Stinchfield v. Twaddle

81 Me. 273 | Me. | 1889

Virgin, J.

Trover to recover the value of numerous articles of various kinds of household furniture, agricultural implements, robes, harnesses, etc.

The declaration contains all of the essential allegations in trover excepting a description of the property. Instead of any description whatever of that, other than is expressed in the words “divers goods and chattels,” the declaration refers to “the goods and chattels in the schedule hereunto annexed and of the value therein mentioned.” The schedule annexed contains a detailed statement, of the various kinds of chattels, with the number and value of each article.

The defendant challenges this mode of pleading.

A very general description of the property in actions of trover is sufficient, though it is otherwise in replevin. Taylor v. Wells, 2 Saund. 74 and notes, Colebrook v. Merrill, 46 N. H. 160. But descriptions as indefinite as “divers goods and chattels” are clearly insufficient on which to found a judgment.

Learned judges have declared, that in trover, a schedule annexed to the writ, is no part of the declaration. Note to Kinder v. Shaw, 2 Mass. 398. That incidental remark of Judge Parker was approved in Rider v. Robbins, 13 Mass. 285. A like view was formerly taken of an “account annexed,” in assumpsit. “By ancient usage,” said Peters, C. J., “this form of declaring has been sanctioned in this and other states. * * The account annexed to the writ. is allowed to supply the want of proper allegations in the body of the declaration.” Cape Elizabeth v. Lombard, 70 Maine, 399.

On recurring to “Oliver’s Precedents” — the only book of the kind used in tins state since the separation — numerous forms in trover like that adopted by the plaintiff are found drawn by early eminent pleaders in Massachusetts. Such was the form used in New Hampshire, though it was considered “somewhat untechnical to do it.” Woodbury, J., in Hilton v. Burley, 2 N. H. 193, 195. And the court in that state refused to sustain the objection after verdict. Edgerly v. Emerson, 23 N. H. 572.

While in this state the practice has generally if not universally •followed “Oliver’s Precedents” whenever the property involved comprised numerous articles, — and the question lias never before been raised, we think as the defendant cannot be injured by the omission from the body of the declaration what is so fully set out in the schedule annexed, that the “untechnicality” must yield to long usage, and especially as the demurrer was filed at the return term and the defendant can plead to the merits if he desire.

Exceptions overruled.

Peters, C. J., Walton, Danfoeth, Emery and Haskell, JJ., concurred.