Pattison v. Adams , 1 Hill & Den. 426 ( 1844 )

By the Court,

Beardsley, J.

This declaration is not in the usual form, but, I think, may be sustained. It alleges that the “ plaintiffs were the owners ” of the goods and chattels in suit, “ and entitled to the possession thereof.” The last clause is idle and nugatory; it adds nothing to the right or title of the plaintiffs, and is to be overlooked as surplus-age. If thé plaintiffs were, as they allege, owners of the chattels, the law implies that they were “ entitled to the possession thereof.” The allegation of ownership is equivalent to an assertion of property in the goods, and is therefore sufficient. (See Pattison v. Adams, 7 Hill, 126.)

The second plea sets up property in these goods in two. of the plaintiffs and one Baker, a stranger to the suit. It is informal in its statements, but good in substance, for if the property was in these three persons, the thirty-five plaintiffs who brought this suit had no right of action.. In replevin the defendant may plead property in himself, or in a stranger, or in any one or more persons, other than the plaintiff. (Ingraham v. Hammond, 1 Hill, 353; Prosser v. Woodward, 21 Wend. 205, 9; 3 Chit. Plead., 7th Amer. ed., 1044; Wilk. on Rep., 47, 8; Hart v. Fitzgerald, 2 Mass., 509; Com. Dig., Pleader, 3, K. 11, 12.) This plea was therefore a good bar to the action.

The replication to this plea is not a statement of facts, but of evidence ; of evidence too, which, in addition to being irrelevant and idle, is nearly senseles's. The .contest here is about goods and chattels, tangible property; and not about such things transformed into stock and scrip. The law is certainly progressive, but it has not yet reached the point of effecting such a metamorphosis of horses, post coaches and canal boats; while existing in these forms, call them what we may, they are material and substantial property, title to which, if transfered at all, must be conveyed in some way known to and authorized by the law. But passing by this effort to change, not only the names but the nature of these things, and overlooking all matters of form, this replication lacks substance. It admits that txvo of the plaintiffs and Baker once oxvnedthe property, as is set up in the plea, and the utmost that seems to have been intended by the residue of the replication is, that Baker sold and conveyed all his right and title to the plaintiffs or some of them. To xvhom, in particular, this transfer was made, is not stated; nor is it alleged to have been done before this cause of' action arose. Indeed, the replication does not show that it was, even before suit brought; it may have been the day before the replication xvas put in, as well as at any other time, so far as respects this pleading. The replication is, therefore, fatally defective in substance as well as in form. (See Pattison v. Adams, 7 Hill, 126.)

The fifth is an informal plea of property in Baker, alleging that -the defendant was entitled to the possession, but with a direct denial of the oxvnership of the plaintiffs. The replication sets up a sale and transfer of Baker’s right and title to the plaintiffs or some of them, but concludes by affirming that the plaintiffs at the time when, &c., were the owners of and entitled to the possession of said goods and chattels, upon which issue is taken by the rejoinder. To this the plaintiffs demur, alleging various special causes.

This plea Contains an allegation of a superfluous fact, to wit, that the defendant was entitled to the possession of said property; and the replication, although it alleges a sale and transfer by Baker of all his right and title to the plaintiffs or some of them, does not show when that was done, or that it preceded the commencement of the suit. These statements may be disregarded. " The substantial part of the replication is that the, plaintiffs were owners of the goods and chattels; that is, they had the general or a special property therein.- But this is denied by the rejoinder, and the issue is material, for replevin can only be sustained on such a right of property. (See Pattison v. Adams.) The rejoinder is good'and the demurrer to it is not well taken.

The sixth plea is in substance like the fifth, and results in a similar issue.

On the three issues of law the defendant is entitled to judgment, with leave to amend on the usual terms.