| Ill. | Dec 15, 1844
The Opinion of the Court was delivered by
This was an action of replevin brought by John Anderson and Rodolph W. Paddleford against Edward B. Talcott.
The declaration was in the usual form, for the taking of a stock of goods belonging to the plaintiffs.
The defendant pleaded five pleas;
First, that the defendant was a deputy marshal of the United States for the District of Illinois, and as such seized the goods by virtue of & fieri facias issued out of the Circuit Court for said District, on a judgment recovered therein by William Montross against Cyrus K. Anderson for $835,90; and that the goods were the property of Cyrus K. Anderson and Rodolph W. Paddleford as partners, and liable to seizure on the fieri facias;
Second, that the goods were the property of Cyrus K. Anderson; without this, that they were the property of the plaintiffs;
Fourth, that the goods were the property of Cyrus K. Anderson and Rodolph W. Paddleford as partners; without this, that they were the property of the plaintiffs.
The third and fifth pleas justified the taking as in the first plea, but alleged that the goods were the property of Cyrus K. Anderson.
To the first and fourth pleas the plaintiffs replied, that the goods were the property of the plaintiffs, and not the property of C. K. Anderson and R. W. Paddleford as partners.
To the second, third and fifth pleas they replied, that the goods were the property of the plaintiffs, and not the property of C. K. Anderson.
These issues were submitted to a jury for trial, and were all found for the defendant.
• The plaintiffs entered a motion for a new trial, on the ground that the verdict was against the evidence, and because the Court admitted improper testimony. The Court denied the motion, and rendered judgment on the verdict, and awarded a writ of retorno habendo. A bill of exceptions was taken by the plaintiffs, setting forth all the evidence introduced on the trial.
The plaintiffs have prosecuted an appeal to this Court. They assign for error a decision of the Circuit Court, admitting evidence to which they objected, and also the decision of the Court refusing the motion for a new trial.
In the view we are constrained to take of this case, it is wholly unnecessary to inquire into the propriety of the decisions complained of. The whole record shows conclusively that the plaintiffs were not entitled to a verdict on any of the issues. The bill of exceptions contains all of the evidence, and it appears that the plaintiffs introduced no testimony whatever to the. jury, to sustain the issues on their part. The case seems to have been tried on the assumption, that the pleadings admitted, in the first instance, the right of property to be in the plaintiffs; and that the onus probandi was imposed on the defendant. This is a mistaken view of the law applicable to the action of replevin.
In this action, the defendant may plead in bar, property in himself or in a stranger, and if he succeed on the trial, he will be entitled to a return of the property, and to damages for the detention thereof. It is not necessary that he should connect himself with the title of the stranger. It is sufficient for him, that the right of property is not in the plaintiff. The plaintiff must recover on the strength of his title.
There is strictly no plea of the general issue in this action. The plea of non cepit only puts in issue the taking of the property. This plea admits the right of property to be in the plaintiff, and if the defendant succeed on the plea, he is not therefore entitled to a return of the property. If he insists on a return, he must contest the plaintiff’s right to the property. This be may do by formally traversing the plaintiff’s allegation of right, or by pleading specially that the right of property is in some one, other than the plaintiff. The defendant is bound to take this course, before he can contest the plaintiff’s right. The object of these allegations by the defendant is to procure a return of the property, and to impose on the plaintiff the necessity of proving title to sustain his action. These allegations, when made, require the plaintiff to make out his right. If the defendant pleads property in himself or a third person, he must in the same plea traverse the plaintiff’s allegation of right. In such case the allegation of property in the defendant, or a third person, is only considered as inducement to the traverse of the plaintiff’s right, and the plaintiff must take issue on the traverse, and not on the inducement. On such an issue, the substantial matter in dispute is the right of the plaintiff to the property. The plaintiff holds the affirmative of the issue, and must sustain his right, or fail in the action. What the plaintiff must prove, the defendant is at liberty to disprove. This he may do, by showing a state of facts inconsistent with the plaintiff’s claim of right. That this is the doctrine governing the action of replevin, is abundantly established by the cases of Bemus v. Beekman, 3 Wend. 667" court="None" date_filed="1829-12-15" href="https://app.midpage.ai/document/bemus-v-beekman-6118936?utm_source=webapp" opinion_id="6118936">3 Wend. 667; Rogers v. Arnold, 12 do. 30; Prosser v. Woodward, 21 do. 205, and the numerous authorities there referred to.
' Applying these principles to the present case, there is no difficulty in determining it. The only substantial issue in the case was the right of the plaintiffs to the property in dispute. The burden of sustaining this issue was on them. They failed to adduce any evidence to sustain their allegation, and of course had no right to recover. They were not prejudiced by the introduction of the testimony objected to, and they had no foundation for a new trial.
It is, perhaps, proper to remark, that the first, third and fifth pleas, were defective in not traversing the plaintiffs’ allegation of right to the property. This defect, however, was aided by the replications. The same issue was formed as would have been, if the pleas had contained the proper traverse.
The judgment of the Circuit Court is affirmed with costs.
Judgment affirmed.
The plaintiffs, by O. Peters, their counsel, filgd their petition for a rehearing, which was denied