Several reasons for a new trial have been urged in this case, some of which are founded upon the form of the verdict, and others upon the form of the pleadings, and the evidence admissible under the pleadings, as well as upon the merits of the case.
The defendant pleaded five pleas, viz. non cepit; property in himself; property in Jennings & Craige; property in Robert A. Parrish; and that the property was in the possession of the sheriff under execution.
As to the last three of these pleas, the jury were told (in substance), that there was no evidence on the part of the defendant to support them. They were also instructed that the defendant’s defence, if it could avail him at all, must avail him under the pleas of non cepit and property in himself. This however was not so much a matter of direction to the jury, as an intimation to the counsel, and the observation was made with a reservation of the question for the consideration of the whole court.
The jury were specially charged to inquire into the facts, controverted between the parties, viz. whether the defendant had notice, before the time of his advance to Jennings & Craige, that they were not the actual owners of the merchandise in question, and whether the defendant had not, according to the evidence in the cause, waived his lien for his advances.
The question of law therefore is fairly brought up for decision. I shall in the first place notice the questions raised upon the pleadings.
The authorities are clear that the plea of non cepit controverts all the material averments in the declaration, excepting that *454which affirms that the goods mentioned are the goods of the plaintiffs. The terms of this plea are sufficiently broad to comprehend the question of property, and according to the analogy of the actions of trespass and detinue, it would seem, that the defendant should be allowed to show under this plea that the goods taken were not the goods of the plaintiffs. But the authorities are otherwise. The point disputed by this plea (of non cepit), is the plaintiff’s right to recover damages, while his right to retain the chattel (where the declaration is in the detinuil), is admitted.
The only plea therefore which remains to be considered, is the plea of property in the defendant.
The import of this plea is that the general and absolute property of the chattels in question belongs to the defendant. It is therefore inconsistent with the pleas of property in Jennings & Craige, and in Robert A. Parrish ; and this consideration is a sufficient answer to the argument that the jury may have found the plea of property in Jennings & Craige in favour of the defendant, contrary to the charge of the court, and also found the plea of property in the defendant in his favour, on the ground that he derived a special property from Jennings & Craige, by the hypo-thecation which they made of the goods to him.
But assuming this plea to be of the import stated, the question arises whether evidence of the defendant’s special property in the goods, by way of pledge, is good evidence to support the issue on his part.
The plea of property in the defendant is properly a plea in bar of the action, because it tends to show that the plaintiff has no right to have the chattel replevied restored to him, which is the principal object of the suit.
It is inconsistent with the allegation in the count or declaration which affirms that the chattel is the plaintiff’s property. A formal traverse however should be added, because without it the plea would deny the plaintiff’s property only by way of inference or argument. 1 Saund. 22; 1 Levintz 192; 2 Keble 94, 105; 5 Com. Dig. 109. But the traverse need not be, in form, a special traverse, as is proved by the precedents. 3 Wentw. Pl. 17; 3 Chitty Pl.; Hern's Pleader 4; 1 Brown Ent. 310; 1 Mod. Ent. 300; 1 Comyn's Rep. 247.
Yet in either form the plea is essentially a traverse, as nothing can be replied to it except (at most), the reiteration of the plain*455tiff’s averment of property in himself. And it may (and unless the traverse be in form of a special traverse it should), conclude to the country.
Such then being the nature of the plea, this plaintiff is bound to maintain the issue on his part by evidence in support of the allegation traversed, but it is not necessary for him, in order to avoid a wrongful caption to give evidence, that the absolute property of the chattel belongs to him, because in this action, as well as in trover, a prior possession is evidence enough of a right of property against all others but the right owner, so that in case of an unlawful caption, if the defendant admits that he has no property in himself, but pleads property in a stranger, he cannot have the return of the goods against the prior possessor, who has replevied them. Comberb. 477, Barret v. Scremshaw. See also, Marsh v. Pier, 4 Rawle 282.
The plaintiff however must give such evidence of property as carries with it the right of immediate possession, because the primary object of the action is to have the chattel restored to him, and the plea of property in the defendant is in bar of the plaintiff’s claim to have the chattel restored.
Besides, the plaintiff must have been possessed of the chattels at the time of the injury committed, or if not actually possessed, he must have had either the absolute or a special property in the goods, and be entitled to the immediate possession of them, otherwise they could not have been taken as the writ supposes. Quare cepü averia et ea injusli detinit. And the plaintiff’s right to possession must continue to the time of the judgment pronounced, otherwise he will not be entitled to the restoration of the goods in question.
The defendant does not indeed plead formally to the plaintiff’s right of possession, but the plea of property in the defendant, as it operates as a traverse of the plaintiff’s right of property in the chattels, virtually puts in issue the plaintiff’s right of immediate possession, so far at least as to make it incumbent on him to show such a right of property as carries with it prima facie, the right of immediate possession.
Such, then, being the exigency imposed upon the plaintiff by the traverse of his right of property in the chattels, the issue must be found against him, where he gives no evidence, px the evidence *456which he gives is insufficient to justify the jury in finding the property to be his.
