant, or in his favor for its value, until the answer contained the claim or demand. There could be no reason why the record should not be rounded, and the formal claim inserted in the answer, at any time prior to the actual entry of the judgment.
Judgment and order affirmed.
Bharpstein, J., Myrick, J., and McKee, J., concurred.
Thornton, J., dissented,
[Eoss, J., being disqualified, took no part in the decision of this cause.]