After argument, the following opinions were delivered :
By Mr. Justice Bronson. The pleader' who drew the declaration has not followed the precedents, and alleged that the defendant took certain goods and chattels of the said plaintiffs: but the allegation is, that the defendant took certain goods and chattels which the plaintiffs were [207] then and there entitled to the possession of. It d.oes not necessarily follow from this averment that the action can be maintained. The plaintiffs may have been entitled to the possession, without being the general owners of the property ; and they may have been so entitled, although the actual possession was at the time in the defendant or a third person, and although such possession was adverse to the plaintiffs. The supposed taking may have been by finding, or by the delivery of a third person who had a special property in the goods. The declaration may be true, and yet the case may be such, that if replevin will lie in any form, it must be for detaining, not for taking the property. Marshall v. Davis, 1 Wendell, 109. Randall v. Cook, 17 id. 53. I doubt whether the declaration can be supported. But the point was not made on the argument, and need not now be decided.
If the declaration can be maintained, the plaintiff must still fail on the ground that the replication is vicious. The following rules laid down by Serjeant Williams, are abundantly supported by authority: 1. Whenever a material fact is alleged in any pleading, which, if denied, will, upon issue joined, decide the cause one way or the other, if the adverse party plead a matter inconsistent with and contrary to such allegation, he must traverse it. 2. Whenever such a traverse is taken, the other party is bound to it, and cannot waive it, and tender another traverse; for the parties are not to go on ad infinitum. 1 Saund. 22, n. 2. See also 1 Chit. PI. 593, 4, and cases cited. In replevin, the declaration alleges title in the plaintiff. This is a material fact, which, if issue be joined upon it, may decide the cause one way or the other. When the defendant pleads any matter inconsistent with that allegation, as property in himself or a stranger, he must conclude with a traverse of the plaintiff’s title. The allegation of property in the defendant or a third person, is but inducement to the traverse. The point upon which the issue must be joined, and on which the jury must pass, is, whether the plaintiff has such a title to the property as will enable him to maintain the action. Bemus v. Beekman, 3 Wendell, 667. Rogers v. Arnold, 12 id. 3C. When the de[208] fendant takes a traverse Upon this "material fact, the plaintiff is bound to it—^he cannot waive it, and tender another traverse. Without such a rule the pleadings would run into endless prolixity. With a few very special exceptions, there cannot be a traverse" after a traverse, when the first traverse is material and .pertinent. 1 Saund. 22, n. 2. Com. Dig. Pleader, G. 17, 18. Mayor of Oxford v. Richardson, 4 T. R. 437. Although this judgment was reversed in the exchequer chamber, it was on a ground which left this point untouched. 2 H. Black. 182. 5 T. R. 367.
.It is also "a rule of'pleading that matter of inducement cannot be traversed. - Com. Dig. tit. Pleader, G. 14. Lady Chichesley v. Thompson, Cro. Car. 104.
In replevin, as well as in other actions, it must appear by the declaration that the plaintiff is the person injured. It would be idle to charge the defendant with taking the property without showing the plaintiff’s right to maintain the action. In the case at bar, the pleader who drew the declaration, although he has not followed the precedents, has alleged that the plaintiffs were entitled to the possession of the goods which the defendant took. If this be a sufficient substitute for the usual averment of property in the plaintiffs,, it was a material allegation, which the defendant was bound to traverse when he set up property in Ward and Kingsman. The defendant did traverse this allegation ; and the plaintiffs in their replication should have accepted the issue thus-tendered, by re-affirming their title to the possession of the-property, and concluding to the country. But instead of doing so, they have first traversed the inducement to the-plea,, which was not traversable, and then shown how they were entitled to the possession of the property—concluding with a verification. In this way the parties may never arrive at an" issue. It'would be a good rejoinder to the replication, to repeat the plea over again ; Indeed, that is the only answer which the defendant could make. The defendant is entitled to judgment on the demurrers.
