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.
MR. JUSTICE NELSON.
This action was replevin, brought by the plaintiff below,
Wallach, against the defendant, for taking certain goods and
chattels of the plaintiff from a house called the Avenue House,
situated in the City of Washington.
The defendant pleaded: 1. that the goods and chattels in the
declaration mentioned were not the property of the plaintiff; 2.
avowed the taking, by way of distress, for rent due and in arrear,
under special circumstances stated, concluding with a verification;
3. like avowal for rent due and in arrear generally.
The plaintiff replied to the first avowry, no rent in arrear and
unpaid. No notice is taken in the pleadings of the second
avowry.
The jury found a special verdict, that no rent was due or in
arrear upon the issue joined on the first avowry, and assessed the
damages; and judgment was given that the plaintiff recover the
goods and chattels, and have a return of the same &c. No notice
is taken in the verdict or judgment of the plea of property.
The plea of property in replevin is a good plea in bar of the
action. It is true, the plea in this case is not in due form, and
might have been held defective on demurrer; but it is good in
substance. The form is to plead property in the defendant, or in a
stranger, traversing property in the plaintiff, which traverse
raises the material issue to be tried -- the averment of property
in the defendant or a stranger being by way of inducement. Either
plea constitutes a good defense, because it
Page 66 U. S. 98
shows property out of the plaintiff; and
prima facie,
therefore, he is not in condition to maintain the action. 12 Wend.
30, 34, 35.
The plea in this case avers the fact directly, by stating that
the goods and chattels in the declaration mentioned are not the
property of the said plaintiff. Under this plea, it was competent
for the defendant to have proved property in herself, or in a
stranger, as this would have tended directly to support the issue,
and if the defendant had sustained her plea, and proved property
out of the plaintiff, she would have been entitled to a return of
the goods and chattels without an avowry, as it would appear the
plaintiff, at the time, had no right to take or detain them.
As this plea of property is a good bar to the action, and as the
record shows it has not been tried or found by the jury, there has
been a mistrial below, for which the judgment must be reversed, and
the case sent down, and a new venire ordered. There is a good bar
to the action remaining untried, and not yet found for the
plaintiff, and hence he is not entitled to the judgment rendered in
his behalf in the court below.
It appears that the
similiter was not added to the plea
of property; but this is now regarded as matter of form, and its
omission does not affect its validity.
The omission to join issue upon the second avowry, or to notice
it in the finding of jury or in the judgment of the court, is cured
after verdict.
There is also, a second plea by the plaintiff to the first
avowry, which issue has not been noticed in the verdict or on the
record, but as the finding of the first issue rendered the second
immaterial, the omission, in this respect, is not important.
Judgment reversed and venire facias de now ordered.