As therefore the defendant is not bound to give any evidence except where the plaintiff makes out a prima facie case, it follows that the evidence which he is allowed to give under this issue, must be such as tends either directly or by way of necessary inference, to rebut or contradict the evidence given by the plaintiff to maintain the issue on his part.
In other words, the defendant is allowed to prove the matters alleged by way of inducement to the traverse of the plaintiff’s right of property, not because it is of the substance of the issue, but because such proof would be the foundation of an inference that the property was not the property of the plaintiff.
If the defendant be a tort feasor, the plaintiff may prove his prior possession and the wrongful caption, and rest his case upon such evidence. But, in such a case, where the defendant pleads property in himself, the plaintiff takes the risk upon himself, that the matters alleged in the inducement of the plea cannot be proved: for, if we suppose that sufficient evidence be given of property in the defendant, it would effectually rebut the evidence on the part of the plaintiff, which would be received as sufficient against a tort feasor, in support of the averment, which alleges the property of the chattels to belong to the plaintiff.
Certainly, therefore, it would not be consistent with the issue, to allow the defendant to give evidence on his part which is in confession and avoidance of the plaintiff’s evidence.
If the matters alleged in the inducement of the traverse be in confession and avoidance of the averment traversed, the plea would be repugnant and demurrable, 1 Saund. Rep. 22; (2) 5th paragraph; Steph. on Pl. 209. This consideration is decisive of the question of evidence.
The question, then, is, whether the evidence of the hypothecation of the goods of the plaintiff by J. and C. to the defendant for advances, is in confession and avoidance of the averment of the property in the plaintiffs'!
Undoubtedly it is: for such evidence asserts a right to detain the goods by reason of the pledge, while it admits that but for the pledge the plaintiff would have a right to possess the property again.
On this ground, then, I conceive that the defendant cannot, *457according to the principles of pleading and evidence, show such special matters to maintain the issue on his part. If important to his defence, they should be specially pleaded. See 1 Sch. & Lefroy 320, 327.
The language of the charge, therefore, was faulty in precision: for the matters given in evidence by way of defence did not tend to support the issue on the part of the defendant.
But no prejudice was done to the plaintiffs by the remark alluded to, as the questions were reserved, and the jury directed to inquire about the facts in dispute.
The conclusion to which I have come upon this question is at variance with the case of Murray v. Paisley, in 1 Yeales 197, and this has been the chief cause of embarrassment upon this part of the case. Perhaps it would be our duty to defer to its authority if the decision of the motion depended on this question. In opposition to Murray v. Paisley is the opinion of Chancellor Redesdale, in Exparte Chamberlin and Shannon v. Shannon, 1 Sch. & Lefroy 220, 227. I rely, however, more upon the principles of pleading and evidence, which seem to me very conclusive of the question.
But, on another ground, I think the verdict of the jury upon this issue should be for the defendant; namely, this: that, upon the plaintiff’s own showing, he had not the right to the possession of the goods in question.
If we strike out of the case all the defendant’s testimony, and all the testimony of the plaintiff’s witnesses on their cross-examination by the defendant, it will appear, that while the general property in the iron belonged to the plaintiffs, yet they had conveyed it to Jennings and Craige, as their factors, to sell, and that J. and C. had hypothecated it to the defendant for advances, which did not appear to have been repaid.
Looking, then, to the evidence which the plaintiffs themselves introduced to maintain the issue upon their part, it is impossible not to see that they had no such right of property in the iron as, under the facts which they themselves put in evidence, gave them the right to the immediate possession of it. They must fail, therefore, upon this issue, upon their own evidence, and not on the ground of the evidence which the defendant relied on to maintain the issue upon his part.
If the plaintiffs could have proved simply the fact of their *458ownership of the iron which they had replevied, so as to cast on the defendant the burthen of proving the consignment of it to Jennings and Craige, and the hypothecation of it to him by the latter, the evidence could not (upon the principles stated) have been received in contradiction of the prima facie case thus made by the plaintiff; but he must have used it in confession and avoidance of the plaintiff’s right thus shown, and of course would have needed a plea appropriate to these matters.
As to the question, whether the defendant had not waived his lien for advances—
The jury were told, that the mere denial of the defendant, that he had any of the property of the plaintiffs in his possession, so far as he knew, would not amount to a waiver.
They were told, also, that the mere refusal of the defendant to make known the amount of his advances on the demand of the plaintiffs, would not amount to a waiver.
But if the plaintiffs had demanded the iron of the defendant, and he had claimed the right to retain it, not as deposited in pledge, but on some other and distinct ground, the defendant could not set up his lien afterwards.
This direction appeal’s to me to be right; and I do not see any thing in the evidence which required further direction, or which could amount to a waiver of lien, or which should stop the defendant from setting up this defence.
He did, indeed, refuse to give information to the plaintiff?, brt he said nothing which either misled the plaintiffs as to the nature of his claim, or which dispensed them from the obligad on to tender him the amount of his advances, or the negotiable security.
Upon the whole case, then, I think the judgment should he entered on the verdict.