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After argument, the following opinions were delivered :
By Mr. Justice Bronson. The pleader' who drew the declaration has not followed the precedents, and alleged that the defendant took certain goods and chattels of the said plaintiffs: but the allegation is, that the defendant took certain goods and chattels which the plaintiffs were [207] then and there entitled to the possession of. It d.oes not necessarily follow from this averment that the action can be maintained. The plaintiffs may have been entitled to the possession, without being the general owners of the property ; and they may have been so entitled, although the actual possession was at the time in the defendant or a third person, and although such possession was adverse to the plaintiffs. The supposed taking may have been by finding, or by the delivery of a third person who had a special property in the goods. The declaration may be true, and yet the case may be such, that if replevin will lie in any form, it must be for detaining, not for taking the property. Marshall v. Davis, 1 Wendell, 109. Randall v. Cook, 17 id. 53. I doubt whether the declaration can be supported. But the point was not made on the argument, and need not now be decided.
If the declaration can be maintained, the plaintiff must still fail on the ground that the replication is vicious. The following rules laid down by Serjeant Williams, are abundantly supported by authority: 1. Whenever a material fact is alleged in any pleading, which, if denied, will, upon issue joined, decide the cause one way or the other, if the adverse party plead a matter inconsistent with and contrary to such allegation, he must traverse it. 2. Whenever such a traverse is taken, the other party is bound to it, and cannot waive it, and tender another traverse; for the parties are not to go on ad infinitum. 1 Saund. 22, n. 2. See also 1 Chit. PI. 593, 4, and cases cited. In replevin, the declaration alleges title in the plaintiff. This is a material fact, which, if issue be joined upon it, may decide the cause one way or the other. When the defendant pleads any matter inconsistent with that allegation, as property in himself or a stranger, he must conclude with a traverse of the plaintiff’s title. The allegation of property in the defendant or a third person, is but inducement to the traverse. The point upon which the issue must be joined, and on which the jury must pass, is, whether the plaintiff has such a title to the property as will enable him to maintain the action. Bemus v. Beekman, 3 Wendell, 667. Rogers v. Arnold, 12 id. 3C. When the de[208] fendant takes a traverse Upon this "material fact, the plaintiff is bound to it—^he cannot waive it, and tender another traverse. Without such a rule the pleadings would run into endless prolixity. With a few very special exceptions, there cannot be a traverse" after a traverse, when the first traverse is material and .pertinent. 1 Saund. 22, n. 2. Com. Dig. Pleader, G. 17, 18. Mayor of Oxford v. Richardson, 4 T. R. 437. Although this judgment was reversed in the exchequer chamber, it was on a ground which left this point untouched. 2 H. Black. 182. 5 T. R. 367.
.It is also "a rule of'pleading that matter of inducement cannot be traversed. - Com. Dig. tit. Pleader, G. 14. Lady Chichesley v. Thompson, Cro. Car. 104.
In replevin, as well as in other actions, it must appear by the declaration that the plaintiff is the person injured. It would be idle to charge the defendant with taking the property without showing the plaintiff’s right to maintain the action. In the case at bar, the pleader who drew the declaration, although he has not followed the precedents, has alleged that the plaintiffs were entitled to the possession of the goods which the defendant took. If this be a sufficient substitute for the usual averment of property in the plaintiffs,, it was a material allegation, which the defendant was bound to traverse when he set up property in Ward and Kingsman. The defendant did traverse this allegation ; and the plaintiffs in their replication should have accepted the issue thus-tendered, by re-affirming their title to the possession of the-property, and concluding to the country. But instead of doing so, they have first traversed the inducement to the-plea,, which was not traversable, and then shown how they were entitled to the possession of the property—concluding with a verification. In this way the parties may never arrive at an" issue. It'would be a good rejoinder to the replication, to repeat the plea over again ; Indeed, that is the only answer which the defendant could make. The defendant is entitled to judgment on the demurrers.
