Dermott v. Wallach
66 U.S. 96

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U.S. Supreme Court

Dermott v. Wallach, 66 U.S. 1 Black 96 96 (1861)

Dermott v. Wallach

66 U.S. (1 Black) 96

Syllabus

1. In replevin, the plea of property is a good plea in bar of the action.

2. Where the plea, without averring property in the defendant or a stranger, traverses the plaintiff's allegation of property in himself, it might be held defective on demurrer, but it is good in substance.

3. The addition of a similiter to the plea of property is but matter of form, and its omission does not affect its validity.

4. Where the plea of property is put in by the defendant, but is not tried by the jury, it is a mistrial and an error, for which the judgment will be reversed.

5. An omission to join issue upon an avowry for rent in arrear, or otherwise to notice it on the record, is a mere irregularity, cured by the verdict.

Charles S. Wallach brought replevin in the Circuit Court for the District of Columbia against Ann R. Dermott. In his declaration, the plaintiff averred that certain articles of household furniture were taken by the defendant and detained against sureties and pledges. The defendant pleaded that "the goods and chattels in the declaration mentioned are not the property of the said plaintiff, and of this she puts herself on the country." The defendant also avowed the taking of the goods for rent in arrear, setting out the lease, and the amount due thereon. To the avowry the plaintiff replied riens en arriere, but did not formally join issue on the plea of property by putting in a similiter. The defendant prayed the court to instruct the jury on several points, all of them having relation to the one question whether the rent had become due and payable to the plaintiff, as alleged by her. The court refused to give the instructions prayed for, and the jury found that the rent claimed by the defendant "at the time when &c.,

Page 66 U. S. 97

was not in arrear and unpaid, nor was any penny thereof," assessing the damages of the plaintiff for the taking and detention at one cent. The court gave judgment for the plaintiff, that he have return of the goods, with the damages assessed by the jury and costs.

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