
    Rogers vs. Arnold and others.
    A plea of property in the defendant or a stranger, &c. in the action of replev-in most contain a traverse of the right of the plaintiff, and if issue be taken upon such plea, by replication, affirming the property to be in the plaintiff, the material inquiry for the jury is, is the property in the plaintiff.
    
    If the plaintiff fail to establish an exclusive right to possess and control the property, the defendant is entitled to a verdict.
    
      It seems a defendant will not be entitled fo a judgment of return of the goods, by simply showing property in a stranger; he must connect himself with the title of the stranger, and thus establish a right paramount to that of the plaintiff, justifying the taking of the property out of his possession.
    It was held, in this case, that the plaintiff (in whom the jury found the pro- „ perty as to part of the goods, the value whereof was assessed at less than $50, and the damages at only six cents) was not entitled to recover more costs than damages, although the appraisal of the whole property replevied exceeded $50.
    This was an action of replevin, tried at the Saratoga circuit in November, 1831, before the Hon. Esek Cowen, one pf the circuit judges.
    The plaintiff declared for the taking of the mill-irons, or machinery of a saw-mill, being the goods and chattels of the plaintiff. The defendants severally pleaded non cepit, and also put in a number of special pleas, (sometimes all, and sometimes less than all uniting in a plea,) alleging property in the goods and chattels to be, 1. in themselves and one Earl Whit-ford, as tenants in common ; 2. in themselves as tenants in common with Earl Whitford and the plaintiff; 3. in themselves ; 4. in themselves and the plaintiff as tenants in common ; and'5. in Foster Whitford, one of the defendants, each plea traversing the property in the goods, &c. to be in the plaintiff. To which pleas the plaintiff replied, re-affirming the property in the goods, &c. to be in himself. Upon these pleadings the cause was tried, and the following facts appeared. In January, 1831, mill-irons of the value of $131,62 were taken from a saw-mill in the possession of the plaintiff, by three of the defendants, (the others were subsequently shown to be connected with the transaction,) and the damages «consequent upon the taking were shown to be $48. The plaintiff claimed to be the owner of one half of the mill, the title to one fourth was in a son of the plaintiff, who purchased the same for his father, of one John Hart, and the remaining fourth was claimed to be owned by Orson Whitford, one of J m the defendants, who, in April, 1830, let his share of the mill to the plaintiff for one year. On the part of the defendants was produced in evidence a deed of a lot in the Saratoga patent from M. S. Miller to Foster Whitford, bearing date in June, 1821; and it was proved that by virtue thereof Foster Whitford took possession of the mill in question, and that in December, 1825, an agreement under seal was entered into between Foster Whitford and the plaintiff, whereby Whitford covenanted to execute a deed of an undivided half of the mill, with certain privileges thereunto appertaining, on payment of the sum of $40, and that at the time of the execution of the agreement, it was conceded that the whole title of the mill was in Foster Whitford. The defendants also gave in evidence a deed from Foster Whitford of amoiety of the mill to Earl Whit-ford, who, in 1828, conveyed one fourth of the mill to O. Whitford, one of the defendants; also a deed from Foster Whitford to O. Whitford, conveying one eighth of the mill, and a deed from 0. Whitford to Foster Whitford, junior, another of the defendants, conveying one fourth of the mill; which last deed, bearing date in August, 1828, was subsequently shown to have been ante-dated, it not having been executed ' until November, 1831. The plaintiff thereupon exhibited a deed from one James Green to himself, of the premises whereon the saw-mill was situate, bearing date in 1808, and offered to prom that previous to the execution of the last mentioned deed, he (the plaintiff) Foster Whitford (one of the defendants) and John Hart had jointly erected and been in possession of the saw-mill; that it was agreed between them that the plaintiff should obtain a deed of the premises from Green, and on doing so convey to Whitford and Hart each one fourth of the mill, and that on obtaining the deed, he accordingly executed conveyances to Whitford and Hart. The plaintiff further offered to prom that the deed from Miller to Whitford, exhibited on the part of the defendants, did not cover the premises whereon the mill in question was erected, and that the mill and mill scite were not within the bounds of the Sara» i0ga patent, but were within the bounds of the patent of Kayaderoseras : which evidence so offered to be given was objected to by the defendants, on the ground that the plaintiff was estopped by the agreement of December, 1825, from setting up title hostile to that of Foster Whitford ; and the objection was sustained. Before the cause was submitted to the jury, the plaintiff proved, that amongst the property taken from the mill were four saws and a saw-set, not belonging to the mill, but the sole properly of the plaintiff, and that the value of such property was $15,50. The judge charged the jury that they ought to find that the property in the goods, &c. (with the exception of the four saws and saw-set) was not in the plaintiff, to which charge the plaintiff excepted. The jury found, 1. That the defendants took the property; 2. That as to the four saws and saw-set, the property thereof was in the plaintiff, and the value of the same was $15,50, and they assessed the plaintiff’s damages at six cents and his costs at six cents. And as to the residue of the goods, &c. the value of which they assessed at $116,12, that the property of the same was not in the plaintiff. The cause came before the court on a bill of exceptions, on a motion for a new trial.
    