By Mr. Justice Cowen. ' The pleadings in this case are all anomalous, owing to the plaintiffs’ mode of declaring. [209] Instead of alleging that the boat and furniture, Sec., were the goods and chattels of the plaintiffs, according to the correct form, they chose to start specially by averring that they were entitled to the possession. This is therefore traversed by the defendant, after averring that property was in ethers, He is then met by the plaintiffs with replications denying that property was in others, and showing specially a bail.ment to themselves by the true owner, which entitled them to the possession, The formal language of such pleadings, as may be collected from Gilbert on Replevin, opp. 235 to 278, Loud. ed. of Í794, would be first a complaint that the defendant took “ the boat, «fee. of them the said plaintiffs,” &c. The defendant would then plead, that the property of the boat, (fee., aforesaid was in one H. W. &c., without that, that the property of the boat, &c., aforesaid was in the said plaintiffs as they by their declaration aforesaid suppose.” The plaintiffs would then reply “ that the property of the boat, See. was in the said plaintiffs in manner and form as they by their declaration aforesaid have above thereof alleged,” with issue to the country. The pleadings thus framed, with the proper additions as to time, place, &c. would cover all the matters which either party might be desirous to give in evidence, whether the property in question were general or special, The substance of the issue thus joined is whether the plaintiff had such q. property as would maintain replevin, .or whether the person named in the plea had such a property as would defeat it. That may be either general or special, The inquiry is, where was the right of possession ? Rogers v. Arnold, 12 Wendell, 30, and the cases there cited. The pleadings in the case at bar, therefore are, though informal, all of them sufficient in substance. The pleas are good and would entitle the defendant to a return without connecting himself in title with the. persons in whom he alleges an outstanding title to be. The contrary is put with a semble in the abstract by the reporter of Rogers v. Arnold; but all the court do in that case is to doubt the accuracy of the reason on which the .cases go. They admit that property in a stranger, without more, is a good defence; and no book nor any case [210] it, even as to the common law action of replevin, which always went on a tortious taking. On the contrary, the books all assert it. Per Nelson, J. in Rogers v. Arnold; and see Wilk. on Replevin, 48. The point was expressly adjudged in Butcher v. Porter, 1 Salk. 94 ; in Parker v. Mellor, 1 Ld. Raym. 217; and laid down as settled law in Harrison v. M’Intosh, 1 Johns. R. 380, 384. With us the like defence would not be allowed in trespass or trover, without a privity of interest between the defendant and the third person. The want of analogy between the defence in these actions and replevin is noticed in Rogers v. Arnold, but even this analogy is not violated, in replevin for a mere unlawful detention, as given 2 R. S. 430, § 1, 2d ed.
I have said the pleadings in question are all good in substance. It follows that the whole case, turns on the mere form of the replications. The first objection is, that they take no issue, upon the traverses of the plaintiffs’" property, but only on the allegations of property in Ward and Kings-man jointly, showing the plaintiffs’ right of possession specially, under a contract, of bailment and delivery by Ward alone, the true owner. It is supposed that the third person in whom property'is alleged may be entirely disregarded. I doubt that when the case comes to proof; but we have seen that "an issue on the traverse would have been sufficient, according to the precedents, to negative "the outstanding property as pleaded; and then oui bona, go farther to deny that property ? The authorities will, I think, be found against the right. Walworth, C. in Bemus v. Beekman, 3 Wendell, 672. Lady Chichesley v. Thompson, Cro. Car. 104. At all events, the plaintiffs need not have gone farther than to deny it and re-assert their own proper^. They have chosen to pass over the traverse, and to reply specially the evidence of their property. - The rule is, that in pleading you must ""state the legal effect, and not the particulars from which it results. If particulars be stated, the pleading is argumentative, and it is therefore bad on special demurrer. I think the replications are obnoxious to this objection. It is supposed that Harrison v. M’Intosh recognizes the plaintiffs’ mode of replyingbut substance, not form, was the question [211] ■in that case. The replication there failed to show any right in the plaintiff’s bailor.
It is not necessary to inquire whether the replications should have concluded to the country or with a verification. Had-they been right in form, or not objected to by special demurrer, the books seem to allow a conclusion either way. Baynham v. Mathews, 2 Str. 871, and cases there cited. Hedges v. Sandon, 2 T. R. 439, and cases there cited. And see Hopkins’ arg. in Harrison v. M’lntosh, 1 Johns. R. 383, 4.
The plaintiffs should-have taken issue-on the traverse as in Gilbert. An issue on the right of third persons, which was mere inducement, though followed by replying the evidence of the plaintiffs’ right of possession, is' bad on special demurrer. See also the following cases: Mayor, &. of Orford v. Richardson, 4 T. R. 437; 2 H. Black. 182, S. C. on error: Thrale v. Bishop of London, 1 id. 376. See also 1 Saund. 22, note 2.
The Chief Justice -concurred in the result of the preceding opinions.
Judgment for defendant.