
    WILLIAM ROCKER, vs. BISHOP W. PERKINS, Et Al.
    In an action of trespass de bonis asportatis, the usual mode of pleading is for the declaration to allege ownership by the plaintiff; and then any proof will sustain the action which shows his right of possession. .
    At Law.
    No. 28,853.
    Decided May 7, 1888.
    The Chief Justice and Justices Cox and James sitting.
    Motion by plaintiff for a new trial on exceptions.
    This was an action of trespass. The declaration alleged that the defendants with force-' and arms, etc., “ wrongfully seized a certain colt of the plaintiff of the value of $150, and then and there carried away the same and converted and disposed of the same to their own use,” to the damage of the plaintiff -$250. ■
    The defendants, Perkins and West, pleaded not guilty. The defendant Luckett, besides a plea of not guilty, also pleaded specially as follows:
    “That before the alleged trespass, and before this suit,-certain proceedings were had before one William Helmick, a justice of the peace, then and there having jurisdiction between the plaintiff and the defendants Bishop W. Perkins and Granville C. West, in which proceedings the now plaintiff was the defendant; and thereupon .judgment was had against the plaintiff herein in the sum of $-and costs, in favor of the said Perkins and West, and thereupon a ■writ of fieri facias was duly issued by the said justice of the peace to the defendant Luckett, a duly authorized constable, by which said writ the said constable was commanded to seize the goods and chattels, rights and credits of the plaintiff herein, and by virtue of which said writ the said defendant Luckett seized and took in execution one colt, tlie property of the said plaintiff, which are the alleged trespasses.”
    Issue was joined on the plea of not guilty, and to the special plea a new assignment was filed as follows:
    “And the said plaintiff says that he brought this action, not for the trespass in the defendants’ second plea acknowledged to have been done, but for that the said defendants heretofore, to wit, on the 29th day of November, in the year of our' Lord, 1884, with force and arms; and upon another and different occasion, and for another and different purpose than in the said second plea mentioned, committed.another and different trespass against the said plaintiff than the trespass in the said second pleá mentioned, and then and there seized, took and carried away and converted to their oWn use the said plaintiff’s .colt in manner and form as the said • plaintiff hath in the said declaration complained of; which said trespass above newly assigned is another and different trespass than the said trespass in the said second plea acknowledged to have been done. And this' the said plaintiff.is ready to verify.” .,
    . A plea of not guilty was entered to the. new assignment, and issue was joined thereon. ;
    ■ On the trial of the cause it appeared that the plaintiff had. been in occupation of a .farm in the District as the tenant of the defendants Perkins and .West; that the rent ■had become due, and that a few days prior to the 29th of November, the day of the alleged trespass, he had removed his personal property therefrom, including this colt. That ¡thereupon the defendant sued out a writ of attachment for rent before Justice of the Peace Helniick, which, being placed in the hands of the defendant Luckett, who was a ponstable, he seized the colt, then at the Columbia car stables, where it was being kept by plaintiff. That thereupon plaintiff moved. to quash the attachment because the attached property was not upon the rented premises at the time of the seizure. The Justice of the Peace granted the motion, and quashed the attachment, as illegal, but proceeded to render judgment for. the rent due. That thereupon an execution upon this judgment was placed in the .hands:of Luckett, who, still having possession of the colt, seized as stated under the illegal attachment, immediately levied his execution upon it, and, after duly advertising, sold it and applied the proceeds to the satisfaction of-the judgment.
    On cross-examination the plaintiff was asked whether he had not sold, prior to the 29th of- November, to one Theodore Plitt, certain of his goods and chattels and- received a consideration therefor. He -replied that he had .executed .such a bill of sale, but that it was merely as security for a debt of $500 due Mr. Plitt. That possession of the property had not been transferred to Mr. Plitt, but that he had been permitted by said Plitt to retain said goods and chattels, including the colt in question, with the understanding that if he should fail to pay said debt he (Plitt) might take possession of the said colt and the other goods and chattels mentioned in the bill of sale. Being asked if he had not given a receipt for said $500, he replied that he had, and thereupon he produced the same, which is as follows:
    ' Received, Washington City, D. C., November 28th, 1884, of Mr. Theodore Plitt, $500 in full of all the goods and chattels mentioned in a certain bill of sale made by me and wife this date.
    William Rocker.
    Witnesses:
    Lewis Keese,
    J. H.. Salzicorn.
    . No evidence was offered for the defense; but, the casé being closed, defendants’ counsel requested the court to ■instruct the jury that the plaintiff had failed to .-make out a case, and that their verdict should be for'■ the'defendants fob the following reasons, to wit: that the plaintiff had not ■shown that he had a bona fide actual possession of said colt on the 29th of November, 1884, because he had sold the .same to Theodore Plitt on'the 28th day of November,. 1884, by bill of sale, received the consideration therefor, and reproved the same from the said premises rented by plaintiff from defendants to the Columbia car stables in the city of Washington, prior to the 29th of November, 1884; and.fur7 ther, because .a. material variance appears between the allegations of the declaration and the proof, in that the plaintiff alleges that at the date of said alleged seizure, November 29th, 1884, the colt was his colt, while the evidence of the plaintiff himself shows that the colt belonged to Plitt, the vendee under the bill of sale; who had paid to plaintiff a valuable consideration therefor. ■
    This instruction was granted by the Court, the plaintiff excepting thereto. The jury thereupon returned a verdict for the defendants.
    Mr. Franklin H. Mackey for plaintiff.
    Mr. Wm. T. Curtis for defendants.
   Mr. Chief Justice Bingham

delivered the opinion of the Court :

• The only question before us is whether or not in the case of a sale such as was shown to have been made here, the plaintiff parted with his property in the colt in such a man7 ner as that the allegation in the declaration that the colt was the colt of the-plaintiff is supported by the evidence. In other words, if the plaintiff’s possession was by virtue of his arrangement with Plitt, that he ghould keep the colt until the maturity of the debt, when, if he failed to pay, Plitt was to take possession, were these facts sufficient to support the averment of ownership in the declaration ? The position of the defense is.that if the plaintiff had only a special ownership of the colt, such as thg right of possession, under this agreement with Plitt, then in order to recover he must allege such ownership in his declaration, and prove it upon the trial. We are satisfied that there is no authority sustaining that view of the law. It is a well settled rule of pleading that it is sufficient in this class of actions simply to allege ownership in the plaintiff, and then any proof of ownership which will support the action of trespass will be sufficient under such an allegation to entitle him to recover. The mere right of possession is sufficient to maintain the action against every one but the owner, and the allegation that the plaintiff is the owner is well made out by merely proving his right of possession.

The judgment of the Court below is reversed, and a new trial ordered.  