      M. T, Reynolds, for the plaintiff.
    
      J. Ellsworth, for the defendants.
   By the Court,

Nelson, J.

It has been long settled in this state that the possession of personal chattels by the plaintiff and an actual wrongful taking by the defendant are sufficient to support replevin, and that it may be brought, where trespass de ionis asportatis will lie. 7 Johns. Rep. 140. 17 id. 116. 1 Wendell, 109. 10 id. 322, 349.

By the 2 R. S. 522, § 1, it is also an appropriate remedy in any case of a wrongful detention of personal property, and it is now brought in many instances in the place of trespass and trover.

As the pleading in this action is in some respects complicated and peculiar, as given in the books, it may be useful to examine some of its principles, and the cases adjudged on the subject. The revised statutes have in some measure simpli-tied the pleadings, p. 529, § 44. The form of pleading, however, as it existed heretofore, may be resorted to at the option of the defendant.

The general issue of non cepit, in the case of a wrongful taking, puts in issue not only the taking, but the place where taken, if material, 2 R. S. 528, § 29 ; and in case of a wrongful detention, the general issue, to wit, that the defendant does not detain the goods, &c. puts in issue not only the detention of the goods, but the property of the plaintiff. The distinction here made between the effect and operation of the general issue, in the cases of non cepit and non detinet is in. analogy to that existing in the actions of trespass and trover. In the one the defendant cannot, under the plea of not guilty, show property out of the plaintiff, but he may in the other. 11 Johns. R. 132, 528. 13 id. 284. 14 id. 132, 353. 15 id. 208. The reason of this distinction is, that the action of trespass is founded upon the right of the plaintiff to the possession of the goods taken, and that of trover to the right of property. It should be remembered, however, that possession is prima facie evidence of right, and conclusive against all the world, except the true owner, or one connecting his title with him. This principle goes far to assimilate these two remedies in practice. The distinction, however, still exists in regard to the defence to be given in evidence under the general issue.

It is laid down generally, and in all the books on this branch of the law, that the defendant in replevin may plead property in himself, or in a stranger, in bar of the action, and pray for a return and damages. So he may plead property in himself and the plaintiff, or in a stranger and the plaintiff, or if there are two plaintiffs, in one of them, &c. All these different pleas are obviously founded upon the principle applicable to this action, that the plaintiff, as in tro-ver, must recover upon the strength of his title to, or property in the goods in question, and in this respect there is a shade of difference between this action and trespass.’ 2 Selw. 911. Gilb. Rep. 119. 1 Chitty’s Pl. 158, 159. Woodf. Landlord & Tenant, 473. Under the plea of non cepit we have seen the caption only is put in issue, except the place, when material; and if the de-féniJañt intends to deny the property of the plaintiff, he must plead it, or give notice under the general issue. Now it is clear that all these different pleas of property in the defendant, &c. are used for the purpose, and to the end of showing it out of the plaintiff who holds the affirmative, and must süstáin the allegation -of property in himself; and what must be proved on one side, may be disproved on the other. , Non cépit admits property in the plaintiff, and hence the necessity ■of the different pleas of property in others, to enable the defendant to contest it.

