
    Taylor & a. v. True & a.
    Before the eighth day of ^February, 1851, the Massabesick Engine Company purchased certain articles, which were paid for partly out of the common treasury of the company, and partly by the contributions of its members. The company was in the service of the city of Manchester. On the 7th of Eebruary, the company voted to withdraw from the service of the city, and appointed the defendants a committee to remore the articles. Those who were opposed to this course filled up the places of the persons who withdrew, and then united with those newly appointed in bringing this suit. Held, that they had no better title than the defendants, and that the action would not lie.
    In replevin, the defendants filed a brief statement that the goods replevied were not the property of the plaintiffs, but of the defendants. Held, that the affirmative was on the plaintiffs, and that they were bound to offer evidence of property.
    Replevin. The writ was dated February 20th, 1851. The defendants pleaded “ non cepit” and with it filed a brief statement.
    The plaintiffs contended that the brief statement did not make it necessary for them to produce any evidence of title, but the court ruled otherwise, and the plaintiffs proceeded to lay their evidence of title before the jury. The property in dispute was taken and conveyed away from the defendants, from the fire engine room No 4, belonging to the city of Manchester, on the 8th day of February, 1853. The plaintiffs proved that prior to that day there existed a fire engine company, called the Massabesick Engine Company, No. 4, of which the defendants, and those represented by them, and a part of the plaintiffs, were members. This company was in the service of the city of Manchester, and the number of members was limited by the engineers or fire-wards of the city; but the members were not appointed by warrant signed by the chairman and clerk of the firewards, as enjoined by section 9 chapter 111 of the Revised Statutes. The property in controversy was purchased by the company before February 8th, 1851, and was paid for partly out of the common treasury of the company, and partly by the contributions of its members. On the evening of the 7th of February, 1851, it was moved that the company withdraw from the service of the city, because of the insufficiency of the pay. The motion was opposed by Taylor, one of the plaintiffs, but was carried by a very large majority, and then all the members excepting Taylor, and one or two others, withdrew from the room, and appointed the defendants a committee to remove the articles now in question ; and also chose another committee to notify the city authorities that the company have withdrawn from the service of the city, and to tender the keys of the room. And those committees acted according to their instructions. Those who remained were requested by the firewards to fill up the place of those who had thus withdrawn, and proceeded to do so; but wThen, and in what manner, did not appear, only some of them were appointed in the mode prescribed in the statute, and all of the persons thus appointed, with Taylor, after the 7th day of February, 1851, are plaintiffs in this suit. The plaintiffs also put in evidence the bylaws of the original company. Upon this evidence the court ruled that the action could riot be maintained, and directed a verdict for the defendants for the value of the property. The plaintiffs moved to set the verdict aside, because of the said ruling.
    The brief statement was as follows:—
    “ The plaintiffs will take notice, that on the trial of the above action, the defendants, as a further defence, will contend and offer in evidence to show that the same goods and chattels were not any of them the property of the plaintiffs, but were the property of the defendants and others, and that the plaintiffs have no right to them — and will pray judgment for a return, their damages and costs.”
    The following is a copy of article five of the by-laws:—
    “ Admission and discharge of members. Application for membership must be made to the standing committee, in writing, and if in their opinion the applicant is a suitable person, and there shall be a vacancy in the company, they may recommend him to the company, and if he receives the votes of two-thirds of the members present, he shall be considered elected a member of the company. And when any applicant is so chosen, he shall sign the by-laws apd be entitled to all the privileges of membership. . When any member is discharged from the company, he shall .pay up all arrearages and dues with which he may at the time stand charged, and return to the clerk all property belonging to the company with which he may have been entrusted — and he may be honorably discharged, provided he is clear of the books.”
    Flanders, for the plaintiffs.
    
      D. Sf D. J. Clark, for the defendants.
   Gilchrist, C. J.

The brief statement is substantially a plea of property in the defendants. If this had been pleaded, the plaintiffs would have replied property in themselves, the issue on which would have thrown the burden of proof on the plaintiffs. Or the brief statement may be considered as merely a denial that the plaintiffs owned the articles, and this the plaintiffs would be bound to prove. The affirmative is therefore with them. Belknap v. Wendell, 1 Foster’s Rep. 175.

The articles belonged to the Massabesick Company, in the service of the city. The number of members was limited by the firewards,-but they were not appointed according to section 9 of chapter 111 of the Revised Statutes. Still the persons acting as members owned the property, whether they were or were not a legally constituted company. All the members excepting the plaintiff, and one or two others, appointed the defendants a committee to remove the articles, which was accordingly done. New members of the company were then appointed, some of them in pursuance of the statute. This, however, did not change the property in the articles. The defendants were in possession of them, and certainly the plaintiffs had no superior title that would authorize them to take the articles out of the possession of the defendants.

Judgment on the verdict,  