Baron Gilbert, in his Treatise on the Law of Relevin, p. 132, distinguishes between justifications which affirm, and those that disaffirm property in the plaintiff. Under the latter head, he ranges all pleas of property in the defendant, a stranger, &c. Property in the defendant, he says, is a good bar, because it avoids the injustice of the caption, which is the gist ‘of the action, by showing he had a right to take it; and this not only abates 'the Writ of the plaintiff, whereby deliverance Was made to him, but destroys all his right to the property. Substantially, the same reasons are given for the plea of property in a stranger, though it has been well said elsewhere, that this plea is not 'founded upon very accurate reasoning. ‘For the plaintiff being in possession of the goods at the time of the caption, which is admitted by the plea, it is difficult to see how the defendant shows a right to the return of the property taken on the replevin, by proving a title to it in a stranger. Upon this view of the case, the possession ofthe plaintiff would be left untouched, which, as we have already seen, is a sufficient ground, prima facie, to sustain the action. The doctrine of Baron Gilbert, that pleas of property put in-by the de-fendánt constitute a good defence to the action, because they disaffirm and disprove it out ofthe plaintiff, is sustained by all the authorities on this point. 1 Chitty’s Pl. 158. 1 Ld. Raym. 217. 1 Salk. 94. 19 Vin. Replevin, c. a pl. 3, and note.

From the above view, it is obvious that the material fact in dispute, and 'substantial issue, raised o"n *all pleas Of .property in replevin, is, property in the plaintiff. They all tend to deny and disprove this, and are good and valid defences for that reason. All the replications, therefore, in this case very properly take issue alone upon that fact, and the rights of the parties must depend upon the determination of it, the plea of non cepit being out of the question. The above view also explains the reason why in pleas of property in the defendant or third person as the case may be, such fact must not only be alleged, but the defendant must also traverse property in the plaintiff. The title to the property stated in the plea is only by way of inducement to the traverse, or of “shewing cross matters, contrary to the allegation of the adverse party.” Dyer, 365, pl. 38. 5 Bac. Pleas. & Pl. H., 379. 1 Chitty, 579. And the traverse becomes indispensable, because two affirmations, to wit, property in both plaintiff and defendant, cannot make an issue. 5 Bac. 383. 1 Chitty, 593, 4. Dyer, 312. The same rule, in other words, is laid down by Sergeant Williams, after an examination of the cases, 1 Saund. 22, n. 2. “Whenever any 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. 5 Bac. 380, 383. The traverse in all these cases would seem to be matter of substance, and would be bad on demurrer ; but there ai’e authorities to show that the adverse party may waive the advantage and go to the issue. This is founded upon the idea that the matter pleaded is so contrary to, and inconsistent with the plaintiff’s allegation of property, that the finding for the defendant, under certain circumstances, may be deemed equivalent to a denial of it. 5 Bac. 380, 383. It is decided, however, in Bemus v. Beekman, 3 Wendell, 667, that under the plea of property, with a traverse and a replication affirming it in the plaintiff, the jury must find the issue thus joined for the plaintiff, to entitle him to the verdict; and that finding against the truth of the plea alone is not sufficient, but defective in substance.

When we speak of property in the plaintiff or in the defendant in this action, it is material to understand what is meant by the term. From the language used in some of the books, it might be inferred that the question between the parties involved the absolute ownership of it. The cases already referred to, showing under what circumstances this action will lie, negative this idea. Right to the possession and dominion of the goods and chattels for the time is all that is essential. This is the view which this court had of the question at an early day. 1 Johns. R. 380. It is conceded by the learned judge, who delivered the opinion in that case, that an interest of the plaintiff in the property which would have sustained trespass or replevin would have constituted a good replication to the plea of property in a stranger. Whether such an interest was not shown in that case, is a question upon which I should hesitate before I could come to the conclusion there arrived at.

The property, then; whether in the defendant or a third person, sufficient to sustain a defence, must be such as goes to destroy the interest of the plaintiff, which, if existing, would sustain the action or, in other words, such as would defeat an action of trespass if brought in place of this in case of a wrongful taking, or trover if brought for a wrongful detention. All that can be material for the plaintiff to maintain against the plea in bar is an interest in, or connection with the property, which would give to him the action of replevin as an appropriate remedy for a wrongful taking or detention.

I have already referred to the cases showing what interest in, and claim to the property a defendant in trespass or trover must show to defeat such action, and it is unnecessary to examine them. They are familiar, and, in my judgment, the principles of them are strongly applicable. They remove the apparent injustice supposed to be involved in the plea of property in a stranger, which, it is said, gives to the defendant a right to the return of the goods, on the ground that the plaintiff has no right to them, though the defendant shows none, because then he must not only show property in a stranger, but connect himself with it, and thereby establish a right paramount to that of the plaintiff, which will justify taking the property out of his possession. 13 Johns. R. 284. 11 id. 132. These cases expressly decide, that in the action of trespass, as the possession of a chattel is prima facie evidence of right, a mere stranger could not deprive the party of that possession without showing some authority or right derived from the true owner to justify the taking. This sound and incontrovertible principle has also been extended to the action of trover, and we think is applicable to this action, and explains and confirms the position before taken, that, in a plea of property, the defendant must not only show title in himself or others, but he must also traverse or deny the right of the plaintiff, and that this is the material issue.

From the above view, the failure of the plaintiff in this case necessarily follows, putting it upon the ground he proposed, to wit, that he was tenant in common with Foster Whitford and J. Hart. Assuming this to be so, Foster Whitford conveyed his interest to Earl Whitford, and he to O. Whitford. Though Foster Whitford professed to convey to Earl Whit-ford a moiety, the one fourth passed by the deed, and the same from Earl Whitford to O. Whitford. At the time of the caption, then, O. Whitford was tenant in common with the plaintiff of one undivided fourth part of the saw mill. The plaintiff had an undivided half, and had possession. Now it is clear that he could not have supported trespass quare clau-sum fregit against 0. Whitford for entering upon the premises, Coke on Littleton, 785, nor trespass for carrying away the property. Idem, 2 Caines, 166. 15 Johns. R. 179. 9 Wendell, 340. As against him, replevin would not lie, and he is therefore entitled to a return of the property, and the action necessarily fails as to the others. Shewing no right to take the property by replevin, and a return of it being inevitable, the plaintiff cannot of course sustain his claim against any one of the defendants.

It is a good plea in this action that the property is in the plaintiff and defendant or a stranger; and where there are two plaintiffs, that it is in one of them. Coke on Littleton, 340. 2 Selwyn, 923. Here it is shewn to be in the plaintiff and one of the defendants, which disproves the issues in the case that the plaintiff is the exclsuive owner. It is not material that the defendants should prove title to the property as set forth in any one plea, as that is only inducement to the traverse of the plaintiff’s title, as has before been shown, and need not be, and was not denied in the replication. Upon the issues, the plaintiff was bound to prove and maintain an exclusive right to the possession and control of the property. This he has not done under any view of the evidence in the case, nor would such exclusive right have been established by the evidence rejected.

The jury found as to a portion of the goods, that the property therein was in the plaintiff, and that the value thereof was fifteen dollars and fifty cents, and a question was raised as to costs. The plaintiff in fact holds this property, and the revised statutes, 2 R. S. 530, § 48, provides for an assessment of the value of such goods, with a view to the question of costs under sec. 7, p. 614, which give no more costs than damages, unless the recovery exceeds fifty dollars. Damages here, however, mean a recovery in this action, in addition to the property taken on the writ for the unlawful caption, and for that the plaintiff has recovered only six cents. The same section also provides that if it shall appear by the appraisal of the property replevied, which must mean the assessment of value, sec. 48, p. 530, that it was worth more than fifty dollars, and less than two hundred and fifty, the plaintiff shall recover at and after the rate of common pleas costs. The value of the goods, the property of which was found in the plaintiff, not amounting to fifty dollars in this case, the plaintiff can recover only six cents costs. He should have brought his suit in the common pleas. 2 R. S, 614, § 12.  